Joakim Lundblad på Kommenterat gjorde mig uppmärksam på en offentlig konsultation som EU-kommissionen just nu har på Creative Content Online. Här är mitt svar (nedan).

UPPDATERAT: läs också Basic Personligt och Oscar Swartz, särskilt kommentarerna.

Dear Commission,

thank you for the opportunity to speak out on these important issues. While they seem to deal with culture, they touch and affect the very roots and foundations of our democratic principles.

I will focus this response on questions 1, 2, 10, and 11.

1) Do you agree that fostering the adoption of interoperable DRM systems should support the development of online creative content services in the Internal Market? What are the main obstacles to fully interoperable DRM systems? Which commendable practices do you identify as regards DRM interoperability?

2) Do you agree that consumer information with regard to interoperability and personal data protection features of DRM systems should be improved? What could be, in your opinion, the most appropriate means and procedures to improve consumers’ information in respect of DRM systems? Which commendable practices would you identify as regards labelling of digital products and services?

I wish to point out a couple of things here.

a) I wish to remind the Commission that Australia recently spent €45 million on a similar technology, a content protection for the Internet aimed at pornographic content, that was broken in 30 minutes by a 16-year-old. This is typical. For every DRM system devised, it only takes one person to break it, at which point it becomes and stays broken for everybody. And the amount of sheer unorganized manpower that takes aim at breaking a DRM outperforms its design resources by magnitudes.

There is no single unbroken DRM system currently in existence. Even the best and newest, AACS, was broken in 2007 and has stayed broken since. In a time when the content industry itself is realizing that DRM is a non-solution, advocating it as a solution from a political angle appears backwards and anachronistic.

b) The term “interoperable DRM” is an oxymoron. The very purpose of DRM is to make an otherwise freely interoperable piece of data into something considerably less interoperable. By contrast, the overwhelmingly dominant MP3 audio format has no DRM at all. It can be copied to and from any device without any technical obstacle whatsoever. Its dominance can be traced directly to its ease of use; there are dozens of competing formats, many of them with superior sound quality, but with DRM and thus not interoperability.

The question “what is the main obstacle to fully interoperable DRM systems” is not one that can be answered, as the main obstacle to full interoperability is DRM in the first place.

c) If consumer protection is the priority, a DRM’d product should be considered defective, as the very purpose of the technology is to REDUCE the consumer value and restrain them from using the product in ways they desire, including ways explicitly permitted by law. The product is defective by design. Consumer protection laws in member states could then deal with defective products as per member state law. However, judging from the wording of the question, voter and consumer protection is not a priority in this consultation. I urge the Commission to consider making it so.

Questions 10 and 11 are more important.

10) Do you consider the Memorandum of Understanding, recently adopted in France, as an example to followed?

11) Do you consider that applying filtering measures would be an effective way to prevent online copyright infringements?

For every right, there is a cost to society of enforcing that right. No right exists in a vacuum.

This proposal shows beyond any doubt that the cost of enforcing copyright, when works are copied without financial gain, is prohibitive in terms of democratic sacrifice. It is clear that the wider implications to civil liberties have not been considered. Here are but a few of them.

In any lawmaking, a law must fulfill three criteria. (This is obvious to the Commission, but included for reference as I imagine this will be read by several other people.) The criteria are necessity, effectiveness and proportionality.

Necessity: there must be a need for the law. (No law should be created just because it’s fun to write laws.) This is fulfilled: the statutory status quo is jeopardized by new behaviors enabled by new technologies.

Effectiveness: the law must effectively address and remedy the need. This proposal fails to do so entirely, and I will illustrate why in three different ways.

– first, aiming at “online copyright infringement” misses the big picture. What’s being targeted is large-scale noncommercial copyright infringements, whether they take place over the Internet or another digital network. In the 1980s, before the Internet and phone-coupled modems, it took on average four days for a new digital work – usually games – to spread to saturation. These copyright infringements happened through physical contact, where people met and copied physical media. This is important, as it means that the best case ever achievable is to go back to about four days to saturation, instead of today’s 12-24 hours. To achieve this goal, a complete shutdown of the possibility to communicate digitally – internet as well as phone network – is required. As long as one single digital link continues to exist, it will be used for copyright infringement, history shows. As long as a network exists, it will be used by private, social groups to share data and copyrighted content, usually with strong encryption.

