UCLA Copyright and The Shape of Digital Culture Discussion

1. Introduce one keyword, concept, technical term, jargon, example case, etc., that the author uses. Quote the author using this term (cite page number), then explain it in your own words in 2-3 sentences.

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Wired Shut
Wired Shut
Copyright and the Shape of Digital Culture
Tarleton Gillespie
The MIT Press
Cambridge, Massachusetts
London, England
© 2007 Massachusetts Institute of Technology
All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information
storage and retrieval) without permission in writing from the publisher.
MIT Press books may be purchased at special quantity discounts for business or sales
promotional use. For information, please email special_sales@mitpress.mit.edu or
write to Special Sales Department, The MIT Press, 55 Hayward Street, Cambridge,
MA 02142.
This book was set in Stone Sans and Stone Serif by SNP Best-set Typesetter Ltd., Hong
Kong. Printed and bound in the United States of America.
Library of Congress Cataloging-in-Publication Data
Gillespie, Tarleton.
Wired shut : copyright and the shape of digital culture / Tarleton Gillespie.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-262-07282-3 (hardcover : alk. paper)
1. Copyright—Electronic information resources. 2. Piracy (Copyright) I. Title.
K1447.15.G55 2007
346.04′82—dc22
2006030129
10 9 8 7 6 5 4 3 2 1
Contents
Acknowledgments
vii
1
The Technological Fix
2
The Copyright Balance and the Weight of DRM
3
The Speed Bump
4
A Heroic Tale of Devilish Piracy and Glorious Progress, by Jack
105
Valenti
5
Why SDMI Failed
6
Protecting DVDs: Locks, Licenses, and Laws
7
Raising the Broadcast Flag
8
Effective Frustration
9
The Cultural Implications of Encryption
Notes
283
References
345
About the Author
Index
383
381
1
21
65
137
193
223
247
167
Acknowledgments
I owe a great debt, one that I suspect I cannot calculate nor ever repay, to
all those who offered their help, support, and insights throughout the
writing of this book. A special thanks for the guidance of Chandra Mukerji
and Robert Horwitz. Many thanks to Geof Bowker, Dan Burk, John
Caldwell, Julie Cohen, Shay David, Josh Greenberg, Jeff Hancock, Peter
Hirtle, Steve Jackson, Joe Karaganis, Leah Lievrouw, Michael Lynch, Lev
Manovich, Helen Nissenbaum, Trevor Pinch, Matt Ratto, Lucy Suchman,
and Fred Turner for taking the time to read and improve the manuscript.
Thanks to Doug Sery, Valerie Geary, Kathy Caruso, Amanda Nash, and
Emily Gutheinz at the MIT Press, as well as the anonymous reviewers for
their thorough and helpful critiques. A special thanks to Nat Sims for
designing the cover of the book and to Alexa Weinstein for her meticulous
proofreading. Thanks to all my colleagues in Communication at UCSD,
and in Communication, Science & Technology Studies, and Information
Science at Cornell, for providing the rich intellectual environments from
which this work sprang. Thanks to the people at Claire de Lune Coffee
Lounge in San Diego and at Wownet Cafe and Juna’s Cafe in Ithaca for
their caffeine and hospitality. And for their endless support, patience, and
encouragement, my eternal gratitude to my parents, my family—and most
of all to Jenna and Jonas.
Portions of this book were assisted by a grant from the Digital Cultural
Institutions Project of the Social Science Research Council, with funds provided by the Rockefeller Foundation. Thanks also to the participants of the
“Digital Cultural Institutions and the Future of Access: Social, Legal, and
Technical Challenges” workshop at the Center for Science, Technology,
and Society, Santa Clara University, October 21–23, 2004, for their advice.
Thanks also to the Center for Internet and Society at the Stanford Law
School for the support and community provided by its 2005–2007 fellowship award.
viii
Acknowledgments
Pieces of this research, at various stages of completion, were presented
at conferences hosted by the Association of Internet Researchers (AoIR) and
the Society for the Social Study of Science (4S), and as colloquia for the
department of Science & Technology Studies at Rensselaer Polytechnic
Institute, the department of Information Science at Northeastern University, the Information Society Project at Yale School of Law, and the Center
for Internet and Society at Stanford Law School. Many thanks to the participants and audiences in all of those places for their attention, questions,
and suggestions.
A version of chapter 6 appeared as “Copyright and Commerce: The DMCA,
Trusted Systems, and the Stabilization of Distribution,” The Information
Society 20.4 (Sept. 2004): 239–254. Reproduced by permission of Taylor &
Francis Group, LLC., http://www.taylorandfrancis.com.
A version of chapter 8 appeared as “Designed to ‘Effectively Frustrate’:
Copyright, Technology, and the Agency of Users,” New Media and Society
8.4 (Aug. 2006): 651–669. It appears here with the permission of New Media
and Society and Sage Publications.
A portion of chapter 9 appeared as “Autonomy and Morality in DRM
and Anti-Circumvention Law,” Triple C: Cognition, Communication, Cooperation (2006), co-authored with Dan Burk. It appears here with the permission of Triple C, and with gratitude to Dan Burk.
A portion of chapter 9 will also appear as “Price Discrimination, Regional
Coding, and the Shape of the Digital Commodity,” in Joe Karaganis and
Natalie Jeremijenko, eds., Structures of Participation in Digital Culture (forthcoming, 2007).
1
The Technological Fix
It seems like ages, although it’s been only a few short decades, since
Alvin Weinberg posed the question, “In view of the simplicity of technological engineering and the complexity of social engineering, to what
extent can social problems be circumvented by reducing them to technological problems? Can we identify Quick Technological Fixes for profound
and almost infinitely complicated social problems, ‘fixes’ that are within
the grasp of modern technology, and which would either eliminate the
original social problem without requiring a change in the individual’s
social attitudes, or would so alter the problem as to make its resolution
more feasible?”1 We may be a bit amused, or perhaps a little shocked, by
the naïveté of Weinberg’s tragically optimistic question—especially when
we discover that his answer was a qualified “yes” pointing to, of all things,
the hydrogen bomb as a successful technological fix for the social problem
of war.
We can only hope we’ll never again be so naïve as to think we can
somehow simply and justly resolve social problems with technologies, or
so oblivious to their own intricate consequences when we try to do so
anyway. But it’s a surprisingly elusive lesson. We still search for, and long
for, such “technological fixes”—even as we give perfunctory lip service to
how they are only stopgap measures or technological add-ons to social
policies. As Carolyn Marvin wrote, “People often imagine that, like
Michelangelo chipping away at the block of marble, new technologies will
make the world more nearly what it was meant to be all along.”2 And the
social problems we hope to resolve are as intractable as when Weinberg
wrote. We hope trigger locks will reduce violent crime, cameras and facial
recognition algorithms will ensure privacy and public safety, smart ID cards
will squelch terrorism, the V-chip will protect children from images of
sex and violence. These technologies hold out the promise of attaining
progressive social goals, and of doing so effectively, fairly, and without
2
Chapter 1
discrimination—a promise built upon the persistent sense that technologies exist outside the frailty, inertia, and selfishness of human politics.
