Why DRM exists [was Re: Flame Linus to a crisp!]

I think you're overlooking a fundamental principle of law here:
Intellectual "property" is intangible. In particular, it is *not* subject to the concept of ownership. A creator of an idea or expression has no legal right to the ownership of the same. What they do have is a time limited, assignable, government granted right to prevent others from profiting by that invention or expression.

The rights pertaining to creations of the intellect are fundamentally weaker than physical property rights, and here's why. Quoting from the US Constitution, article I section 8:

"The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

The purpose of these limited rights is to promote the progress of science and useful arts. Thus, the copyright or patent owner is fundamentally restricted in the limitations they may impose on the user of their creation. The origins of the concepts of reverse engineering and copyright fair use all flow from this.

If you want to make an intellectual contribution to the body of knowledge you do so under these terms or not at all.

I disagree. The open source community, to me at least, appears to be the closest thing to the ideal set down in the constitution. I own the copyright, you may see my source and improve upon it.

I disagree that the open source community "copies" anything it finds useful. I might agree that it improves upon something it finds useful, but that, again, is a lawful purpose.

As far as the DMCA goes, many people think it oversteps the constitutional boundary by giving to IP holders rights they are forbidden from possessing, and hence they come to talk about "ownership of intellectual contributions" rather than "my limited right to profit by my invention"...only time and the courts will tell.

James

I believe that it's very important that an author have rights to profit exclusively from their creations. It gives them incentive to create. I mean, if every time you developed some cool new technology, some foreign company took it, made huge profits from it, and left you with out a dime for all of your effort, wouldn't that put a huge kink in your desire to expend that sort of effort?

On the other hand, I don't believe people should rest on their laurels. Limited rights is an incentive to get off one's behind and create another thing.

I think patent periods should be very strongly enforced and SHORT. Like most of these patents that we think of as frivolous should be allowed, but the time limit should be at most a year or two. Many of these 'defensive' patents that companies like Amazon have are actually good things because they ensure that these ideas go into the public domain. If some patent is deemed particularly clever, then the limit should be more like five years.

I have mixed feelings on defensive patents. "Since I know that you're going to patent what I'm already doing and then sue me over it, I'm going to beat you to the punch and patent it to protect myself." It makes sense in a very sad sort of way.

I just want to "second" your excellent thoughts. Well said.

..Scott

Scott Robert Ladd
Coyote Gulch Productions (http://www.coyotegulch.com)

The problem is a broken patent system that allows common knowledge to be "protected." I've strongly considered trying to get a patent on B-trees or QuickSort, just to see if the patent office is as foolish as they seem. The reason I can tear down the engine on my truck is because it poses no threat to the manufacturer; no one has a patent on the concept of a piston (though they may patent a specific *type* of piston.)

I think you'll find that all patent systems the world over require the invention to be novel and non-obvious. Prior disclosure or publication invalidates the novelty part of this (Except in the US, and only if the patent author published the details). Patent systems also require that the inventor sign a statement certifying themselves as such (i.e. you can't file a patent for something you didn't think of yourself without committing perjury).

Obviously, the first judges of the meaning of "novel" and "non-obvious" is the patent office. They do a good job generally, but seem to be having difficulty grappling with the considerable body of computing knowledge outside the rather limited patent domain.

The final judge is the court system. Many (and that seems to be about 50% of litigated patents) fail these tests and are ruled invalid

The problem today is that the patent office will honor almost anything with a patent; if cars were software, Ford would have a patent on pistons that would prevent GM from building V-8s.

I'll agree with this, but the patent office is trying to catch up here. Perhaps a quick fix would be to publish patents 3 months before issue for a "bounty" period during which anyone could submit prior art or non-obviousness arguments for consideration before the final decision on issuance.

There is nothing wrong with the original conception of patents and
copyrights: the protection of IP creators to profit from their work before it enters the public domain in a reasonable time period. Sadly, corporations have legal rights, and the money to pervert the process. Patents and copyrights need to be fixed, not destroyed.

Anyone with sufficent resources can pervert any process they set their mind to, be it legal or legislative (DMCA anyone?). The balance in the system is the noise made by those affected by this.

James

I previously wrote a long rant on this subject in this forum (See: "the myth of sustainable commercial software" [or something very close to that])...

