Rep. Zoe Lofgren (D-CA), Rep. Thomas Massie (R-KY) and Rep. Jared Polis (D-CO) have introduced a landmark technology bill called The Unlocking Technology Act of 2013 [PDF] that reforms the way our devices our regulated. It fixes a glaring hole in the Digital Millennium Copyright Act (DMCA), changing the rules so that you are allowed to remove restrictions and locks from your devices provided that you don't violate other laws (as it stands, removing a lock, even to do something legal, like installing unapproved software on your iPhone or change carriers, is banned by the DMCA). The bill clarifies that security researchers don't violate the law by publishing information about flaws in the devices we trust and depend upon, and makes it legal to break "lock-out codes" that stop mechanics from fixing cars.
This is a watershed moment in 21st century technology law, and it's desperately needed. Every day that goes by sees us more dependent on devices that are increasingly designed to be as opaque as possible -- devices made by companies whose business-model treats customers as adversaries who undermine profits when they turn to third parties for software, repairs and services. It is only the presence of the terrible rules in the DMCA that makes this business attractive -- without these rules, technology locks would be quickly broken in the marketplace and competition -- as well as transparency -- would thrive. If you want to be sure that the devices that fill your rooms, your pockets -- and increasingly, your body -- are well-behaved and trustworthy, please support this bill.
FixTheDMCA.org and a broad coalition of groups are calling on Americans to write to their representatives in support of this bill. Until now, almost all technology activism has been reactive, fighting against bad rules. We finally have the chance to make some good rules, to establish a positive agenda for freedom, trustworthiness and transparency in the devices that form the nervous system of the 21st century.
"The Unlocking Technology Act of 2013" has 3 parts:
- It amends Section 1201 to make it clear that it is completely legal to "circumvent" if there is no copyright infringement.
- It legalizes tools and services that enable circumvention as long as they are intended for non-infringing uses.
- It changes Copyright Law to specify that unlocking cell phones is not copyright infringement.
The Humble Indie Bundle is back again, with the The Humble Double Fine Bundle: name your price for three DoubleFine games, pay more than the average and get a fourth, pay $35 or more and get backer access to the Broken Age Kickstarter, and at $70, you get a t-shirt, too! It's all DRM-free and cross platform (Win/Lin/Mac); as always, you can earmark some or all of your money to EFF and/or Child's Play, the bundle's two nominated charities.
I've got a guest column in the new edition of The Bookseller, the trade magazine for the UK publishing industry. It's called "Tangible Assets," and it points out that of all the fights that publishing has had with the ebook sector -- DRM, pricing, promotion -- the one they've missed is access to data. Whatever else is going on with publishers and Amazon, Google, Apple, et al, the fact that publishing knows almost nothing about its ebook customers and has no realtime view into its ebook sales; and that the ebook channel knows almost everything, instantaneously, is untenable and unsustainable.
I just came off a US tour for my YA novel Homeland, which Tor Teen published in the US in February, and which Titan will publish this coming September in the UK. I went to 23 cities in 25 days, a kind of bleary and awesome whirlwind where I got to see friends from across the USA—Internet People to a one—for about 8.5 minutes each, in a caffeinated, exhausted rush.
Inevitably, I had this conversation: "How's the book doing?" and I got to say: "Oh, awesome! It's a New York Times and Indienet bestseller!" (It stayed on the NYT list for four weeks, so I got to say this a lot). And then, always: "So, how many copies does that
come out to?" And my answer was always, "No one knows."
This is where the Internet People began to boggle. "No one knows?"
"Oh, there's some Nielsen reporting from the tills of participating booksellers—you can get that if you spend a fortune. But there's no realtime e-book numbers given to the publishers. We'll all find out exactly how the book performed in a couple of months."
And that's where they lost their minds. The irate squawks that emerged from their throats were audible for miles. "You mean Amazon, Apple and Google knows exactly who comes to their stores, how they find their way to your books, where they're coming in from, how many devices they use and when, and they don't tell the publishers?"
