Technology and Self-Help

New technologies have upset a carefully struck balance between the rights of copyright holders and those of society's other members. Filesharing & copying techologies have made the replication & distribution of copyrighted material cheap and easy to do. The natural, economic barriers to infringement no longer exist. In their place, copyright holders seek to invent new ones. Encryption & copy protections technologies, for instance. But also other more direct forms of self-help.

John Amone on copyfutures writes about a software copying countermeasure that deletes a Mac user's home directory (the one containing all a user's personal files). P2p networks face denial-of-service attacks, and filename spoofing. Even legislators want to get in on the act. The Berman bill, aimed specifically at p2p sharing, would authorize similar such actions. However, such legislation, will not fix the imbalance, and only serve to create greater imbalances in other areas.

For instance, take the DMCA, a statute already passed. The DMCA criminalizes the removal of copy protection schemes from copyrighted material. (It also authorizes copyright holders to issue "takedown notices" to those suspected of aiding in illegal downloading.) Copy protection, arguably, already overreaches and interferes with another right - that of "fair use" of a work. By encrypting a movie, I or anyone else can no longer grab a non-infringing clip from that movie without violating the DMCA. Though inadvertantly, by criminalizing the removal of copy protection, the DMCA now tips the balance of law against "fair use".

You might ask so what? Isn't that what "balance" is all about, give and take? But then again, Ed Felten over at Freedom to Tinker, points out "because of the DMCA, consumers have not gotten what they demand. For example, many consumers demand a DVD player that runs on Linux, but when somebody tried to build one it was deemed illegal." There is the danger in DMCA's blanket protection. Future desireable, and presently unseen uses of technology may be stifled. This is antithetical to the very purpose of copyright law, to promote the sciences and the arts. And as Felten points out, unbalanced from a market perspective, too.

Richard Posner has written on Lessig.org about the interchangeability between law and technology (self-help). He notes that "law and technology are substitute methods of protecting an interest. You can sue a trespasser; but it may be cheaper just to put up a strong fence."

We used to think that if the technological substitute was adequate, it would be superior to the legal; and in fact the law often imposes self-help requirements to discourage lawsuits. And we never (or rarely) used to think that technology could upset a balance struck by the law; we thought law could cope with any technological changes. The dizzying advances of modern technology have destroyed these assumptions.

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We are in the presence of an arms race between encryption and copying technologies; if the latter prevails in this competition, copyright law will be ousted from one of its domains.

This race will be won on the strength of technologies. Copyright holders are trying skew this race through increased self-help legislation & technologies. However, such self-help legislation invariably limits opposing technologies in unexpected, and sometimes harmful ways.

Comments

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