IMO eliminating the anti-circumvention clause just leaves the issue, and the cat and mouse game of breaking drm.
Would it though? I mean, there's already an arms race, and even with anti-circumvention protections, the breakers beat the makers every single time. The ONLY thing that keeps some kind of a lid on it is the fact that people need to be careful about distributing DRM-breaking tools, and so those get relegated to pirate sites and other backwaters that scare off average computer users. Remove that one limitation and I don't see how DRM-makers would stand a chance...
I think Leigh might have a point here, I can imagine that being difficult and problematic to pin down language and eliminate the potential for abuse via contract law and such.
I do think this is something really big that you and Mason aren't fully considering. Law is not great at technology, in general. Either it's very specific, at which point it works well for a short period of time but then rapidly becomes obsolete or nonsensical or begins to apply to new things that weren't intended, OR it's broad and general in an attempt to be future-proof, and ends up having all sorts of immediate unintended consequences.
Some of your notions -- ban DRM! ban closed-source software! ban all that bullshit! -- are admittedly appealing in an anarchist-utopia sort of way. But I'm not at all confident that writing laws to accomplish such things is simply a legal-wording challenge to be overcome — I think it may be an insurmountable task.
Plus, I really do like to focus on things that can be done immediately. Yes, we probably do need some idealists out there pushing for the banning of all DRM - but if we want to see any actual near-term change on that front, what we really need are pragmatists out there fighting against ant-circumvention provisions, because that's still a very meaningful change that would strike a huge blow to DRM, and it's one that's actually legislatively realistic.
Honestly I don't doubt there are areas where we are lacking certain bits of knowledge -- we're a small team covering a lot of topics, and we're also part of a broader community of people covering this stuff, and count on others to bring some of their expertise to the table too.
On my end, the frustration is when these things get boiled down into what I consider unfair blanket statements, like the idea that we are "tonedeaf about privacy concerns" or Mason's assertion that we "don't think DRM is bad" (the latter is clearly laughable to anyone who reads Techdirt). But once you move past that, there's plenty of good conversation to be had.
All the issues with DRM could be solved just fine by getting rid of anti-circumvention provisions.
In fact, let's flip this around: what are the issues that you think would remain after anti-circumvention rules are gone, that would require limiting people's rights to write software how they choose?
I just don't see any justification for legally preventing software makers from limiting the functionality of their software as they choose, as stupid as it might be for them to do so. Again, extending that control beyond the bounds of the software itself, such as the sony rootkit, is a different story -- but outlawing DRM seems like a needless restriction on people's rights, which is not something I support.
Here's one more question, just out of curiosity: would free trial versions of software that disable after a given number of days also be illegal?
"The fact that those people are legally prevented from using their own money and medicine to cure poisoning is a huge problem that we need to fix — but the fact that the company was permitted to create and openly distribute poison is, as far as I can see, impossible to prevent."
Because DRM is a much wider umbrella. I agree that DRM that, covertly and without consent, hijacks functions of the user's computer beyond the software it comes with -- such as the Sony Rootkit -- can be considered identical to malware. But DRM covers so much more than that.
It sounds like you would say that software which refuses to run unless the CD is in the drive, or a dongle is attached, should be illegal. Well... okay... but how do you define that? Does a software maker not have the right to include conditions for that software to operate, or to access certain functions?
In that case, what about a computer game that refuses to let me access later levels until I have completed the early ones, like almost every computer game ever. In that case, the data and the programming for all those later levels is there on my computer, but the game is refusing to let me access it until I satisfy arbitrary, unnecessary, artificial conditions.
So is that illegal too?
Now, of course, I could use other tools to unpack the data from the later levels, hack in and access them. And that would be perfectly legal. If it were illegal, then we'd have a big problem -- and that's the situation with DRM right now, which as I've said I agree is indeed a big problem. But how do you outlaw DRM in the first place without also outlawing my example?
It doesn't even have to be so outlandish. What if I create a privacy/security control program of some kind, say one for parents to install when they want to limit young children's access to certain functions or programs? Sounds to me like that would also be an illegal virus under your definition.
So then, are you saying it all comes down to whether or not the intent of the limitations is to prevent violation of copyright? That's fine I guess, but it's also ridiculous. The law is not going to use a right that people have as the definition of something they cannot attempt to do. "Software makers are specifically prohibited from placing any limitations on their software in an attempt to protect their IP rights." Uh... weird. If you think getting that law is as easy/plausible as stopping SOPA, I dunno what to tell you. Maybe we could work in that direction, though as a step before that it'd likely simply be stated that software makers must make sure their protections have exclusions for things like personal backups and fair use, and as a step before that we'd need to eliminate the current laws actively preventing circumvention of DRM for such uses. Which is, as I've been saying all along, the real issue.
The main issue with your position is that you don't have a workable definition of DRM. Let's start with the one you've provided: only functional purpose is to take control of a computer's functionality away from the computer's owner and have it instead serve the whims of a remote developer
Okay, so are distributed computing apps like the classic SETI processor also illegal malware? They also have that same sole functional purpose. But they are agreed to by the user.
So does that negate it? But what if the user agrees to buy and install a piece of software or content that openly includes DRM? Are they not then equally assenting?
Secret DRM like the Sony Rootkit is a different story. But the vast majority of DRM is not secret -- it's stupid, but not secret, and it's something users agree to when they install the software. The fact that those users are then legally prevented from using their own devices and other software to circumvent that DRM is a huge problem that we need to fix — but the fact that the company was permitted to create and openly sell the DRM is, as far as I can see, impossible to prevent.
So be it. Just know that in our eyes, you are exhibiting the exact same behaviour that rubs you the wrong way from Stallman/the FSF.
