The Digital Media Manifesto

 

Source

L. Chiariglione

Title

Response to "Response to Response to Comments on Complete draft of Digital Media Manifesto"

No.

030916chiariglione01

 

Leonardo's comments are in blue. They apply to the original comments made by Chris, the responses made by Phil and the further responses made by Chris.


ACCEPTED:

[DMM - 2. Breaking the DM stalemate, Acting on two fronts, 1st paragraph, 1st sentence with CB edits] So far, efforts to break the DM stalemate have failed because of fragmented efforts stemming from beliefs that law alone or technology alone could do the job, leaving the business players to sort out the mess.
[PHIL] True & well said.

[DMM - 3.1.2 Phasing out analogue legacies, 2nd set of bullets, 1st bullet, last sentence]

[CB10] Are you sure these figures are correct?
[PHIL] I tried looking for these. Although I remember when they were first announced, I couldn't find them. At the time I thought they were spurious so I favor deleting this sentence. In the course of searching the web, I was impressed by bitkom.org & ccfda.ca and March 2003 Institute for Information Law Report "The Future of Levies in a Digital Environment". At least these seemed impressive and substantial. Less substantial was an IEEE Spectrum mention that: "In January, executives from some of the biggest names in hardware and software, such as Microsoft, Hewlett-Packard, and Nokia, sent a letter to the EU requesting an end to an antiquated levy system imposed by several national governments on analog copying equipment, which they say is now being extended to blank CDs, recordable DVDs, CD writers, and even computers in some countries." I couldn't find the letter online so please e-mail if you track it down. Frankly I don't see how the 20% figure could be accurate since losses from private copying cannot be accurately estimated. We can do without the statement entirely.

[LC] I do not remember who first provided this data. Several readers have asked about this. So let's remove it.

[DMM - 3.1.2 Phasing out analogue legacies, last full paragraph (right before last set of bullets) with CB edits] For the task of phasing out the levy on blank digital recording media and equipment, ...
[PHIL] Oops, good catch.

[DMM - 3.2.2, Open Media Alliance reference] correction/edit to "Open Mobile Alliance"
[PHIL] I thought that was wrong - great catch! And of course we should add openmobilealliance.org to the references.

ACCEPTED, ADDITIONAL TEXT NEEDED:

[CB - Preliminary Comments] "I feel that it might be necessary to add a short section on rights - as I note in several comments, the issue of the word rights is an area of extreme conflict and at present I feel the document does not except blindly involve itself in the controversy. I remember a particularly bitter discussion at the last REL/RDD requirements AhG before the Sydney meeting when both Rights holders and technology companies laid claim to the term. So, in a situation where users claim rights, rights holders claim rights and IT companies claim rights (i.e. network rights), there is a kind of stalemate. The problem with the document at present is that it seems unaware of the bitter dispute."
[PHIL] We absolutely need to add a sentence describing that the stalemate is so bad, both sides deny that the other side is even entitled to use the word "rights". It certainly would have been unfortunate if we hadn't referred to this bitter present-day dispute. On the other hand - and I'll say it now but it applies to much of the following comments - we have adopted a position/solution of saying both sides have "rights" and addressing the end-user's rights without legal formality but rather in terms of their rather strong expectations and consequent assertive behavior. I'm not satisfied with this solution, but it is our solution and we did not come up with a better one. So we will use the word "rights" based on that, however additional text is needed in parts 2 and 3.1.1 to refer to this maladroit acrimony over droit.

[CHRIS] Hmmm…. Okay, I’ll live with this, but we must make it clear that the document uses the word in this way (a loose way in my view) because of the difficulties experienced. Such a statement could be included in the new text describing the stand off on the use of the word. If this is not done, others will quite legitimately say that the DMM has walked blindly into the use of the word.

[LC] I think Chris' concerns are serious and they come from experience in the field. We do not know what will be the cultural/industry/corporate backgrounds of the readers of the DMM. Around this "rights" thing legions of lawyers have fought and, in line with the quality criteria of http://contrib.chiariglione.org/030804chiariglione01.htm, we should make the DMM transpire competence and precision.

