What Colour are your bits? (2004)
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        Thu 10 Jun 2004 by mskala
        Tags used:  colour, copyright, philosophy
      As of Summer 2024, my article "What Colour are your bits?" has been
online 20 years, and people are still linking to it as a benchmark.  It's
clear that people still care about intellectual property in general and
copyright in particular, and the difference, if any, between identical
copies of things is still important; but the most salient issues today are
not directly related to the verbatim copying that was a big deal in 2004 and
was the main topic of "What Colour." I've written other articles about
today's issues, and I wish my more recent articles would get the attention
that the 20-year-old one still commands; they are more relevant now.

In particular, people in 2024 care a lot about how intellectual property
issues and "creator's rights" relate to material that is not actually
created by humans - like the output of so-called "generative
AI."  I talk about that in some detail in my article on training and
copyright on the Eleven
Freedoms site.  I don't think the copyright issues associated with
generative models are actually so new after all, and they are best
understood using the existing concept of fair use.  Copyright holders worry
about how to exercise control over the use of "their" creative material for
training models; but that begs the question of whether copyright holders
ever had, or should have, a right to any such control.  If a human can read
a book and learn from it, and then write their own books, why shouldn't a
computer?

Another of my recent articles, possibly my most important one ever,
discusses two conflicting points of view somewhat like the views of
"computer scientists" and "lawyers" below, but in the realm of institutional
hiring and promotion.  That is my 2021 piece on Scarcity, abundance, and lost
careers.  The difference between "lawyers" and "computer scientists"
might be said to reflect a difference between abundance and scarcity:
recognizing that a work can be copied at effectively zero cost makes works
plentiful, whereas extending ownership of the original to ownership of all
copies greatly reduces the supply of works, and then either view has
important consequences.  Similarly, institutions that see promotion
candidates as being abundant or scarce will operate differently from each
other and will have difficulty comprehending each others' points of views. 
The tension between scarcity and abundance leads to dysfunctional situations
like the "elite overproduction" currently eating up some North American
cultures; I think there's a way to understand that and several other current
issues in a consistent framework.

Now, the historical article on Colour.

There's a classic adventure game called Paranoia which is
set in an extremely repressive Utopian futuristic world
run by The Computer, who
is Your Friend.  Looking at a recent LawMeme
posting and related discussion, it occurred to me that the concept of
colour-coded security clearances in Paranoia provides a good metaphor for
a lot of copyright and intellectual freedom issues, and it may illuminate
why we sometimes have difficulty communicating and understanding the
ideologies in these areas.

An article based on this one and its follow-ups, by me, Brett Bonfield,
and Mary Fran Torpey, appeared in the 15 February 2008 issue of
LJ, Library
Journal.

In Paranoia, everything has a colour-coded security level (from Infrared
up to Ultraviolet) and everybody has a clearance on the same scale.  You
are not allowed to touch, or have any dealings with, anything that exceeds
your clearance.  If you're a Red Troubleshooter, you're not allowed to
walk through an Orange door.  Formally, you're not really supposed to even
know about the existence of anything above your clearance.  Anyone who
breaks the rules is a Commie Mutant Traitor, subject to the death penalty.

Much of the game revolves around the consequences of the security levels. 
For instance, Friend Computer might assign a team of Red Troubleshooters
to re-paint a hallway that ought to be Orange but was painted Yellow by
mistake the Commie Mutant Traitors.  It's quite likely in
such a case that the Troubleshooters will all end up shooting each other
for treason against Friend Computer, since none of them are allowed to
touch the paint, go near the hallway, or talk about their mission, and
they're all charged with enforcing the rules on one another.

In intellectual property and some other fields we're very interested in
information, data, artistic works, a whole lot of things that I'll
summarize with the term "bits".  Bits are all the things you can (at
least in principle) represent with binary ones and zeroes.  And very much
of intellectual property law comes down to rules regarding intangible
attributes of bits - Who created the bits?  Where did they come from? 

Where are they going?  Are they copies of other bits?  Those questions are
perhaps answerable by "metadata", but metadata suggests to me additional
bits attached to the bits in question, and I'd like to emphasize that I'm
talking here about something that is not properly captured by bits at all
and actually cannot be, ever.  Let's call it "Colour", because it turns
out to behave a lot like the colour-coded security clearances of the
Paranoia universe.