This faith in technology as an inherently progressive force is a powerful
Western paradigm wrapped tightly into the ethos of American culture. Yet
it is an illusion. By itself, technology can never solve the problems its proponents aspire to solve. Imagining that new technology will rescue us from
our persistent social ills allows us to momentarily forego the much harder
questions: What are the social bases for the problem, how do they work,
and why does the problem persist? What forces shaped this technology,
what is it supposed to accomplish, and what does it demand of us in order
to work? Technological fixes also help abrogate the responsibility of both
the people involved in the problem and the designers of the technology
themselves. Perhaps this sense of determinism is appealing—don’t we want
the new dishwasher to scrub our cares away? Rob Kling notes that these
“utopian visions” resonate with the public imagination because “their
causal simplicity gives them great clarity and makes them easy to grasp, to
enjoy or to abhor. They can resonate with our dreams and nightmares.”3
And in a culture bound tightly to an economic and ideological commitment to a never-ending flow of new commodities, planned obsolescence,
and the luxurious promises of advertising, the claim that technologies will
fix what ails us is an all-too-familiar marketing ploy.
Whenever a new technology arrives, it typically evokes a flurry of
questions, hopes, fears, and predictions about what it will do, marked by
an underlying faith in social progress through technology. The particular
character of the claims about what the technology will accomplish
will depend on which of its features are most novel. But, even more, the
claims will depend on the particular dilemmas we as a society are facing
at that moment. The arrival of a new tool will often get entangled
in current tales of social conflict and cultural failings, championed as a
long-awaited solution. The printing press would bring forth a new era of
learning; electricity would end the tyranny of nighttime over human
accomplishment; the radio would unite the nation into a single community; television would bring the world into our living rooms; weapons of
mass destruction would banish war.4 Discourses surrounding new technologies typically “predict a radical discontinuity from history and the
present human condition”;5 we expect technologies to intervene in precisely those aspects of society we find most troubling, those we have
secretly hoped to finally resolve.
Paul Duguid suggests that these cycles of technological prophecy regularly depend on two principles: supersession, “the idea that each new
The Technological Fix
3
technological type vanquishes or subsumes its predecessors,” and liberation, “the argument or assumption that the pursuit of new information
technologies is simultaneously a righteous pursuit of liberty.”6 These make
a kind of logical sense together: An old technology imposes constraints on
its users, an improved technology resolves those problems and thus
replaces its now worthless predecessor. Social limitations (e.g., the stultifying isolation of life in the vast American wilderness) are tied to established technologies (newspapers, which require human proximity to be
distributed); the new technology (radio) will fully replace the old because
it removes the barrier it imposed.7 The “pioneer in the wilderness, the
farmer on his isolated acres” will have the news of the nation at their
fingertips, will find themselves connected to their fellow man despite the
miles, and will be free to exercise their democratic rights as citizens in a
way that they could not before.8
It is a cohesive vision well suited to an Enlightenment idea that history
itself is always a tale of broad social progress. It is also well suited to the
interests of capital, which must convince consumers that, despite the
quality, durability, and initial appeal of the old commodity, the new
product is an urgent improvement rather than a frivolous luxury. Most of
all, the broader social structure survives intact; the break is not only
resolved, it’s welcomed, assured somehow by “the paradoxical prediction
that freedom from technology can be achieved through technology.”9
This requires, of course, that tales of a technology’s progressive potential must follow, or be paired with, tales of the previous technologies’
limits, failings, and dangers. Dystopic worries about technology are the
necessary flipside of the coin; faith in the new technology requires that we
perennially forget, or ignore, our faith in each technology that preceded
it. This deliberate aphasia allows us to map social ills onto the caricatured
evolution of our tools, conjuring a reassuring tale of benevolent and
unproblematic progress. Discussing an optimistic faith around the coming
of electricity, James Carey notes that “electricity promised, so it seemed,
the same freedom, decentralization, ecological harmony, and democratic
community that had hitherto been guaranteed but left undelivered by
mechanization. But electricity also promised the same power, productivity, and economic expansion previously guaranteed and delivered by
mechanical industrialization”10—the very ills that critics were looking to
electricity to cure.11 Instead of addressing the complexity and specificity of
the interaction between technologies and the sociocultural activities in
which they are embedded, critics prefer to embrace this compelling fantasy
of waves of technological progress.
4
Chapter 1
The Internet and the Question of Copyright
There are certainly better ways to think about the relationship between
technological and social change, yet this naïve optimism persists. The
Internet brought with it the same rhetoric of supersession and liberation
in the whirlwind of hype and hoopla that surrounded its arrival.12 In a
culture fascinated with technological innovation and devoted to the religion of progress, it should come as no surprise that the Internet captured
our imagination, spurring the same optimistic predictions as electricity, the
automobile, radio, even the hydrogen bomb. According to the Internet’s
proponents, education would become truly universal as all human knowledge became perfectly and instantly accessible to all. Championed by both
the left and the right,13 the Internet would allow democracy to flourish as
citizens went online to debate important issues and politicians spoke
directly to the people. Environmentally destructive urban populaces would
scatter to the natural idylls once they could work flexible hours from home.
The social barriers of race, class, and gender would disintegrate as identity
became a virtual plaything, a costume put on with a keystroke. Censorship would fail and wisdom would flourish as those who deserved to be
heard could speak freely. Or as Wired announced (ironically, in an article
about technological disasters), “We think technology is rapidly opening up
possibilities and revolutionizing the old order in a way that gives a chance
to smaller players. We are unabashed optimists about our collective opportunities as we round the corner into the next century. We are skeptical of
anyone’s claims (including our own) to know what the future brings, but
we look at the glass and see that it is no longer half-full but brimming
over.”14
Yet amid all this promise, the Internet was also being criticized as a grave
threat to culture, morality, and society. The earliest legislative attention
paid to the new medium concerned the proliferation of pornography
online, accessible to anyone in any community at any age. Though these
particular worries turned out to be dramatically overstated, we continue to
fret about the “promiscuity” of the Internet, facilitating the circulation of
not only the loftiest elements of our culture, but also the basest: pornography, hatred, misinformation, unbridled gossip. Concerns also erupted
about the “death of privacy” harkened by the Internet: personal information vulnerable to identity thieves, corporate information open to clever
hackers, children’s personal safety threatened by online stalkers offering
virtual candy.15 Again, the concerns about the Internet’s impact on privacy
have since shifted. Nevertheless, the fear that the “radical discontinuity”
The Technological Fix
5
of the Internet would lead to social ills rather than progress persists. So
once again we look to technological solutions to seemingly technological
problems, now with the Internet as the problem in need of a technical
solution so that its liberatory promise can be fulfilled.
