An Open Letter to John McCain
The Honorable John McCain
241 Russell Senate Office Bldg.
United States Senate
Washington, D.C. 20510
John_McCain@McCain.senate.gov
Dear Sir:
I am not one of your Arizona constituents, so I can't rant
and rave about how I've voted for you in the past or will in
the future. I can't rationally threaten to oppose your reelection.
And, being a member of the great middle class, I can't offer
to fill your campaign war chest like some special interest groups
can (although I daresay that, in your particular case, it would
be a bad move for them to attempt such a thing…).
But you are a national political figure. And you are the ranking
minority member on the Senate Commerce Committee. Further, you
seem like a reasonable fellow, rather unlike your esteemed colleague
and committee chairman from South Carolina - and as a former
pilot you obviously have some baseline understanding of engineering
and technical issues. So, here goes …..
I am writing to you in regard to hearings held on 28 Feb 2002
in the Senate by Sen. Hollings in the Commerce Committee The
subject of these hearings was essentially legislation drafted
(but not yet introduced) by Sen. Hollings which would mandate
the inclusion of copy protection mechanisms in all electronic
devices (including software) manufactured or sold in the United
States. I believe that you were in attendance at this hearing.
This is about the stupidest scheme to have emanated from the
vicinity of the Capitol I have ever heard, and there have been
some real doozies over the years.
I am a software engineer. Have been for over 20 years. And
speaking as a professional programmer, I can assure you that
the technical effort required to accomplish the objectives set
forth in this bill would make the whole Y2K panic seem like a
picnic. And it is doomed to fail.
Think about it with me, for a moment, and you'll see what
I mean.
The entertainment industry has had the pants scared off it
by Napster and its ilk. They are in an absolute panic because
they realize that the digital world is inherently and by design
an "open" world - a world where information does indeed,
wish to be free. Digital documents (a digital document can be
any type of file - text, music, video) can be very easily reproduced,
and, with the assistance of the Internet, distributed.
Think of the digital universe as a language. This language
has as the whole of its alphabet the digits one and zero. If
you think about it, it's a basic law of nature. The one thing
that can be said for certain about any electrical circuit is
that there is either current flowing, or there is not. It's either
on or off. One or zero. It is incredibly easy to reproduce ones
and zeros. Thus, digital data has, by its very nature, the ability
to be infinitely and perfectly copied. By simply interpreting
this raw language, it is literally possible for me to print a
copy of an MP3 music file onto paper. To a computer, everything
is either a one, or a zero. Including movies that have been digitally
encoded onto DVD, and music placed on CD.
Bits are made to be copied - every network transmission, every
'File Save' command, every operation of a microprocessor is,
at some level, concerned with the copying of bits. In the words
of Bruce Schneier, president of Counterpane Security, "Trying
to make bits uncopyable is like trying to make water unwet.".
This is, in the view of the music and movie industries, a
real cause for panic. For if all of their titles - all of their
intellectual property- can be so easily duplicated, who will
purchase their products?
There are only two ways to defend property of any sort. One
is to guard it constantly, using guards, locks and alarms. The
other is to mark the property indelibly as belonging to you,
so that if stolen it can be less easily disposed of and more
easily recovered. Let's look at these two approaches for digital
data.
How would you guard digital data? Well, the most obvious way
is to not make it digital in the first place! This would mean
abandoning DVD and CD formats, and returning to analog formats
such as tape and vinyl. Clearly not an acceptable solution: consumers
would howl in rage and disbelief, and would simply stop buying
the product.
OK, well maybe we can lock it up. And you could - but only
by not releasing it! For once the lock was breached, presumably
for a paying customer, a perfect copy would exist in digital
form, which could then be infinitely copied. This was the point
that the gentleman from Intel attempted to make. We're back to
where we started.
Well, what about marking the data? Preferably with a sort
of lock system all on its own? This was the approach recently
taken by the Secure Digital Music Initiative. It took a group
of researchers from Princeton less than a week to break the system.