The quick version:

1) the author has a right to profit from his creation
2) all ideas will be mimicked (monkey see, monkey do)
3) the author has already mimicked the ideas of others
4) others will mimic his ideas if they don't stink
5) turn about is fair play
6) An author's "creation" is his code, not the general ideas encompassed in his code
7) this behavior is wired into the human brain, as a human can not see something operate and not learn from that observation, and therefore be likely to mimic the useful parts
8) if you bet the farm on your ideas about how something should be done in software... and your business plan does not cover the fact that it *WILL* be mimicked... write off one farm...

Using someone's code without their consent is "copyright infringement", not "theft" as to "steal" something you must deprive the original owner of that thing. That is an important distinction that people forget when they start yipping on this subject.

Neither "the money he might have made" nor "the concepts implicit in the code" are "the thing" an author creates. The code is the only thing, and the author still has the code. So mimicry isn't theft. Period. Ask a lawyer.

There was "no intent to create the idea of intellectual property" in the founders heads when they put copyrights and patents into the US Constitution. I used to have a good link to a place in Thomas Jefferson's own writings make this clear. You can not "own" an "idea".

I will only honor the "need to own the ideas" of a software producer if they can demonstrate that they never used any preexisting ideas in the creation of their software. We are standing on the shoulders of giants here, and if you opened a file, or searched a string, or added two numbers together, or in-fect, invoked a compiler or submitted instructions to a CPU of other-than-your-own design, you are engaged in exactly the same behaviors (using others ideas without paying them) that you are complaining that others might do to you.

Besides, it is provable that you can not make money in commercial software alone, without treating the software like designer clothes, and constantly produce new variations that are uniquely yours. (This is what game producers do, this is also why Microsoft sells mice and joysticks, see my longer rant for the full proof.)

The only way to keep a secret is to tell nobody. A secret once told, is a secret no longer. The software equivalent future aphorism will be "A program once run, grants its ideas to the public domain."

Too bad...
So Sad...
Bye bye...

Rob.

-----Original Message-----
From: [email protected] [mailto:[email protected]]On Behalf Of Timothy Miller
Sent: Tuesday, April 29, 2003 7:02 AM
To: James Bottomley
Cc: Larry McVoy; [email protected]
Subject: Re: Why DRM exists [was Re: Flame Linus to a crisp!]

I believe that it's very important that an author have rights to profit exclusively from their creations. It gives them incentive to create. I mean, if every time you developed some cool new technology, some foreign company took it, made huge profits from it, and left you with out a dime for all of your effort, wouldn't that put a huge kink in your desire to expend that sort of effort?

On the other hand, I don't believe people should rest on their laurels.
Limited rights is an incentive to get off one's behind and create
another thing.

I think patent periods should be very strongly enforced and SHORT. Like most of these patents that we think of as frivolous should be allowed, but the time limit should be at most a year or two. Many of these 'defensive' patents that companies like Amazon have are actually good things because they ensure that these ideas go into the public domain.
If some patent is deemed particularly clever, then the limit should be
more like five years.

I have mixed feelings on defensive patents. "Since I know that you're going to patent what I'm already doing and then sue me over it, I'm going to beat you to the punch and patent it to protect myself." It makes sense in a very sad sort of way.

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Not at all. Copyright law is to promote the progress of sciences and arts; in short, it is about the rights of mankind, not about the rights of authors.

The temporary monopoly which authors get over their work is there to encourage authors to create more works, which in turn benefit all of mankind. Just a side effect to promote the good of the many.

You forgot about biotech and economic factors. Obviously it's in USA's short term economic interest to patent using herbs for medical purposes, that have been used for 100s or 1000s of years in other countries. Even better if you can then use world trade agreements to litigate against those traditional uses too!

(See also imminent ban of all non-approved (i.e. non-industrial) medical and nutritional remedies from EU countries).

As with all systems - if some people can get away with something, they will certainly try!

Also, those with any semblance of power don't _have_ to bend to the will of those with resources, but they often seem to do so.

-- Jamie

The author has a right to profit from his creation _so as_ to promote the good of the many.

The two views are not contradictory.

-- Jamie

Dude, loosen your mind a little...

Like so many you are laboring under the misapprehension that all rights have the same precedence. That's obviously dumb and you know it. I have the right to keep and bare arms, you have the right not to be gunned down while buying milk at the neighborhood circle-K. You have the right to smoke, I have the right not to have to breathe that smoke. See... "rights" are not absolute.