Nowhere has this been more visible than in the recent controversies
around copyright law in the digital environment. Once the exclusive
domain of corporate lawyers and policymakers, copyright spilled into
public awareness with the emergence of the Internet. Designed to regulate
the movement of culture by making it a market commodity, copyright now
faced a technology that dramatically reimagined how and by whom culture
is produced, sold, distributed, and consumed. At the same moment, those
industries most invested in copyright found themselves scrambling to keep
up with the accelerated stakes of the so-called knowledge economy. The
game had changed, not only technologically but economically, politically,
and culturally. Would the Internet prompt the renovation of copyright law
and the proliferation of new techniques of cultural production that could
exceed traditional copyright’s limited imagination? Or would it require
the imposition of even more stringent versions of the law, to compensate
for the absence of those material and economic constraints endemic to
physical manufacture and exchange?16 Many have argued that this battle
extends well past the definition of copyright to a clash of paradigms about
the control of information: Lawrence Lessig describes it as the choice
between “free” versus “permission” culture, Siva Vaidhyanathan calls it a
struggle between “anarchy” versus “oligarchy.”17
The rapid rise of Napster and peer-to-peer file trading offered the flashpoint, provoking the major U.S. entertainment corporations to declare a
legal war: against Napster, against proponents of an unregulated Internet,
and at times against their own customers. Some foretold the death of copyright; others railed against the sin of piracy and called for new laws to save
the endangered species known as artists. Record labels found themselves
suing their own consumers; movie studios produced expensive trailers
lecturing reluctant audiences, some of whom were, at that moment, automatically downloading Hollywood blockbusters on their computers at
home. Digital startups looking to take advantage of the ease of distribution the Internet provides found themselves caught in the crossfire, while
the major content providers took flak in the press for not pursuing new
business models themselves. Some artists proclaimed their support for their
publishers, while others looked the other way as their work appeared
online, or even helped it get there; Metallica sued Napster to protect its
copyright while Chuck D spoke out in Napster’s support. Apple courted
6
Chapter 1
the middle with an industry-friendly plan to sell content through iTunes,
only to find itself in competition with a resuscitated Napster providing
authorized digital music by subscription.
For the most part, these battles have taken place in the courts and in the
court of public opinion; a legal effort to use copyright to stem the tide of
“piracy” faces a cultural movement enamored with the appeal of the new
technology. But under cover of this noisy debate, content providers and
lawmakers have begun to implement significant changes in the way copyright is applied in a digital culture. At the core of these changes is a fundamental shift in strategy, from regulating the use of technology through
law to regulating the design of the technology so as to constrain use.
Such strategies aim to take advantage of the fact that, while digital technology may facilitate a dizzying array of choices and opportunities at blistering speed and with total access, it can also be used to keep close tabs
on what is being done and by whom. Technical barriers and rules can
be incorporated directly into the communication networks that we increasingly use to participate in community, in commercial exchange, in
politics, and in the conversation of culture. What we might call “social
engineering” has come full circle back to actual engineering, where the
tools and the environment are built to assure that the right practices are
facilitated, the wrong are inhibited. These technologies are largely being
developed and deployed below our cultural radar, enamored as we are with
the thrill of the “information revolution,” the faith in progress, and the
freedom of individual agency.
Turning to Technology
Consider the court’s decision in the lawsuit against the Napster peer-topeer (p2p) network. While the most important aspect of the decision at
the time was the fact that Napster lost the case, it is the particular way in
which they lost, at least in the courtroom, that offers an important
harbinger of the broader shifts in law, technology, and culture we are now
experiencing. Cursory histories of the Napster case may remember only
that the courts, finding on behalf of the major record industries, shut down
Napster for contributing to massive online copyright infringement. But the
Ninth Circuit Court of Appeals actually did no such thing; although it may
have been their underlying intention, the court did not mandate that
Napster turn off its servers or cease its business operations. Instead, noting
that “Napster has both the ability to use its search function to identify
infringing musical recordings and the right to bar participation of users
The Technological Fix
7
who engage in the transmission of infringing files,”18 they called for a technological fix, one designed to change Napster so it would systematically
discern and filter out the unauthorized music the Recording Industry Association of America (RIAA) had complained about.
Set aside for the moment the legal question of whether the maker of a
tool should be held accountable for the uses the tool is put to. This effort
to deploy a technological artifact as a legal intervention represents a larger
strategy that, even in the short time since the Napster decision, has become
a full-fledged project on behalf of the major culture industries.19 Rather
than articulating what can and cannot be done legally with a copyrighted
work, this approach favors the design of encryption technologies (once
reserved for military secrecy) to build the legal standards of copyright
directly into the artifact—such that some uses are possible and others are
rendered impossible. While the proponents of this approach (most notably
the U.S. music and film industries) have taken great pains to maintain that
this is simply a practical improvement required to counter the hazards of
the Internet, matching copyright law in terms of the ends it will achieve,
this use of encryption represents a dramatic new intervention into communication and culture. Once again, we are putting faith in a technical
solution to a social problem.
The film and music industries are in some ways following in the footsteps of the software industry, which in the 1980s had to grapple with the
ease of unauthorized reproduction and distribution of their content;
indeed, they are expanding on some of the solutions the software industry developed in response. But what was once simple password protection
is becoming something much more significant. Current encryption techniques allow content owners to decide who gets access to their work
according to much more precise, subtle, and modifiable criteria. Today,
digital content can include information indicating how, when, and where
that content can be used, rules that will be honored automatically by the
devices we use to consume it. With these innovations, film and music
distributors are going far beyond what the software industry had once
imagined, to govern not only whether we copy their work, but also how
we buy, share, experience, and interact with it.
The inflated rhetoric of the copyright wars has provided a compelling
cover for a sometimes concerted attempt to develop this technological
architecture. This intervention aspires to regulate not only copyright but
also nearly every dimension of the distribution and consumption of
culture. These control strategies have thus far been of limited effectiveness
in the face of persistent hackers, the efforts of commercial bootleggers, the
8
Chapter 1
powerful appeal of free and accessible entertainment for a generation that
has known little else, and the ubiquitous cultures of sharing pervasive to
the societies and economies of India, China, and elsewhere. However,
regardless of (or even in spite of) its likelihood of success, this strategy
warrants critical attention, and not only for its possible consequences for
copyright. Enlisting technological design as a way to regulate its users will
have significant consequences for the trajectory and cultural life of digital
technologies, and for how we get to make use of them.
