The Stanford Encyclopedia of Philosophy definition of Rights contains some interesting insight about political constitutions :

More generally, a political constitution can be seen as a multi-level structure of rights that distributes authority over rules of conduct in a distinctive way. A democratic constitution, for example, may give voters the power to elect legislators, who have certain powers to enact laws, which the judiciary has certain powers to interpret, and the police have certain powers to enforce. The facts about who should be free to do what within any legal or political system, as well as the facts about who should be free from which actions and conditions, will be expressible as a complex set of layered rights.

Digital Rights Management (DRM) systems can be seen as constitutions in the digital space. A democratic constitution in the digital space would give users the power to elect legislators who have the power to express, interprete and enforce DRM.

Taking for granted that the DMP designs technical specifications for constitutions in the digital space the question suggests itself how the entities are elected who have the power to express, interprete and enforce the complete DMP governance infrastructure.

The procedures of this election are described in Approved Document No. 5, WD 2.0 – Technical Specification: Certification and Registration Authorities, Phase III. The first step of the process will be the drafting of a Call for Participation by the General Assembly at the 12th DMP General Assembly in Beijing. Then prospective Authorities will submit applications and finally there will be a vote on the proposal of the Board of Directors by the General Assembly (see setting up the DMP governance infrastructure).

Assuming that DMP is successful, I foresee the following:

• A company with a close relationships but not a direct economic stake in a Collective Management Society (CMS) will apply for Content Registration Authority. The Content Registration Authority manages the root namespace for Content Identifiers.
• In order to obtain a Content Identifier, a User will need to declare that he owns the copyright of the content (in DMP terminology: that the Content Item is a Manifestation of his Work). This can be realized by the User providing a certificate pointing to a Work Identfier. A common standard for identifying musical works is the International Standard Musical Work Code (ISWC). For getting an ISWC certificate, the User will need to contact one of the 41 agreed ISWC agencies. Companies which are compliant with a set of conditions can apply to become ISWC Registration Agencies
• Since two Identifiers need to be obtained in order to register Content to the IDP, the CMS will have a competitive advantage for operating Registration Agencies, because they can provide a one-stop shop for Content Identifiers and Work Identifiers.
• It will depend on the cost of operating an ISWC Registration Agency if independent Users will be able to operate services for registering non-commercial Content to the IDP.

Of course all this reminds us of Douglas Adams‘ Hitchhikers Guide to the Galaxy:

Uncomprehending terror settled on the watching people of Earth [...] the Vogons turned on their PA again. It said: “There’s no point in acting all surprised about it. All the planning charts and demolition orders have been on display in your local planning department in Alpha Centauri for fifty of your Earth years, so you’ve had plenty of time to lodge any formal complaint and it’s far too late to start making a fuss about it now.”

Conclusion: If DRM systems can be seen as constituitions in the digital space, it’s getting time that more people of Earth get involved in the specification process. And even if people do understand what all this is about, this article about ICANN shows that national governments tend to get in the way of democratic elections in the digital space when they realize that they would lose power.

Inside outside, leave me alone Inside outside, nowhere is home Inside outside, where have I been Out of my brain on the five fifteen Out of my brain on a train Out of my brain on a train

Like technical standards, laws are established and re-established all the time. Laws are conventions between people. They evolve over time or when they need to cover new cases. Just like technical standards copyright laws are dynamical systems determined by the relationships between their users. If any of these systems does not apply anymore to the reality of its users it will be replaced.

What is good and fair is based on agreements between members of communities and is expressed in the form of laws or technical standards. Human rights are conventions between people. The concept human rights and inalienable rights was created in the 18th and 19th century. Copyright is also based on conventions between people. History of Copyright shows that what was considered good and fair in connection with intellectual property depends on technological and social development.

In the digital space the right to property or the right to anything depends on your Environment (e.g. IDP-2) and the community of Users you deal with. If you design an Environment which is not considered good and fair by other Users, sooner or later nobody will enter your Environment to deal with you.

DMP’s Traditional Rights and Usages (TRU) deal with the question of what is good and fair in the digital space. For instance how can we design a system which is good and fair in the sense that it protects the droit d’auteur and at the same time allows students to access a piece of content for their studies? If such a system is considered good and fair by many users it will be successful in the digital space.

A Public Domain system without the notion of Copyright can be imagined, but in my opinion the Public Domain is not the most successful environment for financing the production of good software, literature and other content. On the other hand – when Copyright expires, a lot of good content enters the Public Domain for the benefit of everyone.

Also it seems that in the digital space there must be some technical protection, because users still confuse data which can be accessed with their private property. Tools for expressing License terms of a piece of content in a human readable form (e.g. MozCC, RegisteredCommons) may be sufficient for many cases. For some cases (e.g. private communication), strong encryption may be necessary.

So who decides what right is good and fair? In the digital space you can decide, because as long as the right can be expressed and devices, services and networks are interoperable, you are free to choose the right you want to live with.

