Latest in a long history

Latest in a long history

Posted Aug 25, 2005 1:53 UTC (Thu) by log2 (guest, #10024)
Parent article: On the defense of piracy enablers

Found this etymology somewhere in utah.edu, I don't know if it's authoritative:

   The word discuss comes from the Latin verb discutere: which means to dash
   or shake to pieces, agitate, disperse, dispel, drive away;

Sounds about what we're doing so far! Let's try to elevate this "discussion"
with some selective history. It's a list of "bad guys" with Blizzard at the
end, however, it would be a fallacy to suggest or infer that Blizzard is a
bad guy merely by inclusion. I think the question is whether Blizzard belongs
on this list or not.

19th century
--------------
JP Morgan:
   "Railroads, railcars and fuel oil are a single product!"
   ---> you can't transport things by rail without our say-so
Edison:
   "Recording machines and the resulting recordings are a single product!"
   ---> you can't make audio recordings without our say-so
Eastman:
   "Cameras and film are a single product!"
   ---> you can't take pictures without our say-so

20th century
--------------
Movie makers:
   "Movie cameras and film are a single product!"
   ---> you can't make movies without our say-so
Car maker cartel (Selden patent) (pre Henry Ford):
   "Our cars and four-wheeled vehicles are a single product!"
   ---> you can't build cars without our say-so
IBM (1930s):
   "Our punch machines and punch cards are a single product!"
Movie studios (mid-20th century):
   "Our movies, projectors, and theatre chains are a single product!"
IBM (1960s):
   "Our mainframe computers and OS/360 are a single product!"
   ---> you can't use our OS on Amdahl's computers!
AT&T (until 1968?):
   "Our switches and wires and the handset in your home are a single product!"
    ---> you can't use fax machines or modems without our say-so!
CueCat:
   "The cuecat thing and our web-connected service are a single product!"
    ---> BWAHAHAHA...later
Larry McVoy (until 2005):
   "The BitKeeper client and server are a single product!"
    ---> BWAHAHA...later
Blizzard:
   "Our game client and server are a single product! Copyright violations!"
    ---> judge believes them, upholds injuction, FOR NOW...
Real & Apple & Microsoft:
   "Our streaming servers and the browser plugin are a single product!"
   ---> all 3 companies stomped on stream savers/alternate player makers
Cable and ILECs (phone) companies:
   "Our connectivity and internet service are a single product!"
   ---> FCC agrees, FOR NOW...
Adobe:
   "Our Internet-enabled Acroread program and your protected PDFs are a
    single product!"
   ---> stay tuned, this battle is coming soon
----------------

You get the idea. I made the above list from memory, there could be some
date/name errors, but I contend that such errors are minor. My point is
this:

We (in America) have repeatedly found it necessary to reign in those companies
and individuals who try to sell "aggregate" products with that prevent later
substitutions at the "component" level.

The vendors named above didn't want an end user to be able to use part of the
vendor's product for another (non-vendor-enriching) purpose.

IBM and AT&T and the movie studios eventually had their products severed by
legislation. These vendors had lots of money, very good lawyers, and had an
excellent case of "we are providing the best public good with our (aggregate)
products just the way they are." In fact those decrees were phased in over
many years to minimize market chaos; I think some (anti-monopolistic) clauses
in the IBM hardware "divesting" of the 1970s are not yet in force.

The movie industry also had an excellent argument that "movies are different
than other products!" and the courts agreed with them for many years, and they
enjoyed (and still enjoy) some special exemptions from what is otherwise
considered anti-trust behavior. Radio and newspapers also have some special
status, but their situation is complicated by what constitutes "broadcasting"
and "the public airwaves."

The movie industry also did not enjoy First Amendment protection for a long
time, because it was "merely entertainment".

To repeat (because I am about to shift gears):

We (in America) have repeatedly found it necessary to reign in those companies
and individuals who try to sell "aggregate" products with that prevent later
substitutions at the "component" level. It took years for the "public good"
to take on enough mass to outweigh the immediate, obvious benefits of
protecting the vendor's aggregate product.

Now back to the Blizzard situation.

1) Europe does not have the same legal tradition as America.

   I can think of many sub-points to this, especially in with regard to free
   speech, censorship, doctrines of first sale, and the proper balance between
   the "rights" (if any) of authors and users. The only subpoint I want to
   mention is this:

   a) Sound, well-reasoned arguments in the European context can sound totally
      protectionist to America. It is tempting to write off Mr. Mueller, but
      one must realize he is immersed in a different system.

2) The argument that Blizzard's game system is "merely entertainment," and
   therefore is not subject to interoperability considerations, has no bearing.

   a) This distinction was used in America to restrict expressions in movie
      form; attempts to do so today would simply be called "censorship," since
      we now deny the legal distinction between "expression in a movie" and
      "expression in a book," we are still working to get "expression in
      computer software" included (because judges don't get it (yet)).

      I'm saying people have tried to brand things as "merely entertainment,"
      and it doesn't stick in the long term.

   b) This distinction only exists in general terms, and disappears when you
      pick up a magnifying glass to examine Blizzard's system. It is a standard
      on-the-wire impersonation of a server to a client. This is not novel,
      and there are many precedents like CIFS/Samba. The history of such
      precedents, though, demonstrates that judges are not always quick in
      the uptake, and often arrive at the wrong answer first.

      I'm saying the operation of a protocol state machine can't be labeled
      as "work" or "play" by anyone, let alone a judge. If you could label
      machines this way, you could take one of each type and merge them into
      something that was both (or neither). The boundary is fuzzy, and the
      fuzziness cannot be removed.

      This (alleged) distinction also disappears when you approach it with
      the tools of sentential logic; you always wend your way down to the
      conclusion that "these things are indistinguishable mechanically, it's
      just the user's own mental purpose at the moment that differs."

