‘it is just a number, and numbers aren’t protectable’ drivel

(A belated rant on a certain number, and responses thereto.)

From Ed Felten’s comments:

And it proves again that the lawyers fail to see something very important. . . . _everything_ in the internet _is_ equivalent to a number. In the mathematical sense. You can transform it as often as you want, it is still equivalent to a number. And numbers are ethereal, they always existed, and will always exist. You cannot destroy them, and you cannot — brace yourselves, IP advocates — invent them. Therefore you cannot protect them either.

From LWN’s comments:

A number is a number. A number is not a product. (Well, maybe this one is, because it’s not prime, but never mind that.) A number is not a service. A number is not a device. A number is not a component. A number is not part of a component.

This is pure drivel, people. Yes, I can represent any idea – any information- in a number. So what? Numbers are not magical and mystical; there is no part of the constitution that says ‘numbers cannot be protected by intellectual property law.’ What matters – what can be protected- is the meaning which humans are able to imbue in and draw from those numbers. We humans have imbued that particular number with a meaning, and as a result, we’ve decided to protect it.

Or to put it another way- locksmiths use numeric codes to replicate keys. Access to those code books is restricted. If someone gave the numeric code for your front door key, along with your address, to a criminal, would you say ‘well, it is just a number, I guess I shouldn’t try to do anything about it’? No, you’d do just what you’d do if the criminal had been given a physical key- you’d change the locks. Again, it is the idea that the number represents- the key- which is what is important, not the number. And so we can protect it or restrict it as we please- to do otherwise would be insane.

Now, I’m pretty sure that giving this particular number legal protection is a bad idea. But that has nothing to do with whether or not it is a number. Anyone who thinks otherwise… oy. Repeat to yourself: all data is a number and all physical keys are numbers, and that doesn’t stop us from patenting, copyright, and otherwise protecting keys and data. HD-DVD keys are no different- it may not be good policy, but it is very clearly the policy we’ve got, regardless of whether or not something is ‘just a number.’

20 thoughts on “‘it is just a number, and numbers aren’t protectable’ drivel”

  1. Ed.: (1) read the post before commenting; I didn’t say protecting DRM was a good idea, I said protecting DRM was the law. Whether or not numbers are never protectable is completely orthogonal to the goodness/badness of DRM. (2) You violated the no asshole rule, so the post is gone. Please come back when you’re ready to discuss the issue without insulting your host.

  2. I think people on both sides are missing the point here, largely.

    As you say, there is nothing magic about a number. A bitstring of arbitrary length is a binary number, and if numbers were uncopyrightable then so would every program and every creative work ever written be uncopyrightable. So on the one hand it’s quite ridiculous when people say that something shouldn’t be restricted because “it’s just a number”, unless they also intend that there should be no restrictions on any piece of information. This is clearly not Moglen’s position, because he upholds the GPL, which restricts people from making software less free.

    However, on the other hand, I seem to get the impression that when people say “it’s just a number” they mean it’s something trivial. People might be going around getting that 32-byte key tattooed on them to ensure its free distribution, but nobody’s going around getting the entire of Photoshop tattooed on their back in little black and white dots.

  3. This is clearly not Moglen’s position, because he upholds the GPL, which restricts people from making software less free.
    While that is probably an accurate assessment of his public position, I think that (though he’d never say this publicly) he thinks of copyright as a necessary evil, rather than something he actually supports.
    they mean its something trivial
    Hrm. Fair point- that is not my intent. It clearly is important, and I don’t think it should be protectable by law. But I think it shouldn’t be protectable because it restricts people’s freedoms, not because it is a number.

  4. granted the system exists as it does today, which makes it a valid legal position to patent or protect specific numbers- the interesting thing, a i have observed it- is that this kerfuffle is not so much about what particular number it is- but that badness of such a policy that allows one to patent a number. and then again, i might even be wrong about that observation (if it indeed qualifies as an observation.)

  5. Obviously current policy does allow people to exert control over some numbers; arguing otherwise seems pointless. The points of contention: whether this particular number should have restrictions on it (no), and whether any numbers should have restrictions on them (probably not).

  6. I see what you’re getting at, Nathan, and didn’t quite see it before, so I think it qualifies as an observation. :)

    What I’m trying to get at is that what matters (legally and philosophically) is the value of the information in the number or protected by the number, rather than whether or not it is a number. To say that a law on intellectual property protection is stupid because it regulates numbers is like saying that a law on speed limits stupid because it regulates station wagons. What should matter is that the station wagon was speeding or not, not that it is a station wagon. Here what matters is that the number does (or doesn’t) protect/embody information, not that it is a number.

    To be clear, again, I think that the idea (‘a component of a method to prevent DVDs from being copied’) should not be protectable, but again, that is independent of how the idea is encoded. It happens to be encoded in a very short number, but it could be encoded in an epic poem or an 800 page technical document, or whatever, and that wouldn’t matter one way or the other to whether it should be protected.

