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Freedom to think and speak

Ubiquity, Volume 2002 Issue January, January 1 - January 31, 2002 | BY Seth Johnson 


Full citation in the ACM Digital Library

Under Microsoft's Digital Rights Management operating system, the ability to use information freely will be policed at the most intricate level.

Under Microsoft's Digital Rights Management operating system, the ability to use information freely will be policed at the most intricate level.

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 information 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


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