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Comments from Frankston, Reed, and Friends
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Thursday, July 15, 2004 DanB at 11:01 AM [url]: Software That Lasts 200 Years and DRM I have a new essay that talks about writing "industrial level" software. The structure and culture of a typical prepackaged software company is not attuned to the long-term needs of society for software that is part of its infrastructure. The essay discusses the ecosystem needed for development that better meets those needs. There is a somewhat different than normal role for open source. The need for compatibility, testing, and long-term robustness can be thwarted by DRM. The related part of the essay: "There is the whole issue of data storage and interchange standards that is critical to the long-term success and ability to do migration. Impediments such as intellectual property restrictions and "digital rights management" chokepoints must be avoided. (Lawmakers today must realize how important data interchange and migration is to the basic needs of society. They must be careful not to pollute the waters in an attempt to deal with perceived threats to a minor part of the economy.)" The essay is "Software That Lasts 200 Years". Monday, July 12, 2004 DPR at 11:30 AM [url]: The INDUCE Act is utterly flawed I'm not any kind of expert on construction of legislation, but the proposed INDUCE Act (S 2560) seems to be rationalized on the most ignorant and stupid intellectual basis I have ever encountered since the Tennessee legislature attempted to declare by law that pi was equal to 3. That is, the proposed change to the copyright act presumes that those who construct systems to transport bits can at little cost and with great certainty determine the intent of any person or system that uses those bits. However, ever since Claude Shannon formalized in information theory the notion of an information "bit" independent of its meaning, we have lived in a world where the meaning of bits cannot be determined merely by looking at them. Yet this proposed law, INDUCE, makes such an assumption at its core. While self-explanatory meaning of an embodiment may have been true in the days when books were printed in final form intended to be consumed directly by users, the meaning and source of bits cannot be determined by a transport or storage system. There is no way to interpret a particular set of bits at a point in a modern digital system as meaning anything, unless you have access to the entire process by which the bits are generated, distributed, processed, and presented. This prior paragraph means that one must apply extraordinary effort at the point of expression (creation of a meaningful set of bits) to ensure that meaning is clearly associated with the bits. The expression may occur at a source, or be done by remote control in such a way that the expression is first fixed close to the ultimate users. If the copyright owner of a set of bits wishes to assure that his/her/its bits are protected, they must bind them together in a fixed and non-decomposable form that preserves their integrity, at that point of expression. There are technical ways to do that (in particular, packaging them in encrypted form, in such a way that they cannot be decoded from end-to-end). This would mean that only those who can unbundle them can infringe, and would place the burden of protection on the end points where it belongs. 1. Though the intellectual property bar and its clients may fantasize otherwise, most information according to the technical definition of information (Shannon's) is not by nature (or by law) property. Technology to distribute information is used to disseminate bits across distance and time. Those bits have meaning only to the users or to the systems that interpret them, not to the transport media. 2. The synthetic legal construction of intellectual property resides in a "fixed form of expression". Again, bits being transported are neither fixed, nor a form of expression, until made into a form that can be perceived by a user. 3. To blame the system that carries some(but hardly all, given that one might need Microsoft Windows' Windows Media Player) of the bits needed to construct a fixed expression (a display or presentation) for the actual expression of those bits is akin to blaming optical fiber or copper wire. 4. Any reasonable person would realize that some silicon chips and some copper wires, and some optical fibers will be used in the act of infringing copyrights. These components are no different than the software and algorithms that are used. In fact, it may be that certain patents, which are property themselves, are used in infringement, so the patent-owners should be prosecutable under the reasonable person interpretation. Somaking the test of inducing infringement be based on a reasonable person's interpretation of a possible application of a system defines nearly every technical tool as potentially "guilty". The end-to-end argument (of which I am a co-author) is a general design principle for placement of function in a network. It would suggest that the function of copyright infringement protection be placed at a point in the system where copyright infringement is well defined, and can be tested by the system. The point where infringement is well-defined is at point where an infringing copy is created, combined with the act of making it available in a way that violates the rights granted to the copier. I assume this is a simple legal principle - a crime includes both the action and the intent. Making mere transport of bits illegal under new legislation, and at attempt to provide a weak interpretation of intent opens the door for those who own intellectual property to try to grab control of large areas of bit distribution technology that have lots of benefits outside of the intellectual property sphere. It's time that the owners of intellectual property are encouraged to recognize that their proper sphere of influence consists solely of the space around the specific fixed expressions that make up the boundaries of their synthetic rights. The bits are merely zeros and ones, and are no more inherent to the expression than do the particular particles of ink in a particular book. The systems that transport bits are indeed becoming more efficient, but that efficiency does not and cannot determine which bits are intellectual property and which are not. No bit transport technology is specific to intellectual property alone. Hijacking the bit transport industry by the intellectual property owners is an egregious expansion of their power, and government should be ashamed to even try to do this. |
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