– second, the proposal assumes that file sharing happens from a home Internet account, in a time when anonymous, free, wireless Internet is becoming ubiquitous in every café, every bar, and every restaurant – and pretty much the rest of the city. A very similar proposal was introduced in Sweden by Mrs. Renfors; at the press conference, she admitted freely that if wireless Internet became common in the city, the proposal would not be effective. The level needed for such non-effectiveness has already been surpassed in Stockholm, Sweden. (In order to counteract this, every bar and café owner would have to ID and log every customer, and it would still not be sufficient as wireless Internet is just that – wireless.)

– third, it assumes that file sharing can be made to go away in the first place. When Napster debuted in 2000, the size of an average computer hard drive was 2GB. That is the size of the average cell phone memory today. Open-platform cell phones, with the ability to install custom applications, are just appearing, and I predict a very early application will be file sharing over Bluetooth, with a 100-meter range. This means that in a few years, thousands of cell phones will be sharing files with each others wirelessly and untraceably on the average subway train. Unlike file sharing over the Internet, this would be direct device-to-device with no possibility of central point of detection. With the current rates of memory growth, it is likely that an average cellphone will hold terabytes of data in a decade – being able to hold practically all music ever recorded and sharing it with any other cellphone that comes within range, without means of detecting which cellphone is doing the sharing. It is simply not possible, nor productive, to try to stop this behavior.

Proportionality: the law must be proportional in its penalties and incurred costs to address the need. This is where the suggested
pr
oposal has catastrophic and unaddressed shortcomings.

– by requiring the Internet Service Providers to monitor traffic for copyright infringements, the messenger immunity – that the messenger is never responsible for the contents of a sealed message – is revoked. This is a fundamental principle of justice dating back to the Roman Empire, which was now revoked in France without consideration that this was the case. It is exactly like making the Postal Service liable for every crime prepared over postal mail, and charging them with prevention thereof.

– first, this means that the legal system is privatized. Private corporations are charged with finding, judging and punishing illegal behavior. It should be noted that copyright cases can be notoriously complex, even reaching Supreme Courts – but this proposal would charge entry-level customer service representatives with deciding such cases on a daily basis. How are these people supposed to know if a digital transmission of a work was with the copyright holder’s permission or not, or otherwise permitted by law – say, a private copy to a summer residence? This leads me to my next point:

– second, removing the messenger immunity means that the ISPs will err on the side of caution, assuming ANY transmission of ANY work to be not permitted. This leads to economic and democratic consequences. First, it has consequences for the freedom of the press, as documents showing improper behavior with corporations and authorities can no longer be leaked to reporters – the act of copying the documents and transmitting them to reporters would in itself be a copyright infringement. (This is not a theoretical construct. The site WikiLeaks was shut down recently for this very reason, for documents allegedly showing that a Swiss bank was involved in money laundering.) Second, it has economic consequences – it cements the notion that only today’s rightsholders are allowed to distribute creative works over authorized channels. In reality, 80% of the works on the Internet were created by private individuals, and not by the content industries. If the creation of new works is a goal for the Internal Market, private individuals provide four-fifths of them, many of which are economically dependent on unrestricted distribution of such works.

– third, the punishment itself – cutting off internet access – is atrocious. In this context, “Internet access” is regarded as a consumption-only luxury resource, as in downwards-only, read-only. This misconception is understandable, as this was the old mass media distribution model. Passive. Television, newspapers. However, an Internet connection goes both ways – it also allows upwards and sideways communication – and this is an equally important part of internet access. By cutting off an internet connection, you disallow the citizen from making their voice heard – from taking part in the democratic discussion. Not only that, but you also ban them from taking part in commerce, in studying, and even from working. In addition, it is a social house arrest: the people suggesting this proposal are clearly not digital natives, and do not understand how today’s young generation interact with more friends, faster, and more continuously than any generation before it.

– fourth, the punishment is collective, which goes against basic principles of justice. If one person in a household is deemed (by a private ISP) to be file sharing, the entire family is banned from studying, working, making their voice heard, and contacting their friends.

– fifth, requiring a private entity to monitor all private communications over the Internet, which is most communication these days, basically revokes the right to private communication as such, and can hardly be considered compatible with article 8.1 in the European Convention on Human Rights.

In summary, France’s memorandum of understanding is atrocious, undermines basic principles of justice and privacy without consideration thereof, and does not even effectively address the issue. The country shows its utterly conservative and technophobic history with regards to cultural development: France was the last European country to decriminalize the printing press.

Cheers,
Rick Falkvinge
citizen of Sweden and the European Union

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