The article questions why Digg censors spam and porn, but not the HD-DVD key. I think mainstream media is now going to use this as an excuse to turn on web 2.0. They've been waiting for the opening, and now they have it. Not that I'm the biggest web 2.0 fan myself, but you can argue the point either way so if it goes south it's a preconceived notion
that's the next point in the media hype cycle, turning on the beloved.
Media follows stories that mirror the plot of every "Behind the Music" out there.
"And then, it all went wrong for Digg.com...'
dun dun dun...
Here's a snip from the article, "The First Amendment vs. Patents in Web 2.0," by Michael Malone.
As for Diggers, like self-obsessed post-adolescents everywhere, they are justifying their deed as an act of liberation, arguing that copy protection is evil, and -- applying the same defense corporate crooks used 20 years ago with gullible juries -- that they really weren't stealing anything more than a bunch of numbers.
The great Web satirist Iowahawk has already punctured that argument by posting Kevin Rose's home address (after all, it's only numbers) and suggesting that every Digg user head over to his house for a giant party. So I'll make the more sober argument.
It is this: all information is not equal in value. Some of it was created with considerable investment in time and money that needs to be paid back. Other information is the product of creative minds that deserve to be rewarded for their contributions to humanity. And still more is vitally important to the ongoing employment of thousands of people and the families they support.
How appropriate that this scandal occurred on May Day, because only a utopian fantasist would argue that all information should be free. It was Abraham Lincoln who said that America's two greatest contributions to mankind were the Declaration of Independence and U.S. Patent (i.e., intellectual property) law. And while I empathize with the frustration of folks who find themselves impeded from the full use of the latest technologies, those morons who want to destroy private property (and that includes trade secrets) put at risk the very future of innovation itself -- not to mention that great creator of human freedom, entrepreneurship.
BoingBoing readers, I'll gladly post thoughtful your thoughtful rebuttals here: Submission Link.
Previously on BoingBoing:
UPDATE: Iowahawk says he didn't post Rose's home address -- just a pretend address. Assuming this is correct, the ABC News columnist totally blew it, and the whole piece sort of evaporates right there. Iowahawk says:
Your Boing Boing post regarding Digg-gate & aftermath contains a couple references to my satirical post about an open house party at Kevin Rose's house (Link).
One of your commenters (Mr X) criticizes me for ostensibly publishing Rose's home address, noting that "Publishing private information for people that you disagree with is a common tactic for certain bloggers, who take no responsibility for the subsequent actions of their readers."
I want to point out that the address does not exist; there is no such place as "9624 Penfield Court, Alta Vista." google maps link.
Kevin Rose's actual address is 1406 Valley Glen Drive in Mountain View. (Just joking.)
Irrespective of how I feel about the whole Digg / AACS business, I want to clarify that I would never publish anyone's personal information on my site.
YOUR COMMENTS after the jump.
Just wanted to make a quick observation on Michael Malone's "sober argument":
I agree wholeheartedly with what he is saying. But what he is saying differs from the situation slightly -- the key wasn't painstakingly handcrafted. It was discovered. It wasn't the product of creative minds, it was the product of a computer sitting around crunching numbers for a while. It wasn't a contribution to humanity in the sense that he is implying, it is a number that doesn't intrinsically hold any data, like an illegal prime (http://en.wikipedia.org/wiki/Illegal_prime) does.
It is a key; a key which was given to some players to unlock the HD-DVDs, just like a house key opens a home. It is not a crime to have a key to open a lock, the crime is opening a lock to enter a home without the homeowner's permission.
Anonymous 2 says,
I find it hilarious that MSM also means "men who have sex with men". Just a thought.
"It is this: all information is not equal in value. Some of it was created with considerable investment in time and money that needs to be paid back."
This would be true if DRM and this AACS number had value. However, the consumer cannot foot the bill for the mistakes of a company who decided to poorly spend their earnings on a system that is easily broken instead of giving to its hard-working employees who spent time out of their lives to create a meaningless and ineffective attempt at controlling how consumers use what they have already purchased.