We don’t usually think very explicitly about how the construction of
walls subtly regulates our activity. Certainly, some of us are aware of this
at moments—prisoners know it is the walls and the guards, and particularly their combination, that restrict their freedom so effectively; the residents of what was once East Berlin, or today’s inhabitants of the Gaza Strip
or Tijuana, are all too cognizant of the unique power of combining political authority, legal force, and technical barriers to intervene in people’s
lives. Those of us who are relatively untouched by such dramatic impositions of control are afforded the pleasure of seeing the technologies around
us as facilitating rather than limiting, offering opportunities to participate
in social life as we please. But this invisibility does not mean these arrangements are any less consequential. Technologies choreograph our social
activity, often with political consequences, and can be made to do so in
increasingly sophisticated ways with digital technology. And when technological design must be directed so that the technologies will enforce
laws, the delicate dynamics of technological innovation can be profoundly
disturbed.
Building the rules of copyright into the technologies themselves similarly aims to intervene in human activity while disappearing beneath business as usual. Technical copy protection preempts those activities that
copyright law has traditionally prohibited, but the translation of legal rules
into code may not prove particularly adept at handling copyright’s legal
subtleties. At the same time, new possibilities for communication and
collaboration encouraged by the particular shape of the Internet may find
little space to grow inside restrictions based on traditional copyright,
especially as it is understood by those whose business models are most
powerfully undercut by these new practices.
Beyond the Technical
The premise of this book is that in order to understand what is happening to digital copyright, we must broaden the question. While impor-
The Technological Fix
9
tant concerns have already been raised about the consequences of these
technical control strategies for copyright law,20 considering these artifacts
away from their broader sociopolitical contexts fundamentally misunderstands the kind of controls being developed. We must dare to expand our
scrutiny, to see this complex shift in a wider context. The technologies are
only the most visible elements of an increasingly cohesive regulatory strategy, sometimes called the “trusted system.”
Consider for a moment how most of us are prevented from copying our
DVDs. The first line of defense is that the DVD players widely available to
consumers do not have a Record button. The act of copying is simply
absent from the technological choices offered. This is a powerful barrier,
enough to stop most people most of the time from copying the movie they
rented. Yet this is only the interface to the underlying system of control,
and to stop there begs the question why manufacturers of DVD players,
knowing their customers might like to copy their favorite movies, don’t
design for it.
Manufacturers of DVD players do not offer Record buttons because they
are prohibited from doing so by a license arrangement with the movie
industry. They assent to this license in order to get the key to unlock the
encryption system of DVDs, which is necessary even just to play them;
these keys are developed and held by the movie industry and its select
technology industry partners. Users simply must abide by the rules built
into the technology, even rules that extend well beyond the traditional
prohibitions of copyright.
Additionally, any users who might tinker with their DVD players or hack
around the protection codes on the DVDs themselves can be criminally
prosecuted under new copyright statutes that now strengthen all technical content protection. Such laws are backed by legislators and courts
willing to privilege the interests of content providers over the public protections of traditional copyright law, a perspective well fed by the culture
industries, which have carefully articulated the problem of Internet piracy
as a dire emergency.
An effective version of this system would not be merely a technical
achievement. The trusted system relies on more than technology as its
primary means of enforcing copyright. It must back that technology with
the persuasive force of law and the legitimacy of new political and commercial alignments, and it needs a cultural performance of the risks and
rewards sufficient enough to justify it. These elements work in tandem to
reshape the movement of culture in ways that cannot be perceived when
the elements are considered alone. No one element is sufficient to enforce
10
Chapter 1
the rules being applied, yet in combination they impose a surprisingly
strict code of conduct on users and manufacturers.
This is now well beyond a question of how copyright should work, in a
digital world; it is the construction and legal authorization of socrotechnical systems designed to select out those activities we want to render
impossible (and the converse, those we hope to encourage). Critiques that
fail to recognize these heterogeneous elements and how they interact not
only misunderstand the situation; they inadvertently grant the trusted
system greater power by portraying it as merely the sum of its parts. The
situation demands the examination of how these legal, political, and cultural elements are produced, and how this complex array of forces is being
lashed together in the service of technical content protection. Only that
inquiry will effectively demonstrate that these structural alignments are as
consequential for the dynamics of digital culture as the technologies they
support.
The Shape of Digital Culture
Understanding not only the turn to technology as a regulatory strategy,
but also the social, legal, political, and cultural mechanisms by which it is
possible, is, at one level, crucial to the ongoing disputes about copyright
and the Internet; it is a debate that has significant implications for both
the production and circulation of culture, for the digital networks upon
which that culture will move, and for the practices and institutions that
will accommodate decisions made in the courts and in the marketplace.
Copyright is at the heart of cultural policy21—those rules that help to
govern what is said, by whom, and with what effect. If we are at all concerned about the power of communication, the dynamics of democracy,
the politics of culture, or freedom of expression, copyright must be a
fundamental part of our inquiry. Shifts in the design and application of
copyright law must be recognized as having consequences in all of these
domains as they migrate to the digital realm. To the extent that the Internet, among other technologies, is increasingly designed and legislated to
be a medium that not only facilitates communication but also imposes
tight controls on it, we are very much shaping what the Internet is, will
be, and can be. If the personal computer and the Internet are and will
continue to be fundamental tools for cultural participation—the “new
media”—then the institutional arrangements bent on pressuring hardware
manufacturers to embrace restrictive, technoregulatory control systems
warrant significant concern.
The Technological Fix
11
Moreover, whether or not this is the right strategy for copyright, what
is most striking is that this tightly coupled arrangement of institutions,
laws, and technologies is being deployed toward ends well beyond that of
copyright protection. It is, in many instances, an effort to rename those
rules and radically expand the rights traditionally granted to copyright
owners. As I began my investigation into these cases, I expected to find a
pull back toward the status quo, what Marvin described as “the process of
social adjustment around a new technology, which is an occasion for introducing new rules and procedures around unaccustomed artifacts to bring
them within the matrix of social knowledge and disposition.”22 It would
go roughly like this: the Internet arrives; a number of critics in different
domains, especially those shut out of existing arrangements of power,
point to it to suggest the possibility of change; those in power turn to the
stability and authority of existing law; using the law, they tame the new
technology into submission. Instead, what I found was a story of both
stasis and change. The maneuvers visible in these cases are not only about
reaffirming existing arrangements familiar to copyright, but also about
extending them, strengthening them, expanding them, reimagining them.