You are splitting a pointless hair. The statement "an author has a right to profit from his creation" doesn't (and didn't in my mind) have anything to do with any follow-on statements about extorting money nor was it predicated on the "right" in any kind of absolute sense. It is clear and obvious that the creation of a work that has no value doesn't magically give an author the "right" to demand to be paid out of a vacuum. It is, however, also obvious that if someone creates something with a substantial value, that creator has a right not to be screwed out of that value unilaterally.

If I write a book, I have the right to expect that people who use that book meet certain reasonable terms for the privilege.

Simply put, if you make something and you can make it pay you money, you have the right to that money.

If you create something valuable and then can't manage to make it pay then you have the right to lose your shirt.

There is a moral right to reap benefit from your action.

Playing word games about the betterment of humanity is all fine and good, but for the most part people act solely in self-interest. The key, of course, is to get as many as possible to act in *enlightened* self-interest.

If you go around telling people "you don't have a right to make a profit just because you wrote that" the smart people will know what you mean and the dumb ones wont. That is pretty much the textbook example of a needlessly inflammatory statement.

Compound that with the fundamental concept that profit does not necessarily mean money and you get to such sublime concepts as "If I make it, nobody should be allowed to say I can't use it, I made it damn it..."

This argument is about the law, but it is not *JUST* about the law as it exists, it is about trying to match the law to what is just.

In point of fact copyright law is completely about the rights of authors, in particular it is about convincing authors to forgo their right to hoard everything they create. It's about convincing authors that there is good cause and reason to release their proprietary death-grip on their works. The *goal* is to benefit all man kind, sure, but the law is about salving the certain wounds the author will suffer once his ideas leave his control and get tattered and recycled by the soiled masses.

Say it that way and you will make more sense to the authors.

Rob.

-----Original Message-----
From: Rik van Riel [mailto:[email protected]]
Sent: Tuesday, April 29, 2003 6:35 PM
To: Robert White
Cc: Timothy Miller; James Bottomley; Larry McVoy; [email protected]
Subject: RE: Why DRM exists [was Re: Flame Linus to a crisp!]

Not at all. Copyright law is to promote the progress of sciences and arts; in short, it is about the rights of mankind, not about the rights of authors.

The temporary monopoly which authors get over their work is there to encourage authors to create more works, which in turn benefit all of mankind. Just a side effect to promote the good of the many.

He was talking about moral rights, not legal rights.

Schools were created to keep children out of the work force and to
homogenize the immigrants, but nobody would argue that these are the reasons children should now go to school. The original reason for something is not automatically the reason that thing still exists.

DS

All of these right conflicts are resolved by property rights. Yes, you can
keep and bear arms on your property, but you can't let a bullet fly onto the circle K. Yes, you can smoke in your house or someplace under your control, but I can designate my house smoke free if I want to.

The author's right to profit from his creation is about as absolute a
property right as you can imagine. The author could, if he wished, refrain from disclosing his creation to others at all if he wished. Because greater rights include lesser rights, he can disclose them under restrictive terms rather than not disclosing them at all.

This, of course, doesn't ensure that he'll actually profit. That depends on
the actual value of his ideas.

But his right to not disclose the idea if he doesn't choose to is as
absolute a right as one can imagine. And that greater rights include lesser rights is nearly as absolute.

But authors could already do this simply by distributing their works only
under contract. You could even have standardized contracts and sign before you, for example, enter a movie theater or buy a CD.

DS

Free market capitalism _appears_ to tend towards a structure where the bulk of property becomes owned by a few owners, and the majority of owners own very little property.

So it's appropriate for rights to be distributed like that too?

For example, suppose you own _all_ the land I can travel to. Then my right to not be shot by you is not protected at all. I do not think that is an appropriate resolution of rights.

For some kinds of profit, I agree. For other kinds of profit (read:
coercion over others), I disagree.

And if there are two authors who independently create something similar? The rights do not resolve so long as both authors demand that the other does not profit. The only resolution is when both authors view cooperation as a satisfactory kind of profit.

I truly do not believe I have that "absolute property right", much as I would like it. If I write a program or create a new kind of technical device, I would like to profit from that. But I do not think I would be allowed to, as I would be pursued into oblivion by more powerful entities than I.

But then, I truly believe it is conceptually impossible to create something which has no connection with what has come before. So I would not claim it as absolutely mine anyway, unless I had an agenda to fulfull...

