From: "Robert White" <rwhite@casabyte.com>
To: "David Schwartz" <davids@webmaster.com>,
       "Jamie Lokier" <jamie@shareable.org>
Cc: <linux-kernel@vger.kernel.org>
Subject: RE: Why DRM exists [was Re: Flame Linus to a crisp!]
Date: Thu, 1 May 2003 13:27:55 -0700
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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).

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