Robert McLaws: Windows Edition

Blogging about Windows since before Vista became a bad word

The Inmates Are Running The Asylum

BusinessWeek posted an analysis of the Digg fiasco that has been going on all week. For those of you that haven't been paying attention, Digg users are pissed because a user was banned for posting HD-DVD keys, and so the user created a new account and started a virtual riot. Then Digg founder Kevin Rose said that he sided with the poster, and that Digg would allow stories to be posted and deal with the consequences afterwards.

Since when did social networking make it OK for people to break the law? Digg is opening itself up to huge legal issues by allowing copyrighted content to remain posted. Whether you agree with DRM or not, Napster proved that companies are liable for the material that is posted. Digg's attempts to shield their users to enable their "journalistic freedoms" is noble but misguided.

Reminds me of a line from "Men in Black": "A person is smart. People are dumb." That is why we have an Electoral College, shareholders elect CEOs, and juries consist of less than 15 people. Trusting the mob to lead you in the right direction is more often than not a bad decision. You better believe as a business owner, if my customers told me to break the law, I wouldn't.

And unfortunately, this situation is probably far from over. It's ok, Kevin. Shawn Fanning still found work after the RIAA shut Napster down.

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Comments

  • Marc said:

    It's obvious that you have no idea what this is all about. It's nice to know that someone like you has no balls to stand up for something that is completely wrong. I, for one, am entirely against DRM and any form of copy protections. Does mean I freely download what I want without paying a dime? No. How much DRM a product has determines whether or not I should buy it. Some games contain DRM that do more harm than good, and make it more trouble than it's worth for the people who actually go out and buy these products.

    I believe DRM will fall flat on its face in the coming years and piracy will hit an all-time high. After that happens, things will change. I believe once these restrictions that DRM has are lifted, and more trust is put into the consumer, that more people will be more than willing to fork over their hard earned dollars for.

    People like me have no interest in newer technologies such as HD-DVD or Blu-ray simply because of the limitions put on the users. Nevermind the fact that I find no need to move from DVD's in the first place.

    I firmly believe that if a product make your life easier or puts a smile on your face, that one should fork out the money for that product- or just don't use it.

    Windows Vista, along with many others, is one of those products that I've seen turn many people into actually buying it rather than pirating it.

    I hope you'll grow some balls and actually see where DRM will be heading in the coming years. Like the old cliche, "It'll get worse before it gets any better."

    May 3, 2007 7:39 PM
  • Rob Stevens said:

    I'm really disappointed in this post, Robert, and I have to think it's because it was a gut reaction and not the result of a reasoned thought process.

    Posting the HD DVD key is NOT illegal.  There is nothing unique or proprietary about those numbers, and it's not even like the DeCSS "illegal prime" where the numbers themselves inherently contained data.  Breaking the copy protection to get this key was illegal.  Using it to watch copied content is illegal.  Knowledge or possession of the key is NOT illegal.

    To use an analogy, it would be like having a key to someone else's house.  There are only a limited number of unique keys in the world, so you can't be held liable for possessing that key.  Now, if you were to use that key to enter someone's home, then you've committed an illegal act.

    No one on Digg was breaking the law.  In fact, Digg knew this, and the only reason why they pulled the stories in the first place was because they didn't want the fight.

    As for the electoral college comment, the reasons why it existed in the first place was because there was no easy way to count everyone's vote, and because they didn't fully trust the people.  Not that the people were stupid (though they were), but it was an issue of trust.  The electoral college still exists today for neither of those reasons, but only to keep our political system two-party.  As long as the Electoral College determines the actual vote, there will never be a third-party President.

    May 4, 2007 10:22 AM
  • Another busy week in tech here are some of the highlights from the week. Micro-hoo or Yah-Soft? - Looks

    May 4, 2007 11:43 AM
  • Håkan Reis said:

    I doubt that this actually are illegal, is the color coding based on the numbers illegal too? But anyways, lets assume it was illegal under US law.

    Then a kid from say Germany, or Sweden post this (you DO know that the US laws do not apply worldwide?) and it turns up on digg. Who broke the law? It's not a simple matter of right and wrong here.

    May 4, 2007 2:21 PM
  • Mihai said:

    Have you ever heard of "civil disobedience?"

    It is something used to fight unfair laws.

    May 4, 2007 3:39 PM
  • Shawn Oster said:

    Rob Stevens really nailed it on the head, and in a much better way than I could have.