-- Jamie

While this is an interesting defect in my analogy, it's not relevant to
copyright because here we're talking solely about property wholly created. So the alternative to my owning all the land you could travel to would be that land not existing.

As I made clear, your right to profit to the idea is the same type of right
as your right to do what you want with your bat. It doesn't include taking it onto my property to break my windows.

Since we're talking copyright here and not patent, two independent
developers would both have equal right to authorize the use or distribution of the idea.

You have the right to walk the streets at night with hundred dollar bills
danglnig out of your pockets and nobody has the right to steal the money from you. That doing so is stupid and will likely make you the victim of a crime doesn't change your right one iota. Heer we see a difference between rights that are both legal and moral and what you can practically achieve.

Yes, it's a defect in our legal system that wealthy powerful people can
manipulate it with extreme effectiveness. Yes, it's a defect in our legislative system that companies like Disney can exert enormous control over what laws are passed. But these aren't really copyright issues in principle.

This is just equivocation on the "it". Legally, the "it" you own is not any
particular word or 'diff' output, it's the original creative effort that you added. If I translate Hamlet into Polish, there is no physical way to isolate my contribution from Shakespeare's, but that doesn't mean we don't understand that there is creative effort that you added and that the total work contains your creative effort and Shakespeare's.

This may be confusing for people not familiar with intellectual property
law. But trust me (or do some research or talk to an intellectual property lawyer), it creates no legal problems or problems of principle whatsoever. Your copyright rights to what you produce in no way affects what anyone can do with, or what you can do to, anything that came before you.

DS

It truth, there is no such thing as "intellectual property" by the correct legal definition of property. There was also no intent to create "intellectual property" in the minds of the founders of the United States. The truth of the matter is that Digital Restriction(*) Management isn't even about copyright. We are in the berth pains of the creation of "accessright" law, and nobody has yet demonstrated that such a body of law is, well, legal... let alone necessary for any purpose.

The fundamental problem with applying property law (et al) to the domain of ideas is that you can not affect a clean and complete transfer of possession.

Anything "intellectual" exists in the pure domain of thought (hence the root "intellect" 8-) and the facts remain that one party, having processed an idea (or set thereof) can not "willfully and completely surrender" the idea out of their head and into someone else's.

You see, property is "transferable" but ideas can only be "copied" which is why COPYright contains that word and not some variation of "property". Property rights, patent rights, and copy rights are distinct.

That is also why "theft" and what we can generally refer to as "the theft words" never applies these topics no matter how often or loudly someone yells "you stole that idea from me." Notice that you *can* steal a program, program source, manuscript, or copy of a book. To do so you must gain access to (break) and/or variously enter (hence "breaking and entering") a place where such materials reside, and then simultaneously gain possession of said materials and deprive the rightful owner of them. (e.g. you can go take the media, or you could access a computer, copy the information onto a removable media, and then wipe the originals or take a hammer to the computer or something.)

So by definition, the presidents of property rights can not reasonably and fully be applied to information and ideas.

Worse, absolutely none of the DRM arguments even exist within the presidents of copyright law as a significant subset of the technology and uncertainty only comes into play well after the act of copying is completed.

Consider DeCSS. At the time that the CCS ("Content Control System", not "Copy Control System") comes into play, all parties have already agreed that the copy 1) should have been created, 2) should have been assigned, and 3) is completely within the possession of the reasonably correct person. That is, the copy has already been made, and you already have the DVD in your grubby little paws.

Further, there is nothing inherent in the CCS system that takes a single step towards controlling the copy of that DVD. If you have the hardware you can make a byte-wise copy of the DVD onto another DVD and both copies will contain identically CCS(ed) image.

CCS is about whether you can access what that copy contains in a meaningful way.

Some people may access that information with the intent to copy it into a non-CCSed image, but that is a separate follow-on activity that was not even considered when the CCS system was created. The CCS system was invented to solely (and, according to anti-trust law, illegally) tie the one product (a particular DVD) to another (any player with a licensed DeCCS and matching region code).

The sticky part is that the constitution does NOT create nor endorse any sort of "accessright" law. Things like the DMCA endeavor to create such a body of law in a back-handed fashion by attempting to convince everybody that copyright always included accessright.

If it had, then it would be, and would always have been, legal to sell someone a book and then say, "you may only read this book in a library" and have the force of law behind you to back you up in that restriction.

Rob White
(Not A Lawyer!)

