FC: CEI's reply to Berman's war on trading: What's wrong with DRM?

From: Declan McCullagh (declanat_private)
Date: Tue Jul 02 2002 - 18:41:54 PDT

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    CEI is a free-market think tank in Washington, a tad more outspokenly 
    libertarian than the Cato Institute. It may be best known for its work on 
    environmental issues, where it has pointed out government reliance on junk 
    science. Jim Delong, who wrote the below message, is an occasional 
    contributor to Politech:
    http://www.politechbot.com/p-03203.html
    http://www.politechbot.com/p-00251.html
    http://www.politechbot.com/p-00120.html
    
    CEI is holding an event on July 22 on digital rights management:
    http://www.cei.org/gencon/003,03106.cfm
    
    Previous Politech message:
    http://www.politechbot.com/p-03702.html
    
    -Declan
    
    ---
    
    Subject: (SPAM?) CEI's Weekly Commentary:  IP and Technological Self-Help...
    Date: Tue, 2 Jul 2002 16:18:19 -0400
    From: "Richard Morrison" <rmorrisonat_private>
    
    CEI C:\SPIN
    
    This issue:  IP and Technological Self-Help:  Barbed Wire for the Digital Age
    
    
    This week's c:\spin, on intellectual property, is by James V. DeLong, 
    Senior Fellow, Project on Technology and Innovation, CEI, July 2, 2002.
    
    
    Barbed wire won the West.  The image of the open range is romantic, but 
    lack of controlled boundaries led to over-grazing, lost stock, trampled 
    homesteads, bitter conflict, and, in the jargon of a later era, an 
    inhibited investment climate.
    
    The Internet is sometimes analogized to the Wild West, and last week 
    Representative Howard Berman (D-Cal.), who has many Hollywood-oriented 
    constituents, took a step toward making some barbed wire.  He announced a 
    bill to allow copyright holders to forestall unauthorized P2P distribution 
    of their works through technological self-help measures, including 
    interdiction, decoy, redirection, file-blocking, and spoofing.   Explicit 
    authority is needed, he says, because technological self-help might violate 
    some existing laws.
    
    Berman's speech added that legislation should be narrow, should not allow 
    damage to computers or introduction of viruses, and should provide remedies 
    for any P2Per who is treated unfairly.
    
    As the ranking minority member of the Subcommittee on the Courts and 
    Intellectual Property of the House Judiciary Committee, Berman has clout, 
    so his bill, when he introduces it July 11 is rumored will get serious 
    attention.
    
    And a fine donnybrook it will be.  Initial reporting was mostly neutral, 
    but the terms sabotage, vigilantism, and cyber warfare did appear.  They 
    will be used again, because Berman s proposal raises two major concerns, 
    one fair and one illegitimate.
    
    The fair objection is that the threat of outsiders probing our computers 
    makes us queasy.  Also, we are not yet convinced that a system can be 
    designed that will not be error prone.  In response, proponents of 
    self-help argue that participating in a file swapping network already opens 
    up a computer to the world at large, and undercuts claims of privacy.  In 
    any event, if one downloads the latest Eminem hit only to find that is a 
    decoy containing a lecture on the evils of theft, can one really claim 
    harm?  Of course, some devices are unlikely to be approved, such as snitch 
    programs, which seek out copyrighted material and report back.  As to 
    avoiding error that is indeed an issue, but it should not be insoluble.
    
    The less respectable objection arises from the reality that large segments 
    of the Internet community are fundamentally opposed to protecting 
    intellectual property.  Their fear is not that technological self-help 
    systems would fail but that they would work.
    
    The premise of this position, that the spirit of the Internet is somehow 
    opposed to property rights, seems basically wrong.  Protection of 
    intellectual property, like protection of physical property, has vibrant 
    moral, economic, and political justifications.  And as CEI has often noted, 
    the promise of the Internet, which is to make a cornucopia of content 
    available instantly and cheaply, cannot be realized without a way to 
    provide creators with the wherewithal to feed their bodies while their 
    spirits soar.  It is perhaps a paradox, but if information is to be freely 
    available it cannot be free of charge.
    
    In this calculation, technological self-help under reasonable legal 
    standards looks good.  Combined with digital rights management and micro 
    payments, it would spur the creation of legitimate sites and reduce the 
    pressure behind the P2P movement.  This would be far better than leaving 
    copyright holders no way to protect themselves except by deploying 
    battalions of lawyers seeking increasingly draconian penalties.  It would 
    also be better than expecting artists to work for free while they scrounge 
    out a living selling T-shirts and flipping burgers.
    
    A basic legal case on self-help recovery of property is Richardson v. 
    Anthony, an 1840 Vermont lawsuit over two heifers.  If Berman's 
    technological barbed wire can keep those copyright cows from straying, we 
    will all be better off.
    
    
    
    Invasion of the Idea Snatchers:  Defending Technological and Artistic 
    Innovation
    
    A Forum on Intellectual Property Rights
    
    July 22, 2002
    
    8:00am 2:00pm
    
    Senate Caucus Room (Rm. 325 Russell Senate Office Bldg.)
    
    For more information click here or contact Maura McGonigle at (202) 
    331-1010 or mailto:mmcgonigleat_private
    
    
    C:\SPIN is produced by the Competitive Enterprise Institute.
    
    CEI works hard to keep you informed about high tech public policy issues 
    and to present the case for free-market solutions to policy problems. We do 
    this free of charge, but it is far from free for us. We rely on the 
    generous support of those who appreciate our work.  
    
    
    
    
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