EFF and Palladium

[Originally posted at: http://cmusings.blogspot.com/2003_01_19_cmusings_archive.html#87907184


The Free Market, DRM, and the EFF: a brief critique
[UPDATED: 2-10-03]
[New]
I rarely have anything even mildly critical to say about the EFF. In fact, I respect and praise most of what they’ve done. But, recently, I’ve begun to question some of their actions (or lack thereof). Specifically, I wish they would take a clearer public stance on Palladium/TCPA, and I wish they would have done so when the technologies were in the spotlight.


The EFF seeks one main goal in the IP debate: no mandates or regulation. Let technology develop. Let business adapt. Don’t create laws to alter the wonders of the free market. Let people buy the types of products they want, ignore the ones that suck, and everything will get sorted out.
But I wonder sometimes: would that really be enough? Say we repeal the DMCA. Say we don’t get a digital TV mandate, or any similar mandates.Then, let’s say DRM gets better – let’s imagine a world where Palladium/TCPA/LaGrange actually work.
Would we be comfortable with that world? Would that world protect fair use or, as Mr. Schoen more accurately puts it, the “public’s rights in copyright”? Are those rights negotiable? (That is, are you willing to trade them away for some service provided by a content creator?) Are we willing to trust the market to protect those rights?
Right now, I’m not sure if I would be comfortable with that world. When Palladium and TCPA were first in the spotlight, they certainly worried many people, including myself. We were told that this DRM was stronger than others before it. We saw a lot of heavy hitters – Intel, Microsoft, AMD – with a lot of market power doing something that played right into the hands of the RIAA, MPAA, et al. And, we wondered, “can we trust the market?” Frankly, we were a bit nervous.
Right then and there, I would have liked to see the EFF take some sort of clear stance on these technologies. I expected them to lead the way – to either tell me that I was too nervous or that they would try to handle whatever problems arise. Because Palladium/TCPA was still a hot topic and because the EFF knew more than anyone about the technologies, it seemed like a crucial time to talk to their members/constituents.
Instead, we’ve heard hardly anything clear from the EFF. What might seem like a nuanced, sophisticated message has come off as confusing and ambiguous. I’ve read snippets here and there in news articles, but nothing clear. The line “it could be good or bad, so we don’t have a position either way” hasn’t been that helpful, because it hasn’t been spelled out; that is, we don’t know how they think it will be good and how we can make sure bad features aren’t implemented to consumers’ detriment.
Ms. Newitz was right to criticize this at the time; furthermore, the fact that the EFF hasn’t done anything since then is rather troubling.
Perhaps the EFF is struggling with their free market stance in this case. They have supported affirmative fair use rights in the Lofgren and Boucher bills, but, as I’ve discussed, these seem only like half-way affirmative rights. You have the right to circumvent, but, if you don’t know how to (or can’t easily) do so, do your fair use rights really matter? Maybe it’s time to change the debate in such a way that laws go beyond the right to circumvent. Unfortunately, the EFF can’t really do that, because they can’t suggest mandating that technologies have certain features; no one would take them seriously.
Or, perhaps they’ve had other fires to put out and, now that Palladium is not in the spotlight, it doesn’t make sense to talk about it. That makes sense, but I still think they missed an important opporunity to discuss these technologies. I hope they publish some analysis soon, for their sake and for consumers’.

[Original]
I rarely have anything even mildly critical to say about the EFF. In fact, I respect and praise most of what they’ve done. But, recently, in their action (or lack thereof), I’ve begun to question one of their positions.
The EFF seeks one main goal in the IP debate: no mandates or regulation. Let technology develop. Let business adapt. Don’t create laws to alter the wonders of the free market. Let people buy the types of products they want, ignore the ones that suck, and everything will get sorted out.
But I wonder sometimes: would that really be enough? Say we repeal the DMCA. Say we don’t get a digital TV mandate, or any similar mandates.Then, let’s say DRM gets better – let’s imagine a world where Palladium/TCPA/LaGrange actually work.
Would we be comfortable with that world? Would that world protect fair use or, as Mr. Schoen more accurately puts it, the “public’s rights in copyright”? Are we willing to trust the market to protect those rights? Are those rights negotiable? (That is, are you willing to trade them away for some service provided by a content creator?)
Right now, I’m not sure if I would be comfortable with that world. Furthermore, I think this runs the EFF into some trouble. Embedded within “no mandates or regulation” is “therefore, people can make fair use and even when DRM is there to stop them, we’ve got DeCSS or some such.” Maybe it’s time to change the debate around and say, consumers have fair use rights, not fair use defenses, and those rights need to be treated like rights.
If the EFF tries to change the debate in that way, and they, for instance, ask for regulation that would mandate fair use, they’ll be laughed at. And I think that’s unfortunate for them and for all of us. It will limit what they can do in the short term.
What’s more unfortunate, though, is that they haven’t really even begun to take a strong stand on DRM. I know, I know – they’ve had other fires to put out. Perhaps they haven’t because, as I said, they might get laughed at. But, when the Palladium story broke in the summer, and they basically had the monopoly on technical info, they should have said something more than “we have no position as of yet, it could be good or bad.” Ms Newitz was right to criticize that. Say something. Give me a timetable. Tell me you’ll publish something soon. Give me a policy paper. If “no regulation” and “no bad DRM” is a tough spot to get out of, tell us what you’re thinking, because, eventually, you’ll need to lead the way.
Again, for the most part, I agree 100% with what the EFF does. But, I do hope we hear something on these issues from the EFF, and others, soon.
For my part, I’ve been looking at some journal articles that deal with these issues. Over the course of the next while, I’ll link to what I’ve been looking at and where I think we should go with respect to these issues.

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