A few weeks ago, when I was back in PEI, Steve Garrity asked me to rethink my post on Dave Weinberger's column in the June edition of Wired in which I wrote:
In another article called "Copy Protection is a Crime", David Weinberger makes possibly the most naive stand on any legal issue I have ever read. It seems to be based on the principle theft of the interests of another are not theft when the thief really, really benefits from the theft. Such the web and copyright issues are tough to swallow and difficult to resolve but the responsive invocation of the mantra of the right "it's mine if I can get to it" is simply dumb
On my review of the article, I am still of the same mind but will elaborate it a bit.
Weinberger openly bases his argument on some false premises, the most fatal of which: "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." This statement is a misapprehension cloaked in a generality. While it is true that the courts exercise discretion and common sense in construing the laws which are set out in either statutes or contracts, they are not in the habit of creatively ignoring what has been made an obligation by the legislatiure or between parties to an agreement.
He then goes on to characterize the perfect copying digital media provides as unique. There are, however, many prohibitions against impersonation and counterfeiting which are common in law. Intellectual and other intangible property rights are well founded interests which are recognized in a broad spectrum of media - and provided with unique regulatory schemes when required.
He then raises a de minimus arguement - which is an argument that trivializes and interest to show its protection is too insignificant to matter:
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.
First, morally this is twisted. You snicker because you know you are getting away with something not because you have the right to photocopying the report. When you are caught, you are still subject to the penalty. Snickering stops. Further, it is not at all insignificant. Consider the late 90's case relating to
for-profit organizations and their photocopiers. Like the present issue, a combination of progress and a technology created a misunderstanding as to who owned what. When it relates to the ability to
obtain access to statements of law, the issues is raised to a clear example of where society and expression interact. The outcome?
A license and a licensing agency: a unilaterally imposed set of rules allowing some free access, some restricted access and some prohibited access. When an interest such as a copyright license is not enforced it is either because it is not noticed or excused by the person having the interest which has been violated. In either case, you have not asserted your own right but infringed on that of another. There is no "leeway" or slack being cut mutually. It is granted
solely by the owner of the interest unilaterally.
When the choice of the interest holder is to prohibit access rather than to share the interest, there is nothing new or illegal being done. Preventative prohibitions to an interest surround us everyday. We use walls, locks, passwords, keys, encryption, code, doors, clothes, etc. to stop you from getting to our stuff all the time. The fact that the lock is breakable, the wall climbable does not defeat the recognition of the protected interest. What is common is the shamelessness of the thief or intruder. Weinberger says we all share the laugh when we photocopy - do we all share the laugh with the burgler or the counterfeiter or he imposter in a chat room used by kids? These are all dissemblers of identity and interest who bend rules of security interest. This also can be perfectly done in non-digital world by the copying of the key - again, Weinberger's case is not based on the unique.
The failure to recognize who plays what role in relation to the copyright interest is at the heart of Weinberger's confusion and which makes his argument most embarrassingly facile. Relying on a form of faith in long since discredited IT as the basis for New Economics, he is proposing IT as the basis for New Law and devolves in the final paragraphs into the would of what outta be based on what he wants - it is the law of the stomach and what he wants to consume is someone else's stuff. This wish leads to his second fatal principle is that the perfect enforcement of an interest is by definition wrong as it undercuts the basis of our shared intellectual and creative lives.
This is wrong in two fundamental ways. First, only through the protection of intellectual property does the real author receive acknowledgement and benefit. We create a market in which sharing occurs as a transaction as defined by valuation in which the interest holder plays a controlling role. In this way we protect the dignity of humans by protecting their expressions. Second, it seeks to define our social structures according to the technology of the current day. One thing we can be certain of is that today's technology will be tomorrow's junkheap. Defining laws to meet the opportunities of each new technology would create a system of social regulation which is infinately incertain - the favorite daydream of the thief and the right-wing libertarian which has little other value ot the community.
Comments
Steven Garrity - July 12, 2003 6:48 pm
When Weinberger talks about "wiggle-room", you have to take into account that this not only includes the legal system, but also enforcement (I can run all the red lights I want if there are no cops around - but I can't hack media files that phone home when I open them).
And yes, while law should be solid enough to withstand technological change, some changes are significant enough to require changes. Virtually free and unlimited distribution of information may such a significant change.
Steven Garrity - July 12, 2003 6:50 pm
And for those that haven't seen it, here's the original piece that Alan is talking about: Copy Protection Is a Crime by David Weinberger.