Historically, copyright has privileged not the authors of cultural work but
its distributors; the modern media industries are dominated by a select few
corporations that have consolidated control over the culture market by
asserting their intellectual property rights as a way to govern where work
comes from and where it goes and to benefit financially from its circulation. While it appears that, as culture shifts into a digital environment,
copyright will continue to give them this economic leverage, and that
many of the same distributors will be able to retain this control, what is
changing is what it will give them the authority to do.
The trusted system as it is being pursued can certainly prevent copying.
More than that, it can also enforce complex pricing schemes and undermine the potential for fair use. In fact, these technological restrictions can
make access to digital content dependent on users satisfying any number
of obligations, well beyond the simple promise to use it within the strictures of copyright law. These constraints, piggybacked along with technical copy protections, will even more dramatically commodify culture,
transforming our every encounter with a cultural work into a financial
transaction, slicing up the populace into laser-precise market segments at
the whim of industry. To the extent that such technological interventions
impact some participants more than others, or normalize certain practices
and marginalize others, they are likely to shift the structures of participation in culture and society more generally. They are a revised road map for
12
Chapter 1
the movement of information, tightly regimented to ensure that, first and
foremost, cultural goods are always and already commodities, and that
being commodities trumps all other considerations.
While the debates about copyright law have historically focused on how
the law helps or hinders the democratic movement of information, we
must recognize that the dynamics of the market can also promote or stifle
the production of and access to newsworthy insight, political diatribe,
artistic expression, and biting parody. If the trusted system is used to
enforce particular market constraints, then the entire arrangement is implicated in this question. The trusted system warrants serious questioning by
those interested in the future of digital technology and all the cultural and
social interaction that it may or may not host. As Thomas Streeter puts it,
“The choices that shape property in media, insofar as they shape what it
means to be a speaker and a listener in an electronically mediated environment, and hence subjectivity, may influence the character of social existence. The law of ephemeral property is thus becoming a principal terrain
for constructing the contours of contemporary cultures. Ongoing developments in ‘information’ law and policy will draw boundaries that will
undergird the development of social life.”23
A clearer understanding of not only the relationship between law and
technology but also the political and commercial arrangements beneath,
will also contribute to the ongoing investigation into the political
economy and sociocultural impact of digital cultural institutions. The
emerging alignment between the culture industries, hardware and software
manufacturers, policymakers, and the courts will have its own consequences. Recognizing this requires moving beyond the overblown hype of
“information revolutions,” as well as the converse tendency to take such
changes for granted. It requires an analysis attuned to the quiet arrangements that are building new patterns and alliances in the industries that
produce and distribute culture.24
Finally, the implications may extend well beyond the digital circulation
of cultural expression. As technology moves from being the object of law
to being the means of its implementation, those concerned with the social
implications of technologies must prick up their ears. To the extent that
we choose to turn to technology to regulate copyright, we are likely to
embrace that strategy in other sociopolitical controversies where technology appears to have similarly neutral effects: genetics, nanoscience, public
health, education, national security, etc. Be it for the protection of pop
music or any other reason, the extent to which lawmakers are willing
to regulate and arbitrate over technological design must be made plain,
The Technological Fix
13
scrutinized, and judged according to the criteria of political transparency,
social equity, and cultural freedom.
Chapter by Chapter
These questions are at once legal and philosophical, social and cultural,
political and economic. As part of its theoretical engagement with these
questions, this book aims to move beyond the standard legal critique of
copyright by drawing on recent theories of technology, communication,
and culture to consider its broader ramifications. Digital copyright is a
perfect domain for examining not only the way we structure cultural
expression through the mechanisms of law, technology, and the market,
but also the way controversies such as these become sites for powerful and
consequential debates about the future of culture to be reframed, for participants in that debate to position themselves as powerful agents in that
future, and for provocative questions to be closed. With these insights, we
can begin to reveal how political efforts, powerful but by no means determining, work to engineer digital culture both through technological design
and through the production of laws, institutional arrangements, and cultural discourses to match.
At the same time, while we must address these questions on a theoretical level, the most useful insights come from an interrogation of real world
arrangements, of the character of the alliances and compromises that have
been constructed to make them possible, and of the disputes that have
arisen around them. This book bases its analysis in this on-the-ground
interpretive approach by considering three of the most prominent efforts
by the U.S. content industries (one a failure, one largely a success, one still
being debated) to impose complex control arrangements through the
design of technology, and to build the legal and political infrastructure
they would need in order to work.
To understand these controversies, it is important to understand the law
of copyright and the forces that have shaped it over three centuries. The
law represents the slow accumulation of years of disputes and compromises; cutting it open reveals this legacy just as tree rings reveal seasons of
growth and tumult. Chapter 2 introduces the reader to the workings of
copyright law and the premises on which it is based. It is written for readers
who are largely unfamiliar with copyright law and the recent controversies, but even those well versed in both will find some new approaches
for moving beyond the first wave of concerns. Arguments for why copyright exists and how it should be applied are considered in light of its
14
Chapter 1
fundamental contradiction: that it aspires to serve the public good by constructing a property regime premised on private gain. The effort to strike
a balance between these often competing interests requires limits and
exceptions that are both fundamental to copyright law and, at the same
time, revealing of its inherent tensions.
The emergence of new technologies tends to disrupt the balances within
this legal regime that manage its structural tensions. Like many technologies before it, the Internet made visible ambiguities that copyright law had
not had to deal with before, and afforded an opportunity for those most
invested in the workings of copyright law to tip the scales to their benefit.
In response, traditional content industries and self-appointed Internet
enthusiasts made very different claims for how the distribution of culture
would work in a digital age, and how copyright should change to accommodate it. This largely theoretical dispute became all too real with the
arrival and astounding popularity of Napster and peer-to-peer file-trading.
This chapter offers a quick and dirty history of the music industry’s legal
attempts to shut down the deluge of unauthorized music sharing, and
introduces the technical solutions being proposed: digital rights management (DRM), a means of encrypting digital content in order to limit access
to it; and the “trusted system,” a scheme whereby hardware and software
authorized to access encrypted content will police what can be done with
that content. The chapter ends by introducing some of the concerns that
have already been raised about this shift to DRM as a copyright solution,
particularly around its implications for the fair use doctrine of copyright
law.
Using encryption technology to govern cultural distribution is only an
example of how we regulate human activity through the built environment. Chapter 3 attempts to arm the reader for scholarly inquiry into this
phenomenon by exploring recent thinking in the fields of communication, science and technology studies, and information studies.25 Technologies can powerfully shape the social activities in which they intervene,
sometimes with significant political consequences; at the same time, technologies are also powerfully shaped by the individuals and institutions that
produce them and reshaped in powerful ways by users, suggesting that
their impact has a lot to do with the meanings that are negotiated and the
cultural contexts in which that negotiation occurs. We can resolve this
tension between seeing technology as constructed versus seeing it as consequential by noting that technology is constructed so as to be consequential. In every instance, designing and implementing a technology is
an attempt to intervene in social practice. To the extent that designers of
The Technological Fix
15
technology can agree about how they would like to choreograph the practices of users, this regulatory role of technology is enhanced; to the extent
that designers cannot control what happens to the technology after it
leaves their hands and cannot entirely predict its consequences, it is diminished. Understanding the complexity of technology as a political artifact
is useful as we begin to consider the implications of deliberately using
technologies in place of the law.