(*) "DRM" is improperly coined as Digital "Rights" Management, but no existing work in the area actually "manages" "rights", the technology singularly and specifically implements restrictions and manages those restrictions. For instance, a DRM system can disallow your access to a work that you actually have the right to access. For instance, a Digital Restriction may prevent you from accessing a work that is in the public domain (e.g. which you have the undisputed and indisputable right to access).

Nonsense. Intellectual property is, conceptually, a form of contractual
property. If I pay you $10 to mow my lawn tomorrow, my right to compel you to mow my lawn (or have you pay me damages) is a property right.

If I develop an idea, I have the absolute right to the contents of my mind
and cannot be compelled to disclose the idea. Because the greater includes the lesser, the right to not disclose the idea includes the right to disclose the idea under terms, pursuant to a contract (actual or implied).

Most property rights are contractual. You come to own property because you
contract for it.

Because there was no need for them to do so. If I have possession of an
idea and agree to tell you the idea for $10 provided you agree not to disclose the idea to anyone else, I don't need any special laws other than the normal laws that permit me to make and enforce contracts.

I think that you are right conceptually. Access restrictions are purely
contractual things and more obviously so. If I put a security restriction on a CD and sell it to you, there's an implied agreement that you will respect the restricitions. If I really wanted to, I could have you sign an agreement to that affect.

This would apply to employment contracts too.

This is true for employment to. In fact, it's true for all contractual
agreements except for the sale of real property. If you hire me to mow your lawn, how can I "willfully and completely surrender" one day of lawn mowing in the next ten days to you at that time?

Really, this is not a problem at all. Complex societies like ours
understand how to deal with intangible property rights. When you book a hotel room in advance, the right to that hotel room on that day is an intangible. It could, however, well be a transferrable property right that you have. That's not a problem.

You are confusing the right with the thing that the right is to. If I have
an idea, and I tell you that idea pursuant to an agreement that you will not disclose the idea to others, the property I have is the right to pursue you for damages should you disclose the idea. This is the same concept as if, say, you sign a non-disclosure agreement. The right is not to the idea itself, it's to pursue damages from those who violate their actual or implied agreements not to disclose or use the idea without compensating you.

But it is theft, as surely as if I pay you $10 to mow my lawn and you don't
mow my lawn. Violating a contractual agreement not to disclose and not paying the damages the agreement specifies is a form of theft by fraud.

You are trying to set back a complex society by arguing that only what you
can touch has legal meaning. But you can't touch the right to use an apartment from June 1 to July 1. Yet if you agree to pay monthly rent for the apartment, use the apartment, but don't pay, it's theft.

Seriously, there is no problem at all here. You are needlessly and
senselessly manufacturing artitifical distinctions that make no sense.

Then forget about copyright law entirely. Think only about contractual
property and the fact that a person who comes up with an idea cannot be compelled to disclose it and can disclose it under any terms he or she chooses. Think that when you buy a CD or a program, there's an implied contract that the CD or program is for your personal use and that violating that contract is as much theft as living in an apartment without paying rent.

Agreed.

Agreed.

Agreed. More sensible would be to look at whether the implied agreement
when you purchased that DVD included a promise to only use it on licensed DVD players. An argument that is, IMO, nonsense.

Further, there is no reason why the DMCA should have been enforced in cases
where no right recognized under copyright law exists because the DMCA was a copyright law extension. As far as I know, a DVD seller has no legally recognized copyright interest in what device I play that DVD on, and hence CSS is *not* a copright enforcement mechanism.

I totally disagree with the way the DMCA has been interpreted and hope that
there is a massive backlash.

This is certainly not a right recognized under copyright law, so it's not a
right that can be enforced by a copyright enforcement mechanism. However, this is a moral right that a content author has. Copyright law has taken this away from content authors in the name of benefitting the public at large.

Copyright laws gave authors very little that they didn't already have.
Patent laws, on the other hand, give inventors many rights they would not have otherwise.

DS

I am not sure why I am bothering since you clearly don't know anything at all about what does or does not constitute property. (and therefore all your "property law covers this" based logic is impossibly flawed.)

Nonsense right back to you. Your "right to compel me to mow your lawn tomorrow" isn't a property right in any sense. It is covered under "tort" law (whatever the heck that is). In plain speak is an AGREEMENT not a POSSESSION.