My proposal is to improve 3.1.2 with some background about our way of handling rights, something like

  1. the word "rights" in the DMM is not used in a legal sense, it is more about perception
  2. there are people/industries feeling they have "rights" ( and sometimes having these rights recognised by some legislations)
  3. these different perceptions collide and are one of the causes of the stalemate
  4. it is not the purpose of the DMM (nor would it be a meaningful task) to assign rights to anybody, but simply to acknowledge that "rights" are part of this complex equation
  5. the DMM's approach is to provide technical solutions, when feasible, to "rights", leaving it to legislations to mandate support or otherwise

[DMM - 3.1.1 Mapping rights, Right to make personal copy paragraph, 2nd paragraph] For example, a user buying a VHS cassette may lose or wear out the original, ...
[CB8] However, most analogue cassettes are protected by the Macrovision anti-copy system.
[PHIL] Thank you. Every time I read this, I thought, "But what about Macrovision?" We must add text to somehow acknowledge their VHS hegemony.

[LC] I think we should just say that there are other forms of distribution where personal back-up copy is already not possible in the analogue world.

[DMM - 3.2.3] End-to-end conformance assessment
[CB11] While this is not my speciality, does not this notion deal with the issues of compliance to standards? I know the MPA, which seems to have given up its campaign to get government to mandate standards, is now talking about mandated or government supported compliance. Does end to end conformance mean that the mandated will not be necessary or rather that mandated compliance will be easier to enforce?
[PHIL] Yes to the first question. Excellent questions. They suggest ways we can expand this section. It indeed means that legislative mandates are unnecessary. Although enforcement is rarely "easy" the body mandating compliance would be DMP, and the compliance regime would be the assessment. This would have to be well-designed and strict to be really meaningful. As Craig explained to me, concluding my earlier "How screwed up things are" thread on the reflector, dues paying members push for a "pass" on these assessments so the regime becomes watered-down instead of strict, more a matter of language than design-for-performance. So everyone passes, like in a "gut" course at an expensive college, but the standard ends up meaning nothing as a result because interoperability is lost. I am hopeful Craig or Leonardo will be able to expand this section. Personally, I am a prose-jockey with a nice knack for analysis, but I am not knowledgeable about this or qualified to elaborate what we have.

[LC] Possibly an answer to Chris' question comes from the words I have used to describe the output of TC1, i.e. "Develop RP (Recommended Practices) for legal, business and technical conformance across the value chain". My view is an extension of what is done in MPEG. There is a standard and then you have the means to check that something that lays claim of conformity to that standard does indeed conform.

This is how the "simple" MPEG world works. In the DMP thing are more complex because we talk of legal, business and technical conformance, but the principle of providing the means to check for conformance is unchanged. I have used the words "Recommended Practice" in the sense the means are what the words say; practice that is recommended. It will be up to legal contracts to make parts or all of these RPs legally enforceable.

REJECTED, BUT FOLLOW-UP REQUESTED:

[DMM - 2. Breaking the DM stalemate, Analogue Media, 2nd paragraph, 2nd sentence] This union between the technology and its immaterial content also shaped public policy and legislation, for example laws concerning intellectual property and usage rights such as "fair use".
[CB4] I'm not sure this is true. The history of fair use goes back a very long way, though clearly the interpretation of fair use has developed with the development of analogue media systems.
[PHIL] Your objection shows that "union between the technology and its immaterial content" does not sufficiently say what we would like it to mean. We're pretty much going back to early systems of writing and calculation here. I can see why strong advocates of "fair use" would like to bring it back to the first idea any human ever had, but we're not out of line treating "fair use" as a doctrine that didn't spring up until civilizations were already better established. So on the one hand it stays as is, but all the same ... Help! There's great stuff in "Riding The Media Bits" about all this, but how do we say it briefly here in the DMM?

[CHRIS] Sorry, but fair use is a clearly articulated legal doctrine, expressed in Common Law countries, though different in Civil Code countries. I cannot see that the comment should be rejected simply because the idea is a bit difficult to express.

