The Digital Media Manifesto
Response to "Comments on Complete draft of Digital Media Manifesto"
Commented text is in italic
While reading the DMM, I was a little bit afraid by the future landscape as suggested in the paragraph 3.1.1, related to "rights traditionally enjoyed by users". If I'm understanding well, the future possible landscape will be possibly a desert, and we don't know if there will be other rights for end-users to make compensation - the right to consume being not sufficient, at least in my mind. I must confess that I did not realize until now the importance of this point. I'm reporting below some of my thoughts and suggestions.
"Right to make a personal copy" :
It's true that solutions exist which makes this right no longer necessary, whatever the name could be, licenses, permanent rights or something like it. But are these solutions really proposed, are these explained, are civil rights organizations aware of this? As it will add more duties to the producer, that is the duty to keep all information needed to maintain consumer's access to media, are producers aware of this, and ready to assume this role? Will there not be a role for libraries? Or will not be there a role for a new value chain player? In addition, this kind of solution is inducing some more constraints for the user, such as the constraint to keep a relationship with the producer. In the meanwhile, more facilities can be offered to him... I suggest adding something like "Technical solutions exist. These solutions must be explored, their consequences on producers' and consumers' rights and duties must be studied, and the possible solutions must be made public and publicly discussed".
I am not against what you are saying, and I am fine if someby wants to carry out the studies that you suggest, but I do not think the DMP should be the place to do it. If we did it, the DMP would become a place giving stamps of acceptance to technologies . What the DMM suggests is much less ambitious (still!): let's understand what rights end users have traditionally enjoyed and let's see which of them and how they can be supported in the digital space. Design the interoperable DRM platform that is capable of supporting the rights so mapped from the analogue space and let business, users, society, public authorities sort out what they want.
The DMP cannot become the big brother of "good" technologies, "good" business practices, "good" user experience etc.
"Right to choose playback device":
"Right to choose playback device [...] with protected content [...] may not longer be possible in general because the playback device must satisfy certain minimum and probably restrictive criteria."
Sorry if I missed an important discussion about this on the reflector, I frankly don't see why this is specially connected to content protection. For my (mis?)understanding, this is the same in all cases where there are technical restrictions on the use of content, not only in the case of protection. If this writing is related to the necessary secret around encryption, we are seeing a lot of cases where protection is not a hurdle to diversity (encryption on credit cards don't force the owner to choose their bank, or the cashier). But this restrict the right to use technology... On the other hand, if content-protected media, or any kind of technically restricted media are not playable on specific devices, this should not be a problem as long as the end-user - the consumer - has been kept informed of this incompatibility.
So, I understand that you are OK with the text?
In the actual landscape, we are aware of some problems of this kind - which are appearing mainly on protected CDs (problem known as you-buy-a-CD-but-can't-take-it-to-the-gym) . We have seen in France very recently an example of this case appearing in Court (on 3rd of September). But the case arises for the reason why protection on CDs has not been designed from the beginning, and is implemented by using workarounds and tricks which makes the compatibility of the protected CD somewhat random depending on the device. This case - protection on CDs - is generally a disaster for content protection, since the public and civil rights organizations are confused, and apply generally that particular experience to content protection models. I hope the DMM will not help to maintain this confusion. In the case where the protection is implemented in the model, this should not longer be the case.
I would consider it a personal disaster if the DMP would come up with abominable hacks like it is happening for "protected CD". We have the possibility do things right.
From my point of view, the right to choose the playback device must remain a basic right of end-users. I'm a little bit afraid of a future landscape where it will not be possible... and in this case I will certainly understand the position of consumer's rights associations. But I'm not very sure to see the right to use technology as a "right traditionally enjoyed...".
I am with you on need to preserve the right of end users to choose a playback device. 3.2.2. is exactly advocating that. But as for other things that move from analogue to digital the mapping is probably not going to be one-to-one.