In a perfect world DRM would not be necessary but we live in an imperfect world where different industries use technical standards to protect their business models or to create barriers to the unavoidable convergence. The work of DMP is based on the conclusion that currently in the digital space non-interoperable DRM is a fact. The task of DMP is to select existing standards and integrate them so that interoperation between standards could become easier.

The growing resistance against DRM can be seen a form of resistance against the manner in which right holders use intellectual property rights for their private benefit and without regard to important societal interests.

Apart of the contracts between licensors and licensees there is also something like a social contract between members of a state or a community. The limitations and exceptions of copyright can be considered legal restrictions to protect this social contract. If there is DRM for anyone and access to content is driven by purely economical interests, citicens or companies can breach the social contract by monopolizing access to certain knowledge and information.

Rights are the result of agreements between individuals. Technical standards are the result of agreements between individuals. Even decentralized self regulating systems for the management of IP rely on agreements between individuals. DRM systems do not merely rely on an economic rationale, but should be pictured in the broader contexts of cultural diversity, access to information and communication.

One concern is that with DRM for everyone there would no longer be access to certain content for learning purposes. The Berkman Center’s paper on ‘Obstacles to Educational Uses of Copyrighted Material in the Digital Age‘ is groundbreaking, because it provides legal rationale for a world in which DRM is a reality for everyone. The authors of this white paper propose to use legal consensus building processes resulting in statements of best practice for deployment of DRM systems. These statements of best practice could be expressed in a licensing negotiation protocol between users of DRM systems. A Protocol to Negotiate Licenses will be part of IDP-3. To me this development looks like a convergence between certain progressive elements of the legal community and certain progressive elements of the technical community (by chance both projects named themselves DMP).

Another concern is that with DRM for everyone the enforcement of license terms through DRM systems supports a development towards a Constitutionalisation of Private Law. Greg Colyer made a good example to illustrate the issue:

Consider whether the following could form the basis of a valid licence: “You may copy this work during the next 20 years, provided that you refrain from doing so ever afterwards.” Those who do not accept that licence may retain all their TRUs, including unlimited rights after copyright expires, at the expense of any additional rights in the near future. But those who do accept it, in order to acquire more significant rights sooner, appear to have been excluded from the public domain after copyright expiry! (Other perverse examples involving other TRUs are left as an exercise for the reader.) Are we simply planning on saying, for example, that only certain licences UNLIKE the above one will be considered “DMP-compliant”? If compliance-testing for rights management is difficult, compliance-testing for licences must be even more so! It seems to me that such “unreasonable” (yet perhaps legal) licences are precisely one of the problem areas the DMP needs to address. My feeling is that the argument, “Well, you are always free to decline the licence,” is a weak one, because the unencumberedness of usage after purchase (say) is itself a TRU for typical commodities. Perhaps what this is pointing at is a “meta-TRU”, which says that TRUs are not negotiable?

Auf der IBC haben wir die erste Demo der IDP-2 Reference Software vorgestellt. Auch sonst war der Aufenthalt in Amsterdam wie immer sehr angenehm und anregend. Die Photos dokumentieren den offiziellen Teil der Veranstaltung. Inoffiziell wird behauptet, ein koreanischer Programmierer sei mit einer komischen Zigarette gesehen worden. Das Apartment in unmittelbarer Nähe des RAI ist übrigens sehr zu empfehlen.

In his essay Michel Bauwens well explained why older forms of physical Commons are becoming more regulated. The reason is that physical resources (e.g. air, water, storable energy, food, shelter, gold,…) are scarce. As long as resources are scarce, it will not be easy to open-source the physical space.

Inefficiency, being one of the reasons for scarcity in the physical space could be owercome by scientific and technological progress. Environmental aspects, pride of ownership and the mechanisms of free markets are incentives for improving the efficiency of production and reducing the wastage of natural resources. Other reasons for scarcity are found in the private relationships between human beings: love, hate, ignorance, vanity, generousity are feelings located in the logical space. Religions and moral concepts (e.g. rules, laws) based on agreements between members of communities create the necessary balance between public and private interests.

When logical space, physical space and digital space are are linked together through the interfaces of devices and networks we can download our memories from logical space to physical devices (e.g. to a Memex) and we can upload considerable amounts of our aural and visual impressions from the digital space to our brains. Thus our beliefs, thoughts, intentions and relationships are manifested in the digital space and can be localized in the physical space in the form of storage media.

In the physical space the concept of ownership means access to and control of physical resources. In the logical space intellectual property covers rights over intangible entities like works, designs or inventions. DRM systems are currently used by rights holders to transfer the concepts of ownership and intellectual property from the physical space and the logical space to the digital space.

Likewise DRM systems can be applied to transfer concepts of ownership and intellectual property which were initially devised for digital resources (e.g. text, audio, video, executable code) from the digital space to the physical space. By virtue of the printing press books are not scarce anymore. Bookcrossing exemplifies that a simple form of DRM can turn a book into an Information Commons by means of attaching a license and registering it’s location to a database. Recycling physical objects through the digital space (e.g. using ebay) reduces scarcity and further increases the probability that objects become a physical Commons.