No, I do not believe that giving the government more authority to declare what sort of software is legal or illegal is a good idea. In fact, it's a downright stupid one. Simply eliminating anti-circumvention provisions and any other special protections for DRM would render it even more utterly useless than it currently is, without the need to put a bunch of Congresspeople and/or Judges in charge of evaluating the legality of software.
Mason, this is utterly absurd. Any reader of Techdirt, including you, knows perfectly well that we hate DRM - we mock it constantly, we applaud companies that forego it, we point out its massive legal and business model issues, we attack and oppose anti-circumvention provisions and other special recognition for it in the law, and we constantly say it's just about the stupidest thing a software maker can saddle their product with.
You are just mad that we won't join you on your absolutist bandwagon of criminalizing all DRM as though it's a virus. And as such, you really are doing exactly what you accuse the FSF of. What was it you said? "a heretic is someone who believes almost all the same things as you"? Yeah, look at what you're doing right now.
If you see a need for a different type of article, maybe you could fill that void and provide those articles on your own site.
We also love guest-post submissions. If someone with deep technical knowledge about bootloaders and privacy issues deep within device architecture wanted to write a good, accessible post helping our readers better understand those issues and what they can be doing about them, that'd be great! We'd love that.
Unfortunately, such people who try to write such posts often take on a similar tone: barely-veiled frustration with and castigation of the public for failing to make this the only thing they ever think or talk about, and for paying any attention to any tech issues/topics at any other level before addressing this one. And while I somewhat understand that view, it's not the only valid one, and it's not one Techdirt wholly endorses.
(I'd also say that by characterizing our stance as pro-DRM based on our failure to view it exactly the same way as you, you are committing precisely the same sin that you accuse the FSF & Richard Stallman of above)
Techdirt is obviously, openly opposed to DRM. We have written many posts condemning it, and we've always fought against anti-circumvention provisions. I'm looking through your comments on several of those posts and currently haven't found any where our writers have even replied to you, let alone contradicted you, but I'll be interested to see whatever examples you have in mind.
If we have opposed you, I think it's clear what we've opposed: your absolutist insistence that all DRM be treated precisely the same as malicious software and treated as such under the law, and that software makers should be legally blocked from attempting to include it.
That's a uselessly absolutist view, Mason. It's not realistic. It's not going to happen. And it doesn't even sound that great. As you know, here at Techdirt we are big fans of technological/innovative solutions before legal/policy/regulatory ones -- and we feel that the technological futility of DRM will do it in long before Congress or a court is prepared to say that the standard behaviour of all major software companies for 20 years has been criminal.
If you think that our failure to join your absolutist regulatory crusade means we "don't think DRM is bad" then you are being very myopic.
I don't mean to dismiss some of the points you are raising - they just all seemed to come entirely out of no where and have very little relevance to the point I was making.
And that, right there, is the issue with those of you who are immersed in this world of low-level device architecture, who are committed and fanatical (in a good way!) advocates of the Stallman approach to free software and technology, and so on:
While it's not that I think you are wrong, there is a tendency to revert every single discussion back to that low-level issue of yours. And I DO understand that -- it is, after all, low-level, and does indeed sit below the foundation of many other issues. And I can totally see your desire to have a blog that focuses really closely, constantly and almost exclusively on those issues.
But... that's not the blog Techdirt is. We have a variety of things to cover. And sometimes it feels like you expect that we just stop covering that other stuff at other levels until this one core issue that you consider the most important is dealt with.
If we write about the social complications around Google Glass, and people's uneducated and somewhat kneejerk opinions about its privacy implications (do you honestly think the people doing the face-ripping were fully educated in all the stuff you know, and trying to send a message to someone else who doesn't 'deserve the dignity' of a conversation -- or were those face-ripping folks themselves pretty clueless about what they were really mad about?), the response from your world is "why talk about that at all? none of that matters until THIS fundamental issue of the device architecture and control is solved."
But, we still think some of those higher-level conversations -- about privacy as a social construct, about privacy when it comes to cloud storage and security, and more beyond that -- have real value. See, we're not necessarily convinced that the ONLY goal worth fighting for is a world in which ever person has total control over 100% of all their data, because that doesn't really seem possible -- not technologically, and certainly not in a world where people still have access to a wide range of free digital content and services. We're not 100% opposed to the concept of advertising, and hoping to see it abolished the way so many people seem to be -- advertising is a good system that makes a lot of stuff cheap or free.
There are huge dangers in the way things are going now, yes, but there are also huge opportunities, and I strongly believe that some level of trade-off -- you give me a useful online service that I desire, I let you have some insight into my online habits -- is going to be with us for a long time, and that's not necessarily a bad thing. Done right, it can be a very fair trade.
And see, that's the issue. I see Google Glass, and I think "wow, that could be dangerous, but also incredibly useful and cool. Let's really have a serious conversation about the role this will play in society, and how Google will be handling data from it". You see it, and you think "that's the worst thing I've ever heard of, it shouldn't exist, and I can totally understand why someone would rip it off another person's face and smash it", even if you condemn that behaviour.
I stand by my feeling that this is overblown, or at least disruptively absolutist, even while I fully recognize and respect the roots of your feelings about it.
I called them "somewhat overblown" and "freakouts" — not entirely ungrounded or irrelevant. I do think there are genuine privacy concerns to be considered around something like Google Glass, but unfortunately most people were unable to have any kind of rational conversation about it, and went straight to violent opposition of the technology up to and including ripping them off people's faces and smashing them (and being widely applauded online for doing so).
If you think that was a reasonable reaction, so be it. I think it was a somewhat overblown freakout.