In the comments on my DMCA post, a reader asked me to comment on this piece of silliness. I try not to disappoint my readers, so here’s my take. It’s a pile of silliness with the distinct aroma of astrotur – silliness mixed with a bit of deliberate stupidity in order to obscure things.
The basic idea of it is: how dare we complain about the idea of copyrighting numbers! After all, everything you can do on a computer is ultimately stored in a form that can be interpreted as a great big number! So we’re always copyrighting numbers: every book, every article, every poem, every story that’s ever been copyrighted is really just a number. So why should we start complaining now unless we’re just a bunch or dirty anticorporate hippies who are complaining because we want to stick it to the movie companies?
According to this author, what makes the difference between a reasonable copyrighted numbers and unreasonable copyrighted numbers is just the size of the number. Really big numbers, numbers that we couldn’t hope to encounter in real life because they’re too long, those should be copyrightable. Basically, if you represent a number using an integer, and that integer is so big that you couldn’t possibly count to it, then it should be reasonable to copyright it.
The thing is, that’s just bullshit. Bullshit that positively reeks of the same kind of crap that people like Dembski like to pull with their “Universal Probability Bound” and similar garbage. It doesn’t matter how probable or improbable something is. A two-word phrase can be copyrightable – and deserves the full protection granted by copyright, even though it’s not a particularly improbable value when encoded as a number. A two-hour burst of random noise recorded by an instrument observing the solar wind is vastly more improbable than this article, but it’s afforded less protection under copyright law. Copyright has nothing to do with probability: under copyright law, incredibly improbable coincidences can be permissible; and likely coincidences can be punishable. Copyright is based on a matter of intent.
It’s just deliberate foolishness to pretend that copyrighting this article is really
copyrighting a number. Yes, any article, any creative work that can be viewed on a computer
is stored as a stream of bits, and can be encoded in numeric form. That doesn’t mean that
by asserting my copyright on this article that I’m claiming to own a number. I claim to own
these words, and their meaning as an article. I’m not claiming the rights
to certain numbers – this article rendered as ASCII text with macintosh line endings, this
article rendered as UTF-8 with unix line endings, this article rendered as UTF-8 and then
gzip compressed. I’m claiming the rights to the article that I produced. If you
happen to create a bitmap which has a segment that’s identical to some segment of this
document after being encoding in EBCDIC and then gzipped, I’m have no rights to that. It
doesn’t matter how unlikely it is for that to happen by chance. I don’t have the
rights to something that you produced independently.
The fundamental issue about copyrights has nothing to do with how probable or improbable a given text is in some arbitrary numeric encoding. A 30 character haiku has no less value in terms of copyright than a 30 megabyte sound file or a 3 gigabyte video file – even though the Haiku is infinitely more probable as a result of a random process. That doesn’t make the Haiku less valuable, or less copyrightable. The point of copyright is to allow people to protect their work – and accidental collisions have never been criminal, no matter how improbable.
Look at the following Haiku, which I just wrote:
Musty air, smog, crowds
Subway, rushing traffic chaos, noise
But I do love my New York
That’s 60 characters, and 10 or 11 words, depending on how you count it. With a suitable dictionary, a bunch of computers could generate every possible combination of 11 words that fit the Haiku structure in a not entirely unreasonable amount of time. (Back of the envelope sketch, assuming a dictionary of 200,000 words, categorized by part of speech, a simple grammar so try to make sure that you only generate potentially syntactically valid phrases, comes out to several quintillion possible haiku (10^15); fling a good-sized bunch of computers at it, and you can generate every possible one in less than a year.)
On the other hand, the noise recorded by dropping a digital tape recorder in a subway stop for an hour, you could never reproduce, not by running every computer in the world for the entire lifetime of the universe.
Does copyright law say that my Haiku or the tape of subway noise is more valuable?
Does it even differentiate between them? (Answer: unclear. Under some circumstances, the
subway noise would be copyrightable, in which case it would be treated as equal in
value to the Haiku under the law; under other circumstances, the subway noise would be
considered non-creative public domain, in which case the Haiku is more valuable under the
law. In no circumstance is subway noise more valuable than a copyrighted
poem. And in no circumstance does a calculation of the relative probability of generating
something randomly have any impact on copyright law. On the other hand, from a purely aesthetic viewpoint, the subway noise is better than my poetry.)
What’s even worse than the shoddy probability argument, is that the argument is
deliberately obfuscating the real issue. Even if you accept “Oh yeah, you’re copyrighting
numbers” as a legitimate argument, it’s irrelevant to the issues around the HD-DVD key
nonsense. No one is asserting copyright over the HD-DVD encryption key. The DMCA
does not grant them any new right to copyright an encryption key – they always had the
right to copyright it as an encryption key: but as such, it would be subject to
constraints like fair use. Instead, what the DMCA has done is create something new. They
don’t need to assert that they have a copyright on the number, and thus have rights over
its copying and distribution. In fact, they are not asserting that they have a
copyright on that number. What the DMCA does is say by virtue of the fact that they
used that number to encrypt some copyrighted work for the purpose of copy
protection, that they have a greater right to control the use of that number than
they would if they merely had a copyright.
Let me repeat that, because it’s a critical point. They are not asserting that they have a copyright on the HD-DVD key. They are asserting far greater rights than what is granted by copyright. Under the DMCA, by virtue of its status as a copyright
protection circumvention device, they have far more right to sue over its copying and distribution than you or I have to sue over copyright infringement of our creative works. They’ve created a new category of intellectual property – not copyright, not patent, not trademark. And this new category gives them an obscene degree of control over the use of that property – which is just numbers.
And they can do this with any number. They can choose to use 128 bits from the binary expansion of π – and then threaten to sue Kate Bush for singing the digits of π in a song. They couldn’t do that with simple copyright – but they can with the DMCA.
To respond to a couple of the objections that have been brought up:
- It’s true that most of these abuses of DMCA would probably not wind up surviving a jury trial. But that’s irrelevant: until it gets thrown out by a court, it remains the law, and people remain potentially liable for lawsuits and punishment. For the moment, the law in the US says that if they use a number to encrypt a copyrighted work, they have ownership rights far in excess of copyright. And even if most of the abuses would not survive a trial, there’s a good chance that at least some would survive trial. So those of us with limited resources have to be very careful to protect ourselves, which means behaving as if every arbitrary piece of insanity is enforceable until it’s proven that it isn’t.
- Reading laws is a remarkably tricky thing. The best advice I’ve ever heard about it came from a lawyer who told me: “You’re a geek. Don’t ever read a law. It looks like it’s english, but it’s not. It’s in legal, which is a different language.” At my previous job, I had a lawyer explain parts of the DMCA to me, and what I’ve said is my understanding of it. The legal meaning of a device is tricky, and it’s not what any sane person would use. But my understanding, on the basis of discussions with people whose job is to interpret these things is that this is what the courts currently recognize. I’d love to be wrong about this – so if you anything published by an IP lawyer that would contradict that I’ve written, please point me at it. But laymen’s interpretation law is not just worthless – it’s potentially dangerous: by reading and interpreting the law yourself, you can open yourselves to increased punishment for willful violation. It sucks, but it’s the way the law works.