Bits do not naturally have Colour.  Colour, in this sense, is not part of
the natural universe.  Most importantly, you cannot look at bits and
observe what Colour they are.  I encountered an amusing example of bit
Colour recently:  one of my friends was talking about how he'd
performed John Cage's famous silent musical composition 4'33" for
MP3.  Okay, we said, (paraphrasing the conversation here) so you took an
appropriate-sized file of zeroes out of /dev/zero and compressed that with
an MP3 compressor?  No, no, he said.  If I did that, it wouldn't really be

4'33" because to perform the composition, you have to make the
silence in a certain way, according to the rules laid down by the
composer.  It's not just four minutes and thirty-three seconds of any old
silence.

My friend had gone through an elaborate process that basically amounted to
performing some other piece of music four minutes and thirty-three seconds
long, with a software synthesizer and the volume set to zero.  The result
was an appropriate-sized file of zeroes - which he compressed with an MP3
compressor.  The MP3 file was bit-for-bit identical to one that would have
been produced by compressing /dev/zero...  but this file was (he claimed)
legitimately a recording of 4'33" and the other one wouldn't have
been.  The difference was the Colour of the bits.  He was asserting
that the bits in his copy of 433.mp3 had a different Colour from those
in a copy of 433.mp3 I might make by means of the /dev/zero procedure,
even though the two files would contain exactly the same bits.

Now, the preceding paragraph is basically nonsense to computer scientists
or anyone with a mathematical background.  (My friend is one; he'd done
this as a sort of elaborate joke.)  Numbers are numbers, right? 
If I add 39 plus 3 and get 42, and you do the same thing, there is no way
that "my" 42 can be said to be different from "your" 42.  Given two
bit-for-bit identical MP3 files, there is no meaningful (to a computer
scientist) way to say that one is a recording of the Cage composition and
the other one isn't.  There would be no way to test one of the files and
see which one it was, because they are actually the same file.  Having
identical bits means by definition that there can be no difference.  Bits
don't have Colour; computer scientists, like computers, are Colour-blind. 
That is not a mistake or deficiency on our part:  rather, we have worked
hard to become so.  Colour-blindness on the part of computer scientists
helps us understand the fact that computers are also Colour-blind, and we
need to be intimately familiar with that fact in order to do our jobs.

The trouble is, human beings are not in general Colour-blind.  The law is
not Colour-blind.  It makes a difference not only what bits you have, but
where they came from.  There's a very interesting Web page illustrating
the Coloured nature of bits in law on the US Naval
Observatory Web site.  They provide information on that site about
when the Sun rises and sets and so on...  but they also provide it under a
disclaimer saying that this information is not suitable for use in court. 
If you need to know when the Sun rose or set for use in a court case, then
you need an expert witness - because you don't actually just need the bits
that say when the Sun rose.  You need those bits to be Coloured with the
Colour that allows them to be admissible in court, and the USNO doesn't
provide that.  It's not just a question of accuracy - we all know
perfectly well that the USNO's numbers are good.  It's a question of where
the numbers came from.  It makes perfect sense to a lawyer that where the
information came from is important, in fact maybe more important than the
information itself.  The law sees Colour.

Suppose you publish an article that happens to contain a sentence
identical to one from this article, like "The law sees Colour."  That's
just four words, all of them common, and it might well occur by random
chance.  Maybe you were thinking about similar ideas to mine and happened
to put the words together in a similar way.  If so, fine.  But maybe you
wrote "your" article by cutting and pasting from "mine" - in that case,
the words have the Colour that obligates you to follow quotation
procedures and worry about "derivative work" status under copyright law
and so on.  Exactly the same words - represented on a computer by the same
bits - can vary in Colour and have differing consequences.  When you
use those words without quotation marks, either you're an author or a
plagiarist depending on where you got them, even though they are the
same words.  It matters where the bits came from.

I think Colour is what the designers of Monolith are trying to
challenge, although I'm afraid I think their understanding of the
issues is superficial on both the legal and computer-science sides.  The
idea of Monolith is that it will mathematically combine two files with the
exclusive-or operation.  You take a file to which someone claims
copyright, mix it up with a public file, and then the result, which is
mixed-up garbage supposedly containing no information, is supposedly free
of copyright claims even though someone else can later undo the mixing
operation and produce a copy of the copyright-encumbered file you started
with.  Oh, happy day!  The lawyers will just have to all go away now,
because we've demonstrated the absurdity of intellectual property!