However, while technologies can have political consequences, and the
move to install DRM encryption systems into digital distribution of culture
seems to depend only on technology’s ability to do so, an exclusive focus
on technology would mask the way it requires much more than mere
objects to effectively regulate the movement of culture. To the extent that
the actors powerful in this negotiation about the meaning and purpose of
a technology are also often powerful in other domains, they can appeal to
law, policy, and public discourse to buttress and normalize the authority
of the tools they build. Alongside the new technologies come new laws to
back them, new institutional and commercial arrangements to produce
and align them, and new cultural justifications to convince legislators and
users to embrace them. This is not engineering culture through technology, but a more heterogeneous effort to regulate through the alignment of
political, technical, legal, economic, and cultural elements that must be
held in place for a new paradigm of copyright to take hold.
Chapter 4 analyzes the construction of the cultural justifications necessary for the trusted system approach to gain any traction at all with manufacturers, artists, legislators, and users. The regulation of the Internet had,
before the copyright wars, been largely hands-off; when it first appeared,
Napster was wildly popular not only with music fans but with the press as
well. To counter these attitudes and to justify a massive change in the character and enforcement of copyright law required a powerful tale of sin and
redemption. This narrative not only reframed the debate, it set the stage
for the kind of institutional alignments that content providers needed to
establish.
In his role as the director of the Motion Picture Association of America
(MPAA), the U.S. film industry’s powerful lobbying organization, Jack
Valenti was the most powerful and articulate of the storytellers, offering
up a narrative arc that went something like this: Movie production is an
economic boon to the nation; Internet file-trading is a financial danger to
that business; content producers, faced with this threat, will withhold
valuable content and the medium in question will suffer; however, with
stronger copyright protection and technical measures of self-enforcement,
16
Chapter 1
the culture industry will provide a rich consumer experience. The entire
chain of assertions was wrapped in a narrative of good beset by evil,
coated with dramatic metaphors and salacious scares, and contrasted
against a rosy alternative only possible if copyright law were strengthened.
Valenti’s logic is just one version of the situation, and has been contested on a number of fronts. Nevertheless, it is slowly becoming the
standard understanding of how copyright does and should work, and
how digital culture depends on the fullest imposition of technical copy
protection.
Technologies for the production and distribution of culture have long
been designed so as to guide the activity of users, from early printed folios
locked to the lecterns on which they sat, to sophisticated password
protection systems on consumer software. In order to orchestrate such a
system of control, content producers require the cooperation of technology manufacturers, but this turns out to be difficult to achieve: manufacturers are numerous and commercially competitive, and generally see value
in offering users as much choice as possible. One attempt to wrangle these
interests into agreement, initiated by the record industry, was the Secure
Digital Music Initiative (SDMI). The major record labels gathered consumer
electronics manufacturers, information technology providers, and fledgling online distributors to produce copy protection for music and the standards for all hardware to honor these protections. Chapter 5 traces the
history of this effort, investigating how the music industry attempted to
forge a consensus, and the reasons why it collapsed. SDMI is a reminder
that the alignment of technology and content envisioned in such plans
cannot be imposed without a matching alignment between the commercial players that produce them, and such an alignment is not so easily
achieved.
In stark contrast to the failed SDMI project, the encryption that protects
Hollywood DVDs from duplication is a revealing case of how such a trusted
system can be produced, and how the necessary institutional alignment
can be achieved despite the strategic differences between content and hardware manufacturers. Chapter 6 reveals how the Content Scramble System
(CSS) encryption used to protect DVDs is merely the technical edge of a
complex arrangement of content, machines, licenses, and industry partners that together work to contain the activities of users.
In this case, the trusted system also required recourse to the law when
that arrangement was breached, as it was when a “crack” called DeCSS was
posted online. The industry turned to the Digital Millennium Copyright
Act (DMCA), itself a dramatic shift in copyright law produced by the
The Technological Fix
17
rethinking of copyright around the Internet and, in particular, the powerful “Valenti logic” offered by the content industries. Prohibiting circumvention of technical protections rather than copying itself, the DMCA
embodies this shift toward technical solutions, while also revealing that
the technology cannot function without support from the law. Rather than
regulating users, the DMCA shores up the arrangements imposed by the
content industries on the manufacturers, and forms the fourth side of this
heterogeneous square of regulation: technical artifact, commercial agreement, cultural justification, legal authority. And it does so in a way that
allows these industries to impose new controls on users that were not available under copyright law before this moment. The trusted system, then, is
built on a fundamental mistrust—a mistrust of the technology manufacturers, who must be licensed into submission, and a mistrust of users, who
are seen as immoral pirates until they can be technologically compelled to
be good consumers.
The record industry tried to organize a voluntary agreement with technology manufacturers, and failed; the movie industry got one by holding
their content ransom and forcing technology manufacturers to sign away
their interests, but found they were still vulnerable to upstart manufacturers who would not agree to their terms. The next step is to seek the
authority of the state to make such systems mandatory. Calling on the state
promises to more powerfully bind this trusted system together and impose
it on users, but it also brings new forces into play. As chapter 7 describes,
the movie studios hoped to impose similar technical controls onto digital
television, and called upon the FCC to give their system legitimacy and
assure its imposition. An industry coalition proposed the “broadcast flag,”
a technical means to mark digital TV content as deserving protection, and
to set rules for manufacturers for how to treat that content so as to prevent
redistribution over the Internet.
Ideological gaps between these industries, and between these industries
and the regulators who have jurisdiction over them, have always been
narrow; nevertheless, they have been important in preventing an industry
view of copyright law from completely dominating other public interests.
Now these gaps are closing around technical copyright protection, thanks
in part to the efforts of these industries, the increasing sense of the
inevitability of this project (and thus the desire of manufacturers to be on
the winning side of its commercial consequences), and the persuasive
power of the piracy narrative. This suggests that, whether or not such
trusted systems are ever installed and ever succeed, the changes in industry alignment being pursued in order to produce them may themselves
18
Chapter 1
have consequences for culture and technology. This may extend to the
increasingly close ideological partnership of the content industries and
legislators. However, as the broadcast flag case reveals, the FCC did make
significant adjustments to the plans proposed by the movie industry and
its consumer electronics partners. Furthermore, the courts subsequently
decided that the FCC did not have the authority to install such a technical control regime, revealing further cracks in the political alignments
necessary for a comprehensive trusted system to work.