    Or to put it another way (stolen shamelessly from a friend), to go back to the door key analogy. We protect door keys not because they themselves are original or valuable ideas, but because they protect people’s houses. This here is a key; it is an unoriginal and uninteresting and otherwise unprotectable key, but we do it anyway, because we think houses and HD-DVDs are worth protecting.

    (I said in the first comment that ‘it is the law’, which is true, but I think maybe I confused the issue there, since you refer to ‘current policy.’ I’ve tried to clarify the comment a little bit. Protecting information which embodies DRM: is the law, but is a bad idea. Claiming that information is not protectable because the information takes the form of a number: not the law, and would be dumb, because what matters is not the number-ness but the information content of the number.)

  7. As an observation, the claim that a number is not protectable has been proven under one form of IP, specifically Trademark law. There is a reason that Intel switched from numbering their CPUs such as the 80586, to naming them. When they attempted to protect the number 80586 they were advised that their plan was a nice idea, but it wouldn’t work. Cyrix and AMD were within their legal rights to manufacture a processor and name it an 80586 if they so chose. Intel switched to manufacturing names to give their products, and AMD does the same. Motorola, Apple and IBM learned the same lesson and the processor they developed was named the PowerPC.

    Locksmiths do not need to know the number for your lock to make a new key, they don’t need a mold of it either. If you scan your key into your computer, and print the scan, or simply photocopy it, most locksmiths can reproduce your key just from that image. It may cost you significantly more than say bringing the key itself in. And you may not be able to get it done at the local hardware store, but they can do it.

    In this case, the number restricts access, and acts as a key. The problem for the people attempting to use this system to lock down the content is that it is apparently not as difficult as they would like, for someone to derive the number.

    To me this is a bit like using a lock that you know can be opened by any thief that knows about bumping locks. The lock is cheap, widely available, and you can get a replacement set of tumblers at your local hardware store for very little. None of that changes the fact that the lock will not protect you, or what you are locking up, from a thief that knows about bumping that type of lock. If that is a concern to you, and it probably should be, you need to be looking at replacing the type of lock you are using, not just complaining about the knowledge of bumping locks.

    If the people attempting to protect content using some form of DRM or another discover the the mechanism they selected has flaws that allow anyone who wants to, to access the content, even if they are not people who ‘should’ have that access, then they need to review the selection of that mechanism and if necessary, completely replace the type of lock in question, not just re-key the lock.

    I’ll grant that this is just my opinion, but I strongly doubt that I’m the only one that holds it.

    Another variation on this is the master key/slave key lock systems that are out there. You want to give tenants keys to the apartment building without giving all of them the same key. Each apartment has it’s own key that also opens the front door to the building. The problem is that there are only so many ways that you can key locks to support this, and eventually people will have copies of their key that can be used to generate the master key for the building. This may, or may not allow access to all of the apartments, but it is a given that it will allow access to other parts of the complex that tenants are not expected to have access to. So when things start disappearing from those areas, it looks like there is a problem with one of the people who is supposed to have access to that area. However the real problem is still a flaw in the security model being used.

    It may be expensive to have to maintain a good security system. And you will have to ask yourself at some point is the cost of the security system more than the value of what it is securing. But when a flaw in the security system starts to get exploited, it is time to start looking for a new security system, not just complain about the public knowledge of the keys.

  8. I think your key analogy is good, but you fail to do it right. The door is protected by making the number a secret. There is only a limited number of people who know the number (or have the key). This makes sure that noone gets in. It’s a secret a few people agree to keep.
    On the other hand, the DVD number is a number that is given to everyone (or at loeast everyone that wants to watch a movie) on the DVD (or inside the player?). This is like giving everyone a key but forbidding them to use it.
    To get back to the initial thing, if some people decided to record and share a DVD and not let anyone else watch it, I think that would be fine with all the people being so annoyed by the number.

    Hrm, this sounds confused, did I make myself clear?

  9. Benjamin is on the right track.

    Of course you can own numbers. I can own the number 3, just as much as 2^92-1. I can even tell you these numbers, and I still own them. I can store this intellectual property on a piece of paper entitled “Crosbie’s Lucky Numbers”. Perhaps in a year’s time, you’ve forgotten what they were, and desire to know them, and thus covet my intellectual property that you would burgle my house to steal this piece of paper, or to make an unauthorised copy on my premises, and steal that copy of mine from me.

    Of course, you could simply pay me to make and give you a copy of my intellectual property. That copy then becomes your intellectual property.

    The fact that they are numbers doesn’t prevent me or you from owning them, or buying and selling them, etc.

    The point at which things become irksome (to put it mildly), is when the numbers that we buy from, or sell to, each other, or choose to tell each other, become subject to copyright or patent.

    Our property rights to do with our numbers what we will, have thus been suspended in order to create publication incentives.

    So now, when I buy a number from someone who created it from raw materials (where the resulting number demonstrates originality – whatever that means), although this number is mine, I have to ask that person’s permission if I wish to duplicate it, even if in the process of duplicating it, it becomes another number. Moreover, the person I sell this number on to is subject to the same obligation, and so on.

