RE: [rights-requirements] General permissions expressions in XrML

["Radbel, Dmitry" <dmitry.radbel@umusic.com>]

I am glad we are in agreement that "all or nothing" solutions are not tenable and that the notion of some set of obligatory "fair" rights or permissions may constitute a good ground for a reasonable implementation. I have indeed missed the requirements call you refer to (I unfortunately have a conflict during the scheduled Requirements SC timeslot) so I can't comment on that discussion. REL needs to be able to express such "fair" rights just like it expresses all grants of rights and this can be tested by examples (use cases) of "fair use" type situations (I would point out that IMHO deciding what should be sets of actual "fair" rights is not something that RLTC can do; such sets won't have the legal standing to be effective unless they are addressed in industries-specific settings and with a buy-in from the industries participants). 

I don't think there is merit in debating the "market failure" or "absurdness" arguments in the scenario which started this thread - the scenario appears to have been based on an assumption that the critic's only choice to exercise his/her fair use rights will be to "bargain" for them.  We seem to be in agreement that this would be in the domain of one of those untenable "all or nothing" solutions. This might be a good example to support the notion of "roles" and rights associated with them (see the "Parallel or Complimentary System" thread between Pete, John, Deirdre and Bob a couple of weeks ago).

Dmitry Radbel
Universal Music 

-----Original Message-----
From: Dean C. Rowan [mailto:drowan@uclink.berkeley.edu]
Sent: Saturday, October 26, 2002 7:55 AM
To: Radbel, Dmitry; Bob Atkinson; burstein; rights-requirements
Cc: dmulligan@law.berkeley.edu; drowan
Subject: RE: [rights-requirements] General permissions expressions in
XrML


Radbel, Dmitry wrote:

> I agree that the expressiveness of XrML is being mixed with
> issues related to architecting trust-based systems. I also wonder
> about arguments which dismiss something by subjectively declaring
> it a "market failure" or "absurd".

These are not subjective conclusions. We used "market failure" in the 
well-known, objective sense: a market condition that disrupts perfect 
competition and prevents equilibrium from being reached. Interestingly enough, 
copyright exists to cure one kind of market failure: the "public goods" 
problem. But a statutory monopoly, such as copyright, can also be a source of 
market failure, in large part because of the costs of bargaining around the 
right - incomplete or inaccurate information, etc. These can all prevent 
equilibrium from being reached. Even if transaction costs are reduced to zero, 
these other factors make necessary means other than direct bargaining for 
obtaining rights to distribute.

For example, in our requirements submission we set forth a scenario in which a 
critic wants to use excerpts of a song within a critical review. It is quite 
possible that the rights holder may not want to give permission for clips to 
be used in this case. But this is a paradigmatic fair use. Relying on 
bargaining to solve this is unlikely to be fruitful.

So to ignore this need and rely on direct bargaining is, if not absurd, then 
at least blind to well-known problems.

> However, it was a different observation that really struck me
> about the example that Aaron provided. It seems to me that the
> only solution that will be found satisfactory in this argument
> about sound recording is the one where A is free to "self-issue"
> any rights to him/herself without any restrictions. B can't be
> trusted. The Government (or any other third party) can't be
> trusted due to "burdens of cost, delay and loss of privacy on A".
> The notion that some set of obligatory "fair" permissions can be
> enclosed with the content (and other permissions - going beyond
> typical use - can be requested from B, the Government or a 3rd
> party) is dismissed as "absurd".

> Correct me if I am wrong but the only logical conclusion that I
> can come up with by following Aaron's argument is that only the
> solution where A is fully trusted to do whatever A chooses and B
> and 3rd parties can't restrict use of content (and must pursue
> other means against "unfair uses") will be found satisfactory.

Quite the contrary. This is absolutely NOT the only logical conclusion. But, 
given the current REL and suggestions of how to address the limits on 
exclusivity of copyright policy, it appears that one might have to choose 
between two equally untenable options - no ability of individuals to enjoy 
rights not granted by the issuer or full ability to grant rights to self 
(leaving aside the option of how such grants would be processed). The notion 
of "some set of obligatory 'fair' permissions" being obligatory in the REL is 
attractive. In order for that to occur practically it would need to be an 
element calculated in the algorithm. As we discussed during the requirements 
call last week (we don't remember if you participated), we are open to options 
that would increase the ability of the REL to handle this kind of interaction. 
Like you, we think that an all or nothing solution is unattractive.

> I think that in
> the age of electronic content with perfect, unlimited, low-cost
> duplication and distribution available to everyone such a
> solution is - to quote Aaron - "both politically and practically
> untenable".

We think, then, that we are in agreement on this point: the RLTC can have a 
much wider impact than some have been willing to admit.

> Moreover, while we do want to make sure that practical DRM-based
> systems can be designed using the Rights Language from RLTC, the
> goal of RLTC is not to actually design and standardize such
> systems. That would represent much much greater scope than the
> rights language. Most practical designs involve compromises. Such
> approaches were in principal suggested on this reflector - where
> a set of basic user rights (or permissions, whatever term is
> preferable) for a given industry context are mandated and
> probably will automatically satisfy 99% of the cases, while the
> 1% of the cases where a different "fair use" set is required can
> be addressed via a trusted 3rd party, role-based permissions,
> etc. If there exists a fair set of permissions for reasonable and
> customary usage, the burden of getting permissions for doing
> things outside of that set does not seem to be that unreasonable
> and the cost of such a system seems reasonable as well because
> the vast majority of uses are automated.

> There are certainly interesting and debatable issues on what are
> reasonable "fair use" sets of rights in different countries,
> industries and for different roles of the participants. But the
> role of XrML (or any rights language for that matter) is to
> provide a mechanism for expressing these rights, not to mandate a
> particular architectural solution inherent in the language
> structure.

The "basic rights" proposal was an interesting one, but it appears to have 
died out. In any case, it would be unfortunate to decide on such rights 
without first ensuring that a broad array of requirements had been solicited 
and resolved.

---
Aaron Burstein
Dean C. Rowan
Deirdre K. Mulligan
Samuelson Law, Technology and Public Policy Clinic