# a blog about things that I've been thinking hard about

# Looking for a Win/Win Solution to the War Between "Premium Content" and Digital Freedom

26 December, 2006
Copyrights and patents link payment for the creation of ideas and content to the ability to control the use of ideas and content. This causes a direct conflict between intellectual property and digital freedoms. The conflict is most intense for high-budget content sold to a mass-market – so called "premium content" – where big money is involved. The conflict could become a war to the death, and I think we will all be better off if we can find an alternative: a way to pay for premium content without sacrificing our digital freedoms.
by Philip Dorrell

Another shot has been fired in the war between money and freedom. Or more specifically, the war between "premium content protection" and digital computer freedom.

In his article A Cost Analysis of Windows Vista Content Protection, Peter Gutmann of Auckland University explains just how much effort Microsoft is making so that the world, and in particular your home computer, will be a safe place for "premium content".

Mr Johnson, that fuzzy region on your X-ray indicates one of two things. Either you have multi-drug resistant tuberculosis, or the copy-protection system on our computer thinks that part of your left lung looks like Mickey Mouse.

## Previous Shots in the War

The war for digital freedoms has been going on for a while. The last big shot was fired when Mark Russinovich uncovered Sony's "rootkit". Sony backed down from that battle, but it would seem that Microsoft has decided to escalate the war, and their new motto could be: "The rootkit is the computer". When Sony wanted to control what their customers could do on their own (i.e. the customers') computers, Sony had to infiltrate a rootkit via software provided on the Sony music CDs. But if Microsoft wants to control what people purchasing music or movies can do with them on Microsoft operating systems, Microsoft doesn't need to infiltrate any rootkit, because Microsoft gets to define what counts as the initial state of the operating system. Thus Microsoft's "rootkit" is no rootkit at all.

Both the Sony rootkit and Windows' Vista content protection result from the perceived need to "protect" copyright, but copyright isn't the only enemy of digital freedoms. Software patents threaten our freedom to write software. The governments of some countries, like China, Iran and North Korea, do everything they can to prevent their citizens running unauthorised software and surfing unauthorised websites. But Hollywood, Motown and Microsoft have more influence on the legislative policies of Western Governments than Kim Jong-il, so we should be more afraid of them. They also occupy a slightly higher moral ground. Which is more worrying, because the war for freedom is fought bitterly at all levels: moral (think author's "moral rights"), political (think Trips and DMCA), legal (think movie companies trying to prosecute DVD Jon) and "pragmatic" (think of file-sharing).

## Why Do We Have to Have a War?

The war between intellectual property and digital freedom is based on the following "control" assumption:

> The creators of useful ideas and content must become the "owners" of their ideas and their content, with the right to control the use of those ideas and content, in order to receive payment via licensing.

This assumption has both a moral dimension and a pragmatic dimension. Morally, the creator of an idea or a creative work has "made" something, therefore the thing they "made" is theirs, and if it's theirs, then they should be able to control how it is used. Pragmatically, the "ownership" of intellectual property provides a means for the owners to receive income for their efforts, and this encourages the creators of content to create even more content. (Even if creators are motivated to create for free, they can usually be much more creative if they get enough money to quit their "day job".)

The "control" assumption places the creators of intellectual property in direct confrontation with digital freedom. Because with digital freedom, there is no control. Files can be copied, and no one has to pay anything to copyright owners. Algorithms can be implemented, and no one has to pay any patent licence fees.

Now intellectual property has both a moral justification and a pragmatic justification, but so does digital freedom. If we are not free to copy data and write programs on our computers, then we are not free. And that is a bad thing. The opposite of freedom is tyranny. If we don't control what happens on our computers, then someone else does. We suffer in two different ways: firstly there is the economic loss of not being able to do as much with our computers as we could, secondly there is the danger that someone else (like a central government intellectual property "protection" agency) has total power over all the computers in the world, a power which will inevitably be abused in the worst possible way.

Almost everyone seems to accept the inevitability of this conflict between intellectual property and digital freedom, and as a result, most people's opinions on the subject are determined by how much they value "premium content", and how much they value digital freedom.

If you value premium content, then you think that DRM is good and the severest possible laws against copyright and patent infringement are a good thing, and you don't mind if all the computers in the world are controlled by an agreement between Hollywood and Microsoft.

If you value digital freedom more, then you think that there should be no copyrights or patents at all, and that it is up to the "premium content" creators to think up a new "business model", for example giving away CDs and DVDs for free and only making money by selling teeshirts.

And if you are half-way in between then you believe in a "balance" between the rights of content creators and the rights of consumers. Unfortunately for those of a moderate inclination, there is no balance. There is no such thing as a "half-free" computer. A computer is either free or it is not free. (I think this is a theorem of computer science.) If my computer allows "fair use" of 1% of a movie, then I can run a script to extract 1% of the movie a hundred times. And if my computer only allows loops of maximum size ten, then I can loop a hundred times by nesting one loop inside another loop.

## Is There an Alternative to the War?

To find if there is an alternative, we have to examine our assumptions. So here is the "control" assumption again:

> The creators of useful ideas and content must become the "owners" of their ideas and their content, with the right to control the use of those ideas and content, in order to receive payment via licensing.