By their very malleability any alteration to a digital data set
can be easily detected and removed. And even were this not the
case, the data could simply be copied to a non-digital context
and then re-digitized, stripping any 'watermark' or other identifying
characteristic.
So maybe if we just throw the full weight of the Federal research
bureaucracy behind it, our best computer scientists will find
a way to securely do it.
Unfortunately, this is a delusion too. As described above,
it is quite easy to move digital data to an analog format (i.e.
playing the sound on your stereo or watching a movie on your
television) and then re-digitize it. There is some minor loss
of quality of signal in this process, but it's usually how first
run movies such as 'Lord of the Rings' initially find their way
onto the Internet. Using my Windows 98 computer I can create
a digital image of any song simply by hooking the 'Line Out'
jack on my sound card to the 'Line In' jack and starting a recording
session. On my Unix machine it's even easier: just link a file
to the proper device and anything rendered (or, in the case of
audio or video, played) to that device will be saved to the file!
A one line command in software, no wires needed!
So should we just ban CD burners on computers? Ban recording
audio or video on computers? I'm not sure the public would sit
still for these "solutions", and anyway, what do you
do about all the burners and sound cards already in existence?
What about their legitimate uses, such as saving movies I make
of my grandchildren, or storing backups of my files?
So along comes Sen. Hollings draft legislation: the SSSCA.
"Sec. 101: Prohibition of Certain Devices
(a) In General -- It is unlawful to manufacture, import, offer
to the public, provide or otherwise traffic in any interactive
digital device that does not include and utilize certified security
technologies that adhere to the security system standards adopted
under section 104."
I'm a programmer, not a lawyer. But even I can read this -
it would require every "interactive digital device"
(defined later in the draft to include software) to have the
same, mandated copy protection scheme embedded in it, and to
refuse to render (play or display) content that was not marked
with the requisite digital rights management scheme.
Every device. Every program.
My current employer makes digital telephony devices. We have
a product line of some 50 different models. Each and every one
of them would have to be either redesigned or re-coded to accept
this new mandate. These are not general purpose computers, but
they could certainly be used to digitally copy music and voice
- in fact, that's what they're designed to do - copy music from
memory to a phone line! Most of the devices have very, very small
memory footprints - it's not unusual for devices such as ours
to use less than 4 kilobytes (4096 characters) of actual code
- MS Windows, by contrast now runs to several hundred megabytes
of code. Unlike a general purpose computer, our devices have
no hard disk drive - everything is stored in memory. Adding code
means adding memory, and adding memory means adding cost.
We employ about 100 people - here in Indiana, in Minnesota
and in North Dakota. There are six engineers - three hardware
guys and three software guys. To actually implement this kind
of mandated copy protection scheme for all of our devices would
take us (conservatively) somewhere in the neighborhood of three
to five years. In the meantime, of course, we would be forbidden
to sell any product without such a scheme. Simply put, we would
be out of business.
Extend our circumstances to our much larger cousins at Microsoft,
Sun, Intel, Dell and others, and you'll immediately grasp why
the industry as a whole, including people who are frequently
at loggerheads over every other issue, are all together on this
one. This bill, as written, would cause such a severe economic
dislocation to the high tech industry as to come close to being
an industry killer.
But the situation gets even worse. The bill, as written, would
literally destroy any 'Open Source' software based on the GNU
General Public License. This is because the GPL forbids inclusion
of closed source, proprietary code in any code covered by the
GPL, and the language of the draft legislation would mandate
such an inclusion. This would place operating systems such as
Linux and web server software such as Apache between a legal
rock and a hard place. If they added in the code required by
law, they would be violating the contract implicit in the license
by which their software is distributed. Since the legislation
would take precedence over private contractual agreements in
the United States, the software would simply cease to exist here-
it could not be maintained or distributed further. Since many
Linux and open source developers are Europeans or Asians (Linux
was developed by a Finn), that entire branch of our industry
would move offshore. Including companies such as Red Hat. Close
to 70% of Internet web servers use the Apache program. Linux
is used extensively in academic and business infrastructure.
