Hardwired Servitudes [Mobblog: The New Servitudes]

While I'm mulling over Sonia's many thought-provoking points, let me return to one of Lee's.  As she points out, “hardwired servitudes” (technological protection measures that prevent forbidden uses) are an interesting test case that I don’t address in The New Servitudes.  Lee suggests that “[t]hese built-in constraints might be viewed as problematic, but not because of the time and remoteness concerns we would typically associate with running servitudes.”  I’m not sure about that. 

Technological protection measures can in fact impose restrictions on everyone who encounters them--including people who are remote in time and space from the entity that imposed the restriction.  The problems of obsolescence and non-negotiability that I associate with "running" and remoteness in my previous post therefore seem pretty serious here.  And to the extent these restrictions impose external harms on third parties, the fact that the technology makes the restrictions self-enforcing (and therefore presumably more enforced—that’s the idea anyway) could magnify those harms.  (This is different from the mechanism by which "running" magnifies third-party harms, but the consequences could be similar.)

On the other hand, there is one way in which TPMs seem in practice to solve the type of information cost problem I associate with servitudes.  I haven’t yet studied this systematically, but recent controversies over TPMs (copy-proof CDs, non-interoperable digital music files, etc.) suggest that the (relatively) airtight enforcement effected by TPMs makes them quite noticeable.  Consumers might go for years without noticing that the terms of a written EULA forbidding behavior they would like to undertake.  But when a company distributes copy-proof CDs, at least some consumers notice and quickly spread the word (which has led in some cases to the commercial failure and abandonment of unpopular TPM schemes).
     

Comments

[geoff]

I think if you're going to press the point about Congressional boundaries on the rights and responsibilities under copyright (as you do, not in this post, but earlier in this series), you must admit of TPMs as a part of maintaining the balance. Of course, we think of copyright holders employing contract and TPMs to expand rights, but the baseline is not static. As technology develops and distributes easier and cheaper and more effective means of copying, self help becomes a crucial piece of maintaining even minimum protections--of ensuring the Congressionally-granted rights. If one is going to insist on respecting the upper bound, one must be sure the lower bound is maintained, as well.

[Ed Felten]

Real TPMs are far from transparent -- to the point that figuring out the full behavior of a given TPM is often a publishable research result.

Consider the famous rootkit that was shipped on Sony copy-protected CDs. Millions of the CDs were shipped, for more than six months, before anybody figured out that listening to one of these CDs on a Windows computer caused major security problems.

TPMs are by their very nature non-transparent. Users get the big picture (this technology tries to stop you from using content in certain ways) but they don't get to see the fine print.

[Bruce Boyden]

Ed, the mechanism by which a TPM operates might not be transparent, but its overall effect is. That's no different than a legal contractual restriction. A user might not know a thing about contract law, but that by itself does not prevent understanding the basics of written use restrictions. It's the time and skill involved in reading the agreement that typically gets in the way, and TPMs lack both of those problems.

[Chris Johnston]

I once worked for a company that sold market price data. There are two kinds of TPM failure. Inadvertently allowing access by non-subscribers and accidentally denying access to paid subscribers. Dealing with the latter could get extremely unpleasant. Folks -rightly- seem to think that if they pay for something it belongs to them. Also, ticked off customers wield powerful weapons (not paying, switching to competitors, phoning the CEO, etcetera)... -chris