    Saying that posting these keys is illegal is akin to saying all libraries are hotbeds of murder and mayhem because they have volumes of books on the making of various weapons and warfare strategies.  I fear the day a librarian is put on the stand for allowing such books to be available to just anyone off the street with a library card.  The information itself is not the issue, it's those that use it for illegal purposes.

    I found the attempted link between Napster and Digg to be tenuous at best.  98% of Napster's traffic was used for the illegal sharing of media from day one while the AACS incident will account for less than 1% of Digg's usage.  If you remember the Napster case you'll know that it was by a very narrow margin that Napster lost and that they would have won if they had been able to show a stronger, non-illegal usage of their service.

    Besides Rob Stevens excellent points about the electoral college you also forgot one thing, people don't vote in mobs, they vote individually in that little room with a curtain.  Mob mentality refers to the fact that people in large groups tend to lose inhibitions and push things farther than they normally would when they're on their own and once you separate a person from the mob they usually quickly regain their senses.  I have to say I don't think I've ever seen a mob of people all voting at once, all jamming their fingers down on the same collective button.

    May 4, 2007 7:48 PM
  • Um, wait a second. But possessing someone else's housekey IS illegal, depending on the circumstances surrounding how you acquired it. For example, was it stolen directly from the person? What about the intent of your possessing said key? Do you have the key so that you can enter that person's house and take their stuff? If not, what other reason would you have for possessing the key?

    Is it suddenly OK that you have a copy of the key because you bought it from the person that stole it? How many people do you have to be away from the original transaction before it becomes ok? 5? 10? 25,000?

    What if you were in possession of the knowledge that made it possible to bypass the key entirely, and unlock any house you want. Does that make it OK to give as many people that information as possible?

    And what if the key wasn't the key to HD-DVD, but the command codes for arming a nuclear device? Should that information be posted up to Digg as well?

    The point was, by allowing it's users to post content of a questionable nature (at best), Digg opened itself up to legal issues. If I were an investor, I would have serious issues with that.

    Beyond that, whether it's legal or not doesn't make it right.

    May 5, 2007 1:16 AM
  • Joe G said:

    Bravo, Robert, for your courage in making this stand.

    Mihai, above, says civil disobedience is designed to fight unfair laws.  But who decides which laws are "unfair"?  The easy answer here is:  The People of the United State acting through the United States Congress.  So you don't like the DMCA?  I don't really think some of its provisions make sense, either.  However, because this is "A Nation of Laws, not (Wo)men", I follow the law.  And then I send note to my Congressperson in an effort to get the law changed sensibly.

    What if the burglars union thought the laws against burglary were wrong, would that make their actions in committing burglaries in protest any less illegal?  I think not.

    The actions of the Digg posters can best be likened to the temper tantrums thrown by my young son.  He doesn't get what he wants, he throws a fit.  Thankfully, my wife and I know how to handle this better than Kevin Rose did when he caved in.

    May 6, 2007 4:58 PM
  • Tomer Chachamu said:

    'But who decides which laws are "unfair"?  The easy answer here is:  The People of the United State acting through the United States Congress.'

    The Congress has failed US citizens here. The answer is: civil disobedience! I see no reason to follow these stupid laws. Writing letters? Where will that get me? Better to show the people making (and buying) DRM that their legal protection is useless on the internet.

    May 7, 2007 8:42 AM
  • Joe G. said:

    "The Congress has failed US citizens here. The answer is: civil disobedience! I see no reason to follow these stupid laws. Writing letters? Where will that get me? Better to show the people making (and buying) DRM that their legal protection is useless on the internet."

    Following the laws is essential to the orderly process of democracy.  In a democratic republic, you don't get to pick and choose which laws you think are "fair" and which are  "stupid".  That's why we have courts and that's why we have a legislature.  The only exception to that, in my mind, are the conditions set forth in the Declaration of Independence, i.e., that government threatens life, liberty or the pursuit of happiness.  Personally, I don't think Thomas Jefferson would have included a beef about copy protection schemes as a threat to any of the enumerated rights (and no, I don't think preventing one from burning backup copies of DVDs infringes on one's pursuit of happiness, as the framers intended it.  

    May 7, 2007 9:47 AM
  • Mihai said:

    For Joe G.: following the law is essential for democracy.

    Unless breaking the law becomes essential for democracy.

    The exact point of the civil disobedience is challenging the law considered unfair.

    The court can decide what is unfair, true.

    But if the court fails, it is on the individual to take action.

    Now, by doing that, one risks ending in jail, true.

    But if a significant amount of the population/users break a certain law, it might give signal strong enough to the courts that the law has a problem.