The fallacy of Monolith is that it's playing fast and loose with Colour,
attempting to use legal rules one moment and math rules another moment as
convenient.  When you have a copyrighted file at the start, that file
clearly has the "covered by copyright" Colour, and you're not cleared for
it, Citizen.  When it's scrambled by Monolith, the claim is that the
resulting file has no Colour - how could it have the copyright Colour? 
It's just random bits!  Then when it's descrambled, it still can't have
the copyright Colour because it came from public inputs.  The problem is
that there are two conflicting sets of rules there.  Under the lawyer's
rules, Colour is not a mathematical function of the bits that you can
determine by examining the bits.  It matters where the bits came
from. The scrambled file still has the copyright Colour because it
came from the copyrighted input file.  It doesn't matter that it looks
like, or maybe even is bit-for-bit identical with, some other file that
you could get from a random number generator.  It happens that you didn't
get it from a random number generator.  You got it from copyrighted
material; it is copyrighted.  The randomly-generated file, even if
bit-for-bit identical, would have a different Colour.  The Colour inherits
through all scrambling and descrambling operations and you're distributing
a copyrighted work, you Commie Mutant Traitor.

To a computer scientist, on the other hand, bits are bits are bits and it
is absolutely fundamental that two identical chunks of bits cannot be
distinguished.  Colour does not exist.  I've seen computer people claim
(indeed, one did this to me just today in the very discussion that
inspired this posting) that copyright law inescapably leads to nonsense
conclusions like "If I own copyright on one thing, and copyright inherits
through XOR, then I own copyright on everything because everything can be
obtained from my one thing by XORing it with the right file."  That sounds
profound only if you're a Colour-blind computer scientist; it would be
boring nonsense to a lawyer because lawyers are trained to believe in and
use Colour, and it's obvious to a lawyer that the Colour doesn't magically
bleed to the entire universe through the hypothetical random files that
might be created some day.  You could create the file randomly, but you
didn't.  Maybe you could create a file identical to the complete works
of Shakespeare by XORing together two files of apparently random
garbage.  "Why, so can I, or so can any man;" but that doesn't mean
that I am William Shakespeare.

This idea of Colour is a problem for communication between those of us who
work in the world of computers, where Colour does not exist, and those of
us who work in the law, where Colour exists and is important.  Lawyers
will ask computer scientists questions about how to determine the Colour
of bits (like "How can Friend Computer prevent the Commie Mutant Traitors
from making illegal copies of files, while still allowing loyal
Troubleshooters to use disk-copying equipment?"), and computer scientists
will find it difficult to say anything in response that the lawyers can
comprehend - because a big part of computer science is about understanding
that Colour does not exist.  Someone who cares a lot about what Colour the
bits are, and spends a lot of resources on trying to answer that question,
is a dangerous idiot if not a Commie Mutant Traitor.  In intellectual
property law the Colour of bits exists and is of absolutely paramount
importance.  A computer scientist who won't tell what Colour the bits are
is being deliberately unhelpful, and a computer scientist who denies the
very existence of Colour (as any conscientious computer scientist must
eventually do) is a dangerous idiot and/or a Commie Mutant Traitor.

There are several ways we could try to avoid the issue.  Computer
scientists who want to try to be helpful may say, "Okay, you, the lawyer,
are a dangerous idiot, but I have to work with you or be thrown in jail as
a Commie Mutant Traitor as happened to Dmitry Sklyarov, so I'll try to
address your concerns.  You say there is some special property of some
bits and we need to know which bits have this property.  Fine.  We'll
attach tags to the files to say what Colour they are."  In the copyright
realm, that's the "rights management information" solution.  It's what
they do with DVDs (region coding), VHS tapes (Macrovision), Adobe eBooks
("you may not read this file aloud"), CDs (SCMS), and many other formats. 
The trouble is, if we (as computer scientists) are intellectually honest
about it, we'll have to admit that it can't really work.

The tags are just more bits.  You can write a tag that says "this is an
Orange tag", but it will be made out of bits and so it can't really have a
Colour because Colour does not exist.  It will just be a Colour-less tag
saying "this is an Orange tag".  It will be subject to all the
consequences of the fact that Colour does not exist - such as the fact
that the tag could be stripped out somewhere down the line.  The computer
scientists are aware of that; we have to be, because knowing about the
non-existence of Colour is what makes us computer scientists in the first
place.

What we are doing with rights management information is simulating Colour
in a computer-sciencey way.  But lawyers will seize on the possibility of
doing this kind of simulation and say, "See!  You admit it!  You can
recognize the Colour of bits after all!" and then conclude from there that
all the other rules they want to make (such as "Red Troubleshooters may
not walk down Orange hallways") are meaningful in the computer science
realm.  They'll say "You can recognize the Colour of bits after all!"
rather than "Colour exists after all!" because the idea of Colour not
existing in the first place is not within their imagination.  The "fact"
that Colour is something real is so fundamental to law that it can't be
challenged.  Of course Colour exists.  We lawyers think about Colour so
much that we think we can see it.  Why can't you?  Maybe there is
something wrong with your eyes.  As computer scientists, we need to make
clear that Colour simulated by Colour-less tags saying "this is an Orange
tag" and such, is still only a simulation.  The properties that Colour is
supposed to have do not automatically come with the tags, because those
properties are Colour, the tags are bits, and bits do not have Colour. 