The assumption that DRM and AAC have any positive value is the key flaw in this argument. Time and time again, they have been proven to be costly, ineffective, and only harm the people who have already spent their money and are just trying to watch their damn movie.
My only question is: How can I be an entrepreneurial innovator (or an innovative entrepreneur) if the basic building blocks of my innovation, i.e. knowledge of what others have done before me, is locked up by corporations and can only be gotten through hefty investments of money? Many, if not most, innovators start with near infinite supplies of determination, lots of brains, and good old fashioned hard work, but probably not so much money. So I wish someone would explain to me how locking up numbers and charging royalties helps innovators.
My understanding of what has made humans reign over the other life on this planet is that we got organized, learned from each and shared knowledge, so that everybody who wanted to build, say, a new form of transportation, didn't have to, to coin a phrase, "reinvent the wheel." (Or has that already been said?)
Dan K. says,
I was going to write about how the "great Web satirist Iowahawk"'s idea to post Kevin Rose's home address wasn't a good example, but on second thought it's perfect. Just like Kevin Rose's address is publicly available (or easy enough to obtain), an AACS key is available right there on the disc. And just like Kevin Rose's address, there are legitimate and illegitimate uses for that information: sending Kevin a letter at that address would be perfectly fine, but using the address to commit mail fraud would be wrong. Likewise, I can legitimately use the information present on the disc in order to create a personal backup copy, as is my right, or use it illegitimately to sell pirated discs on a mass scale. People who abuse information for nefarious purposes should be held accountable, but simple possession of information is not criminal.
I think that the underlying problem here is that for the majority of users; free information, filesharing, and an open "Web 2.0" approach don't lead anywhere beyond simple piracy. They're still mentally shackled to the idea that Hollywood provides their entertainment-- and they can't (or won't) take the next step toward a DIY future where users create works themselves.
Stephen Lindholm says,
The article Xeni posted makes a serious error when it conflates this DMCA legal dilemma with trade secrets. One of the requirements of a trade secret is, not surprisingly, that it be a secret. Trade secret liability is generally for revealing the secret, not for repeating something which has become public knowledge, after having been repeated hundreds of thousands of times on the Internet. Similarly, the reference to Kevin Rose's house number is a boogeyman argument. Most people's house numbers are public information, and in fact they are printed in large books distributed free to everyone who owns a telephone. It is not illegal to communicate someone's house number to someone else. You might recall the Planned Parenthood v. American Coalition of Life Activists case, where an appeals court held that it was protected speech under the First Amendment to list the names and addresses of abortion doctors and brand them "baby butchers" because the list did not authorize or directly
threaten violence. What is disturbing about the legal mumbo-jumbo surrounding this integer is that there is widespread belief that it has become illegal to repeat a number which is publicly known. Does that not strike anyone as insane? Why stop there? Why not ban racist or sexist remarks from being uttered, or ban remarks which might undermine the war effort? I sincerely hope that someone brings a test case in federal court to end this nonsense.
As usual, the talking heads of the MSM miss the point of what happened with the code over the last several days. We could chalk it up to "self-obsessed post-adolescents" or people who behave like them, but the scope and scale is much larger than that now - 677,000 and counting, according to google.
The point - in a nutshell - is that DRM sucks and users hate it.
But even if your not really interested in the deeper meaning of human interaction, this story has totally concrete and practical business lessons.
Copy protection & DRM does not work, it has never worked and it never will work because ten guys in a room getting paid 9-5 to protect something for their job will always lose to millions of nerds around the world working for free around the clock to crack it for fun.
Every single dollar or man-minute spent on copy protection, DRM, or whatever you want to call it is wasted time and money. Take whatever you were going to spend on copy protection and make your product better instead.
Users hate copy protection. Since it doesn't do what it is intended to do, protect your whatever from being illegally copied, all it does is hurt the legitimate users. Illegal copies will be made no matter what and any arbitrary restrictions or locks you put on your product only make it harder and less fun for your paying users to use. Unless, of course, they go on the internet and get a crack for it. In other words, as long as DRM and copy protection exists, your company's worst enemy - the pirates - are providing a better product for less money - free.
