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Ethics and Law in New Media/The Digital Enforcement

< Ethics and Law in New Media

Note: this topic has strong connections to both ethical and legal issues.

In the days of old

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... one of the tenets of the original MIT Hacker Ethics was: information wants to be free. In his book, Steven Levy has written:

"If you don't have access to the information you need to improve things, how can you fix them? A free exchange of information, particularly when the information was in the form of a computer program, allowed for greater overall creativity. When you were working on a machine like the TX-0, which came with almost no software, everyone would furiously write systems programs to make programming easier - Tools to Make Tools, kept in the drawer by the console for easy access by anyone using the machine. This prevented the dread, time-wasting ritual of reinventing the wheel: instead of everybody writing his own version of the same program, the best version would be available to everyone, and everyone would be free to delve into the code and improve on THAT. A world studded with feature-full programs, bummed to the minimum, debugged to perfection."

Thus, enabling access to all necessary things and places was considered essential (this can be seen from vadding, or roof and tunnel hacking, which has evolved into a cultural phenomenon at MIT, the original home of hackers). Richard Stallman, the founder of the Free Software movement, refused for a time to use passwords, citing the freedom to access information - moreover, according to himself he managed to convert over a fifth of the labs staff to use empty passwords. His dedication to the free flow of information later led him to start the GNU project that has continued to pursue the same old ideal of information freedom.


The rise of proprietary approach - and warez

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Even the original MIT hacker lab finally split into two competing companies (see Levy and Moody for a more detailed account). Gradually, most of the software became proprietary products which were sold by copy and copying of which became more and more restricted by a number of means (both hardware and software).

In parallel, another "industry" formed to copy and distribute proprietary material. Bill Gates' 1976 Open Letter to Software Hobbyists, which is considered a major starting point for proprietary software, already contained a lament on unauthorised copying. And it became worse by time - what was originally a kind of protest by disgruntled users turned into a full-fledged "black economy", similar to those of watches, designer clothes or footwear.

"Warez", as it is often called by those involved, was boosted by two advances in computing. At first, emergence of CD-ROM technology allowed to increase a single volume of material nearly 500 times (from a typical 1,44MB 3.5-inch floppy to a CD-ROM with 640 or more megabytes) - when it was quite a nuisance to copy about 30 floppies of Microsoft Office 4.3 (the state of the art that time), it was much easier with CD-s. The volume of that day's software was small enough to allow dozens of top games to be crammed onto a single disk.

It grew even worse with Internet coming within the reach of ordinary people. For a number of years in the 90s, the novelty of the channel allowed huge software archives containing unlicensed material to exist for extended periods without being persecuted by authorities. And even if the most visible ones were forced "off the surface" by the end of the decade (the trade moving to other online channels like the original Napster, Kazaa and others), it is even nowadays possible to find unlicensed software and other material on servers located in places with less regulation (Russia, Romania etc). While the data presented by the Microsoft-funded Business Software Alliance and other similar organisations is often inflated, it is nevertheless clear that a lot of material is distributed online in discord with its license.


Copying prevention measures

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Prevention of unauthorised copying was already attempted on early computers, including Commodore 64 and Apple II. Some attempted non-standard formatting of floppy disks (the main medium of the days), others tried to use hardware dongles (plugs which were inserted to parallel or serial port), registration keys and other measures. Game companies used to demand entry of information from game manuals ("Enter the 6. word from line 4 on the page 12"), some games were almost impossible to play without a manual. Sometimes, things were exaggerated to the point where a single typing error in a lengthy text entry ended the game immediately.

Yet it was mostly for nothing. Software schemes were cracked (mostly by patching the relevant parts in programs), manuals were copied, even the dongles were duplicated in software. The race between software companies and crackers was always a draw, no copy prevention scheme held for long. An example: in Estonia, proprietary software titles gradually became legally available only after the regaining of independence in 1991. Yet a lot of state-of-the-art software was available among computer hobbyists of the time (mostly limited to schools and organisations, as private PCs were rare), including many of the top games, already at the end of 80s (even despite the Soviet regime). Starting up the game nearly always began with a colourful demo sequence made by the cracker team responsible for removing the copy prevention mechanism...

Later in the 90s, the attempts of reducing unlicensed software shifted from copy prevention to clever wordplay in licensing. While the earlier proprietary software followed the book model (you bought the copy, you owned it), later EULAs (End User License Agreements) shifted the paradigm towards rental (the customer was allowed to use the company's product under strict restrictions).

