P2P and Copyright

by Tim O'Reilly
March 2001

[After David Rogelberg pointed approvingly to the interview I did with Larry Lessig on oreillynet.com.]

Mostly claptrap, David. As just one example, on page 2 Lessig appears to say that anti-copying devices are simple, easy to use and the answer to IP theft. [Quotation deleted]
...

Yet on page 3, he hopes that copy-protection won't become prevalent -

I agree that there is a slight contradiction between the very first statement:

("Now, from the very beginning there have been people, and I have been in this chorus, who've been saying, 'Wait a minute, to the extent that the architecture of cyberspace weakens the position of copyright interests, they have a handy remedy and that is the development of code that facilitates the better control of their data than exists right now.'

and the rest, which should be read together with your second selection, to get the meaning. Remember that this was an interview, not a carefully written piece. I am not Larry, but I would suggest that what he meant to say was more along the lines of "there are also countervailing technological solutions" instead of "they have a handy rememdy." Because he clearly doesn't think that this is a *good* remedy, as he outlines thereafter. Your translation of this statement to "simple, easy to use and the answer to IP theft" is not a correct reading. Lessig's key point is the following:

And there were people like Mark Stefik at Xerox PARC who were sketching architectures for facilitating the control of data with trusted systems, so that copyright interests would be able to distribute their content without fearing that the content would be stolen by other people. The reason that's significant is that these trusted systems were not just efforts at making sure that the copyright interests would have the same rights that they had under copyright law, but in fact could be developed to give copyright holders more rights than they had under traditional law. ")

which leads pretty directly to:

("If you can code it so that it's not cumbersome, it's invisible, it's automatically deducting money every time you do something, it's controlling your rights in a very smooth way. If that can be done, the industry will choose to maximize their control rather than to achieve the balance that the original copyright law achieved. ")

Lessig's point (and mine, because I've been deeply influenced by his thinking) is that as the various content industries are bemoaning the technological dangers to their current systems, and demanding expanded legal protection, there are also technological trends that are equally compelling pushing in the other direction. That is, just as Napster and its ilk make it easier to share files, content protection systems are being designed to take away rights that we now take for granted.

For example:

• Most ebook schemes that have been articulated so far don't provide support for
  • loaning your ebook to a friend
  • reselling it when you're done with it

• Many of the copy protection schemes being articulated not only protect the content, there are signs that they may be designed to track the identity of users. It's a slippery slope from systems designed to track down abusers to one that tracks the behavior of legitimate users, whether for marketing purposes, or ultimately, for even more insidious purposes. Does anyone think for a minute that if identity tracking becomes a key component of content copy protection schemes that the government of China won't be keeping track of what their citizens are reading? (For a summary of the dangerous trends in this direction, see Database Nation, by Simson Garfinkel, which I published a year or two ago.)

Lessig can come on fairly strongly at times, but that's because he's trying to be a counterweight to people who are pushing very hard in the opposite direction. Consider only the extension of copyright...originally sixteen years, if my memory serves me, now to the lifetime of the author plus seventy years. We're seeing a fairly strong erosion of the idea that a creator is granted protection for a limited time, but that eventually materials go into the public domain.

As many industry executives cry wolf about the napster-on-steroids future where no one will be able to make a dime from intellectual property, there is a real need for someone like Lessig to make the opposite case, that there is a serious attack on rights even more fundamental than the right to make a dime.

I strongly suggest that anyone who is interested in these issues read Lessig's book, Code and Other Laws of Cyberspace. (For my review of this book, see http://tim.oreillynet.com/stories/reader$24). Lessig's point is that there are four forces

There's also the whole "golly whiz, look what we modern people can do" attitude towards so-called "peer-2-peer" networking, something many of us were doing 15 years ago. There's nothing new except that the IP thieves and the media have discovered it.