[LC] Sorry if I make simplisitc observations, but I do not understand the problem that has been aoused by what I thought was an innocent statement of facts that goes back to the English copyright act of 1710. Where Queen Anne's act says that some printers and publishers "have of late frequently taken the liberty of printing, reprinting and republishing books without the consent of Authors or Proprietors of such Books" it is clear that the word "Proprietors of such Books" is used in a different sense than that of a proprieator of other "physical" things". That was a law for "professional" value-cuain players, excluding the end user. In the same vein, over the centuries legislation was developed under diffent jurisdictions to add more clarity (or better, remove some ambiguity) to the word "my" before book (cassette, disc etc.).

All this legislative effort was necessary because a buyer ends up owning the carrier, but not the immaterial content. Why is there a problem with that sentence?

REJECTED:

[DMM - 1. Introduction, 3rd paragraph, 2nd sentence] Over the past few years, the sad fact is most business models for innovative DM have been unprofitable or are being challenged in the courts. Unlike the huge success for other digital technology-driven industries,...
[CB1] I don't quite understand what this means. Are the innovative business models for DM that are being challenged P2P file sharing? If so, you will be accused of confusing business with technology. P2P is a technical process - the way it has been currently implemented involves infringing other peoples IP.]
[PHIL] This should stay as is because the resolution we are now using was painstakingly arrived at during the ballistic [NO-DRM] threads on the dmm reflector. While "business models" may be a very dignified way to put it, perhaps an excessively generalized level of abstraction, it also avoids bashing the well-known P2P services. As someone who bandies the word "piracy" about on a weekly basis, regularly advocating the content industry side, I feel like if I can live with this, anybody else should accept the compromise.

[CHRIS] I think you may have misunderstood my comment. All I mean is that to say “most business models for innovative DM…” is a bit broad. I’d buy it if you said many, not most, that’s all

[LC] I do not understand Chris' first comment. Sure, and until now, the P2P technology has not been challenged in the courts, but the businesses that make use of that technology are. And the sentence says exactly "most business models for innovative DM have been unprofitable or are being challenged in the courts" because up to now it is not possible (my opinion) to run a legitimate business based on P2P technology that end users are likely to be interested in. So I encourage Chris to clarify the nature of his concerns

Chris' second comment is clearer. My problem with that sentence is just the opposite, in the sense that there is no single example of innovative DM businesses that is profitable and not challenged in the courts. But Chris should just provide a few examples and then we can do as he says.

[DMM - 1. Introduction, 3rd paragraph, 5th sentence] It is expected end users will financially support a fuller DM experience if it is properly priced, ...
[CB2] While I personally agree with this, I feel that placed so early on and particularly identifies the rights holders' pricing policy as a roadblock. This will be seized on as evidence that this is purely an IT and CE position paper. Unless of course you mean properly priced with respect to all aspects, including the cost of access to broadband, the cost of devices etc. At present this is not the sense of this phrase
[PHIL] This should stay as is because we have decided that the people who seize on such things as evidence comprise two violent and misguided mobs who are married to the stalemate. "Proper pricing" is a wonderful thing when it emerges. Perhaps every industry ever has grown based on some sort of "proper pricing" that caused genuine wealth creation.

[CHRIS] Again, perhaps I didn’t express myself properly. All services have a number of components. There is the connectivity bit, the content bit, the customer management bit etc. The problem with the current statement is that it might be interpreted as a crack at rights owners. The only change that needs to be made is to insert the words “as a whole” after properly priced.

[LC] I do not understand why Phil opposes Chris' clarification. The reason for adding "price" as a necessary conditions for realising the alternative is that, bottom line, convenience, legitimacy, innovation are all great things, but in the end what matters is how much thinner one wallet becomes in order to get the media experience. So I would agree with Chris. Today my experience costs that much and is made of player, CDs, CD shelf, time to go to the music shop, possibly not finding what I am looking for etc., tomorrow I will have different components, but it is the total "cost" of both that matters.

[DMM - 1. Introduction, 1st bullet after Vision statement]

[CB3] End User rights is a reasonable concept but will certainly cause significant irritation from corporate right holders. In the RDD we became so concerned about the ownership of the word "rights" because both sides were claiming it (network rights)(intellectual property rights) that we avoided providing a definition. If we could keep away from rights, it would be better.
[PHIL] But it is too late, so this stays as is. Our solution is both sides have rights. Your objections are much appreciated in the "thanks for caring" category, but we all know Leonardo is not planning to abandon what now counts as our accepted approach to this.