    If the only criteria are "life, liberty or the pursuit of happiness," then you probably think cavity search at airports, weekly house inspections and other such things would be ok for you.

    I mean, none of them threaten you life, or liberty, or happiness.

    And if you say a cavity search would make you unhappy, then I will say RIAA preventing me to backup my movies makes me unhappy.

    May 7, 2007 12:40 PM
  • Joe G said:

    Mihai:  Your choice of an analogy leaves much to be desired.  A cavity search at an airport IS a deprivation of liberty.  Your brand of "I'll decide what's right for me" is childish and, if followed to the extreme, would lead to the breakdown of civil society.

    No thanks!

    May 7, 2007 3:50 PM
  • Rob Stevens said:

    You most certainly can pick and choose which laws to follow and which ones to not follow.  The issue is whether or not the law can be enforced, and whether or not that law is constitutional and valid, and the only way that last argument is proven is through a court challenge.  Unfortunate though it may be, Congress and Legislatures can pass any law they want, and until the people challenge that law, the law is the law.

    Remember, there were a lot of things that were perfectly legal in our country until courageous people stood up against them, things like slavery.  There are also a great number of things that are illegal until someone challenges that law by breaking it and subsequently defending themselves in court.  Our legal system is not as cut and dry as people like to make it sound, and it's also far easier for deep-pocketed corporations to manipulate than you might want to believe.

    Robert,

    My point was that if I have a housekey in my pocket, and it happens to also work in your door, is my possessing that key illegal?  Of course not.  If I obtained it through nefarious means, sure, but let's assume that I didn't for the moment.  If my website happened to use the exact color combinations in hexadecimal as the AACS HD-DVD key, does my continuing to use them just because they decided to use that random combination of letters as a copyright key suddenly become illegal?  OF COURSE NOT.

    There was nothing unique about that paricular combination of letters and numbers.  In fact, if you want proof of this, think about trademark law.  You cannot copyright a word or phrase, you can only trademark it.  That means that the courts recognized that there were only so many letters and numbers to go around, and that it was unreasonable to expect that someone would have to refrain from using a word or phrase in a blanket fashion.  So trademarks are restricted further, into only industries or types of product.  The fact that my house had windows did not suddenly become illegal because Microsoft decided to use the word for their operating system.

    The fact that this key was discovered through a breach of the DMCA means that that person or persons broke the law.  But my possession of a non-unique string of letters and numbers (which is not computer code, nor could it be interpreted as such) that happens to be identical to that same key is NOT illegal.

    May 7, 2007 4:09 PM
  • Mihai said:

    Joe G.: "Mihai:  Your choice of an analogy leaves much to be desired."

    The choice was intentionally pushed, trying to show that your "guidelines" also leaves much to be desired.

    Not following the law would not lead to the breakdown of civil society, because (if you notice) I mention the risks ending in jail. So if one engages in acts of civil disobedience in protest to a law that he finds unjust, he should realize that the risk is real. And if the rest of the population does not react, he will end in jail and remain there.

    I agree that "I'll decide what's right for me" is childish, but this is not what civil disobedience is about.

    So, by your criteria, can civil disobedience be justified in any way? Because if not, then Ghandi, Rosa Park, and others, where petty delinquents.

    May 7, 2007 8:07 PM
  • Joe G said:

    Again, the selection of analogies is wanting:  slavery ended, ultimately, by the sacrifice of several hundred thousand Union soldiers and the perserverance of Abraham Lincoln.  Civil disobedience had little or nothing to do with the ultimate dissolution of the institution of slavery.  In fact, it can be argued that the whole tragedy of the Civil War was a result of the civil disobedience of the Southern States in attempting to secede from the Union.

    Your argument about the use of the hexadecimal color equivalents is specious as well.  I would concede that if your website sported those colors completely randomly, it would be one thing.  However, you tell me:  what are the odds that you would have picked the precise hexadecimal equivalent of the code?  Intention is the key.  You obviously are intending to convey the code.  Therefore, if the representation of those figures is contrary to law, it doesn't matter that you are doing it in some cute manner, your intention remains to transmit the code.

    May 7, 2007 8:15 PM
  • As Joe said, intent is everything. It's the first thing used to determine mens rea.

    People seem to forget that it's not the actual "key" that is the problem, but what the key is used for. All this intellectual bullshit reasoning is just that. Possession of a gun is not a crime, what you do with it can be. The whole reason for using high-key encryption is to make the key sufficiently unique so that it is not stumbled upon accidentally. And you can argue in a court of law that posting a randomly generated 128-bit key that unlocks encrypted content could only serve one purpose: to break the encryption on someone else's intellectual property, thereby infringing on their right to be conpensated for the investment in production of said content.

