Issue 11.06 - June 2003

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Copy Protection Is a Crime

…against humanity. Society is based on bending the rules.

By David Weinberger

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Scott Menchin

Digital rights management sounds unobjectionable on paper: Consumers purchase certain rights to use creative works and are prevented from violating those rights. Who could balk at that except the pirates? Fair is fair, right? Well, no.

In reality, our legal system usually leaves us wiggle room. What's fair in one case won't be in another - and only human judgment can discern the difference. As we write the rules of use into software and hardware, we are also rewriting the rules we live by as a society, without anyone first bothering to ask if that's OK.

The problem starts with the fact that digital content can be copied - perfectly - from one machine to another. This has led the recording and movie industries to push for digital rights management schemes. Buy a one-time right to play the latest hit song or movie, and DRM could prevent you from playing it twice.

Of course, to exercise such exquisite control over content, DRM requires deep changes to all parts of the equation - the hardware, the operating system, and the content itself. Sure enough, some in Congress recently pushed the FCC to add a "broadcast flag" to content which digital hardware would be required to honor. DRM is barreling down the pike.

Joshua Ellingson

The usual criticism is that the scheme gives too much power to copyright holders. But there's a deeper problem: Perfect enforcement of rules is by its nature unfair. For contrast, consider how imperfectly rules are applied in the real world.

If your lease stipulates that you can't paint without explicit permission from your landlord, you will nevertheless patch up the scratches made by your yappy little dog on the bottom of the front door. If the high-priced industry analyst's report warns you on every page against duplicating, you'll still hand out at your weekly sales meeting copies of a page with a relevant chart. You'd snicker at the very suggestion of doing otherwise.

But why? The analyst report is stamped 'DO NOT PHOTOCOPY', and the bit in your lease about not painting really couldn't be any clearer. We chuckle because we all understand that before the law there's leeway - the true bedrock of human relationships. Sure, we rely on rules to decide the hard cases, but the rest of the time we cut one another a whole lot of slack. We have to. That's the only way we humans can manage to share a world. Otherwise, we'd be at one another's throats all the time - or, more exactly, our lawyers would be at each other's throats.

Yet we're on the verge of instituting digital rights management. What do computers do best? Obey rules. What do they do worst? Allow latitude. Why? Because computers don't know when to look the other way.

We're screwed. Not because we MP3 cowboys and cowgirls will not have to pay for content we've been "stealing." No, we're screwed because we're undercutting the basis of our shared intellectual and creative lives. For us to talk, argue, try out ideas, tear down and build up thoughts, assimilate and appropriate concepts - heck, just to be together in public - we have to grant all sorts of leeway. That's how ideas breed, how cultures get built. If any public space needs plenty of light, air, and room to play, it's the marketplace of ideas.

There are times when rules need to be imposed within that marketplace, whether they're international laws against bootleg CDs or the right of someone to sue for libel. But the fact that sometimes we resort to rules shouldn't lead us to think that they are the norm. In fact, leeway is the default and rules are the exception.

Fairness means knowing when to make exceptions. After all, applying rules equally is easy. Any bureaucrat can do it. It's far harder to know when to bend or even ignore the rules. That requires being sensitive to individual needs, understanding the larger context, balancing competing values, and forgiving transgressions when appropriate.

But in the digital world - the global marketplace of ideas made real - we're on the verge of handing amorphous, context-dependent decisions to hard-coded software incapable of applying the snicker test. This is a problem, and not one that more and better programming can fix. That would just add more rules. What we really need is to recognize that the world - online and off - is necessarily imperfect, and that it's important it stay that way.

David Weinberger (self@evident.com) is the author of Small Pieces Loosely Joined.

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