CMax - July 13, 2003 7:48 am
You miss the point. It is the way copy protection is being applied and planned for, which is being questioned. Though he may not have "all his ducks in a row", he has valid points. If you have been paying attention, you will know south of the border is quickly becoming the Fascist State of the Corporation of America, of which WE are a subsidiary. Even though people like Weinberger may not always have every detail clearly in place when making their arguments, they are working to help steer us away from some very dangerous paths.
Alan - July 13, 2003 10:57 am
Thanks for linking, Steve and CMax.
Steve, I think I failed to carry that over in the pasting from my earlier post. Thanks.
From the point of view of law, there is no separation of enforcability from a right or interest. There is a chestnutty sort of statement: "no right without a remedy". Interests in property, which copyright is no different from in this respect, are essentially the right to exclude. You exclude others from the use of your garden, your bank accounts, your writings. You can exclude people from misusing your stuff ahead of time preventatively as long as your are not using offensive entrapment mechanisms like mantraps. This sort of control over writing is something that is in no way altered by the fact that the media upon which the writing sits is electronic.
Different preventative security systems provide different degrees of wiggle room not through freedom in society but mainly through the inability of the interest holder to afford the security system: the poor do not have grates on their windows and alarms, the new innovator does not patent his great work. You speed in the middle of the night not because it is right or safe or useful but because we do not pay cops to be there then. Copyright avoids the problem of applying resources to the remedy by being recognized as an inherent element of expression. Steps to protect that are simply reasonable. Try to copy a photo off the BBC World site to paste in a place like this - you are locked out. I could hack it but then I am going against the interests of the owner of the site and in a real, if trivial sense, stealing - trivial unless you are the guy making $50 everytime someone uses the photo you have protected.
I think this is where I do not see anything to get in Weinberger - he proposes that a some kind of new day has dawned without recognizing that the dawn happens daily. Media change and will keep changing. Human expression is constant and continuously refreshed through new voices. Without the legal authority copyright grants inherently to authors to control their work, that expression would stagnate. What is also not clear from Weinbereger is the benefit he is suggesting we get in return for giving up authorship. Steve, you suggest "virtually free and unlimited distribution of information may such a significant change" may be it. There is nothing in owr age which is special in relation to information in this way - it is a statement which would have been equally valid at the creation of the printing press around 1600 or automated typesetting around 1900. What is special now? I see nothing in this newest new technology which justifys stripping the interest authors have in their work.
None of which is to say that authors cannot share, grant licenses to use their work freely, give it away, etc. If that is done, however, it is still in the control of the author.
Jeremy Schwartz - October 6, 2003 4:32 pm
While I feel that I am a little out of my league as only a first year law student grunt, I cannot find, either in my first month of intro-property, or the years that I have stayed glued to Wired, anything to refute Alan's statement that interests in property "are essentially the right to exclude". The fact that the method of expression and the commodification of the expression as a medium have been reolutionized by technology are not at issue. Everyone can see that sharing media online is new and relatively easy.
I am not going to dispute that the producers and legal distributors of music and movies (and software) have property rights that must be protected. And I will not justify going through a red light based on the "snicker theory", or any other de minimus arguement. We are talking about a deliberate act here, not an accidental infringement, but the purposeful copying/posession/ distrubution of someone else's stuff without legal right; Period.
However, I am cautious in allowing the protections and the means for protection to be developed in ways not yet discovered, and currently not regulated to be implemented without recourse or due care.
Alan hit the nail on the head: "the poor do not have grates on their windows and alarms". The fact that the record companies can afford to fight the good However, in Canadian democracy (at least until they legislate away our rights), there are rules governing how even the police can gather information that may lead to prosecution. In this "brave new world", where information flows can be tapped, tracked and stored, often without consent or legal warrant, what slippery slope have we happened upon?
I am therefor concerned, not with the legitimacy of the express need to protect property interests, but with the rights that may be violated in the process.
It is a bit like cutting of a hand to cure a patient who has cancer in one finger. Property rights are not the only rights at stake here. There is the right to privacy of the individual. Until DRM can be defined in a clear way, and until the technology for enforcing DRM can be made open and implementable without the infringment of the user's rights to the media and to their personal property and privacy; I am weary of the immediate implications to the innocent user (yes there are some of us out there).
I do not want to have to sign/read a fifteen page contract everytime I buy a CD. And I do not want anymore bots or spyware on my computer than I must already have. Maybe I am playing devil's advocate a little here, but Big Brother is already watching you... are you asking us to invite him in for dinner?
Alan - October 6, 2003 8:09 pm
Thanks for taking the time to write.
I may be unclear as to how the privacy right can be breached without the property right being first breached. If that is possible, it could well be a defensive system gone too far.