Kyre sez, "The Free Culture Foundation has posted a thorough response to the most common and misinformed defenses of the W3C's Extended Media Extensions (EME) proposal to inject DRM into HTML5. They join the EFF and FSF in a call to send a strong message to the W3C that DRM in HTML5 undermines the W3C's self-stated mission to make the benefits of the Web 'available to all people, whatever their hardware, software, network infrastructure, native language, culture, geographical location, or physical or mental ability.' The FCF counters the three most common myths by unpacking some quotes which explain that 1.) DRM is not about protecting copyright. That is a straw man. DRM is about limiting the functionality of devices and selling features back in the form of services. 2.) DRM in HTML5 doesn't obsolete proprietary, platform-specific browser plug-ins; it encourages them. 3.) the Web doesn't need big media; big media needs the Web.
There is also a new coalition of 27 internet freedom companies and groups standing up to the W3C."
Hollywood is making yet another attempt to lock down the Web. Undeterred by SOPA's failure, Hollywood is conspiring with tech giants like Microsoft, Google, and Netflix to try to influence the World Wide Web Consortium (W3C). A proposal currently under consideration at W3C would *build accommodation for Digital Restrictions Management (DRM) into HTML itself.* The W3C's job is to keep the Web working for everyone; building DRM into HTML would be a dramatic departure from the NGO's mission.
Today a coalition, organized by the Free Software Foundation and including EFF and Creative Commons, released a joint letter to the W3C condemning the proposal. The coalition is also asking Web users to send a message to W3C by signing a petition>.
The coalition says, "Ratifying EME would be an abdication of responsibility; it would harm interoperability, enshrine nonfree software in W3C standards and perpetuate oppressive business models. It would fly in the face of the principles that the W3C cites as key to its mission and it would cause an array of serious problems for the billions of people who use the Web."
My latest Guardian column is "Copyright wars are damaging the health of the internet" and it looks at what we really need from proposed solutions to the copyright wars:
I've sat through more presentations about the way to solve the copyright wars than I've had hot dinners, and all of them has fallen short of the mark. That's because virtually everyone with a solution to the copyright wars is worried about the income of artists, while I'm worried about the health of the internet.
Oh, sure, I worry about the income of artists, too, but that's a secondary concern. After all, practically everyone who ever set out to earn a living from the arts has failed – indeed, a substantial portion of those who try end up losing money in the bargain. That's nothing to do with the internet: the arts are a terrible business, one where the majority of the income accrues to a statistically insignificant fraction of practitioners – a lopsided long tail with a very fat head. I happen to be one of the extremely lucky lotto winners in this strange and improbable field – I support my family with creative work – but I'm not parochial enough to think that my destiny and the destiny of my fellow 0.0000000000000000001 percenters are the real issue here.
What is the real issue here? Put simply, it's the health of the internet.
Kxra sez, "Defective by Design, the Free Software Foundation's campaign against DRM has just released a new graphic to mark DRM-free works on the web. The DRM-free label quickly communicates the DRM-free status of files, increases in value as more distributors adopt the label, and adds value to being DRM-free by linking to an informational page about DRM. The logo is already in use by O'Reilly, Momentum, the Pragmatic Bookshelf, and Magnatune. It is available in a few different styles with source files under CC-BY-SA 3.0."
The Electronic Frontier Foundation has weighed in on the growing controversy over the proposal to build DRM into HTML5, the next version of the standard language for building Web pages and applications. Staff technologists Seth Schoen and Peter Eckersley have written a great essay explaining how this kind of work is totally incompatible with the mission of the W3C and how its proponents' insistence that this isn't really DRM are just hollow jokes:
The EME proposal suffers from many of these problems because it explicitly abdicates responsibilty on compatibility issues and let web sites require specific proprietary third-party software or even special hardware and particular operating systems (all referred to under the generic name "content decryption modules", or CDMs, and none of them specified by EME). EME's authors keep saying that what CDMs are, and do, and where they come from is totally outside of the scope of EME, and that EME itself can't be thought of as DRM because not all CDMs are DRM systems. Yet if the client can't prove it's running the particular proprietary thing the site demands, and hence doesn't have an approved CDM, it can't render the site's content. Perversely, this is exactly the reverse of the reason that the World Wide Web Consortium exists in the first place. W3C is there to create comprehensible, publicly-implementable standards that will guarantee interoperability, not to facilitate an explosion of new mutually-incompatible software and of sites and services that can only be accessed by particular devices or applications. But EME is a proposal to bring exactly that dysfunctional dynamic into HTML5, even risking a return to the "bad old days, before the Web" of deliberately limited interoperability.