The attempts thus far to impose technical solutions onto the promiscuity of the Internet have all faced intrepid users who refuse these constraints: from the casual users of peer-to-peer networks to the amateur DJs
creating innovative forms of digitally reworked music; from the widespread
use of “black market” circumvention technologies to the hackers that take
on every new system; from academic critics who challenge these strategies
to the campus activists who mobilize against them. This kind of agency
with culture and with technology has been the biggest hurdle for content
owners’ attempt to realign digital culture in more commercially viable
terms. In some ways, it is this agency that must be curtailed if the broad
and heterogeneous strategy of technolegal control is to succeed. Chapter
8 turns its attention to the robustness requirements that accompany most
DRM systems, which require manufacturers of hardware and software not
only to limit what users can and cannot do but also to design their tools
to fend off the attacks of hackers, the prying eyes of hardware enthusiasts,
the curiosity of tinkerers.
Just as digital rights management threatens the agency we have with the
culture we encounter, these robustness rules threaten our sense of agency
with the technology itself. Critics of the CSS encryption and the broadcast
flag made this point by noting that both systems exclude the possibility
of open source innovations in the distribution and consumption of film
and television. To prevent users from seeing how content is protected and
potentially circumvented, robustness rules require technology designers to
“weld the hood shut”—something very much at odds not only with open
source design, but with the traditions of user appropriation and innovation. What is clear is that these solutions are not just strategic, they are
paradigmatic, embodying and imposing a persistent worldview on what is
otherwise a much richer set of options for how we interact with culture
and technology.
Chapter 9 attempts to step back from these cases in order to consider
the cultural implications of the technology at the heart of these protec-
The Technological Fix
19
tion schemes. Once a mechanism for ensuring secret communication
between confidantes, encryption is being employed here for a very different purpose: extending control over otherwise public materials. In terms
of the distribution of culture over the Internet, encryption is the digital
means to assure a subtle, complex, and context-sensitive system of regulation. By encoding a film, the owner of the copyright can dictate to an
unprecedented degree what can and cannot be done with it. Most importantly from a philosophical perspective, encryption intervenes before an
infringement occurs rather than after. Such a preemptive measure not only
treats all users as would-be criminals, it makes the imposition of copyright
less open to exceptions like fair use, renders unavailable the ability to
challenge a law through civil disobedience, and undercuts the individual’s
sense of moral agency in a way that can undermine the legitimacy of the
rule itself.
While this new application of encryption and licensing is justified in
terms of a threat to copyright, the system can accomplish much more. The
license that DVD manufacturers must sign requires them not only to honor
the restrictions on copying demanded by the movie industry, but also to
honor a system called “regional coding.” Regional coding stipulates that
each disc is numbered according to the continent in which it was produced; DVD players must only play discs from their own region. This is in
no way a means of protecting copyright; instead, it gives the movie studios
a way to slice up the global market, engage in price discrimination, stagger
releases, and even ignore markets they do not see as lucrative. If and when
the distribution of culture moves entirely to the Internet, this strategy
could be extended in any number of ways, not to protect copyright but to
maximize profit.
As copyright was traditionally conceived of as a way to regulate the
commercial practices of those who don’t own a work (so as to protect the
interests of those who do), it has rarely had to consider the way the commercial practices of the owners themselves can have the kind of antidemocratic implications copyright was designed to avoid. Such practices,
built directly into the technology and using the threat of piracy as rhetorical cover, are now having those problematic consequences, most powerfully by reifying a clean distinction between producer and consumer in a
world where communication is always a recursive and productive process.
This precludes the use of new communication technologies in ways that
could powerfully shift the roles of such cultural production in a more
egalitarian direction.
20
Chapter 1
Wired Shut ends there, with a concern well beyond copyright per se, the
Internet and its regulation, and the juncture between industry and politics. It reveals a crossroads faced by a society embracing technologies that
can both facilitate digital culture and be made to regulate it. The choices
we make now will help decide whether we will be active participants in
our culture and creative users of our technology, or passive recipients
content to quietly embrace what is sold to us and fulfill the roles prescribed
for us.
2
The Copyright Balance and the Weight of DRM
Developing technical solutions to the problem of enforcing copyright is
no easy task. Copyright itself is a terrifically complex legal doctrine, built
over many years by many hands, full of exceptions and caveats that even
legal scholars find “complex, internally inconsistent, wordy, and arcane.”1
Moreover, its central aim may be unattainable, and is at the very least
founded on a fundamental contradiction. In offering authors legal property rights over their work so they may enjoy a profit from its circulation,
copyright is supposed to ensure the sustenance of art, knowledge, and
culture. This precarious balance between public good and private gain,
while logical in an ideal sense, may suffer from “the impossibility of
serving one of the described objectives without disserving the other.”2 And,
in a society in which culture is predominantly delivered through the
market, copyright (along with the laws regarding freedom of speech and
the regulations attached to broadcast licensing) is one of the central rules
that structure culture. As such, its interpretation and implementation have
tremendous significance for art, journalism, scholarship, and the health of
democracy.
On one level, shifting the locus of control from law to technology means
mapping legal doctrines onto technical prohibitions, and risks losing
something in the translation. Critics of digital copyright strategies have
already pointed out a number of the legal details of copyright that don’t
fit neatly with what can be built into software. But more than that, the
move to a technical copy protection creates an opportunity for practitioners, legislators, and users to subtly reinterpret and redefine the law
itself; questions once settled can be reopened, while persistent tensions can
be downplayed as if resolved. An existing balance can be undone, using
digital technology as the urgent reason for why an old compromise no
longer works, while new opportunities afforded by the Internet can be
brushed aside as being simply incompatible with the traditions of
22
Chapter 2
copyright law. More is at stake than just how pop music will be distributed
online; everything about the rights associated with information is once
again up for grabs, and the decisions made in this moment will set the
terms for how we understand copyright and what it is supposed to accomplish for years to come. It is important, then, to look back at where copyright law came from, how it has been implemented differently over time
and toward what ends, and how new challenges posed by digital computing and communication networks are both challenging copyright’s balance
and serving as a rationale for a new legal and technical framework.