Kyle Johnson says,
I spent some time thinking about much of this issue, and to me it comes down to this. If the HD-DVD folks are going to claim ownership of this grouping of numbers and letters, don't they have to publish them to gain copyright over them (which they need to use the DMCA hammer)? If no other numbers are published, what would happen if someone publishes all 1.02 x10^24 possible keys (minus the one already published) and released them under a creative commons license?
Of course, that's really the wrong answer, as I don't think you can own a string of numbers and letters, but still...
I'm conflicted on the argument that one cannot claim ownership or copyright on a number. In the AACS case it is a 16 digit key. But isn't the nature of digitized work that anything can be just a number? Isn't an online book or a movie or piece of software ultimately just a string of digits? So claiming a 16 digit alphanumeric sequence is considered wrong, but claiming a 100,000,000 sequence is ok?
Mr. X. says,
I think that it's informative to look at Malone's rant in the context of the page that it's on. As I moused over the page, a more-annoying-than-usual popup appeared featuring a talking head, which gave a completely insincere apology for interrupting my web browsing. After I got rid of it, I looked at the base of Malone's column, where I found this interesting truncated tidbit:
Tad's Tab: The latest from the teen tech trenches, by Malone's 15-year-old son, Tad Malone:
Wasn't the Web supposed to improve productivity? Not anymore. Not when you click on a Web site and the screen instantly fills with distracting advertising windows and banners. Now a cool new app, called Clutter Cloak
Interesting. Would someone else of Malone's general philosophical inclination say that Clutter Cloak should be illegal because it circumvents an advertiser's right to the eyeballs of the people who are reading the page? Is Tad Malone aiding and abetting attention theft?
Also, I was amused to see Malone's citation of "[t]he great Web satirist Iowahawk", since I'd never heard of him before; once I took a look at the post in question, it's pretty obvious as to why. Publishing private information for people that you disagree with is a common tactic for certain bloggers, who take no responsibility for the subsequent actions of their readers.
Alvin Cheung says,
Full text of my email of complaint to ABC follows:
I was directed to "The First Amendment vs. Patents in Web 2.0", an article by Michael Malone, and read it with considerable interest, not least due to its reactionary attitude and ignorance of the technological and legal issues at stake.
To start with the title: AACS is the Advanced Anti-Copying System, which is an attempt at modifying the default copyright (not patent) regime prevalent in the United States. Patents are a different issue to copyright. If Mr. Malone is going to criticise Web 2.0 users for breaking the law, he ought to, at the very least, properly state what domain of law he accuses them of breaking.
Second: There are important technological, social and legal reasons why DRM is fundamentally a failed enterprise. In blindly accepting that DRM systems have value, Mr Malone is just as self-serving in protecting the interests of media consortia as the Web 2.0 users he accuses of doing likewise. I direct Mr. Malone to author-activist Cory Doctorow's talk at Microsoft Research on th e flaws of DRM here: Link (txt).
I refer further to Princeton professor Ed Felten's article on the matter here: Link.
Third: If, as Mr. Malone alleges, some information has more value than others, who is to decide on that value, and should that be allowed to run untrammelled? If, as he argues, government and the established media should be in a position to dictate to everyone what information is of value and what is not, this will be just as dangerous to innovation and free thinking as the complete destruction of intellectual property rights. I note in this regard that even President Lincoln put the Declaration of Independence before intellectual property.
Fourth: Mr. Malone commits the fallacy of assuming that the established intellectual property regime is perfect. It is anything but - intellectual property is not like property in tangibles; it must, by nature, balance the interests of rightsholders, users and the like. There is simply no question of destroying the entire intellectual property edifice, as the dedication of Web 2.0 to IP reform causes such as Creative Commons will attest. For Mr. Malone to point to the AACS incident and accuse the entire Web 2.0 community of seeking to destroy the entire intellectual property regime amounts to sensationalist misrepresentation.
In sum, I was very disappointed with the quality of Mr. Malone's article. I do not, of course, advocate a retraction, but it behooves you as as journalists to give the story proper consideration.