[CHRIS]  Well okay and perhaps the problem will be solved by the sentence to be inserted earlier on the standoff about the word rights.

[LC] If my proposal above is accepted, I hope that we can keep the wording, possibly with a reference to what we mean by rights.

[DMM - 1. Introduction, 3rd bullet after Vision statement with CB edits]

[PHIL] This stays as is. The additions are unnecessary and insufficiently helpful. However these levies go, go they must. My little contribution helped clarify that we are only actively trynig to eliminate all digital levies. So the analogue ones can be as inevitable as they like, but it is incumbent on us not to accept digital levies as inevitable - particularly because they contribute to a downward spiral, a vicious circle, of complacency, injustice and the abandonment of real drive to achieve authentic technological solutions. And we're in the technological solutions camp!

[CHRIS] I am merely warning that here the document acts as judge and jury in a single sentence. It also vitiates the later proposals for research. Why bother to research if you already know the answer? And actually, I’m not entirely sure that we are in the technological solutions camp. I think the camp label is “Solutions for the Digital Age”, be they technological, business or legal.

[LC] I thought that the word "phase out" had the meaning of graduality already embedded, but if that is not the case or if it is considered beneficial to stress the point, I see no damage adding it as proposed.

Where I have difficulty is with the other part of the proposed addition. The levy, if I understand the story correctly, was/is a stop gap because it was a means to compensate for a damage that could not be compensated otherwise. But if the DMP produces good specifications, if industry develops them, if value-chain players deploy them and if the damage is reduced to an acceptable level, then it would not longer be tenable to retain the levy, at least for the parts of the damage that are prevented by the DRM platform. Of course, and assuming that CCs, CDs, DVDs etc. will still be in large use, it would be reasonable to keep levies for them, but we must make sure that there is an incentive to move away from them

[DMM - 2. Breaking the DM stalemate, The DRM technology solution, 2nd paragraph, 1st sentence with CB edits] Existing value-chain business players are unconvinced that it is a solution because DRM does not control the capability of unintended re-use of legacy content already released (e.g. CDs), ...
[PHIL] This stays as is. The addition is unnecessary and insufficiently helpful. "Legacy" is a nice word, but it doesn't help clarity here. For me, I think it has more to do with masters in major studio's vaults than it has to do with a zillion laserdiscs floating around in collections.

[CHRIS] Okay

[DMM - 2. Breaking the DM stalemate, The DRM technology solution, 4th paragraph, 1st sentence with CB edits] Lastly, end users who of course are also members of the value chain, (e.g. in a secure peer to peer environment domestic redistributors of content may be rewarded for their activities in some way by the rights owners), ...
[PHIL] Nope, stays as is. We've avoided superdistribution models pretty conveniently here, and such P2P details point to the infringement battleground that we have skirted for darn good reasons. So let's not get into it.

[CHRIS] Okay, it was only an attempt to explain why end users are members of the value chain, which seems currently not to be explained or have I missed something.

[DMM - 2. Breaking the DM stalemate, Acting on two fronts, 1st set of bullets, 2nd bullet]

[CB5] See my original note on this. And much later on in this document you have introduced the notion that some kind of hybrid economy may be necessary at first and studies about how the phase out might be achieved.
[PHIL] Since Chris doesn't recommend specific changes here, this can stay as is. Of course Chris is much more knowledgeable than I am on levies. I don't believe the added information belongs in the Manifesto until we reach 3.1.2 in the Major Actions area, which will greatly benefit from material Chris is still compiling for the DMM.

[CHRIS] Okay, I will suggest something that tones down the emotive language. “Phase out legislative compensation for use of recording equipment and media for private copying – the incentive to make a major overhaul is much reduced if money for this activity comes from levies.”