    Moreover, there are some numbers that I may produce from the raw materials of numbers created by my electronic adding machine, that may be substantially similar to other numbers that have been registered by others for a patent on their novelty and utility when interpreted as instructions to certain elctronic adding machines. I’m not allowed to use, sell, or reproduce these numbers – even if unaware of their patented status.

    So, owning numbers is fine and dandy. What isn’t, is the privilege of being able to tell people what they may or may not do with the numbers that they own (without them having signed any contract).

  10. Benjamin says: “the DVD number is a number that is given to everyone (or at least everyone that wants to watch a movie) on the DVD (or inside the player?). This is like giving everyone a key but forbidding them to use it.”

    That’s why DRM is *technically* doomed, but it has nothing to do with whether or not it’s legally/morally/socially a good idea.

    If credit cards had been designed so that you had to broadcast your 16-digit credit card number (“it’s just a number!”) to everyone around you, that would be technically stupid in the same way DRM is, because it would lead to rampant credit card fraud. But that wouldn’t mean that the laws against using other peoples’ credit card numbers were bad laws; in fact, they’d be even more important in that scenario than they are in the real world.

    I’m with Luis. Any discussion of the DMCA that focuses on numbers has completely missed the point.

  11. The point is: corporations believe they have a right to control the distribution and/or use of their secrets even after they publish them, and consequently a right to prosecute people who disobey legislation enacted to grant them this control.

    That any cryptographic specialist can tell you “There is no obscurity in security” is irrelevant, otherwise there’d be no need for the DMCA to cover over this fundamental flaw in DRM.

    The law of nature we’re confronting here is that secrets are not secrets once you publish them. What was once private knowledge becomes public knowledge through the very act of publication, and you cannot hope to control the public’s use of public property.

    DRM doesn’t really matter. What matters is publishers prosecuting the public – for disregarding the notional suspension of their rights to their own property.

    Publisher’s privilege vs public’s right – that’s the fight.

  12. I’ve just reread it and realized that Luis misses to make his point clear – or at least he muddies it with his example. A number is a number is a number. Even the number for your front door lock is a number. And you don’t protect that number. You protect the knowledge that this number is a front door lock. I bet the number of your lock is available in Google. That doesn’t make you or anyone change your doorlock.
    Once you realize this, both quotes and Luis’ blog make perfect sense. They just fail to display the issue adequately. And that might also be the DVD lawyer’s fault.

  13. It’s not *the number* we should be focusing on, but the information about what the number *means.*

    If you find a key, but you have no idea who’s house it unlocks, the key is effectively useful.

    If someone then tells you, “That key unlocks the door to Luis Villa’s house,” then that means something.

    In the case of numbers, it’s the knowledge that the number is useful for a particular purpose, as a key to a particular door, that is the value (or the danger.)

    So I think it’s this “linking knowledge” that should be focused on.

    If you’re playing a dice game, and happen to roll out somebody’s password, you haven’t violated any rules. If someone then goes, “Hey! That’s Luis’s password!”, that’s where the problems arise.

  14. Crosbie Fitch:

    But you do have the right to control the use of information coming from yourself. Otherwise, I can simply copy your blog replies word for word and claim them as my own thoughts. And what right will you have to stop me from doing that? After all, by publishing your thoughts, you’ve put them in the public domain, and the digital representation of your thoughts is nothing but 1s and 0s, so I can use them in any way I want — even plagiarize them without attribution.

    Obviously this is not true. My right to use your blog replies is largely confined to quoting parts of your replies, with proper attribution, as part of my own reply — the doctrine of “fair use”. There are limits on the use of information, even information which has been made public.

  15. Hi Luis,

    I think you miss the point. A number is a number. Does it fit under copyright-protection? You know better than me, but I don’t feel a number can be regarded as a “creative work” or whatever the requirement for copyright protection is.

    Can a number be patented? Again, is a number inventive?

    Well if a number doesn’t fit copyright or patents then it shouldn’t be claimed to be protected by such things.

    Maybe it can be protected by a separate rule, but one that makes sense.


  16. bi, that’s not controlling the use of the information, that’s controlling the truth of the facts concerning the information.

    Last time I looked, civilisation pretty much feels truth is inviolate.

    So, yes, you are welcome to copy all my replies, and even modify them, but you have no right to misattribute my words to another, or another’s words to me, nor to misrepresent me. As you observe, this is a matter of accuracy in attribution (the right to truth), not of reproduction.

    As to a number often only representing partial knowledge, that only obtains meaning in context, or when combined with a separate process, this is invariably the case, and intrinsic to my discussion above. We only value particular numbers because of their interest – because we find them interesting or representative in a particular context.

    3 is only valuable to me because it is my lucky number, and potentially valuable to someone else, who’d like to know my lucky number. But 3 out of context, without being elevated into anyone’s focus, is simply noise.

    This post is noise outside of its ASCII/Unicode/HTML context (and noise to some, even in that context).

  17. I should add that people have attempted to create context free information, e.g. messages to alien civilisations. This is quite tricky, and the jury is probably still out as to whether anyone’s been incontrovertibly successful in doing so. At least, we haven’t been able to recognise any aliens’ context free messages yet – though we have recognised our own (well, a team has deciphered a message they were told contained information).

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