This is akin to saying that there was nothing new in Windows, since it had all been done in the Xerox Star. Or that there was nothing new in the world wide web, since all the ideas were in Vannevar Bush, not to mention that Microsoft already had better hyperlink products in MSN. In some ways true statements, but in other ways, they completely miss the mark. Napster is revolutionary in a lot of ways. See some of Clay Shirky's stuff

Then there's the extraordinary statement "Now there is an unavoidable link between First Amendment interests and the scope of copyright law. " (page 1). There is no First amendment right for you to steal my expression of a thought. The right you have is to express your thought, just as I can express mine. And the law protects your expression, just as it does mine. But AFAIK, no judge in no court has rules that you have a first amendment right to re-use my expression of my thought.

Again, you completely miss the point, and twist it to suit your purposes. Tell the defendants in the deCSS case that there is no link between the first amendment and the extraordinary extensions to copyright law being sought by the content industries! The deCSS program was originally written for an entirely legitimate use (at least in the old days) -- namely to allow Linux users to play legitimately purchased DVDs on their systems, since there was no Linux support. Now, not only the author of the program has been hauled into court, but anyone who puts any version of it in print.

This is particularly troubling because the line between code and speech is getting increasingly harder to find. A program is basically a set of instructions. See http://www.cs.cmu.edu/~dst/DeCSS/Gallery/ for some of the ways you can express the deCSS program, and you realize that we're now being enjoined from even "talking" about something that the content industry doesn't want you to know. Why is it legal to give instructions on how to build bombs, but not to give instructions on how to crack content protection? Is that kind of control something we really want to see? Have we thought through the implications?

With regard to the rest of your paragraph, Dave, let me respond to your misreading, starting with "no First amendment right for you to steal my expression of a thought." No one is claiming that there is such a right, and to twist what is being said into that parody is an example of the kind of FUD that people like Lessig (and I) are trying to combat.

In his book, Lessig makes the compelling point that you have to consider four forces when trying to plan for social outcomes: architecture (in this case, the code that provides the architecture of cyberspace), laws, market forces, and social norms. The last point is particularly important. Where the music industry has really gone wrong is that they've lost their legitimacy with consumers. They should be rushing as fast as they can to allow people to pay for online music, rather than trying to block market demand. If the rest of the majors had joined BMG in trying to convert Napster to for-pay service, they'd have a heck of a lot more moral legitimacy. Instead, they are training people to steal, by giving them no legitimate alternative.

I really believe that if there were a for-pay alternative, most people would eventually come around to accepting and using it. We don't need stronger laws, we don't need stronger copy protection, we need to meet the market demand for online music with reasonable pricing.

This is what happened with radio (the last free music revolution) and it needs to happen again here

Another point wrt moral legitimacy: when the Grateful Dead (who allowed their fans to freely tape their concerts, and trade the tapes, and to trade their songs online, but not to profit from that freedom) asked that there be no advertising on dead download sites (because that broke the "may not profit" stipulation), their fans complied. When people take the O'Reilly CD bookshelf products (which have no copy protection) and put them up on the public internet (which happens fairly often), we ask them to take them down, and they do (except in markets where people can't afford our books, in which case, we tend to look the other way in any case). That's social norms in action.

"IP theft" happens largely because there is no legitimate alternative in the online music arena, because the industry has dragged its feet on giving the market what it wants. In this regard, I had a really illuminating conversation with Jon Schull of Softlock, which worked with Stephen King on riding the bullet. (Apologies to those of you who've seen me tell this story before on the list.) The content was copy protected, but they were counting on "superdistribution" -- that is, the redistribution of the content by users to their friends, who would then (in theory) unlock it. But there was very little pass-along. Most of the copies were downloaded from central sources. They did a survey to find out why. "We thought it was wrong" was far and away the most frequent answer.

Back to the initial point: there is so much FUD about the death of IP in the internet era that it is extremely important to point out, as Lessig does, that we are more in danger of losing some key freedoms than we are of losing our right to profit from intellectual property. (For a great essay on this subject, see John Gilmore's piece, "What's Wrong", at http://www.toad.com/gnu/whatswrong.html.)

Lessig is not saying that there should be no IP, just that we have to find the right balance between the rights of creators and the rights of the public. If you look closely, you'll see that in the past century, there has been far more damage to the rights of the public (relative to the original intention of our constitution and past practice) than to the rights of copyright holders, even though it is the copyright holders who are crying the loudest.