    Knowing that 128-bit key doesn't serve any other benefit to mankind, and no one could argue that it does. In this case, it could be argued that possession of said key would have required non-trivial technological means to acquire, which would imply intent to cause harm to the producer of said encrypted content. The fact that the individual published the key after it was aquired shows the individual acted on that intent, which could make anyone who linked to it an accomplice.

    But I'm not a lawyer, so what do I know?

    May 8, 2007 3:06 AM
  • Rob Stevens said:

    I'm not a lawyer either, but my wife was pre-law, and yes ... while intent certainly matters, the big problem here is that there is no crime being committed!  Again, possession of the key itself is not illegal, and that's my entire point.  There is nothing proprietary about this particular key, unlike the DeCSS code.  That being the case, intent cannot be proven.  I'd have to use the key, thereby committing a crime.  It's similar to the way that possession of drug paraphenalia is not a crime.

    This was my biggest problem with Robert's post ... that he condemned Digg for caving to the people when the fact of the matter is that they simply realized that despite legal advice, it was a fight worth fighting.  And I'd point out that absolutely nothing came of it days later, because it simply isn't actionable.  A cease and desist would have been the best they could do, but it would be toothless.  The fact is, this wouldn't have been as big a story had Digg not made the mistake of trying to remove the stories int he first place, as is evidenced by how quickly it's blown over.  :)

    May 8, 2007 10:30 AM
  • Mihai said:

    Any comparison between unrelated topics is misleading. Because you take X, ignore some characteristics, and then say "it is kind of like Y" (ignoring some the characteristics of Y in the process). But also projecting on X some preconceived ideas people have about Y.

    This is why the house-key idea does not accurately describe the situation.

    So, what about this: I have a key to a box, and the box is in my house, and I have payed money for the box. So, do you think is normal for me to have the key?

    But forget the key.

    Take this: you buy a book, but you can only read it in a special chair. It is illegal for you to read it in the chair you bought from someone else, or the bench you built on your deck. What those guys don't realize is that if I can read the book on the beach, the chances that I buy the book will increase.

    On argument is: they are the creators, and the have the right to put whatever restrictions they want on their creation. If you don't like it, don't buy it.

    False. They do no create the stuff, they take it from the creators and package it. But this is not the point. The point is: they are a monopoly. When the only 3 (or 5 or 10) companies in a field (that would normally have to compete) get together and design a scheme to control prices and to achieve customers lock-in, that is illegal.

    Example: http://ag.ca.gov/newsalerts/release.php?id=1321

    May 8, 2007 11:45 AM
  • Mihai said:

    "Again, the selection of analogies is wanting:  slavery ended, ultimately, by the sacrifice of several hundred thousand Union soldiers and the perserverance of Abraham Lincoln."

    Rosa park was about discrimination, not slavery. Slavery ended, but discrimination was still there. And you ignore Ghandi which did not recurse to violence at all.

    So your point is "because armed fight works, there is no need for non-violent fight"?

    Or is it "stop this civil disobedience crap and take the guns"?

    Anyway, the point is not this. It is about someone's right to protest in a non-violent way to a law they consider unfair. With the risk of loosing their freedom, or ruining their business. The point is not if the law really is unfair or not, we are talking the to oppose it.

    You say they have not right to do this?

    May 8, 2007 11:52 AM
  • Mihai said:

    Correction: "we are talking the to oppose it" should read "we are talking the right to oppose it"

    May 8, 2007 3:14 PM
  • Actually, my point was that just because a mob does something doesn't mean it's right. Digg took the posts down because they were already under a C&D from the MPAA. Then the mob revolted.

    Also, my point was that I think being in possession of the key is wrong (not talking about legality here), and I won't even read the post let alone link to it. If those people want to civilly disobey, fine. I'm a capitalist and I understand that content producers want to be able to monetize their work. Personally, I just wish it was cheaper.

    May 8, 2007 4:24 PM
  • Rob Stevens said:

    Well, I'm a marketer, so I look at this from a different viewpoint (that being the point of the consumer).  Marketing is all about illustrating value.  The trend in general lately seems to be in adding value for the content producers (DRM), rather than adding value for the customer (more content or cheaper prices or enhanced portability).  In fact, no matter how much the customers cry out for it, they seem intent on restricting the amount of value in these "products".

