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Will Fixation on Security
Silence the Trumpets of Fame?

by Peter Cassidy, Director of Research

This analysis was originally published in the April 2001 Digital Mogul Industry Report.

Today, the entire culture is being forced to revisit questions of how copyright is defined, applied, and enforced - something it hasn't had to do, with this scope, for hundreds of years. Way back when in England, the big deal was about the control of heretical texts and, later, the suppression of Scots publishers. Now it's about control of profit-making intellectual property and suppression of renegade online distributors; gods, scripture and technologies come and go, but we keep getting into the same squabbles.

What has delivered us to our latest evolutionary threshold of copyright is the inherent democratization that market-chasing technological advances engender. Ease of copying and distribution by technical illiterates has never been greater, pitting content owners against their own customers. In this advance of electronic communications, established media conglomerates have fought for and won legislation in the Digital Millennium Copyright Act (DMCA) that criminalizes the act of bypassing anti-copying systems.Technologies have been perfected that would allow creators and distributors to force compliance with usage rules in ways that can circumvent fair use entitlements built into copyright law and may outlast copyright itself, ensuring a sort of copy-control in perpetuity.

What is novel about our moment is that the new laws and technical solutions being developed can effectively pre-empt and eliminate consumers' legitimate abilities to manipulate digital works that they have purchased or licensed - before any breach of copyright has transpired. Strangely, but in context with our times, a military-intelligence model of security has been applied to consumer goods, threatening the flow of free samples that irrigates consumer markets. In a way, we may well be reversing the gains made since modern copyright was born 300 years ago. We abhor piracy and appreciate the position of the media companies. Without intellectual property, economies shrivel.

Yet, in the long-term, the new communications media will provide the greatest boon to these established market makers, as has been the case with radio, television and recordable media like VHS. And Internet technologies will do that in much the same way as older technologies - by allowing consumers' love to blow the trumpets of fame and generate recognition and demand for artists' work. Sometimes that promotional dynamic is expressed as friends on a stoop with a boom box and a case of discount beer, sometimes as the loaning of records between impoverished enthusiasts and sometimes as swapping of MP3 files among friends via e-mail. Who knows what else may be possible as the technology evolves?

What we are faced with today, and this is the core of our sense of trepidation, is the frantic development of technologies and laws based on the a priori presumption that access restriction is the only credible approach to securing copyright and protecting intellectual property on the Internet. It is as if air transport technologies were being built around the assumption that only lighter-than- air vehicles can achieve flight.

Evolution of security and e-commerce instrumentation to mediate legitimate trade in music and media objects are being severely retarded, if not wholly precluded by this assumption, creating a dysfunctional cycle. Content owners and technologists fixate on access restriction and only access restriction technologies are considered. They fail to meet consumers' expectations that have been acclimated by decades of free access, sending them scampering off to the contraband bazaars of the Web. This only proves the content owners' theory that consumers are a pack of feral thieves whose larcenous appetites must be arrested by black-box content protection systems.

The threat, however, is manifold, potentially impinging on the culture and tradition of the public domain that has been so hard won - and which has served our economies so well. It is worth reviewing how media consumers' rights came to light and what benefits they have bestowed before we run off and stock the shelves of our electronic markets with black boxes. Copyright law never gave a hammerlock of control to creators, nor did it give unlimited freedom of use to the public or commercial sectors. In its baldest characterization, copyright is an institutionalized compromise between copyright holders' legal right to hold temporary monopolies on information and the public's codified right to use that information according to those prescriptions during and after the monopoly is in force.

The concept of copyright in its modern manifestation cannot exist outside of the context of public interest and its embodiment in the legal entity called the "public domain." Four hundred and fifty years ago, in England, copyright laws were established for printers, in large part to control the dissemination of heretical or dangerous texts that could threaten the social order. In 1710, however, the Statute of Anne established copyrights for creators that could be maintained up to twenty-eight years, after which their works passed into the public domain. Creators got protection to reward them for their innovative expression and the public was enriched with new ideas and knowledge. (The politics of the Statute of Anne were complex, driven not entirely by unalloyed beneficence. A large part of its motivation was to get control of "pirate" publishers in Scotland - then only recently incorporated into the U.K. - who were exporting high-quality texts, undercutting crown-licensed contemporaries in London.) Yet the concepts this statute embodied inspired others in Europe and the U.S., and sired a number of wonderful precipitates.

