Already too much to blog. I’m sitting in a session I came late to because I was engrossed in a conversation with Peter Biddle, a leader of the Microsoft Palladium team. He’s an engineer and a partisan and able to remain good-natured even while being, um, pounded. Gives as good as he gets. I felt like we actually got down to some basic issues. Thank you, Peter: you’re a good guy.

Palladium is a Microsoft initiative that will bring high security to your PC. It will act as a vault for contents and enable users and “content providers” to negotiate terms of usage. Palladium is neutral about those usage terms. It’ll enforce any that are agreed upon.

I’m reluctant to present Peter’s point of view since he has been thinking about this for a long and is quite eloquent. Nevertheless, I’m going to. As I understood the conversation, we got down to this: Peter is designing Palladium to be neutral to usage policies but also capable of enforcing them. So, if Eminem says that you can download his new song but you can play it once for $5 and ten times for $10, then, fine, Palladium will Make It So. And if Joe Mahoney says you can download his new song and play it as much as you like, but you can’t resell it digitally, then that’s just as fine. Palladium is neutral to policy. Yet, once terms are agreed upon, it builds that policy into the computing architecture (as Denise Howell put it during our conversation).

And that’s one of two problems I have with Palladium. The real world is enriched by the leeway that’s inevitable in it. Even as we assert our “intellectual property” rights over our ideas and expressions, we know that in the real world those rights are often unenforceable. For example, a report from Forrester Research may have “Do not photocopy” at the bottom of every page, but you won’t get sued if you run off a couple of copies of the graph on page 110 to use at an internal meeting. We make these decisions all the time, and the world is richer for it. Further, as Denise pointed out, when there are infractions worth prosecuting, we have human judges and a legal system that comes to reasonable (usually) decisions. Implementing policy in silicon drives the leeway out of the system.

My second problem is that Palladium may be neutral in its architecture but it is being born into a world that isn’t neutral. Content has been locked up by gigantic, greedy, stupid companies (mainly headquartered near Hollywood) and the company producing Palladium has been declared a monopoly. If Palladium becomes the only way that the entertainment industry can sell digital content according to strictly enforced rules of usage, then Microsoft will become the de facto entertainment player, forging the “unholy alliance” that so many of us fear. The fact that Microsoft is not committed to producing Palladium across multiple platforms in a timely way is certainly unsettling.

There was nothing that I said, with the help of Denise, that Peter hasn’t heard before. His response was surprising to me. Palladium won’t really lock down content that well, he said. Pirates will still be able to get unlocked copies of whatever they want. You’ll still be able to find a copy of the latest Eminem song to download because some hacker somewhere will crack the encryption. My response was that Palladium will eliminate the gray area so that those who download a song will have to become pirates. Peter, of course, thinks that we’re already pirates, so that got nowhere.

Ultimately, I think you have to ask what world will be better, one with enforceable usage rights that drive out the leeway and hard-codify fair use, or one in which there’s reasonable (and even unreasonable) leeway where some genuine piracy happens, a lot of genuine cash-for-use happens, and a whole bunch in between goes on at every level of society.

My preference is obvious. Unfortunately, that doesn’t mean that it’s right and it sure doesn’t mean that it’s persuasive.

Categories: Uncategorized dw