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Ernest Miller on DRM, Privacy and Hemingway
posted by mpawlo on Wednesday September 03, @12:07PM
from the interesting-people dept.
News Ernest Miller is a fellow of the Information Society Project at Yale Law School, he is the entrepreneur behind Gamejockeys and he is the former editor-in-chief of Lawmeme. Greplaw has picked Miller's brain for the latest on DRM and privacy, copyright and the First Amendment and of course why blawgs matter.



# Who is Ernest Miller?

The metaphysical answer is probably too much to go into here, but I can tell you what I do. I'm a fellow of the Information Society Project, eccentric writer on copyright and the First Amendment, videogame enthusiast and entrepreneur (not yet successfully, but one always hopes, see http://www.gamejockeys.net/).

# Ernest or Ernie?

Whatever works for you. I've been called many different things over the years.

# Okay, Ernie, what is the Information Society Project at Yale Law School?

The official answer is that the ISP is an intellectual center at Yale Law School for the study of a new age in which telecommunications and intellectual property are central determinants of the structure of society, the development of human culture and democratic legitimacy. Basically, they are a bunch of really bright people working on a variety of projects dealing with the intersection of technology and democracy.

# There are information society projects at Yale Law School, Harvard and Stanford Law School. Is this important and what kind of role do you think these centers may play?

Absolutely. These centers play a critical role, and I hope that many more develop and the existing ones continue to grow. The centers help educate young minds the importance of the issues involved, and get to them before they enter the corporate world, which generally takes a much different view of the issues. The centers provide assistance in research, lawsuits and legislation defending our cyber rights. The centers are also important in providing an institutional voice for citizens that counterbalances to some extent the voice of corporations and copyright holders.

# It seems like LawMeme is a bit slow these days and the brilliant Ernest Miller pieces are no longer posted there. What's going on and when will you be back?

I moved from New Haven last year, and let go of the reins. I am still a contributor, and expect to be posting more over the next few months, but I have a number of other projects I am working on that take a great deal of my time.

# Can we persuade you into submitting comments and stories to Greplaw?

Heh. :-)

# What do you think will be achieved by so-called blawgs like LawMeme and Greplaw?

They are great places for law students to begin to find their voice and practice writing in this new medium. They will also be the center of more and more legal debate and analysis. They will never replace the need for academic journals, but will act as fast reaction supplemement. They will also become more journalistic I believe, and journalism will become more blog like (through traditional journalism will not be entirely replaced either).

# Professor Lessig is very positive about blogging as tool for widened debate and claims that 'blogs offer an easy way into an issue, and an inviting style for getting people to read further.' Personally, I am afraid that blogs may both create a bumpersticker environment where deep, well-thought arguments are tuned down in exchange for rapid, tounge-in-cheek commentary and also only attract the already convinced. Hence, the actual exchange of ideas may be limited. What is your take on this?

Different blogs will reach different audiences and have different purposes. Not every newspaper is the New York Times, and not every blog is about somebody's cat. I think that a blog that wants to be influential will have to reach out beyond the already convinced and attempt to usefully engage the unconvinced. I also think that blogs, if they desire to maintain credibility and get people to read them, will be intellectually rich. Furthermore, as blogs become supplements to debate in other forums and media, I actually think they may be more intellectually satisfying in many ways to traditional forums. I hate to read a 40, 50 or 60-page law review article in order to get one or a handful of new ideas surrounded by masses of filler. Blogs have a tendency to link to an article and then add new information right away, rather then spend a lot of time providing background and context that you could get as easily from the link.

# Which are the most important cyberlaw issues of 2003?

Shouldn't we be thinking about 2004? ;-)

The DMCA remains one of the crucial battlefields of the digital age. It is hard to overstate how bad this law is or how far its implications will go in the digital age.

The intersection of copyright law and the First Amendment is perhaps the key modern issue in this field. Until the theories of copyright and First Amendment can be reconciled, the law will continue to be confusing and come up with strange results. I am optimistic, though not overly so, that some movement on this front has already begun.

Privacy, of course, remains a very important issue.

I could go, on but we certainly don't lack for important cyberlaw issues.

# You have strongly objected to Microsoft's Digital Rights Management (DRM) scheme in Palladium. Which are the three most important caveats in Palladium?

1) We don't know enough about it.
2) We don't know enough about it.
3) We don't know enough about it.

Seriously, Palladium may turn out not to be so bad, but the potential for it to be very bad is there. Microsoft isn't talking much, so we should not exactly assume the worst, but be prepared for the worst.

# I have read a quote where you state that if Palladium is better than other DRM systems, 'the difference is more akin to that between the electric chair and lethal injection; either way fair use gets a death sentence'. Why is DRM a threat to fair use?

No DRM system even imagined at this point can take into account the balancing test critical to fair use. No system can recognize that copying this much for parody is okay, but only this much for a satire is permissible. Any DRM system will inevitably have to be overinclusive when it comes to protecting copyright holders rights at the expense of fair use.

# Do you think it is possible to fight DRM over time?

Technically, yes. No DRM system yet has withstood attack and there are many reasons to think this will continue. Legally, however, laws like the DMCA make the technical fight that much harder. Decisions that prevent the creation of "mod chips" and the like make the fight that much harder.

# What should the content industry do instead of DRM?

Carrot and stick. Provide good value at a good price - something much of the content industry is failing to do. However, and this a point that many people do not realize, someone is going to have to use a stick when it comes to copyright, or you abandon copyright altogether. Even if you were to adopt compulsory licensing, some people would try to find a way to get around it ... and those people will have to be stopped somehow.