As it became apparent that licensing alone is not capable of reducing unauthorised copying and distribution, Microsoft introduced a new model in its Licensing v6 that came along with Windows XP in 2001. Essentially going back to active copy prevention, it introduced product activation keys and limited the use of "ingenuine" copies. These raised a lot of issues, some of which were

  • security - always been a weak spot of Microsoft's systems, the problems were aggravated when "ingenuine" installations were denied all but the most critical security updates (this did not extend to service packs, including SP2 which was mostly a security release). Moreover, in the recent versions, being "ingenuine" also disables Windows Defender, a quite potent anti-spyware application, which does not play well with overall security.
  • hardware failures - replacing two or more components in a computer usually resulted in invalidation of the license, any chance of reactivation was fully dependent on Microsoft.
  • privacy - labelled as "critical security update", WGA updates passed all user intervention checks, resulting in a "phone-home" application which delivered information to Microsoft without any chance for users to control it (the fact led to WGA classification as a spyware in a well-known lawsuit).


Digital rights or digital restrictions?

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Tendencies similar to the ones mentioned above were also visible in other digital content besides software. and the results are similar as well. These measures have become collectively known as DRM - originally meaning Digital Rights Management, its critics have redefined the acronym as Digital Restrictions Management.

Perhaps the best-known case is the CSS encryption introduced to DVDs in 1996 to a) prevent unauthorised copying of disks and b) to force the equipment producers to purchase a license in order to build compatible devices. In 1999, a Norwegian programmer Jon Lech Johansen along with two unknown persons created DeCSS, a decryption mechanism for CSS, which allowed to play encrypted disks. It was near to a dangerous precedent - the author was persecuted for nearly a decade, the charges were only dropped in 2005. In fact, the prosecution was based on the U.S. legislation (the Digital Millennium Copyright Act) which did not have a counterpart in Europe that time (another similar, but even more alarming case was the one involving Dmitry Sklyarov).

The big ethical controversy created by the DMCA and a similar directive of the EU is the prohibition of technology that can be used to bypass DRM and/or copy prevention mechanisms. Also, the other risks have been outlined (from the FSF Europe website):

  • Monopolies on file formats - This is the issue that is worrying libraries. The ability to effectively control a file format means that each e-book format will have its own reader and it will only be readable by that company's reader. Maintaining access to all the different kinds of readers throughout decades needs the kind of personnel and technological ability that libraries can't afford right now, not to mention the cost of e-book readers that they'll need to have to give access to the library's users.
  • Interoperability - If you can't use and share tools to analyze protocols, because they can be used to circumvent ineffective technological measures, then it's not possible to put two systems working together unless both vendors publish information on the protocols they use. Knowing the trend of proprietary software vendors to trap a client in its systems, this is not a realistic scenario.
  • Insecurity - In the last years the full disclosure movement has made considerable improvements on the whole security of computer systems. This was done by forcing vendors to correct the vulnerabilities through the publishing of vulnerabilities even if they weren't corrected in a limited timeframe. To avoid an image problem most vendors started correcting in days what used to take months or even years to do. With this legislation a vulnerability that allows the circumvention of rights-management information cannot be even communicated. This means that full disclosure is not an option, and that we all lose its advantages.
  • Freedom of speech - By allowing copyright owners to define terms of use and protecting all measures taken by those owners to enforce those terms of use can limit rights as basic as freedom of speech. The most recent example is Microsoft Frontpage 2002's latest End-User License Agreement (EULA) that prohibits the usage of the software to create sites that criticise Microsoft or any of its subsidiaries.

Crack our record!

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DRM has gradually started to be seen as a controversial measure which sometimes creates more harm than benefit. Amazon.com's DRM-free music is increasingly popular (unfortunately, at the moment they only cater US), sites as DefectiveByDesign.org promote DRM-free resources.

Perhaps the best anecdotal case against the principles of DRM was the new Nothing Is Sound record by a rock band from San Diego, Switchfoot, released in 2006. Learning that their record company, Sony BMG, had used the XCP mechanism on it, they said: "No, we did not order it!" and ended up writing a detailed explanation how to defeat it (and later leaving Sony altogether). While some "intellectual property" proponents are still puzzled ("why didn't those guys want to make money?"), the band knew it probably better - potentially losing a couple of sales is not comparable to angering loyal fans with unnecessary obstacles (and subsequently, openly regarding them as thieves). Plus, it was a brilliant marketing stunt as well. The lesson is also more and more forced on many large proprietary software vendors.


References

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To Do

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  • Write a short analysis about applicability of copying restrictions - whether you consider them useful, in which cases exceptions should be made etc.
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