Alex Bernson says,
It is not that information should be free or unfree, that there is some inherent value in the ones and zeroes output of some individual’s creative (or otherwise) process. It is the fact the those ones and zeroes make up the world we finds ourselves operating in, much as the glass and filaments of Edison’s time were essential components of the world he worked in. Edison was free to modify these base components into a form with greater value – the light bulb. In much the same way, in this post-industrial economy of knowledge, thought and content, of ‘data’ – for that is most assuredly the economy we find ourselves – we must be free to modify those existing forms of knowledge, thought, and content into new forms with greater value.
We build our economic, indeed our entire life, on the ‘intellectual’ building blocks comprising our world, just as much as we do the ‘physical’ building blocks. To synthesize new productive content, we must use the components of the environment we find ourselves in. For example, The U.S. Patent System was synthesized out of ‘intellectual’ material, not ‘physical’. It was comprised of the concepts of ‘private ownership’, ‘valuation of creative output’ (ideas have value and should be protected by Patents), ‘capitalism’ and a million other bits of intellectual content that had been generated before.
To outlaw the ability to modify the digital bits of intellectual content we build our lives around is to bar us from innovating. If we cannot interface with, modify, deconstruct, and reconstruct the ‘intellectual’ basis of our world, it is impossible to create new forms. Value generation will stop, not be protected.
Adam Morris says,
"It is this: all information is not equal in value." And some of it was generated purely at random. If generating random numbers and claiming ownership of them is acceptable then I would like to claim ownership of four binary sequences. As they are trade secrets I can't inform you in advance of what they might be, but they are all two binary digits in length and are unique. Please do not use any of my binary sequences strung together to produce any of your own longer sequences without my permission. Now that I claim that I own every binary sequence larger than one bit, we can move on.
I suspect that given the changes in US Patent Law (not Intellectual Property law) since 1865 Abraham Lincoln would be horrified. But if an irrelevant and doctored quote from him pushes my thesis then as he himself said "Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men (and their data) are created equal". he then went on to state that this data "...shall have a new birth of freedom."
Clearly Abraham Lincoln agrees with me and not ABC.
One of my friends on LiveJournal posted the key with the title, "This number has absolutely no meaning." I think he was on to something. A number -- any number -- has meaning only in context. If I walk up to you and say "52", you have no idea whether I've just told you my age, the number of cards in a bridge deck, the atomic number of tellurium, the year in which Pliny the Elder wrote his history of the German wars, or whether I'm just a loony spouting random numbers (all of which are in fact the case except maybe the last, and that could be the case too for all either of us knows).
Malone seems to be arguing that there are some things Man was not meant to know, or at least that should be illegal to know. I find this a very disturbing idea, especially when the knowledge in question is not an expression of creativity, but an otherwise random number.
Arthur Delaney says (sings?):
All We are Saying is Give Fair Use a Chance.
As a law student, I know that a number of these issues are pretty complicated, and that it can be hard to know exactly what the law means, even if we've read the statute. But, I think it would be helpful for everyone if we do our best to inform ourselves about the law.
First, with respect to Kyle's post, publication is NOT required for copyright. All that is required is work of authorship that is both fixed and original (with, of course, varying exceptions). That being said, it is unlikely that the number here is copyrighted (or even copyrightable!), but as correctly pointed out in Ed Felten's article, AACS LA is not claiming copyright, they are claiming a violation of 17 U.S.C. 1201(a)(2).
A great resource regarding relevant statutes can be found here: Link.
Since I'm no good at market analysis, I'll leave the theory of IP debates to others (just remember that many creators are incentivized to create by the notion that they might be able to profit from their work, and that the threat of copying detracts from the investment that one might put into making a good work), but I wish us all the best towards understanding the law and the claims before we fire off too many responses.