Because it's clear that the open standards community is extremely suspicious of DRM and its interoperability consequences, the proposal from Google, Microsoft and Netflix claims that "[n]o 'DRM' is added to the HTML5 specification" by EME. This is like saying, "we're not vampires, but we are going to invite them into your house".
Proponents also seem to claim that EME is not itself a DRM scheme. But specification author Mark Watson admitted that "Certainly, our interest is in [use] cases that most people would call DRM" and that implementations would inherently require secrets outside the specification's scope. It's hard to maintain a pretense that EME is about anything but DRM.
The UK Bookseller WH Smith has been experiencing some kind of bug in its ebook store, whereby it adds DRM to all of the Kobo ebooks it sells, even the ones that are supposed to be DRM-free (like mine). Apparently, this is a metadata-parsing issue. I spoke to my agent and publisher, and WH Smith/Kobo came up with a good workaround while they fix the bug:
Kobo/WH Smith have come up with a solution that enables your
e-books to still be on sale. The DRM wording has been manually
removed from the WH Smith site and when readers click to purchase
the book it forwards them to the Kobo site where it clearly states
the e-books are DRM-free until WH Smiths is able to update their
website which will be at the end of April.
Blake E. Reid's "The Digital Millennium Copyright Act Is Even Worse Than You Think" is a potted history of the ways that the US Digital Millennium Copyright Act (DMCA) has confounded the efforts of disability-rights groups to make media more accessible to people with various disabilities. The Copyright Office holds hearings every three years to establish temporary exemptions to the DMCA, but this has been totally inadequate as a way of dealing with this problem:
I’m a teaching fellow and staff attorney at Georgetown Law’s Institute for Public Representation clinic, where I work on media and accessibility issues. In 2011, my students and I filed a new exemption request on behalf of the nonprofit TDI (which advocates for equal media access for people who are deaf or hard of hearing) to allow researchers to develop advanced closed captioning and video description features to help make video programming more accessible—development hindered by the DMCA. (Gallaudet University and the Participatory Culture Foundation also signed the petition.) Crowdsourcing, customized user interfaces, error correction, and other innovations could help realize the goal of equal access to video programming on the Internet—a goal enshrined by Congress and President Obama in the 21st Century Communications and Video Accessibility Act of 2010.
But our proposal faced opposition from a coalition of copyright lobbyists who insisted, for example, that errors in closed captions were a “mere inconvenience” to people with disabilities and that developing accessibility features might even constitute copyright infringement. In the end, the librarian issued an exemption, but it was so riddled with caveats that it was difficult to identify precisely what accessibility research it was intended to enable, if any.
We also proposed a general exemption for accessibility technology, urging the librarian to take action in light of the widespread and demonstrated negative impact of the DMCA on the ability for people with disabilities to experience copyrighted works on equal terms. The Copyright Office did not even solicit comment on the proposal, and the librarian effectively ignored it.
Requiring nonprofit disability groups to ask permission from the government every three years and navigate a complex legal minefield to implement urgently needed accessibility technology is not compatible with progressive, conservative, or libertarian values; the goal of equal access for people with disabilities; or common sense. Even the librarian admitted in 2010 that the DMCA exemption process “is at best ill-suited to address the larger challenges of access.”
Especially poignant is the closing quote from Helen Keller: "Literature is my Utopia. Here I am not disenfranchised. No barrier of the senses shuts me out from the sweet, gracious discourse of my book-friends."
Ian Hickson, the googler who is overseeing the HTML5 standard at the W3C, has written a surprisingly frank piece on the role of DRM. As he spells out in detail, the point of DRM isn't to stop illegal copying, it's to stop legal forms of innovation from taking place. He shows that companies that deploy DRM do so in order to prevent individuals, groups and companies from innovating in ways that disrupt their profitability:
The purpose of DRM is to give content providers leverage against creators of playback devices.
Content providers have leverage against content distributors, because distributors can't legally distribute copyrighted content without the permission of the content's creators. But if that was the only leverage content producers had, what would happen is that users would obtain their content from those content distributors, and then use third-party content playback systems to read it, letting them do so in whatever manner they wanted.