# How is DRM related to privacy issues?

It is not strictly related. One can have DRM that does not raise privacy issues. For example, DVD encryption does not raise privacy issues as far as I am concerned. However, more advanced forms of DRM in this highly networked world have the potential of keeping much closer tabs on citizens. Not only that you bought something, but how often, when and where you watch or listen to it. This is privacy invasion of the worst sort.

# From a policy perspective - how should privacy be balanced to freedom of speech?

Honestly, I'm not sure. I haven't really reconciled my thoughts on privacy law and the First Amendment. Although I have my own opinions on how the First Amendment and copyright law can be reconciled, I don't know how the First Amendment and privacy law should work together. Right now, I look at issues on a case-by-case basis.

# How should privacy be balanced to copyright related subpoenas? Should for example Ebay and Verizon disclose records of suspected copyright infringers?

The short answer is yes, absolutely. The question is whether existing law provides the right procedural protections. Currently it does not. However, to say that no subpoena would be valid is foolish. One of the problems is that, in the Verizon case for example, a mere assertion by a copyright holder is enough to get a subpoena. Given the pathetic good faith copyright holders have shown, asserting that obvious book reports on Harry Potter are unauthorized copies of Harry Potter, it is clear that current subpoena system should not be allowed to continue. There are other issues, but that problem alone is of sufficient magnitude that the law needs to be changed drastically.

# Copyright is a very hot subject in some legal circles today. Professor Lessig wants copyright to be construed of a 14 year term, renewable to 28 for all but computer programs. He also wants a deposit requirement, registration requirement, vastly limited "derivative rights". The protection in the Lessig scheme is 10 years for software max, if and only if, the source code is deposited. No copyright protection at all should be given for any software whose source code is not deposited. Where is he going wrong?

Frankly, I pretty much agree with most of Professor Lessig's points. I would disagree that we should have different terms of protection for different media however. I think the distinction between computer programs and other media is becoming increasingly blurry and I'm not sure that the difference in the terms proposed necessarily makes sense.

# In the European Union we are currently implementing the European Copyright Directive into national legislation. The EUCD is based on the same WIPO treaties as the Digital Millenium Copyright Act. What kind of forces do you see behind the Western or even global drive towards for example protection of anti-circumvention devices?

The copyright industry, and any corporation (such as Lexmark) that thinks it can thrive with these restrictions.

# How would you review Creative Commons? Rant or rave?

Rave.

# Why?

Although I would like to see copyright law completely revamped, I think CC is doing a great job working within the limitations of existing law. It is providing a non-DRM means of achieving the goals and purpose of copyright without abusing copyright.

# You have conducted work with the EFF. What did you do?

I've worked with them on a number of issues, such as the DMCA exemptions and the Blizzard case. I've mostly provided some support here and there.

# How can Greplaw readers help the EFF today?

There are a number of things besides donating money. Stay informed, and get involved locally. I guarantee that no matter where you are there are local ways to get involved, whether it is with state legislatures, or your local 2600 club.

# Even though EFF seems to be quite successful in getting media attention and funds, we still get EUCD, DMCA, Palladium etc. Why is the EFF not more successful in stopping bad laws?

They are fighting a very wealthy, very entrenched group of interests that just so happen to control large amounts of the media.

# If a Greplaw reader wants to learn more about cyber-rights, what and whom should he or she read and listen to?

They're already reading Greplaw right? Check out the links on this page.

# When I googled you before this interview I found out that you built your first computer in high school and then programmed it in assembler language. That is something quite uncommon for a lawyer. Why did you not pursue a career as a programmer or developer?

Actually, I was scared off. When I was taken on field trips in the early 1980s to see computers in action and possibilities for a career, we went to such places as the bill processing center for Southern California Edison. Frankly, it was scary for me to imagine working in such an environment. Had I been exposed to a more interesting aspect of the industry, I might have stayed with it. However, I have always maintained my interest in the field.

# How has your knowledge of the techonology helped you in your legal career?

I can't say it has really helped my legal career. It certainly has been an interesting distraction though.

# What advice would you give a techie reading this who wants to move into law?

Stay involved, keep informed and take the LSATs when you need to. There is no need to take pre-law per se, and it is good to bring an engineer's eyes to the law.

# What can you tell us about The Museum of Money and Financial Institutions?

This is a project I continue to work on. The idea began with Professor Martin Shubik of Yale School of Management, one of the founders of game theory - he should have gotten a Nobel Prize. Museums play an important role in our culture and continuing education, supplementing school and our lives in general. Currently, there is no museum dedicated to the science of economics. Considering how important economics is in our lives, shouldn't there be one? That is the idea behind MoMFI. The plan is to raise money (hard in this market) to build a science museum of economics in Lower Manhattan, preferably on the floor of the New York Stock Exchange when the NYSE moves to a new location in a few years.

# Which is the best Ernest Miller Hemingway book?

My favorite is A Farewell to Arms.

Ernest Miller was interviewed by Mikael Pawlo.

SCO Sends Invoices to Commercial Linux Users | Right of First Sale Apply to iTunes Songs?  >

 

 
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    Ernest Miller on DRM, Privacy and Hemingway | Login/Create an Account | Top | 2 comments | Search Discussion
    Threshold:
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    at the end (Score:1, Funny)
    by Anonymous Coward on Wednesday September 03, @03:17PM (#1116)
    # Which is the best Ernest Miller Hemingway book?

    My favorite is A Farewell to Arms.

    I heard that at the end of that book, Lawmeme dies. In the rain.

    [ Parent ]
    • Re:at the end by Anonymous Coward Thursday September 04, @05:42AM

    Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition. - Isaac Asimov

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