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List:       dmca-discuss
Subject:    Re: [DMCA_Discuss]Windows Rights Management--conspiracy or customer
From:       Seth Johnson <seth.johnson () realmeasures ! dyndns ! org>
Date:       2004-04-26 12:56:12
Message-ID: 408D06EB.510DDF8D () RealMeasures ! dyndns ! org
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Vladimir Katalov wrote:
> 
> Windows Rights Management--conspiracy or customer value?
> October 15, 2003
> e Advantage
> By Tim Landgrave
> 
> http://techrepublic.com.com/5100-6296_11-5081308-1-1.html


A simple demonstration of the fallacy of targetting hard DRM (which the
Windows Restrictions Management is a precursor to) with the allegation that
it is not open.  The article exploits this tendency, using it as a strawman
in a bogus rhetoric.

Bear inmind that this article mixes, willy-nilly, private interest policy
like trade secret with the public interest policy that copyright is.  Both
are referred to with the blanket term "IP."

You have to state directly and plainly that if they want to implement
hardware facilities for encryption, that has nothing to do with copyright. 
That's private interest stuff -- trade secret, privacy, anonymity, etc.

TCPA will be open and it will work, too -- if we don't stop it and repudiate
its abhorrent notion of exclusive rights, it will be the means of
establishing, in combination with idiotic license regimes, a world of
universal content control.

You can't deal with treacherous computing by suggesting it's not open.  The
only thing that won't be open in it will be the private key burned into the
hardware -- just like PGP -- and that can be a different key on each board,
BTW.

You have to declare that published information is naturally, and by rights,
free to be used, that copyright doesn't cover information, just original
expression.  You have to declare what's always been understood under
copyright law, that information is free.  It's only in recent years that the
emphasis has shifted to the work, not the information conveyed by the work.

Information, once communicated, is inherently, already shared.  This doesn't
just mean that each person who receives the thought then "owns" a copy of
it; it also follows from the fact that the ideal aspect of any fact or idea
is inherently, by nature, capable of being known without constraint or
diminution.

This is something that's always been understood in the tradition, except of
late as people began freaking out about "perfect digital copies" and
thinking in terms of the work, rather than the ideas conveyed by the work,
as they have begun thinking since the term "intellectual property" started
getting bandied about.

There is no such thing as an "exclusive right to use."  Traditional
copyright covers original expression, not "uses," and not the information
conveyed within an original work.

Copyright has never meant control before -- this is clearly demonstrated in
the precedent regarding the fact/expression dichotomy.  Copyright never
constituted a restriction on the ability to copy, only a legal recourse one
could take in the case of someone copying one's original expression.

The reason for that is that information is intrinsically free.

When it comes to hard DRM (or any digital restrictions management) in
policy, this is why it's so important to not accept the language
"information wants to be free."  That phrase already gives up on the
recognition of the public interest in using published information that
already stands on our side in the legal tradition.


See the following language from Feist Publications (US Supreme Court, 1991)
which makes all of this abundantly clear (
http://www.bitlaw.com/source/cases/copyright/feist.html):



. . . The mere fact that a work is copyrighted does not mean that every
element of the work may be protected. Originality remains the sine qua non
of copyright; accordingly, copyright protection may extend only to those
components of a work that are original to the author. Patterson & Joyce
800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of
Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990)
(hereinafter Ginsburg). Thus, if the compilation author clothes facts with
an original collocation of words, he or she may be able to claim a copyright
in this written expression. Others may copy the underlying facts from the
publication, but not the precise words used to present them. . . . Where the
compilation author adds no written expression but rather lets the facts
speak for themselves, the expressive element is more elusive. The only
conceivable expression is the manner in which the compiler has selected and
arranged the facts. Thus, if the selection and arrangement are original,
these elements of the work are eligible for copyright protection. See Patry,
Copyright in Compilations of Facts (or Why the "White Pages" Are Not
Copyrightable), 12 Com. & Law 37, 64 (Dec. 1990) (hereinafter Patry). No
matter how original the format, however, the facts themselves do not become
original through association. See Patterson & Joyce 776.