Among the most important was a continuously invigorated consumer population whose knowledge was indeed expanded and interests cultivated, not incidentally creating markets for new works. Copyright's limitations and leaks made consumers of people who might not have participated in markets for literature, had books been locked away by permanent monopolies or failed to achieve a diversity (inspired by copyright protecting authors who could profit from their ingenuity) that could satisfy all interests. In the context of making retail markets for information goods, the public's grazing rights on the info-commons engendered alert, informed and lusty consumer markets.

Since modern copyright laws have appeared, the success of new technologies - from radio to VHS to RIO - have been secured by the rough maintenance of the trade-offs prescribed in copyright law. Today, the achievements of copyright and public domain hang in the balance. Supra-legal solutions that bypass the fair use rights under copyright laws could well reverse the enormous social and economic benefits they have produced. Our sense is that the rush to secure copyrights with black boxes to stave off the threats posed by new communications technologies is actually an artifact of our times.

The Cold War, some of its technology (cryptography) and its binary worldview, has been transferred to Internet and the markets forming on it: Eastern Block bad;Western nations good. Napster bad; 1024-bit key-secured crypto-vault good. The consumer has been cast as the Evil Doer - or as an accomplice - whose machinations must be met with technologically superior armament, seething yuppie islawyers and a civil law-enforcement posture that would make 1980's South Korea look snugglesome. (Hint: If the police ever arrive to search your server with a water cannon, it is not time to break out the soap-on-a-rope.)

This approach has been enormously expensive in the opportunities lost in the pursuit of black-box security systems for media assets such as Digital Rights Management (DRM) systems that restrict usage according to predetermined rules scripted by content owners and distributors.They are impressive technologies - but by design not appropriate for markets in which consumers have to be lured and seduced. The guiding questions cast by the media industries thus far have been focused around annihilating the Napsters or MP3s of the world.

Our thinking about copyrights and the Web should, instead, be geared to sculpting rational instrumentation for securing intellectual property and mediating its honest trade in electronic markets. Part of the solution may involve e-locks and e-keys but our sense is that the total solution will be a lot more layered and nuanced, ultimately defaulting toward easing consumers' usage burdens.

Technically speaking, the fixation with creating black boxes for media assets has absorbed a lot of development time that could have been applied to solutions that preserved the copyright balance that is in place today and serve consumers' interests.The Secure Digital Music Initiative (SDMI) is a good example. Charged to find a solution to online music piracy, the SDMI chose to use digital watermarking as an instrument for a larger copy-control and playback-control mechanism. SDMI's specification required a great deal of specialized knowledge in signals processing and steganographic arts. Application of all that technology in a machine-readable access control scheme has produced systems that have all reportedly been hacked by the Princeton group.

Sidestepping the issue of SDMI's design specification for open, machine-readable watermarks and its inherent exposures, we ask, what advances could have been made had all the engineering experience, expertise and research embodied by SDMI been dedicated to alternative proposals? What if some of that knowledge of signals processing and steganography were invested in a standard for fingerprinting and authenticating songs that would be cleared through subscription-based online catalogues to direct and mediate payment to artists whose work is passed through the system.Technically, the pieces needed to assemble such a system are on the shelf today. Companies in the security and DSP fields have been sitting on much of the techniques and technologies required for such a scheme for years. This is but one example.

The bottom line is that a great many solutions with potential for constructively animating authentic markets for digital media on the Web are within reach, but can't get on the agenda because of the institutionalized limitation of the technical imaginations being brought to bear on the problem. Even if access control schemes can be made to work - or consumer expectations can be lowered or changed - it may not create a better world or bigger markets. Military-intelligence style information security technologies applied for their own sake in consumer media goods would eliminate the most useful promotional aspect of Internet, limiting the ability for consumers to blow the trumpets of fame that make headliners of aspirants and keep the stars in the firmament.

Peter Cassidy is Director of Research at TRG.

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