It is not property because, among other things, it isn't transferable. You can not COMPEL me to mow your neighbors lawn instead. You could pursue an alteration of that agreement involving your neighbors lawn in stead, but I am not COMPELLED to AGREE to such a change. Moreover, you can't re-sell my mowing of your lawn to your neighbor without making me party to the revision of the agreement. (The reason people confuse this often enough is because into financial lending agreements one often agrees at the time of borrowing to allow the lender to sell your promise of payment to a third party.)

However, as we all (hopefully) learned in primary school, you can't borrow a dollar from me, loan a dollar to "Alex" and then, when I come for my dollar, tell me to go get it from "Alex" because he owes it to you. Agreements can not be sold, and are not property. Agreements that contain a right-to-sell are agreements with that provision, but they are still not property. For instance, you don't and *cant* "own stock" even though people use that expression all the time. you *HOLD* stock in a company. Hence "stock-holders meeting" and "majority share-holder" as so forth.

"Contractual property" is a non sequitur. As is "intellectual property". Ask a lawyer.

The fact that you seem to equate "I will mow your lawn tomorrow in consideration of the $10 you gave me today" to be the same as "one generic day of lawn mowing" demonstrates that you, personally, should *NEVER* make any kind of agreement with anybody for any purpose. 8-) "one day of lawn mowing" is completely dissimilar to "mow (a specific) lawn on (a specific date)". Persons who try to turn the latter into the former are guilty of fraud and will tend to be out $10 in a court of law.

And no, I am not "trying to set back a complex society by arguing that only what you can touch has legal meaning." I am trying to make you understand that agreements, "real property" (which is land), "property" (which is any tangible thing other than land), and copyright (among other concepts) are completely dissimilar and are covered by completely different kinds and scopes of law. The fact that they are "not the same thing" completely negates your "the law of one is the law for all" claim that "property law" somehow carries into the other areas.

There is not now, nor has their ever been, such a thing as "intangible property". There is (real and otherwise) property, there are contracts (oral agreements, written agreements, common stock, preferred stock, trusts, etc are all contracts), and there are rights (including copyrights and patents) and they are each governed by completely different sets of laws. If you go to court to claim that property law says something about non-property (like a contract you are a party too) you will get laughed at, and then you will lose.

For instance, the authors right to not invent and not share his invention, is, wait for it... a RIGHT... and doesn't make the idea any kind of property. You even used the words your self "... I have the right to the contents of my own head ..." and the follow-in fact that you can get together with someone and agree to a contract where you will disclose the idea for $10 and a non-disclosure agreement, is contract law. (Notice that there is still no "property" anywhere in there, its all rights and agreements. "Property law" doesn't apply because there is NO SUCH THING as INTELLECTUAL PROPERTY)

Contrary to your statements, Patent law did less for the patent holder than copyright did for authors.

In many cases, an invention is self describing. You build a windmill and someone can come along and disassemble the thing and know how to build a windmill. In most cases, however, inventors can keep secret the nature and structure of their invention and still profit from that invention. Patent law was really about convincing inventors to record their inventions in a public archive instead of taking their invention with them into death. Invention is different than authorship because often times the invention doesn't automatically reveal itself. Consider Damascus (sp?) steel or the formula for the varnish Stradivarius (sp?) used on the instruments he created. These are inventions that have been lost despite the fact that we still have some of the swords and violins. So many, perhaps even most, inventors enjoyed both the protection of keeping their secrets secret and still profiting from them.

Copyright, however, gave authors something they didn't have at all. The right to control who copied their work once it left their hands. Books only have value if they are read, plays have their value in the performance. Art is public. Prior to the invention of copyright, if you said your idea aloud, wrote it down, painted it, sung it, or whatever, you had ceded it to the public. Period. End of story.

So you have it exactly backwards. Copyright gave whole classes of innovators something they never had before even slightly, while Patents gave far less new protection to inventors.

Saving the best for last, the fact that "you come to own property via a contract" doesn't bring the fact of property ownership under the purview of contract law. The contract *ENDS* and ceases to exist, with respect to the property, once the agreement is discharged and the ownership is transferred. The contract law governing the sale of property has nothing to do with the body of property law.

Example: you are selling Alex some land. I am injured on the land before you complete the sale. The existence of the contract and the intent to sell do not allow me to pursue Alex in court for my injury. If the injury happed one instant after the transfer of ownership, you are safe and Alex is on the hook *UNLESS* you agreed to indemnify him against such things for some period of time after the transfer of ownership. In that last case I *STILL* sue him as the owner, but he gets to exercise the agreement and bring you into it. There will even be a meta-hearing to determine if the agreement validly redirects my suit and whether the suit goes under property or contract law at that point. (and so on...) This special example case of indemnity exists because the contract didn't end with the transfer of property (for the specific purpose of that indemnity).