But if it is not the case, if we are talking about tracing, in an era and a generation very comfortable with cookies and other forms of tracing digital activity, why is the recording nad following of a wrong act against my property wrong? Am I not just using the medium to protect my interest that the taker uses to take my interest?
If, on the otherhand, the digital defence used is preventative - ie: you cannot copy or read this file unless you have and have paid for our copier/reader - that is no different than buying a physical book as opposed to a file on a screen of stolen, scanned writings.
Jeremy Schwartz - October 29, 2003 4:35 pm
If you are implying some sort of explicit or implicit consent to widespread tracking, I would debate this on several levels.
1st, most programs provide individuals with the ability to control the amount of access and the type of cookies or other tracing devices that their computer will allow. This is specifically because there are many who are not comfortable with this. Anyone who understands the internet and these security risks will insist on the use of some sort of firewall technology. This technology not only keeps hackers out, it also limits the information that users are willing to send out.
2nd, most people are either completely unaware, or only somewhat knowledgeable in the technical nuances of the internet. Consent is not valid unless it is infromed. My parents use the internet because I taught them how. They view content online, but have absolutely no idea what I am talking about when I try to explain under what circumstances a site can be considered secure enough to release personal information.
In your example, if I buy a book, I have the right to copy the book and manipulate it to my own ends, so long as I make no attempt to disseminate the information in the book without proper citation, or sell copies that I make. However, buying a book does not give the publisher the right to i.e. attach a tag that transmits the book's location and what I am doing with the book at all times on the off chance that I might violate their rights; especially without my informed and express consent. Just because the example that I am giving is fantastic in the world of tangible books, does not make it unreasonably extendable into the digital rights management world. The right to exclude, does not include the right to exclude unreasonably when in gross violation of other rights.
The rich man can have an alarm for his house, but he cannot electrify a fence on a residential street.
Alan - October 29, 2003 5:53 pm
Thanks for writing again, Jeremy.
I think my thoughts on this generally come from three directions: privacy law, copyright law and where it would be nice for the law to go.
Tracking of my personal information through a tracer without my consent where I have acquired the asset in which the tracker is placed <i>without</i> my knowledge would be in breach of our soon-to-come-into-general-force Federal privacy act called PIPEDA. It is not a matter of copyright protection at that point as there will be limits to the use of personal information like - as you point out - location, preferences, etc. The law does allow for implied consent but that has to be reasonable and gaining digital stalker with every copy of <i>Mad</i> magazine would not be reasonable. Is it, however, reasonable to expect that the tracer will be placed on a stolen item? I think it is reasonable - not privacy interest in a crime. It is reasonable to interfere with an illegal copying? Sure, why not as it is done ahead of time and warning can be given? To monitor public sites where illegal sharing (under some country's laws) are occuring? It <i>is</i> public.
If, however, I know going into the deal that the tracking of the asset I am buying is an integral part of it - and buying the asset requires and is deemed to be the giving of consent to the tracing - that is another matter. I can choose not to buy the asset and take on these unpleasant conditions. That is a matter of copyright protection. If the seller does spell this out, your choice is only not to engage - but not to engage and then break your word. It is a bit of <i>caveat emptor</i> - buyer beware - but when, as you say, are implication of the technology too complex so that it becomes unconscionable and therefore unreasonable to imply that the buyer should have known what would occur? Depends. Tracking: hard to say reasonable; not ripping off copyright: not so hard.
As I have noted in <"http://www.genx40.com/archives/2003/october/backtoearth">recent</a> posts, the need to think about how to change how we approach and move to sharing as opposed to exchange must be thought out. How far will it go? Why stop at expressive interests - why is food a commodity when water is not? Thingling it out is required before we undermine the current protections afforded authors and other interest holders in intelectual property. But to go there with new forms of licensing agreements and creative commons over any kind of expresion and even other interest is very appealling - undoing Rousseau's objected to first fence around a plot of land.
But until we go to that place, we are not in a new place in relation because of new technology any more than a more effective way to kill one's enemy makes homicide right. We may be getting to a new place but new legal constructs are required to put us there. At the outset of these replies, Steve said:<blockquote class="smalltext">And yes, while law should be solid enough to withstand technological change, some changes are significant enough to require changes. Virtually free and unlimited distribution of information may such a significant change.</blockquote>The changes of the possible caused by technology are not what should require the change in law - but a change in society's collective understanding of what it wants based on the opportunities of new technology should require legal change.
Alan - October 29, 2003 6:13 pm
This recent thread on Metafilter is an interesting introduction to the broader idea of the commons. The Green Anarchist archives of the story of the Fenland Rebels is a good particular example. If we are to move to sharing and commons it would be nice if it was not the exclusive right of the richer side of the digital divide.