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[dvd-discuss] The Microsoft DRM Patent and Our Freedom to Speak and Think

The Microsoft DRM Patent and Our Freedom to Speak and Think

by Seth Johnson
Committee for Independent Technology
December 14, 2001

In his November 6 essay "You're Free to Think,"
Dave Winer comments that whatever else happens in the
ongoing, increasing trend towards policing of the public's
right to use information and information technology, we are
still left with the freedom to *think* for ourselves.  He
seemed to me to be offering this comment as a bare source of
solace against the government's increasing intent to control
the prospects of communications technology.

Microsoft's favorable treatment of late caused him to wonder
what kind of deal Bill Gates must have worked out with the
Bush Administration.  He wondered what Microsoft might have
given the government in return for the highly favorable
terms of the settlement that's currently on the table in the
court proceedings against the company, for monopoly
practices in the operating systems arena.

He commented specifically on the current ramifications of
Microsoft's increasing position of power in the operating
systems market:

> Now, they have to get people to upgrade to
> Windows XP -- that's the final step, the one that
> fully turns over the keys to the Internet to them,
> because after XP they can upgrade at will, routing
> through Microsoft-owned servers, altering content,
> and channeling communication through government
> servers. After XP they fully own electronic
> communication media, given the consent decree,
> assuming it's approved by the court.

Now, it has just come to light that Microsoft has been
awarded a software "patent" for a "Digital Rights
Management" operating system.

This development shows us exactly where we stand now. 
Microsoft doesn't have to offer anything to the government;
it has only to hold possession of a patent covering the
"DRM" elements of its latest OS, thereby providing an almost
absolutely assured trajectory toward establishing the terms
by which the public's ability to communicate digital
information will be controlled.

Please see the message I am posting below, from the CYBERIA
email list, which quotes from the patent.

The real kicker is right here:

> The digital rights management operating system
> also limits the functions the user can perform on the
> rights-managed data and the trusted application, and
> can provide a trusted clock used in place of the
> standard computer clock.

The ability to use information freely is now going to be
policed at the most intricate level, in the name of
exclusive rights and to the detriment of the most
fundamental Constitutional principles of our society.

Whereas the First Amendment of the U.S. Constitution assures
that every American citizen has the full right to freedom of
speech, we see here the ultimate legislative and technical
trappings by which the public will be demarcated as mere
information consumers.

Facts and ideas are not contraband and may never be
copyrighted or otherwise constrained under the terms of
intellectual "property," whether they are bound up in an
expressive work or not; and the computer is a *logic* device
that now sits on nearly every citizen's desktop -- it is
*not* a consumer appliance.  From both the standpoints of
speech and thought, so-called digital "rights management" is
a utterly desolate *dead end.*

Whether we speak of the constituent pieces of expressive
works, or the nature of the computer itself, so-called
digital "rights management" marks the beginning of a grand
rollback of the means by which the promise of our
participation in and advancement of civil society have
lately been greatly augmented.

Rather than facing the simple, plain truth that the power
given in the U.S. Constitution for Congress to grant (or
deny) to authors and inventors "exclusive right" to their
works, was intended to cover products that do not
intrinsically bind up the very means of communication and of
our participation in civil society, we instead are
experiencing a social condition wherein monopoly interests
exploit the fluidity of logical products to evade the very
terms of antitrust law and to assure that the public's
ordinary rights do not gain purchase against their
interests.  Antitrust law is all about competition in a
particular product, but software is as amorphous in its
possibilities as our own vaunted power to think.  Thus
Microsoft easily maintains it is not in the browser market,
competing with Netscape; it is, rather, in the market for
"innovative operating systems."

We are now seeing just how "innovative" that operating
system can really be.

If we do not confront the ludicrousness of the idea of
holding a patent of this nature, and the outrageousness of
our courts' failure to confront the truth about what holding
market power in the field of informatin products really
means, we will soon be free to speak and think -- only so
long as we don't use our computers to do it.

Thus, in the name of exclusive rights, Microsoft is serving
old world publishing interests, acting by means of legal
fictions to assure that citizens who seek to further the
prospects of information technology, will be inexorably
locked into the role of information consumers, blocked from
exercising their own tools in full accordance with the
rights that our Constitution supposedly guards.

We are *all* information producers, whether we manifest this
as a routine, inalienable part of the ordinary rights we
exercise in our everyday lives, or whether we engage
ourselves in the present, increasingly desperate and furtive
struggle to guard commercial interests by restricting the
use of information delivered in digital form.

We have always been information producers, and we must not
accede to the interests of those who do not regard the
public at large as full and equal citizens, but rather as
mere consumers.

Seth Johnson
Committee for Independent Technology

Information Producers Initiative:

> -------- Original Message --------
> Date: Wed, 12 Dec 2001 23:18:08 -0800
> From: John Young <jya@PIPELINE.COM>
> Microsoft's patent for a Digital Rights Management
> Operating System was awarded yesterday:
>   http://cryptome.org/ms-drm-os.htm
> Abstract
> A digital rights management operating system protects
> rights-managed data, such as downloaded content, from
> access by untrusted programs while the data is loaded
> into memory or on a page file as a result of the
> execution of a trusted application that accesses the
> memory. To protect the rights-managed data resident in
> memory, the digital rights management operating system
> refuses to load an untrusted program into memory while
> the trusted application is executing or removes the
> data from memory before loading the untrusted program.
> If the untrusted program executes at the operating
> system level, such as a debugger, the digital rights
> management operating system renounces a trusted identity
> created for it by the computer processor when the
> computer was booted.  To protect the rights-managed data
> on the page file, the digital rights management
> operating system prohibits raw access to the page file,
> or erases the data from the page file before allowing
> such access.  Alternatively, the digital rights
> management operating system can encrypt the
> rights-managed data prior to writing it to the page
> file.  The digital rights management operating system
> also limits the functions the user can perform on the
> rights-managed data and the trusted application, and
> can provide a trusted clock used in place of the
> standard computer clock.
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