Even bits that talk about Colour do not have Colour themselves.  There is
no such thing as Colour.

Another thing computer scientists will try to do is to treat Colour as a
function (in the strict mathematical sense of "function") of the bits -
maybe an uncomputable function (in the strict mathematical sense of
"uncomputable"), maybe intractable, but a function nevertheless.  We
either do that because we mistakenly believe that Colour really is a
function, or because we're a little more sophisticated, we know that it's
not a function, but we think that we can fake it closely enough with a
function to get the lawyers off our backs.  Either way, the idea is that
we should be able to look at bits and somehow determine, from the bits
themselves, what Colour they ought to be.

Treating Colour as a function is almost the same as attaching tags to the
bits - the difference is that when the Colour is a function of the bits,
we don't have to worry about the tags being detached; on the other hand,
when the Colour is a function of the bits, we can never have more than one
possible Colour for a given sequence of bits.  Monolith depends on
exploiting this problem:  it assumes that one file can only ever have one
Colour, asserts that the Colour of its output file is the "you may copy
this" Colour because of the (correct) claim that fixing any other single
unchangeable Colour would raise legal problems, and then follows the logic
to a claim that it can produce what would otherwise be an illegal copy of
the copyrighted input, without breaking copyright law.  One Colour per
file was never one of the lawyers' rules of Colour; it's merely a
consequence of "Colour is a function", and Colour being a function is
just something we computer people decided to believe because functions
make sense to our training and Colour doesn't.  Colour is not actually a
function at all.

Trying to infer the Colour from the bits may seem like an okay thing to do
as long as bits are tied to physical objects.  You can examine a paper
document and determine whether it is an original or a photocopy.  You can
probably examine something purporting to be a photograph and determine
whether it is a photograph of a real scene, or something more complicated. 
But even in the analog realm, determining Colour by examination is not
always possible.  You can't determine by looking at a photograph of two
people having sex whether they consented to the sex or not, let alone
whether they consented to the making of the photograph.  That's a Colour
distinction that is not a function of the bits that make up the photograph
- and it's true even of analog photographs.

Other important questions which you may or may not be able to answer by
examining a photograph are "Are those things actually humans, or some kind
of simulation?" and "How old are they?"  Those questions may have been
difficult with analog; they become even more difficult with digital.  It
is easy to imagine that someone could render by innocent means (drawing or
ray tracing or whatever) an image bit-for-bit identical to an image that
has the Colour (presumably Pink) of illegal child pornography.  In that
case, depending on your view of such things, it may matter where the bits
came from to the determination of whether they are Pink (illegal) or Green
(legal).  Identical bits may have different Colour.

Child pornography is an interesting case because I find myself, and I
think many people in the computing community will find themselves, on the
opposite side of the Colourful/Colour-blind gap from where I would
normally be.  In copyright I spend a lot of time explaining why Colour
doesn't exist and it doesn't matter where the bits came from.  But when it
comes to child pornography, I think maybe Colour should make a difference
- if we're going to ban it at all, it should matter where it came from. 
Whether any children were actually involved, who did or didn't give
consent, in short:  what Colour the bits are.  The other side takes the
opposite tack:  child pornography is dangerous by its very existence, and
it doesn't matter where it came from.  They're claiming that whether some
bits are child pornography or not, and if so, whether they're illegal or
not, should be entirely determined by (strictly a function of) the bits
themselves.  Legality, at least under the obscenity law, should not
involve Colour distinctions.

I think computer scientists could actually understand Colour a lot better
than we do, because there are places in computer science where Colour does
matter.  I already mentioned the idea of quoting and plagiarism -
identical words are or are not okay to use without quote marks in an
academic paper depending on their Colour.  Those of us with degrees are
able to follow the rules for that because people who aren't get kicked out
of school before finishing their degrees.  That's a general academic
application of Colour.