I have problems suggesting any rewriting for this paragraph, since my thoughts are far from the actual writing. But I propose the following: "Users have traditionally had the right to buy the playback device from the manufacturer of their choice and even assemble the device themselves. Content protection models will make this choice more restricted than in the past, since the system could difficultly remains open while not becoming a hole through which valuable content flows away. On the other hand, users are claiming the right to use technology in order to achieve their other rights such as right to make backup copies, as this seems to be the only way left to them to achieve these rights. This is in conflict with some aspects of protection models, particularly encryption, and seems to be justified only as long as there are no other means to achieve the same goals".
I have problems with the text you propose.You say "Content protection models will make this choice more restricted than in the past" while I think it will not make it "more restricted", but "different". Some of the things that could be done in the past, probably can no longer be done, or done differently, but new things that could not be done in the past will become possible. The DMP will work if all parties will not come with the backmind "now they are going to cheat me", but with the spirit of finding the new equilibrium point. If we start making the argument "I no longer can make copies" we are starting with the wrong foot. If I were attending a DMP meeting as a representative of user organisation I would not come with the backmind of "let's salvage as much as possible of the past" (which of course is important) but with the spirit of "let's grab as much as possible of the future".
Right to privacy:
Right to privacy being really a fundamental right in my mind, and not really a "right traditionally enjoyed", I'm a little bit confused to find it there. Is it not possible to modify a little bit the title of the paragraph, writing "Mapping fundamental rights (privacy) and rights traditionally enjoyed by users to the DM space"? On the other hand, I know that there have been some discussions on the DMM list about this wording... I will not insist more.
If I accept what you propose we open a Pandora's box. The text was the result of a compromise where everybody recognises that the wording is imprecise but also that to make it precise would require a very long text.
I don't see why the right to privacy is confused here with the right to opt out. This is probably the most critical point. I don't think we can move things forward on this point as long as users will claim the right to opt out, and I see that this right is not claimed in the "digital consumer's Bill of Rights" (even if right to privacy is probably a too fundamental right to be expressed there). I suggest to rewrite the last sentence in the following manner : "Some users demand that there should be the possibility of opting out from this potentially unwelcome scrutiny, as the only way left to them for exercising their fundamental right to privacy, while other ways have not been sufficiently explored, explained and assessed".
While I am entirely on your side about privacy that I consider the most sacred individual's right, you are transforming a legitimate request (but remember that this is not universally enforced today) into a political statement. The DMM is not a place to do this.
"Right to quote" :
The only reason I have found here to oppose this right is that "rights holders have no incentive to do so", I suggest to enhance this point, by writing something like "The only reason to oppose this right is the lack of incentive to do so".
Your sentence implies that there is opposition on the part of right holders to support this right, while the text says that there is no incentive. I do not have evidence that there is "opposition".
I also suggest rewriting the last sentence of this paragraph, since I did not understood at the first reading. In place of "The result is one more reason for civil right organisations to oppose the use of protected content", I will prefer "The result is one more reason for civil right organisations to oppose the use of protection solutions on content".
I have also a concern with one sentence which has been proposed on the DMM reflector, and which has not been integrated:
"Rather than treating user requirements in an adversarial way, DRM system developers should integrate these requirements into the DRM system design process as early as possible."
The sentence was proposed but not retained, because it is not the job of the DMM to tell business players what they should or should not do (in this specific case DRM system developers do what their clients ask them to do) but to provide the policy recommendationd and the technical solutions that will make DM a valid proposition for all.
I was really enjoying this sentence, since it shows what kind of job is to be done by DRM systems developers. It put in light the need for an asymmetric relationship between actors, rather than a symmetric one, which would be the best way to maintain adversarial relationship and useless discussions.
I hope that the DMP will have a success in this domain, since as long as there will be a conflict between rights holders, developers and consumers associations, the debate will be probably held with positions on both sides inspired more from religion and belief than from progress of knowledge.
The DMM proposes a methodology that will hopefully enable a debate not polluted by religion and belifs.