[ASIDE: you are also wrong about contracts being the basis of real property ownership. Real property has its basis in the fact that someone at some time in the past said "this place is mine!" (which you can still do in well defined circumstances, see "squatters rights" etc.) The *transfer* of ownership is *usually* accomplished by agreement, but that isn't the basis of the law in the matter. I can come to own your house by all sorts of means you did not agree to, not the least of which would be moving into your house and living there for N years and having you not complain about it.]

[ANOTHER ASIDE: you ever hear the expression "possession is nine-tenths of the law"? The law in that usage is only property law. Which is why NDAs work, because possession is *NOT* nine-tenths of the way out of a contract nor is it nine-tenths of the way into a copyright.]

You can agree to almost anything, but agreements don't create property, and property exists in the absence of agreement.

All that considered, the rest of your argument is specious. Period.

Rob.

-----Original Message-----
From: David Schwartz [mailto:[email protected]]
Sent: Thursday, May 01, 2003 4:09 PM
To: Robert White; Jamie Lokier
Cc: [email protected]
Subject: RE: Why DRM exists [was Re: Flame Linus to a crisp!]

Nonsense. Intellectual property is, conceptually, a form of contractual
property. If I pay you $10 to mow my lawn tomorrow, my right to compel you to mow my lawn (or have you pay me damages) is a property right.

If I develop an idea, I have the absolute right to the contents of my mind
and cannot be compelled to disclose the idea. Because the greater includes the lesser, the right to not disclose the idea includes the right to disclose the idea under terms, pursuant to a contract (actual or implied).

Most property rights are contractual. You come to own property because you
contract for it.

Because there was no need for them to do so. If I have possession of an
idea and agree to tell you the idea for $10 provided you agree not to disclose the idea to anyone else, I don't need any special laws other than the normal laws that permit me to make and enforce contracts.

I think that you are right conceptually. Access restrictions are purely
contractual things and more obviously so. If I put a security restriction on a CD and sell it to you, there's an implied agreement that you will respect the restricitions. If I really wanted to, I could have you sign an agreement to that affect.

This would apply to employment contracts too.

This is true for employment to. In fact, it's true for all contractual
agreements except for the sale of real property. If you hire me to mow your lawn, how can I "willfully and completely surrender" one day of lawn mowing in the next ten days to you at that time?

Really, this is not a problem at all. Complex societies like ours
understand how to deal with intangible property rights. When you book a hotel room in advance, the right to that hotel room on that day is an intangible. It could, however, well be a transferrable property right that you have. That's not a problem.

You are confusing the right with the thing that the right is to. If I have
an idea, and I tell you that idea pursuant to an agreement that you will not disclose the idea to others, the property I have is the right to pursue you for damages should you disclose the idea. This is the same concept as if, say, you sign a non-disclosure agreement. The right is not to the idea itself, it's to pursue damages from those who violate their actual or implied agreements not to disclose or use the idea without compensating you.

But it is theft, as surely as if I pay you $10 to mow my lawn and you don't
mow my lawn. Violating a contractual agreement not to disclose and not paying the damages the agreement specifies is a form of theft by fraud.

You are trying to set back a complex society by arguing that only what you
can touch has legal meaning. But you can't touch the right to use an apartment from June 1 to July 1. Yet if you agree to pay monthly rent for the apartment, use the apartment, but don't pay, it's theft.

Seriously, there is no problem at all here. You are needlessly and
senselessly manufacturing artitifical distinctions that make no sense.

Then forget about copyright law entirely. Think only about contractual
property and the fact that a person who comes up with an idea cannot be compelled to disclose it and can disclose it under any terms he or she chooses. Think that when you buy a CD or a program, there's an implied contract that the CD or program is for your personal use and that violating that contract is as much theft as living in an apartment without paying rent.

Agreed.

Agreed.

Agreed. More sensible would be to look at whether the implied agreement
when you purchased that DVD included a promise to only use it on licensed DVD players. An argument that is, IMO, nonsense.

Further, there is no reason why the DMCA should have been enforced in cases
where no right recognized under copyright law exists because the DMCA was a copyright law extension. As far as I know, a DVD seller has no legally recognized copyright interest in what device I play that DVD on, and hence CSS is *not* a copright enforcement mechanism.