This inevitably means that the copyright in a factual compilation is thin.
Notwithstanding a valid copyright, a subsequent compiler remains free to use
the facts contained in another's publication to aid in preparing a competing
work, so long as the competing work does not feature the same selection and
arrangement. As one commentator explains it: "[N]o matter how much original
authorship the work displays, the facts and ideas it exposes are free for
the taking.... [T]he very same facts and ideas may be divorced from the
context imposed by the author, and restated or reshuffled by second comers,
even if the author was the first to discover the facts or to propose the
ideas." Ginsburg 1868.

It may seem unfair that much of the fruit of the compiler's labor may be
used by others without compensation. As Justice Brennan has correctly
observed, however, this is not "some unforeseen byproduct of a statutory
scheme." Harper & Row, 471 U.S., at 589, 105 S.Ct., at 2245 (dissenting
opinion). It is, rather, "the essence of copyright," ibid., and a
constitutional requirement. The primary objective of copyright is not to
reward the labor of authors, but "[t]o promote the Progress of Science and
useful Arts." Art. I, s 8, cl. 8. Accord, Twentieth Century Music Corp. v.
Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). To this
end, copyright assures authors the right to their original expression, but
encourages others to build freely upon the ideas and information conveyed by
a work. Harper & Row, supra, 471 U.S., at 556-557, 105 S.Ct., at 2228- 2229.
This principle, known as the idea/expression or fact/expression dichotomy,
applies to all works of authorship. As applied to a factual compilation,
assuming the absence of original written expression, only the compiler's
selection and arrangement may be protected; the raw facts may be copied at
will. This result is neither unfair nor unfortunate. It is the means by
which copyright advances the progress of science and art. 

This Court has long recognized that the fact/expression dichotomy limits
severely the scope of protection in fact-based works. More than a century
ago, the Court observed: "The very object of publishing a book on science or
the useful arts is to communicate to the world the useful knowledge which it
contains. But this object would be frustrated if the knowledge could not be
used without incurring the guilt of piracy of the book." Baker v. Selden,
101 U.S. 99, 103, 25 L.Ed. 841 (1880).

. . . "sweat of the brow" courts . . . handed out proprietary interests in
facts and declared that authors are absolutely precluded from saving time
and effort by relying upon the facts contained in prior works. In truth,
"[i]t is just such wasted effort that the proscription against the copyright
of ideas and facts ... [is] designed to prevent." Rosemont Enterprises, Inc.
v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert. denied 385 U.S.
1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967).