Nearly half of all Internet servers run Linux or some form of
Open Source Unix.
As if this weren't bad enough, the draft bill contains the
seeds of its own failure in any case:
"(b) Exception -- Subsection (a) does not apply to the
offer for sale or provision of, or other trafficking in, any
previously-owned interactive digital device, if such device was
legally manufactured or imported, and sold, prior to the effective
date of regulations adopted under section 104 and not subsequently
modified in violation of subsection (a) or 103(a)."
Obviously, without this provision, every computer and other
"interactive digital device" that currently exists
would have to be confiscated or otherwise rendered useless. I
don't think this would fly with the American public - to suddenly
find that their VCR has stopped recording, or to have the Federal
Copyright Police show up at the door demanding they hand over
their computers.
Yet with this provision, there can be no such thing as secure
digital content, for some machine, somewhere, will have the ability
to make perfect digital copies of material as it was originally
designed to do, and will further have the ability to make these
copies available to other machines.
The problem is only exacerbated if you extend this paradigm
world-wide - what do you think the chances are that the 'Pirate
Republic of China' would ever agree to building and designing
such restrictions into computers or other equipment they manufacture
for their own domestic consumption? And if one guy in Peking
makes a copy and posts it on the 'Net ..... game over.
Over the course of the last several years, copyright law has
been enhanced and extended several times, always at the behest
of the entertainment or publishing industries. Our Founding Fathers
envisioned copyright as a time limited monopoly - read the copyright
clause in the Constitution and the writings of Thomas Jefferson
on the subject - to insure that creators had a chance to get
financial remuneration for their creations. It was never intended
to be a permanent condition, yet that is effectively what this
bill (along with other recent laws such as the infamous Digital
Millenium Copyright Act) would create.
Assume that the draft legislation was in effect now, and that
somehow, despite its evident impossibility, perfect protection
were defined and achieved. If I created a new work, and placed
it under the digital rights management schemes envisioned by
the bill, my copyright would effectively never expire. How could
it? It would be impossible to circumvent the copy protection.
It would be illegal for anyone to attempt to remove the copy
protection mechanism, presumably even 75 years after my death
when my copyright expired. And that's assuming that the media
on which my work was distributed could even be read by anyone
at that time, for with the mandated copy protections in place,
the work could not have been moved to a different format without
the connivance of the copyright holder. When publishers of paper
books to move to an electronic format, this bill would completely
eviscerate the concept of the public library. How many publishers
would grant to an institution an unlimited number of 'reader
licenses' for a price which a non-profit, quasi-governmental
agency such as a library could afford?
Imagine a world were books were equipped with thumbprint readers
and retinal scanners. A world where removal or circumvention
of these "protective" devices would get you a fine
and jail time more severe than that imposed on many violent criminals.
In such a world, a book would only allow itself to be opened
and read by the "license holder" - i.e., the one who
paid for the content. This is the world envisioned by Sen. Hollings
proposal and by the entertainment industry. It is a world more
akin to the nightmare visions of George Orwell than to the democratic
aspirations of Thomas Jefferson.
Mozart was neither very popular or well-known in his time.
How much poorer would Western civilization be if his work had
been locked down under a digital rights management scheme and
never heard? Would we know the works of William Shakespeare had
Senator Hollings been a member of the Elizabethan Parliament
rather than a US Senator? Once the owner of a "protected"
work dies, or the key is lost, or the publisher goes under, the
work is effectively lost forever. Unless, of course, some "criminal"
programmer "cracks" or circumvents the protection -
and doesn't land in jail!
Perhaps a couple of recent examples of the principles embodied
in the draft bill would help. If you look back into the early
1980's, when Sony had just introduced the Betamax video recorder,
you will find one of the main protagonists of today's debate,
Mr. Jack Valenti of the MPAA, espousing many of the same arguments
against the VCR as he is today against the world of digital information.