(as an aside, I think it'd be great if boingboing hosted a link to a simple copyright tutorial -- or to a textbook like Cohen, Loren, O'Rourke, and Okediji's Copyright in a Global Information Economy found at Link)
Unfortunately, we do not have a system that rewards creative minds for their contributions to humanity (especially not in the way Malone means it.) What we have are corporate bodies who buy creative labor off individuals and then force these individuals, in exchange for some salary and benefits (and, for that matter, there is no promise of long term salary and benefits; it is entirely possible to be fired 'at will,' even after contributing something signifigant), to sign over all thier rights to the corporate body, meaning that the fruits of their intellectual labor go into a general pool.
Because the creative project has been co-opted, it the n cannot be accessed, even by its creator, without the permission of a body of people who may have only the most tenuous of understanding of it or tie to it.
Not only does further innovation become completely secondary to the permission and guiding of a peripheral groups that may or may not understand the creative work, but any subsequent innovation is actually punished, unless it has been approved.
Creativity does not flourish well in the presence of a committee, as anyone who's ever had to sit through a meeting can tell you. The system that is in place rewards the investor, not the innovator, and has for years, ever since corporations gained the same rights given individual patent holders and private individuals.
The smokescreen Malone is putting up is a classic for the current round of arguments on intellectual rights. They're still pretending to respect the 'sacred rights of the innovator,' after they've just about killed innovation off.
This was going to be a gentle rebuttal of Michael Malone's article but then I tripped over this article in the L.A. Times and was ticked off enough to mention it.
The link from the L.A. Times front page is gone now but the original blurb-link contained the phrase "pro-piracy code" when describing the numeric key.
The article itself isn't much better, characterizing Digg with this opening line: "Building a business on mob rule is dangerous." and this gem: "It began this week when Digg started banning members from posting a software code that helps online pirates make bootlegged copies of movie".
I wrote them an email pointing out that their tech reporters should know better than to call an outdated hack allowing Linux & Ubuntu users to watch their legally purchased DVD's: "piracy".
And where to do they get off saying: "That didn't sit well with Digg's libertarian-leaning users."?
Do I detect bias? Probably not. Most likely it was just more lame ass lazy reportage. Still, it rankles.
Interestingly, I can find no reference to the Abraham Lincoln "quote"
in the article. A Google search of
"Abraham Lincoln" "Declaration of Independence" and "U.S. Patent" (in
various forms, with and without periods in US) turns up nothing at
all, except a single reference on one search to Michael Malone's
article. Which leads me to the conclusion that he made it up.
President Lincoln DID say "the patent system added the fuel of
interest to the fire of genius." (http://www.myoutbox.net/popch16.htm
and many other sources) but that seems like an extreme extrapolation
to conclude he meant it was one of the 2 greatest contributors to
civilization. EVAR! [smirk]
If anyone can find and link to something to substantiate Malone, I
will change my position. But until then, I am one of those he cannot
fool any of the time...
Patents and Web 2.0 says,
You quote Michael Malone as saying,
"It was Abraham Lincoln who said that America's two greatest contributions to mankind were the Declaration of Independence and U.S. Patent (i.e., intellectual property) law."
This appears to be a misquotation. Searching the complete works of Lincoln, here's the only instance I could find in which he offers general praise for patents (Lincoln was, of course, the only president to have registered a patent):
"I have already intimated my opinion that in the world's history, certain inventions and discoveries occurred, of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. Of these were the arts of writing and of printing---the discovery of America, and the introduction of Patent -laws. The date of the first, as already stated, is unknown; but it certainly was as much as fifteen hundred years before the Christian era; the second---printing---came in 1436, or nearly three thousand years after the first. The others followed more rapidly---the discovery of
America in 1492, and the first patent laws in 1624."
Patent law was so well established by the time of the writing of the U.S. Constitution, that there was apparently almost no discussion of the addition of patents by the framers -- it was as noncontroversial an idea as any in the Constitution.
Regardless, the example seems odd for Malone to cite since many of us have no problem with a reasonable patent law -- rather the problem here is the DMCA which is itself a subversion of traditional patent law, extending inventors control well beyond what the founders and even Lincoln ever could have conceived.
And for the record, I didn't find any references in Lincoln praising the DMCA.
(Via Boing Boing.)