As I have explained, this assumption has both a moral basis and a pragmatic basis. But what is the real goal here? Is the "protection" of digital content the real issue? Do movie script writers dream only of being able to control the ability of their audience to copy files from one computer to another? Maybe some of them do, and I don't actually know any movie script writers (at least not any with a Hollywood contract), but I am going to be generous and believe that movie script writers in general do not desire to control the information infrastructure of Western civilisation, and that what they really want is to get paid. And I will be even more generous, and believe that most of them want to get paid, if, and only if, people like their movies.

So here is my proposed alternative assumption:

> The creators of useful ideas and content should receive payment.

You will notice that this assumption is both simpler and shorter. It still has a moral and a pragmatic basis – moral because creators deserve to receive something for their efforts, and pragmatic because if creators get paid then that will encourage them to create more useful content.

What is missing from the revised assumption is the details of how content creators should be paid. The revised assumption is vaguer, because it leaves out the implementation details, and it is more precise, because it states clearly the one thing that actually matters – that creators should be paid.

## What About Freedom?

The revised assumption says less about freedom than the original version. The theory of intellectual property is that everyone is less free to copy and use digital content, leaving each person "free" to decide whether or not to pay for the right to use licensed content.

If we value digital freedom, and we believe that content creators deserve to be paid, then we may have to reconsider the freedom "not to pay".

There will be those who value this freedom even more than either of the first two items. But in the end, we can't have it all, and as a society we have to decide which matters to us the most. Personally I like digital freedom, and I like good movies and well-produced popular music, and I know that a lot of other people like good movies and well-produced popular music. I also don't mind paying a little extra tax, especially if that tax replaces my existing private expenditure on content, and if it gives me potential access to all the content which the tax has paid for (unlike the current system where on average we all fund all the content, but each person only ever has access to the tiny proportion of content that they actually buy).

If we lose the freedom "not to pay", what this means in practice is that there will be some kind of "digital content tax", which will be charged against the facilities that people use when they consume digital content (i.e. computers, media players and Internet connections), and which will be allocated somehow to those creators judged most deserving to receive payment for their efforts.

## Who Allocates Payment?

Will there have to be a Government Department of Digital Content Tax Allocation? How can a government department possibly decide which are the "best" movies or the "best" songs? (or the "best" algorithms?)

What seems to be happening now in countries that levy a "copyright tax" is that the content creator organisations are in charge of the allocation. This is justified by the view that the tax is compensation for the "theft" of pirated content. But as I explained in my article Copyright Levies, you can't justify a tax paid by everyone which pays for a benefit only received by criminals.

The best people to decide how to allocate a digital content tax are not the receivers of the tax, but rather the payers of the tax. This is the idea behind my proposed Voted Compensation scheme.

Such a scheme would not have been practical in days gone past. Indeed it is still non-trivial to implement now. It has to be designed, and there has to be an architecture to support voter identification and security and content registration and transparency and privacy, and there has to be voting and meta-voting. Security may be the biggest headache, and a Voted Compensation system may not be viable until the application security problem is solved. (DRM also requires security, but the difference with Voted Compensation is that it requires security for the benefit of the user, for example to guarantee that the votes I make from my computer actually get correctly sent to and recorded by the public voting system.)

## Digital Piracy Funds Organised Crime

A lot of existing piracy is very informal – friends giving CDs to friends, downloads off the Internet. But a certain amount involves the organised production and sale of pirated discs. Some of this production is small-scale operations – someone who owns a disk duplicator; some of it involves large criminal organisations. Thus a side effect of the copyright "war" is that money is being made by criminals.

There is some analogy here with the "war on drugs". The illegality of recreational drugs creates opportunities for criminals to make big money. If all drugs were legalised, then the criminals would lose much of their "market", which would be replaced by a legal market. Of course a downside of legalising drugs is that it might result in increase useage, and most illegal drugs are rather bad for the users health, and many of them have additional destructive social effects. If we "legalised" piracy, then there might be a similar increase in "useage", as everyone takes advantage of access to unlimited music. Luckily music isn't so bad for your brain (although it can damage your hearing if turned up too loud), and its social effects are mostly benign.

If we redefine copyright so that the word "piracy" no longer means anything, then this source of income for organised crime will just disappear. Instead of buying DVDs full of illegal MP3s from criminals, consumers will buy legal DVDs full of exactly the same MP3s from their local record shop. No royalties will be paid at the point of sale, because in the Voted Compensation system royalties are paid indirectly as a result of voting, and consumers vote for content to receive income after it has been listened to and enjoyed. (Of course criminals will attempt to target the Voted Compensation system itself, but this will have its own protections, including total transparency about who is paid how much for which content.)

## What to Do Next?

The easiest option is to do nothing. Let the "war" play out. If Intellectual Property wins, then freedom is lost. Presumably Western Civilisation will decay into tyranny, collapse after a few centuries, and then we can all start again. Or Digital Freedom will win, and we will just tolerate the loss of Hollywood and commercial pop music.

Or, we could start reconsidering our options in advance, before any of these terrible things happen. Perhaps we could start designing and implementing a software architecture for a viable Voted Compensation system.

At the very least, we should carefully consider the assumptions underlying the "war", before we commit to a fight to the death.

## See Also ...

The Future of Computing

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