
What colour are your bits? (2004) - Ivoah
http://ansuz.sooke.bc.ca/entry/23
======
cousin_it
"Colour" is just history. Both bits and physical things can have history that
isn't recorded in the thing itself, but is relevant to the law. For example,
the law cares if you're driving a stolen car, even though the car's atoms
don't carry XML tags saying "stolen". Enforcing rules based on history is
hard, both in the physical and digital world, but it's not impossible. It
might even be easier in the digital world, due to ubiquitous surveillance and
robust content ID algorithms. Pointing to computer science is just a
deflection, like a theoretical physicist explaining that protons are
indistinguishable when asked about tracking stolen cars. In practice, history
can be tracked. The only question is whether we want to.

~~~
ouid
I don't know what you mean by "in practice", but if everyone in a network is
_always_ either uploading encrypted bits or random bits, then the problem of
tracking the history of that network reduces, in practice, to the problem of
distinguishing between the two.

~~~
tbrownaw
It's not like it's unheard of for people to get arrested for online activity.
And from what I understand, those often _don 't_ rely on network sniffing.

Because _somewhere_ on your abstraction stack, you'll eventually get to things
that are human-meaningful information. Things like facebook or backpage posts,
credit card transactions, etc. Things that are in various ways tied to
identifiable entities that exist in the physical world.

------
syrrim
"Colour" overcomplicates what could be a simple issue. There _are_ bits that
describe how to turn it from random data into copyrighted material (eg sound,
visuals). This is easy to see. Imagine you took some copyrighted material and
encrypted it. Then you posted that online. Without the public key, the file
would be useless, and you wouldn't be violating copyright. Now imagine you
posted the decryption key. Now anyone can play the file, and you are
infringing copyright.

This can be easily applied to the monolith case. If you take a chunk of data
out of /dev/random, then this of course is not copyrighted. If you xor it with
some copyrighted work, the result is also not copyrighted. If you post either
of those files online, you haven't broken any laws. If you post both online,
you still haven't broken a law. If you tell everyone to go xor those two files
together, then you have suddenly infringed the creators copyright, by allowing
others unpermitted access to copyrighted works.

~~~
mikekchar
Copyright law differs from place to place, but I think what you have written
is incorrect. There is a distinction between "infringement" and "making
available". You can infringe copyright without making it available. In this
case, making a copy is infringement, even if you don't make it available. Even
loading a file into a computer can be an infringement, and so you need a
license to do so. The format is irrelevant.

If you take a chunk of data out of /dev/random, it is not subject to copyright
because it is not a creative work. Mathematically transforming a creative work
does not remove the copyright. Laws are written to be loose enough to deal
with corner cases like this.

Out of interest, I once saw a modern art piece that was a sculpture of an
ouroboros made of pornographic magazines. Clearly the magazines were still
under copyright. So is the sculpture a derived work? I think this is what is
known as a transformative use. My understanding is that it is _still_ an
infringement, but that it is covered under fair use. (I have no idea how this
is covered in countries without fair use!)

I suppose you could encrypt a recording and publicly destroy the key. You
could then actively trade the encrypted file. I suspect this would also be a
transformative use as a kind of performance art. But as in all fair use, it is
still an infringement.

Copyright law is confusing :-P

~~~
syrrim
When you xor data with truly random data, the result is just as truly random
as the original random data. Consider this: considering that xor is its own
inverse, how would a court distinguish the original and the xored random data?

Perhaps you're right, and the latter is legally considered copyrighted.
However, on a practical level, this is completely unenforcable; so long as you
never state the way the data came about, there is no way to acertain the
connection ([http://en.wikipedia.org/wiki/one-
time_pad](http://en.wikipedia.org/wiki/one-time_pad)).

This is what the lawyer of the article believes: the xored data is
copyrighted. He explains it by introducing a metaphysical "colour" associated
with the data. Given that litigation can only occur when you have stated that
the data is a transformation of a copyrighted work, it seems much simpler to
ascribe the litigation to your statement, rather than to "colour".

I am under the impression that "copying", as far as copyright goes, really
refers to distributing. You are legally entitled to make a single backup of
copyrighted work you come into possession of. If this backup was stored in the
cloud, I imagine no one would mind, unless you handed your password out to
just anyone. This is why I believe that distributing an encrypted copy is safe
- without the password, it doesn't constitute distributing the original.

As you said, copyright is confusing, so I may be wrong on the previous count.
However, the fair use claim is much easier than you make it out to be. One
clause of fair use is that the work doesn't compete with the original. An
encrypted file, being useless for consuming the original, surely doesn't
compete with it.

~~~
mikekchar
Just keep in mind that "fair use" is not a defence. If you invoke fair use,
then you have admitted infringement. If you are awarded fair use, it's just
that you are not liable for a penalty.

It's kind of pedantic, but that's the way the law works. The problem comes
with the corner cases. If you use a non-pedantic view of the law and think,
"Well, it's just common sense that <insert common sense here>", you may very
well come up with things that are very, very incorrect (and possibly very
damaging to you).

Of course, ANAL and this is not legal advice ;-)