Home video recording would undoubtedly lead to the utter destruction
of Hollywood and the entire movie industry! Since the defeat
of his position in the Congress and the courts, it is obvious
that his dire predictions have not only failed to materialize,
they have instead been reversed: Hollywood has never had it so
good. Despite all the "time-shifting" and "fair
use" recording, the entertainment industry continues to
thrive and prosper.
Now, have you every heard of DAT - Digital Audio Tape? In
the early 1990's, this technology was poised to allow perfect
digital copies of material to a form of magnetic tape. Congress,
in its infinite wisdom and at the request of Mr. Valenti and
others in the entertainment industry, killed it before it was
even born by the imposition of strict copy controls and a tax
on every blank digital tape sold, under the presumption that
every such tape would be used to make illegal copies of something.
This tax is actually distributed to the "content producers"
(the entertainment industry) as remuneration for their presumed
losses.
It never took off. The units were clunky and expensive. The
media was overpriced to cover the effects of the tax. The wags
in the trade press remarked that "DAT is DOA".
Which example would you care to see applied to the Internet,
arguably the greatest communication innovation of all time?
The rules of the world are changing. The models we have used
for centuries are breaking down in the face of the new reality
of the information age. There are powerful interests afoot that
sincerely believe that their very survival is at stake in the
maintenance of the status quo.
It is true that copyright law is in serious need of revision
- but the SSSCA revises it in exactly the wrong direction. Creative
artists need protection for their work for a limited time, as
envisioned by the Constitution. Ideas cannot and should not be
turned into "real" property, existing in perpetuity
for their creators heirs and assigns. The original copyright
term was 14 years: currently, it's up to 75 years past the death
of the author! In the early days of our Republic it could literally
take several years for a printed book to achieve "coast
to coast" distribution, yet the framers limited copyright
to 14 years. Given the speed with which information now moves,
it makes sense now to reduce the term, not to increase it. Unfortunately,
given the political clout shown by the entertainment industry,
the trend in copyright and intellectual property law is obvious.
One must ultimately ask oneself why the entertainment industry
is so adamant about this legislation. It would seem that existing
protections are working: after all, Napster was shut down by
a successful lawsuit for copyright infringement. It is obvious
that digital copying cannot be stopped, only criminalized. But
these illegal copies are already criminal! It is theft to illegally
copy a work, whether you use a Xerox machine or a CD burner.
Why the draconian extension into micromanaging the actual technology?
It must be concluded that the real purpose of this draft legislation
is the ultimate extension of copyright to the realm of real property.
Once a digital work is protected, it would remain so for all
time, copyright expiration or not. This would insure the survival
of the entertainment industry in perpetuity, using current business
models and practices. Far from supporting innovations and new
technology, this bill seeks to destroy the foundation on which
innovation is built - it seeks to codify the current state of
the art for all time, and forbid any innovation in content delivery
that would fall outside the "protected" norms.
This flies in the face of the whole purpose of copyright,
as expressed in the Constitution, to grant a monopoly for a limited
time to authors and inventors. This substantially changes the
face of intellectual property law. Rather than attempting to
innovate new business models that would allow their continued
success, the entertainment industry is seeking government sponsored
protection from forces at work within the market, brought about
by our increased understanding of the nature of the world and
the various ways that we can represent it.
I close with a quote from a novel by Robert Heinlein titled
'Life Line', which seems entirely appropriate for the debate
at hand:
"There has grown up in the minds of certain groups in
this country the notion that because a man or corporation has
made a profit out of the public for a number of years, the government
and the courts are charged with the duty of guaranteeing such
profit in the future, even in the face of changing circumstances
and contrary to public interest. This strange doctrine is not
supported by statute or common law. Neither individuals nor corporations
have any right to come into court and ask that the clock of history
be stopped, or turned back."
Sincerely,
Daithi M Haxton
1 March 2002
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