It seems that a revolution is occurring around us. Sure, we have witnessed the digital revolution that has profoundly changed the way we work and play. But this revolution is different. This revolution actually has combatants and unlike the digital revolution, this revolution will have a profound effect on rights and privileges that we have held dear since the ratification of the Constitution.
While the RIAA v. Napster and the MPAA v. 2600 cases cover two different areas of intellectual property, they both have had, are having and will continue to have a profound effect on both the high-tech industry and high-tech users.
I'd like to call the RIAA and MPAA the forces of darkness, and the sundry individuals and groups on the other side of these issues the forces of light Unfortunately I can't quite get there. Sure the guys who wrote
DeCSS are on the side of right, the
Electronic Frontier Foundation (EFF) definitely is on the side of right,
Napster is probably on the side of right. However, I can't quite place most of the users of Napster on the side of right.
The RIAA v. Napster suit is interesting because it was brought about not by the defendant's service, butt by the users of the defendant's service. While the recording industry is not made up of angels (see,
Courtney Love's very interesting tirade) they should have a right to expect that their intellectual property rights will be respected. Unfortunately many of the users of Napster's service were not respecting those rights.
While a few Napster users said what they were doing was a form of civil disobedience, they are far from the majority, and for the most part that argument was used as an excuse. Regardless of how users are using the service, since when did a company become liable for the way in which its tools were used. Phone companies are not responsible when phones are used to conduct illegal activities. Ford is not responsible when one of its vehicles is used in a hit-and-run. So why should Napster be held liable for the illegal activity of
some of its users.
Regardless of which side of this issue you stand on, the seeds for a revolution in how music is distributed, listened to and paid for have been sown. If the RIAA cannot get both its technology and its public relations acts together soon, they will be swept away by the winds of the digital revolution.
The MPAA v. 2600 suit is an excellent example of corporate bullying. I am very pro-business, pro-capitalism person, but I firmly believe that the MPAA has over-reached, and is trying to quell both intellectual freedoms, and copyright freedoms that we have held dear for a couple of centuries. The judges ruling in this case, while expected, shows that he just didn't get it. The MPAA obviously doesn't get it. They believe that Open Source advocates are a group of people out to eliminate all intellectual property rights.
There are two things that are extremely bothersome about this case. The first is that as consumers, you and I should have a right to do
anything we want with the products we purchase. The MPAA is telling us this isn't so. They are telling us that the DVDs that we purchase can only be viewed on players which they have licensed. Why? If I by a DVD, I should be able to use it as a frisbee, smash it with a hammer, make Christmas ornaments with it and view in anyway I see fit.
Let's use a movie related analogy. As we all know, the normal use of a car is to drive it, to use it to get from point A to point B. The movie industry uses some cars in this fashion. However, in many movies the primary use of a car is to crash it, or blow it up, or, in the case of the most recent James Bond film, to cut it in half lengthwise. What would happen if BMW sued MGM because they did not approve of the way the studio used the lovely Z3? I would guess that MGM would laugh all the way to the attorneys office and would tell their attorney "We bought the car, we can do anything we want with it."
The MPAA is doing something similar. They are saying that the normal usage of a DVD is to play it on a computer or a home player that uses licensed CSS technology. Since DeCSS can be used to play a DVD on a non-licensed player, it should be banned. This effectively quells our nation's history of the Fair Use doctrine of copyrighted material.
The second issue is a free speech issue that has deep implications. While the MPAA was not able to show one single instance of a crime having been committed using the DeCSS code, they were able to get the judge to ban both the posting of the code on the web, and the linking to a site that posts the code. Since I definitely view my source code as a form of expression, as do many other hackers, this ruling will have a chilling effect on my right to write and share code.
I'm am a relative late comer to the world of Open Source. My views on intellectual property have been shifting significantly over the last couple of years. Unlike some Free (as in speech) Software advocates I do believe that there
is room in our world for intellectual property. I don't believe in software or business process patents. The abuse of the patent system by many software companies is destroying what should be a fair and effective system. Software companies are not the only ones to blame. The U.S. Patent and Trademark Office has been complicit in the problem by not adequately examining many of the patents that come through the system. It needs to be fixed.
After I originally wrote this piece, I became aware of another related situation...
A couple of weeks ago I got a box in the mail. It contained something called a CueCat that was produced by a company called Digital Convergence.
A CueCat is a cute little barcode scanner that actually looks like a cat. It only comes with Windows software, so I didn't play with it at all. The CueCat is designed to connect print media (e.g., "Wired" magazine) to the web. It works like this if you use your CueCat to scan a Cue that is printed in your magazine, your browser will start and you will be presented with more information regarding the topic associated with the printed Cue. This is actually a pretty cool use of technology. What is not cool is that Digital Convergence tracks your CueCat using a hardcoded serial number. It then tracks what you look at and when each time you scan something with your little bar code reader.
Since there was no Linux software available for the CueCat and since Linux hackers love a good challenge, it wasn't long before a
CueCat decoder for Linux that allowed you to scan any barcode not just Digital Convergence's Cues showed up on the web. It wasn't long after that that the author started getting cease and desist orders from Digital Convergence's lawyers, saying that the Open Source driver infringed on Digital Convergence's intellectual property. Once again, we have a company telling us what we can and can't do with something we own.
I actually don't care about bar code, and don't have any use for the CueCat. Since I was mailed my CueCat without asking for it. I e-mailed Digital Convergence, told them that I did not agree with their End User License Agreement (EULA) and requested that they send me a shipping container and return postage so I could return it to them...
...Stay tuned.
Updated 12/15/2000
Saw this related post on Slashdot and thought it was very apropriate.
Updated 01/20/2001
The EFF has filed their appeal of the DeCSS decision. The appeal can be found here and is an interesting read.