When physical space and digital space are linked, objects can be protected by licenses expressing that they are a public property or a good owned by a certain community. Physical Commons experiements like Holland’s White Bicycle Plan failed, because people just stole the bikes. When physical objects are linked with the digital space it becomes harder to remove them from the system. The Call-a-bike system by Deutsche Bahn AG still operates, because the bikes are connected with the digital space (even though the interface to the digital space has been hacked). There may be better examples that Call-a-bike, because they use a proprietary technical infrastructure controlled by a company which is subject to privatization. I can imagine that a new White Bicycle Plan could succeed if the bikes were equipped with Call-a-bike locks using an interoperable DRM system operated by a community.

Ultimately the question is who is in charge of the DRM system (e.g. community, government, company…). I believe that a basic requirement for the realization of physical Commons is that the technical infrastructure to protect the Commons in the physical space needs to be distributed so that it cannot be controlled by a single corporate entity. To achieve this the design of the hardware and the software of the DRM system needs to be linked to a Commons in the logical space (e.g. source code protected by an Open Source license, hardware based on patent-free hardware specifications).

Moreover, DRM systems operated by communities need to be robust against attackers, because the same DRM systems can be used to create and maintain artificial scarcity. Imagine a car lobby being angry about the increasing success of the White Bicycle Plan. They could become a major shareholder and corrupt the system by replacing the community locks with proprietary locks and then they start charging money for the White Bicycles. Still the community could rebuild their White Bicycle Plan using new bikes, new hardware and a copy of the old software. What if the environment in the physical space becomes hostile? Let’s assume a gang of unknowns driving the White Bicycles against walls at night. In the morning people cannot find bikes and are late at work. Sooner or later the community experiences a permanent state of crisis. They are afraid of losing their public transportation system and their economy suffers. Maybe they begin to secure the White Bicycle Plan by extending the same DRM systems used to protect the physical Commons with enforcement features. The investment in the additional security infrastructure will be costly and affordable White Bicycles will become scarce. The conclusion is that without political protection of the physical Commons a peer to peer economy won’t get very far.

Language can be considered a logical Commons and source code can be considered a means to manifest concepts expressed by language in the digital space. If lobbies were crazy enough to control language by privatizing all media services or to control source code by privatizing all devices and networks the same protection mechanisms would apply. Since the relation between Signifier and Signified is arbitrary speech is quite free and communities could rebuild the digital space by rewriting the code. Even if lobbies corrupt logical space and digital space through newspeak, doublethink and proprietary software, in a friendly physical space we can defend the physical Commons.

I will join

I just read Michel Bauwens‘ essay on the Political Economy of Peer Production and I am quite impressed. I share his vision – there is not much I can add to his economical theory.

In the section on Transcendent Aspects of P2P Michael Bauwens wrote:

leading sectors of the for-profit economy are deliberately slowing down productive growth (in music; through patents) and trying to outlaw P2P production and sharing practices

This is actually one of the premises from which the Digital Media Project (DMP) started (see DMM). Interoperable DRM is considered an approach to break the so-called Digital Media stalemate.

The key question in Bauwen’s essay is:

Can peer to peer be expanded beyond the immaterial sphere in which it was born?

Actually, I am convinced that something like a Commons based political economy is possible. I moved to East Germany only a short time after the Fall of the Wall and I lived in the (former socialist) eastern part of Berlin between 1993 and 2002. Living space was cheap and abundant – nobody had much money, nor was it very important. Still the intellectual standard in the city was at the highest stage. During the 1990ies many of the people who created the foundations of the digital economy in Germany lived in Berlin. Obviously freedom from economical constraints fosters creativity. In the digital space “knowledge workers” built the economical model of their choice, because in the physical space they were pretty independent of salaries. To me this experience exemplifies that a P2P economy can flourish in interstices in the physical space.

A technical infrastructure could support Bauwens’ vision of “universal common property, transcending the limitations of both private and public property models and reconstituting a dynamic field of the Commons”. If the Interoperable DRM Platform (IDP) were real, licenses expressing and providing legal protection for the Commons could be connected with products and services. The IDP could also provide the interface to “time based complimentary currencies”, because contracts between users (license agreements being the result of license negotiations) can store value.

However, I can forsee many obstacles for a Commons based political economy. There is a growing resistance against interoperable DRM, both from the side of existing industries who profit from the stalemate as well from the side of civil libertarians who are concerned that the enforcement of license terms through DRM systems supports a development towards a constitutionalisation of private law. Consensus building processes on the technical side as well as the legal side could improve the situation. The authors of the white paper ‘The Digital Learning Challenge‘ proposed to use legal consensus building processes resulting in statements of best practice for deployment of DRM systems. These statements could be expressed in a licensing negotiation protocol between users of DRM systems.

There seems to be a convergence between certain progressive elements of the legal community and certain elements of the technical community (by chance both projects named themselves DMP).