3) Mr. Mueller attempts to separate a game system from a file system, but
   he simply makes unrelated assertions.

     Let F = "a filesystem" and G = "a game or entertainment product".
     Define ControlInterest(x) to be
       "the designer's interest in controlling the conceptual integrity of x"
     and define HetAccess(x) to be
        "the interest of the user in heterogeneous access to x"
     and define Tamper(x) to be
       "the interest of someone to tamper with an entertainment product".

     Mr. Mueller states that

       ControlInterest(G) must be rated higher than ControlInterest(F), and
       HetAccess(F) is more valid than Tamper(G)

   This is not a coherent argument; it is not even circular!

   I hope Mr. Mueller will stop with the Latin already, as it is an example
   of the fallacy of appeal to false authority. One of my favorite quotes:
 
     Quid quid latine dictum sit, altum viditur.
     All that is said in Latin sounds profound.

4) Americans want to protect their right to do what they want with the stuff
   the purchase. This "right" (it does not exist in black-and-white terms) is
   brought into question when stuff like software patents, click-wrap licenses,
   onerous subscription terms, and actions like Blizzard's get discussed.
   This right is not in the American Constution, but is enshrined in case law.
   (more case law than Mr. Mueller has been party to, even in his capacity
   of fighting software patents in Europe, I suspect). Remember the reseller
   of Adobe products in California was found to have re-sold items legally,
   despite the assertions of Adobe? I believe there was also a German court
   ruling upholding the doctrine of first sale (meaning the court found in
   favor of the reseller, not the OEM).
 
5) At this point, in opposition to (4), one often hears mention of "author's
   rights." Sure, there are author's rights: you can't distribute or sell or
   claim authorship of someone else's work. There is no such thing as the
   "right to sell at a profit", and it may simply be that Blizzard's game
   model is untenable. Remember Cuecats? They GAVE away their physical
   product, and tried to insist that people who found a way to put the device
   to their own uses were HARMING them! Remember Bitkeeper? McVoy said
   people who tried to mimic the server or client were harming him, too!
   The world is a tough place, and I agree it would be easier if "author's
   rights" included the right to profit, but it doesn't. bnetd does not
   infringe any author's rights, only those imagined by Blizzard:
   "Our game client and server are a single product!"

6) Mr. Mueller keeps mentioning these things: Blizzard has the best intentions,
   helps gamers, didn't want to use onerous CD-copy protection methods, and
   so on. Irrelevant. If your product is adaptible, people will adapt it to
   their needs/whims. Blizzard's stated intentions does not incriminate them.
   Also, as someone pointed out, there is old Blizzard/Mueller, but now there
   is new Blizzard/Vivendi. Suppose Blizzard/Vivendi changed their mind, and
   and now wanted to make it "difficult" for their clients. Will that suddenly
   put bnetd in the clear? Of course not...there is no connection between those
   vendor motives and the legal standing of users who divide the product in
   places the vendor says is not a division point!

7) I understand that because of the nature of fighting the software patent
   battle in Europe, Mr. Mueller is very interested in seeking out and
   maintaining the "majority opinion" on certain questions, but

   a) There's no need for Mr. Mueller to slight the Greens and the far left
      in Europe with statements like this:

        "...a way that is unacceptable for politicians anywhere right of the
        Greens and the far left. There's no majority support for that approach.

      Perhaps he meant to qualify it: "no support for that approach...yet."

   b) I thought the Greens helped the anti-software patent efforts in Europe.
      In fact Mr. Mueller seems to refer to such cooperation in a different
      quote:

        "We were able to build majorities against software patents in some
        parliaments (in some even unanimity) because it's a very special case,
        but there's no majority for anti-IP fundamentalism.

      Perhaps there were no Greens in those nations' parliaments.

   c) Another comment from Mr. Mueller in this discussion:

        "The way this discussion here goes reaffirms my concerns that a number
        of members of the open-source community have a value system that, right
        or wrong, is not compatible with that of a political majority.

      Agreed. Some things cannot be compromised for the sake of entering into
      a majority. "Idealist" is a better word for such people than your choice
      of "fundamentalist."

   I can think of many times when the majority opinion was later overturned.
   Even a unanimous US Supreme Court decision. It is a fallacy to assert that
   to the majority opinion is correct.

8) Here's one I didn't mention in the history list. I wonder if Mr. Mueller
   has an opinion on the DVD Jon case. I am sure that the DVD-CCA feels as
   though Jon Johansen was "interfering with their game." They sell a product,
   and they want license fees from anyone who enables the use of that content.

   Dangerous (potentially support-base-fragmenting) questions for Mr. Mueller:

      a) Is a movie more like a game or a filesystem?

      b) Is Mr. Mueller critical of the Norwegian courts for supporting anti-IP
         fundamentalism?

      c) If the court had ruled against Johansen, would Mr. Mueller be
         applauding Norway's tough stance on the protection of author's rights?

A lot of companies have invented successful products with one key property:
they can be "taken back" (remotely disabled) after the purchase. This is the
kind of product we cannot afford to protect with our legal machinery. It is a
subversion of the copyright/patent bargain. To protect these vendors and
products would tilt the scales of Mr. Mueller's goddess, Justitia.

Look at the history list again. All those are cases of ATSRM, that is "after-
the-sale-rights-management. Some are effected through digital means, some not,
but the common conclusion is that aggregate products that prevent component-
level substitution can sometimes gain wide acceptance before the harmful
after-effects can be weighed. Rather than keep going back to the beginning
(judicially) every time on this stuff, we have to recognize ASAP that when
Blizzard goes after bnetd, it's the latest round in a conflict that, although
drawn out by judicial ignorance, ultimately goes against the aggregaters.
Aggregators?

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