    Customers WILL, and DO, pay when they find that they're getting an excellent value.  iTunes is proof-positive that customers would pay for music when offered an option that adds value.  The content companies just need to come to the realization that treating the customer like a criminal pre-purchase, or even post-purchase is not how you go about it.

    May 8, 2007 5:00 PM
  • Well, when Jack Valenti died, the MPAA did say that they were interested in finding managed copy DRM solutions. Which is at least a start.

    May 8, 2007 7:57 PM
  • Joe G said:

    To Mihai:  My comments about the Civil War had nothing to do about violence or non-violence.  I was merely pointing out that the civil disobedience of, say, the Underground Railroad, had nothing to do with the eventual dissolution of slavery.  Likewise, Ghandi's non-violent civil disobedience would have been fruitless prior to WWII.  It was simply because the British were exhausted as an Empire that Ghandi's actions led to the independence of India.  In all likelihood, it would have happened anyway (and might well have happened earlier but for the intervention of the war).

    I have always had a principled disagreement with those who favor self-help over adherence to legitimately passed legislation in situations of anything less than tyranny.  If you describe tyranny as not being able to rip your favorite DVD and BitTorrent it, then, my friends, you really do not know what tyranny truly is and I hope you never find out.

    May 8, 2007 9:59 PM
  • Mihai said:

    To Joe G: "you really do not know what tyranny truly is and I hope you never find out."

    As someone who was born and lived for 22 years in a communist dictatorship I know quite well what that is.

    "I have always had a principled disagreement with those who favor self-help over adherence to legitimately passed legislation in situations of anything less than tyranny."

    Ok, let's say we agree.

    What would then be the way to undo unfair laws payed for by big-money corporations?

    And please don't say "letters to your representatives," because they are bought already.

    May 10, 2007 4:09 PM
  • Shawn Oster said:

    "HD-DVD keys don't break DRM, software written by people using the HD-DVD keys break DRM."

    Hmmm, won't quite fit on a bumper sticker I'm afraid.

    Legality aside I'm still disappointed in Robert's tone of "anyone that posted the HD-DVD keys is a crook" attitude, much as I'm sure gun lobbyists hate the "everyone who owns a gun is a killer" stereotype.  The only reason people were so passionate about posting the keys is because the consuming public, those that make this capitalistic society function, are fed up with DRM and they saw this as a small way to fight back, to make a difference on a personal level.  I doubt anyone that actually posted the numbers could write a program that actually made use of the key while those that can sure weren't trolling digg in the high hopes the keys would show up again, especially considering the keys were public two months prior to much less fanfare.

    The fact that digg was even requested to pull links to the keys shows a level of technological ignorance on the lawyer's parts that is baffling.  Worrying about it is like worrying that if you tossed a bullet to a pack of monkeys that they'd invent guns and shoot us in our sleep.

    May 11, 2007 2:48 AM
  • Shawn Oster said:

    @Joe G "I have always had a principled disagreement with those who favor self-help over adherence to legitimately passed legislation in situations of anything less than tyranny."

    I have a corollary to this, "I have a principled disagreement with those who blindly follow legislation without an attempt to understand the reasons behind it."  It's all too easy to get caught up in the "legality" of a situation without thinking about the reasons behind it and asking yourself if they still apply.  This shouldn't be confused with advocating people rioting or ignorant groups like the "Minute Men Militia" going vigilante but it does imply being conscious of the laws you are following.

    A perfect example is something I've learned from my cop friends.  They say that the older a traffic cop or state patrol officer is the less likely they are to pull you over for speeding a small bit.  They say it's because the older you get the more you understand when someones driving is actually endangering themselves and others vs. just being a little heavy on the petrol.  The  young bucks are all about "following the rules" while the grizzled veterans are about making sure people are kept safe.

    Your "principled disagreement" is actually a little scary, I hope you never get stuck at a broken traffic light that's red out in the middle of no where, you'll be stranded there until someone comes along to fix it and turn it green, otherwise you might be faced with self-helping yourself through that red!

    May 11, 2007 3:21 AM
  • Mihai said:

    @Joe G.: "I don't think preventing one from burning backup copies of DVDs infringes on one's pursuit of happiness"

    Then what about this: http://news.com.com/8301-10784_3-9719339-7.html

    - "Attempted" copyright infringement

    - Add penalties for "intended" copyright crimes

    - PC "intended to be used in any manner" to commit a copyright crime

    Are you kidding me? How can someone prove intent?

    Now, do you feel like it starts infringing your rights?

    May 15, 2007 12:05 PM