[LC] I think this last specific proposal is OK

[DMM - 3.1.1 Mapping rights, 3rd paragraph, 3rd sentence] ...One of the obstacles to adoption of DM is the decision of some service providers to prevent the ability to make personal copies, thereby removing what users have come to consider a basic right, regardless of its formal legal status.
[CB6] Once more we have this problem about rights. While there is no way the DMP cannot become involved in the debate and its resolution, it is very easy to be perceived as taking sides and I think this may be an example of that.
[PHIL] This stays as is because it is a painstaking compromise for exactly what Chris points out. We are dealing with so-called "rights" that have some legal basis, at times precious little. We may be expected to be attacked by both sides because that's what being in the middle means, but we're not saying consumers are right about rights, we're just saying they think they are right about some basic rights and this will effect consumer spending, which fuels the value chain thus enabling DM to expand into a thriving global industry.

[CHRIS] Point taken.

[LC] Section 3.1.1. has been written using the chemist's scale trying to please both sides and not upsetting any side. If there are points where this balance has not been achieved, please let me know.

[DMM - 3.1.1 Mapping rights, Right to quote paragraph] It is reasonably easy to exercise the "right to quote" using extracts from analogue media. However, in a scenario of protected digital media, if support for this feature has not been designed from the beginning, a right traditionally enjoyed in the analogue age is lost. It is probably not too difficult to devise technical solutions to this problem, but rights holders releasing content have no incentive to do so. The result is one more reason for civil rights organisations to oppose the use of protected content.
[CB7] A right to quote is actually a legal right under Berne. However, the context is important. I'm not sure therefore that this is a good example. So it is not a case of a "right traditionally enjoyed" but a right legally held under Berne. It is a question of rights holders respecting the law and of users not abusing the Berne exception.
[PHIL] Again, this should stay as is because we have defined end user rights in terms of end user perception. Even a judicial authority cannot be authoritative on this digital stuff. Really good digital law has not yet been laid down by time. Analogue rights are most significant in terms of the market for DM because they are perceived by end users as something they are traditionally entitled to.

[CHRIS] If early in the document end user rights are defined in terms of end user perception, that fine. Currently this is not explicitly the case.

[LC] We can make this point. Actually if falls under the competence and precision quality criteria

[DMM - 3.1.1 Mapping rights, Right to privacy, 2nd paragraph, 3rd sentence] We are also seeing media businesses working in isolation from the users and frequently independently of one another, providing solutions that reduce the scope of traditional rights, ...
[CB9] This is not traditional, but legal.
[PHIL] Once again, as before, this stays as is. Black letter law is not really how we are addressing this, and since governmental policy trumps super-duper well-established property rights, we're sort of in a policy area here. The laws will emerge based on how the technology works, and conventional law enforcement or lawsuits regarding expression versus infringement will not cease - although the stalemate must be relegated to digital antiquity. The DMM/DMP can reframe the whole discussion by building effective interfaces for interoperable DRM backed by rigorous conformance assessment throughout the value chain. And if the end result feels satisfying to users' sense of tradition, they'll financially support a transformed DM economy.

[LC] There is possibly a misunderstanding. The sentence quoted no longer belongs to "Right to privacy", it relates to all rights in 3.1.1. Does this help?

[DMM - 3.1.2 Phasing out analogue legacies, 2nd set of bullets, 1st bullet, 1st sentence with CB edits]

[PHIL] No it's not. It's inherently unjust because it inflicts "collateral damage" on innocent targets.

[CHRIS] Actually, this is not a European legal perception. The juridical theory of levies, whether you like it or not, is that they are a kind of payment by technology companies for market share. I know that sounds a bit cockeyed, but it is in fact the case. It is of course a chicken and egg situation (which comes first the content or the technology) but the legal situation is that the content owners make the market and the technology companies benefit from that market and end up paying a levy for the benefit they get from the creation of the market. So, whether this is inherently unjust depends where you stand. Hence the reason for adding potentially. By simply saying it is unjust the document takes sides. That may be the intention, but it is what it does.

[LC] It is always interesting to know the fine print of law. The juridical basis of the levy, may very well beintended as a payment by technology companies, but it is the end user the one who foots the bill. So, if I am backing up my 200 Tbyte of business data for my company on some thousands of DVD-R it is unjust that I pay thousands of euros in levies. Unless by "potentially" you mean that is some cases it is just and some others it is unjust, but if that is the meaning I would say "unjust for many categories of non-media users".

To anyone reading this far down the page, I apologize for my pontifical flow and encourage verbal kicks at my pants. PHIL :)