Here are some examples:
A. Paramount make a movie. A DVD store buys the rights to distribute this movie from Paramount, and sells DVDs. You buy the DVD, and want to play it. Paramount want you to sit through some ads, so they tell the DVD store to put some ads on the DVD labeled as "unskippable".
Without DRM, you take the DVD and stick it into a DVD player that ignores "unskippable" labels, and jump straight to the movie.
iFixit's Kyle Wiens has a must-read op-ed in Wired on the insane way that copyright is being used to take away your property rights in tools as diverse as tractors and cars and cellphones and phone switches. The manufacturers use a variety of copyright claims (especially anti-circumvention claims under the 1998 Digital Millennium Copyright Act/DMCA) to make it illegal to understand how your stuff works, to improve on it, or to repair it. Wiens makes the good point that it's nuts to use metaphorical property (copyright) to end real property rights in things that you buy and pay for.
Meanwhile, progress is being made to legalize cellphone unlocking. With grassroots groups leading the charge, the Obama administration announced its support for overturning the ban last week. Since then, members of Congress have authored no fewer than four bills to legalize unlocking.
This is a step in the right direction, but it’s not enough. Let’s make one thing clear: Fixing our cars, tractors, and cellphones should have nothing to do with copyright.
As long as Congress focuses on just unlocking cellphones, they’re missing the larger point. Senators could pass a hundred unlocking bills; five years from now large companies will find some other copyright claim to limit consumer choice. To really solve the problem, Congress must enact meaningful copyright reform. The potential economic benefits are significant, as free information creates jobs. Service information is freely available online for many smartphones from iFixit (my organization) and other websites. Not coincidentally, thousands of cellphone repair businesses have sprung up in recent years, using the repair knowledge to keep broken cellphones out of landfills.
As long as we’re limited in our ability to modify and repair things, copyright — for all objects — will discourage creativity. It will cost us money. It will cost us jobs. And it’s already costing us our freedom.
Maxis’ studio head, Lucy Bradshaw, has told both Polygon and Kotaku that [Sim City] “offload a significant amount of the calculations to our servers”, and that it would take “a significant amount of engineering work from our team to rewrite the game” for single player. A SimCity developer has got in touch with RPS to tell us that at least the first of these statements is not true. He claimed that the server is not handling calculations for non-social aspects of running the game, and that engineering a single-player mode would require minimal effort.
SimCity's spent much of the last week in a state of near-unusability. If the source is telling the truth, it means that EA could have fixed it, but instead preferred to keep it broken, with customers locked out and lied to, all to maintain the credibility of its DRM system.
That SimCity was built to require "server-side calculations" was daft to begin with. Expecting players to believe this setup is instrinstic to the game rather than merely a DRM hook? Pull the other one, it's got a dongle on it!
My latest Guardian column is "What I wish Tim Berners-Lee understood about DRM," a response to the Web inventor's remarks about DRM during the Q&A at his SXSW talk last week.
Additionally, all DRM licence agreements come with a set of "robustness" rules that require manufacturers to design their equipment so that owners can't see what they're doing or modify them. That's to prevent device owners from reconfiguring their property to do forbidden things ("save to disk"), or ignore mandatory things ("check for regions").
Adding DRM to the HTML standard will have far-reaching effects that are incompatible with the W3C's most important policies, and with Berners-Lee's deeply held principles.
For example, the W3C has led the world's standards bodies in insisting that its standards are not encumbered by patents. Where W3C members hold patents that cover some part of a standard, they must promise to license them to all comers without burdensome conditions. But DRM requires patents or other licensable elements, for the sole purpose of adding burdensome conditions to browsers.
The first of these conditions – "robustness" against end-user modification – is a blanket ban on all free/open source software (free/open source software, by definition, can be modified by its users). That means that the two most popular browser technologies on the Web – WebKit (used in Chrome and Safari) and Gecko (used in Firefox and related browsers) – would be legally prohibited from implementing whatever "standard" the W3C emerges.
Kxra sez, "Defective by Design, the Free Software Foundation's campaign against DRM has just released a new graphic to mark DRM-free works on the web. The DRM-free label quickly communicates the DRM-free status of files, increases in value as more distributors adopt the label, and adds value to being DRM-free by linking to an informational page about DRM. The logo is already in use by O'Reilly, Momentum, the Pragmatic Bookshelf, and Magnatune. It is available in a few different styles with source files under CC-BY-SA 3.0."