Vladimir Katalov wrote:
> 
> Windows Rights Management--conspiracy or customer value?
> October 15, 2003
> e Advantage
> By Tim Landgrave
> 
> http://techrepublic.com.com/5100-6296_11-5081308-1-1.html
> 
> The ABM (Anything But Microsoft) modem lights are flickering like
> fireflies this month with the impending general availability of
> Microsoft’s new Office System 2003. It’s not because Microsoft has
> updated its Office Suite with more usability features and deeper XML
> integration. What has the ABMers fuming is the inclusion of the
> Microsoft Windows Rights Management (MWRM) system in the new Office
> platform. They view MWRM as Microsoft’s attempt to fend off
> competition from products such as StarOffice or OpenOffice.org by
> cutting off those products’ ability to access documents created by
> Office 2003.
> 
> A recent post on Slashdot.org fumed (http://slashdot.org/article.pl?sid=03/09/02/1659244),
> 
> "Even if the developers of a competing office suite could figure out
> how to get their software to open an Office 2003 document, doing so
> would be a DMCA [Digital Millennium Copyright Act] violation, since
> they'd be bypassing an anti-circumvention device." Let's look at the
> real customer value Microsoft will deliver with MWRM and why the ABM
> distrust of Redmond shouldn’t deter corporations from investigating
> this important new technology.
> 
> Why rights management is important
> 
> Corporations spend millions of dollars creating intellectual property
> (IP) in the form of documents, spreadsheets, and presentations. Then
> they spend more millions trying to prevent malicious or unintended
> users from accessing it. But even with all of the firewalls, user IDs,
> directory security schemes, e-mail confidentiality, and encryption
> features, they can’t stop a user from distributing the IP once he or
> she actually gains possession of it by opening the document for the
> first time. Once the document is opened, the user may save it to hard
> storage such as a CD or floppy drive for dissemination, print it out
> and fax it to a hundred of their closest friends, or simply forward a
> new e-mail with the unprotected document attached.
> 
> Rights Management (RM) systems solve this problem by embedding
> information about how the document may be accessed and who may access
> the information contained in the document. These protections remain in
> place whenever the document is accessed. For example, a document
> creator may prevent the document from being printed out, saved, or
> forwarded to keep paper copies from being widely distributed. These
> restrictions will remain in place regardless of how the document is
> transported (e-mail, portable storage, etc.) and where the document
> goes (inside or outside the corporate firewall). Microsoft is the
> first vendor to release an end-to-end RM access and management system.
> 
> How Microsoft has implemented its RM features
> 
> Microsoft’s RM implementation is based on Windows Server 2003, the
> Microsoft Office System 2003, and a new product, Rights Management
> Services, which was designed for Windows Server 2003. These services
> include a server component that can be installed on any version of
> Windows Server 2003 at no additional charge. Any users who will be
> creating or consuming rights-protected documents will also have to
> install client software that can interpret the licensing information
> embedded in the document. Although the software can be downloaded and
> installed at no charge, customers must purchase a Client Access
> License (CAL) for every internal user who needs to take advantage of
> the RM features. To allow companies to share their documents with
> external users, Microsoft has also released a WRMS External Connector
> license allowing these users to consume protected documents without
> purchasing their own CALs.
> 
> To activate RM features, an Office 2003 user creates a file using
> Word, Excel, PowerPoint, or Outlook and then indicates which rights
> should be granted to particular users. Users can be defined in several
> ways, including by Windows identity and by public e-mail address. When
> the recipient attempts to open the document for the first time, the
> client-based RM software attempts to validate the recipient's identity
> with either a local or remote WRMS server. If successful, the user is
> granted the access defined within the document.
> 
> With the extensions Microsoft has defined within WRMS, organizations
> not only can define common templates that enforce common scenarios
> (like "company confidential" or "attorney-client privilege") but also
> set up complex workflow scenarios that define and enforce document
> rights at each stage of the workflow process. This deep level of
> rights management integration with the Microsoft platform has prompted
> the non-Microsoft community to begin an all-out assault on Microsoft’s
> attempts to help companies protect their IP.
> 
> Why the fear is unfounded
> 
> Given that most of the ABMers are also part of the open source
> community, they share a general disdain for anything proprietary or
> closed. But Microsoft has done its homework this time. The only thing
> MWRM closes is an unauthorized user or a hacker’s ability to crack
> open Office documents that contain a corporation’s IP without the
> proper permissions. And the entire system is based on an emerging
> Internet standard called XrML, a rights expression language that
> defines the digital information policies allowing users of trusted
> systems within a trusted environment to define the rights users should
> have with the documents they produce. Their concerns are based on
> ignorance, not knowledge.
> 
> Any platform that implements the XrML standard and can access the Web
> services that deliver the necessary licenses can access the underlying
> document. This allows software developers on any platform to
> interoperate with MWRM to guarantee that the documents produced by
> their systems will be used by recipients only in the manner the
> creator intended.
> 
> _______________________________________________
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-- 

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

[CC] Counter-copyright: http://realmeasures.dyndns.org/cc

I reserve no rights restricting copying, modification or distribution of
this incidentally recorded communication.  Original authorship should be
attributed reasonably, but only so far as such an expectation might hold for
usual practice in ordinary social discourse to which one holds no claim of
exclusive rights.

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