I totally disagree with the way the DMCA has been interpreted and hope that
there is a massive backlash.

This is certainly not a right recognized under copyright law, so it's not a
right that can be enforced by a copyright enforcement mechanism. However, this is a moral right that a content author has. Copyright law has taken this away from content authors in the name of benefitting the public at large.

Copyright laws gave authors very little that they didn't already have.
Patent laws, on the other hand, give inventors many rights they would not have otherwise.

DS

Do you agree that:

1) A person who thinks of an idea cannot be compelled to disclose it,
especially since nobody would even know that he had it unless he told them and that therefore absent a contract or other agreement to the contrary, may refrain from disclosing it to others.

2) The greater includes the lesser.

In any event, my dictionary defines "property" as "something tangible or
intangible to which the owner has legal title".

Who said anything about "property law"? All I'm talking about, and all I
need, is contract law. What I'm saying is that contractual property acts like property but it wholly covered by contract law.

If I acquire from you the transferrible right to one day of your lawn
mowing, I have something. It acts like property -- a person can own it, transfer it, control it. Yet it's not covered by real property law. If you fail to mow the lawn, I wouldn't argue property law, I'd argue contract law. The right is a contractual right but it, in every essential way, acts like property.

Absolutely. That's what I'm saying. Intellectual "property" rights are,
morally and conceptually, based in contract law. This is because, unlike real property, intellectual property consists solely of the right to control, to some extent, what other people can do.

Play word games if you want, but people use the term "property" to cover
intangibles if you can have the exclusive right to them.

I disagree. As a single example, independent creation is a defense to a
copyright infringement claim. However, a patent holder need not prove that the infringer got the idea from him at all.

Sure, but patent law doesn't stop them from failing to disclose just they
didn't have to before. That is, patent law didn't take away your ability to keep an invention secret. Nor does it stop you from enforcing contractual secrecy agreements in the absence of a patent, so you can still use contractual techniques or even quasi-contractual technques like trade secrets.

As they still can if they wish. However, patent law gave them something
they never had under contract or property laws -- the right to control other people's use of "their" ideas even if the others developed them wholly independently.

They always had that. They just write a contract that says so and compel
everyone who receives the work to sign the contract. In fact, copyright behaves just like an implied contract.

All you would have had to do was state, before the play, that listening to
the play is contingent on their agreement not to further distribute it. Can you give me any rational reason such a contract wouldn't be enforceable?

Obviously, I 100% disagree with you.

I agree with you. I don't believe that I ever said contracts are the
"basis" of real property ownership. However, you can, purely by contract law, obtain much the same thing as real property ownership with no actual legal transfer of the title. The distinctions are largely artificial legal ones, though admittedly created for legitimate and useful purposes.

It is useful to have an actual "owner" for physical object in a way that it
is not useful to have an actual "owner" for an idea. This is the basis for the laws covering real property.

However, there is another sense of "owner" which still includes the right
of control, use and exclusion. It is this type of ownership that is acquired by explicit or implicit contract, and it is this type of property that intellectual property falls into.

Tell me anything significant that copyright law does that an author could
not do by requiring anyone to whom he discloses his idea to sign an appropriate contract. Tell me anthing copyright law does that contract law can't do.

DS

You know, I read over my original argument again, and I absolutely cannot
understand how you could have misunderstood it. There is no reference to property law at all in it, and several times I mentioned that I was talking about contract law. So how you could have misunderstood me to mean that property law applies to contracts is baffling to me. What I mean is the reverse, that intangible property rights and conceptually part of contract law.

The one thing I said that was not clear and where I understand your
confusion was:

contract for it.

However, I maintain that the rest of my argument is completely clear and
you have not responded to it:

States.

idea and agree to

anyone else, I don't

enforce contracts.

I put a security

you will respect the

that affect.

mow my lawn.

damages the agreement

uncertainty

property and the fact

and can disclose it

program, there's an implied >contract that the CD or program is for your personal use and that violating that contract is as >much theft as living in an apartment without paying rent.

DS

They can't be compelled *YET*.

http://www.boston.com/dailyglobe2/121/nation/Some_fear_loss_of_privacy_as_science_pries_into_brain+.shtml

This could make for some *interesting* EULA clauses...

Where's my copy of The Demolished Man??? ;)