If you've any exposure to metrology - not "meteorology", I mean the
science of measurement - you'll be familiar with the idea of tracing the
pedigree of standards.  Down in the chemistry lab they have a big jar of
buffer solution with a label asserting that it not only has a pH of
exactly 7.00, but that its pH is "traceable" to such-and-such primary
standard, through a chain that probably terminates at the National Bureau
of Standards in Boulder, Colorado, USA.  That's Colour.  Not only do you
know the pH of the buffer solution, but you know where it came from. 
Someone other than the National Bureau of Standards might be able to
produce a buffer solution that is just as good and just as accurately 7.00
pH.  If you have a sample of good pH 7.00 buffer solution it might
be indistinguishable from the real traceable standard solution;  but it
wouldn't really be the traceable solution unless it had the
intangible Colour to make it authentic.

The computer science applications of Colour seem to be mostly specific to
security.  Suppose your computer is infected with a worm or virus.  You
want to disinfect it.  What do you do?  You boot it up from original
write-protected install media.  Sure, you have a copy of the operating
system on the drive already, but you can't use that copy - it's the wrong
Colour.  Then you go through a process of replacing files, maybe examining
files, swapping disks around and carefully write-protecting them;
throughout, you're maintaining information on the Colour of each part of
the system and each disk until you've isolated the questionable files and
everything else is known to be the "not infected with virus" Colour. 
Note that developers of Web applications in Perl use a similar
scorekeeping system to keep track of which bits are "tainted" by influence
from user input.

When we use Colour like that to protect ourselves against viruses or
malicious input, we're using the Colour to conservatively approximate a
difficult or impossible to compute function of the bits.  Either our
operating system is infected, or it is not.  A given sequence of bits
either is an infected file or isn't, and the same sequence of bits will
always be either infected or not.  Disinfecting a file changes the bits. 
Infected or not is a function, not a Colour.  The trouble is that because
any of our files might be infected including the tools we would use to
test for infection, we can't reliably compute the "is infected" function,
so we use Colour to approximate "is infected" with something that we can
compute and manage - namely "might be infected".  Note that "might be
infected" is not a function; the same file can be "might be infected" or
"not (might be infected)" depending on where it came from.  That
is a Colour.

But the "might be infected" Colour is clearly a fictional thing we create
to help us approximate a tricky function.  It's still easy to argue that
Colour doesn't really exist.  I've saved until last what I think is the
best example of a Colour in computer science, and I think even the most
hardline mathematicians will have to agree that even though this isn't a
function and cannot be represented in bits, it's something real that we
have to be able to think about and care about.

Random numbers have a Colour different from that of non-random numbers. 
The question of how to determine whether numbers are random or not by
looking at them is one of the recurring flame wars of sci.crypt.  You
can't do it.  Here's a number:  2.  Was that a random number?  Well, maybe
I got it by rolling a die (a random generator); or maybe I got it by
counting my legs (probably not random).  If I give you a file of
supposedly random bits, there's no way you can tell whether they are
randomly generated or not.  The same file could have been generated by a
quantum-mechanical random source, monkeys on typewriters, or by encrypting
some well-known non-random file with some scheme that may or may not be
generally known.

There are statistical tests you can do; for instance, if you look at the
file and discover that it contains a copy of the works of Shakespeare,
then it doesn't look much like you would expect randomly generated numbers
to look.  But it could still be randomly generated.  The test tells you
whether the file has the statistical properties expected from randomly
generated files, not whether the file really is randomly generated or not. 
It's not even correct to say "the probability of this being from a random
generator is very low" because that's not true - it either was or was not
randomly generated, that's not open to probability.  At best you could say
"If we ran a random generator to produce a file this size, the probability
of it generating this file would be very low", which sounds almost the
same, but is not.

Note my terminology - I spoke of "randomly generated" numbers. 
Conscientious cryptographers refuse to use the term "random numbers". 
They'll persistently and annoyingly correct you to say "randomly generated
numbers" instead, because it's not the numbers that are or are not random,
it's the source of the numbers that is or is not random.  If you have
numbers that are supposed to come from a random source and you start
testing them to make sure they're really "random", and you throw out the
ones that seem not to be, then you end up reducing the Shannon entropy of
the source, violating the constraints of the one-time pad if that's
relevant to your application, and generally harming security.  I just
threw a bunch of math terms at you in that sentence and I don't plan to
explain them here, but all cryptographers understand that it's not the
numbers that matter when you're talking about randomness.  What matters is
where the numbers came from - that is, exactly, their Colour.

So if we think we understand cryptography, we ought to be able to
understand that Colour is something real even though it is also true that
bits by themselves do not have Colour.  I think it's time for
computer people to take Colour more seriously - if only so that we can
better explain to the lawyers why they must give up their dream of
enforcing Colour inside Friend Computer, where Colour does not and cannot
exist.  Maybe then they'd stop trying to shoot us as Commie Mutant
Traitors.







    