The Aims of Copyright
The language of the U.S. Constitution authorizing Congress to create copyright laws also announces its priorities: “Congress shall have power . . . to
promote the progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their respective writings and discoveries.”3 The book, song, film, painting, or software you
create belongs to you by law; you have exclusive rights to duplicate, distribute, or perform that work, and legal recourse against those who attempt
to do any of these things without your permission. Important to notice,
first and foremost, is that at its foundation, U.S. intellectual property law
is a means to an end, not an end in itself. William Fisher has noted that
there are several countervailing philosophical justifications for the law of
copyright, and these are regularly invoked by jurists and lawmakers, as well
as by scholars, often unaware of their potential contradiction.4 However,
while these all play a role in justifying copyright and structuring the
complex debates about its application, the philosophical core of U.S. copyright law is that the individual’s right of ownership is lashed to a societal
aspiration.5 Rather than justifying this privilege as a “natural” right of
authors to enjoy the fruits of their own labor, or as a reward for expending the creative effort itself, copyright is framed in terms of spurring cultural and intellectual progress. As Matt Jackson reminds us, “One cannot
overemphasize that the constitutional purpose of copyright is to stimulate
content creation for the public’s benefit, not to create a private property
right based on a moral notion of ownership.”6
There is an important presumption about the nature of authorship and
culture hidden in this constitutional mandate, that authors require financial incentives to motivate them to produce—or at least that ensuring such
financial incentives will encourage more authors to produce more work
more of the time. Or as Ronald Bettig notes, “The underlying assumption
The Copyright Balance and the Weight of DRM
23
here is that human beings require economic reward to be intellectually or
artistically creative. The philosophy of intellectual property reifies economic rationalism as a natural human trait.”7 This may feel like mere
common sense: While the idea that art is made “for art’s sake” may remain
a powerful mythology among painters and punk bands, self-proclaimed
realists tend to scoff at the idea that culture can ever be separated from
commerce—or should be. The logic of a market economy suggests that
authors need an assurance that they’ll be able to sell their work; the profits
due to them must not be diverted by flagrant piracy. Copyright law
attempts to assure this fair and productive arrangement, ensuring authors
the ability to seek their just reward in the marketplace. Financial reward
provides incentive, which provokes cultural production, which benefits
society, QED.
Of course, to justify copyright in this way may be circular logic: It is only
with copyright law in place that we have been able to design a cultural
sphere premised on the assumption that work will circulate through the
market and enjoy financial rewards, and that, by law, authors are owners.
As such, we build industries around this “truth,” conventionally see culture
in these terms, cultivate this expectation in budding creators, and downplay the myriad of other reasons why people create—for creative satisfaction, for the promise of impact, for reputational gain, for ancillary rewards,
etc. One need only look at the World Wide Web or at sites like YouTube,
MySpace, Wikipedia, or SourceForge to see that financial compensation is
not the only, or perhaps even the most compelling, incentive to produce.
In fact, it is possible that the development of real alternatives to this strictly
commercial arrangement for cultural production is actually inhibited by
the self-fulfilling prophecy of copyright law, the stable social and institutional structures that depend on it, and the ideological assumptions on
which it depends and thereby reaffirms.8
Because our culture generally holds authors in high regard, it is easy to
presume that copyright is in some way designed to reward authors because
they deserve reward. This seems so obvious to some that it is a difficult
proposition to even investigate. The widespread sense is that authors
provide a valuable service, that their work is their own, and therefore that
they have the right to sell it and reap the financial reward. In this view,
authors enjoy legal protection because they create something worth paying
for; piracy is taking something that doesn’t belong to you. Even as we labor
within a corporate industrial system where workers have no rights over the
things they help produce, we continue to believe in the principle that we
own what we make and we deserve to be paid for what we create.9 It is
24
Chapter 2
important to remember that this is not the case. Rewarding authors has
never been the purpose of copyright—it is merely its preferred strategy. The
law in fact has grander aspirations.
Eager to help their young nation grow but deeply skeptical of the power
of monopolies (be they royal or commercial), those who crafted the U.S.
Constitution justified copyright in terms of the social and the intellectual—in the name of “progress in science and the useful arts.” For them,
“progress” may have meant a number of things.10 As a young nation, the
United States hoped to gain its footing as quickly as possible; this required
a spirit of cooperation in almost every endeavor: political, commercial,
intellectual, artistic.
In each of these fields, there was (and continues to be) benefit in the
unhindered circulation of information, knowledge, and culture.11 Democracy demands that every citizen be well informed, literate about the pressing issues, and capable of making informed decisions. The “marketplace
of ideas”12 should expose citizens to lively, adversarial debate: Multiple and
conflicting voices should all be heard; consensus will arise from citizens
rationally considering alternative viewpoints. Commerce also depends on
its constituents being well informed. The flow of goods and the setting of
prices can only attain a fair equilibrium if consumers have “perfect information” about the products they desire, and if sellers know their potential buyers. In academic research, scholars should “stand on the shoulders
of giants,” learning what the field has accomplished thus far, then contributing to it at its emergent edges. The scientific principle itself depends
on past work being available for study and current work being available
for scrutiny.13 Artists similarly learn their craft by being surrounded by the
work of others; they emulate great masters and eviscerate mediocre contemporaries; they lift ideas and techniques from the work they encounter.14
The challenge, then, was how to build the rules of culture such that individual creators are given rights and responsibilities in a way that will
encourage them to make their work available to the public at large. Like
the British doctrine it came from, U.S. copyright law turned to the
metaphor of property, applying the legal structure of ownership of tangible goods to the more intangible goods of “writings and discoveries.” This
substitution is so commonplace that it’s hard to even recognize it as a
choice, or to see that there is any alternative. To facilitate culture, we
give every contribution to it the means to be traded on the open market
and tie its sale back to its author/owner such that the financial reward
returns to them. This is an effort to both encourage and control cultural
discourse, to be both its distribution venue and its system of reward. The
The Copyright Balance and the Weight of DRM
25
commodity stands in for the work; allowing the commodity to circulate
in the marketplace presumably allows the ideas within to circulate along
with it, resulting in a real marketplace built to support the marketplace of
ideas. Far from this being a free market strategy, as some copyright owners
proclaim, this is very much an artificial regulation of the market—in the
business of information, the most logical strategy in purely economic
terms is in fact piracy, except for the fact that copyright law makes it illegal.
The Problem with “Property”
To call the story or the song or the image one’s “property,” while it may
now seem intuitive, is an awkward and potentially problematic use of the
term. In many ways, intellectual property does not work the way material
property does, primarily because of its economic properties as a “public
good”.15 First, cultural expression is nonrivalrous: Use does not deplete it.
When you finish reading your copy of this book for the first time, it will
in no way be diminished for a second reading. You can return to the book
for years, reading it again and again, to your children and grandchildren.
The same cannot be said for a candy bar, a firecracker, or laundry detergent. Of course, this is not a simple dichotomy. Sequential use might be
seen as a spectrum, with different kinds of things having different halflives—a tank of gas is consumed in one trip, but the car is driven many
times before it is finally rendered unusable. You may turn the pages of this
book so many times that the binding glue softens and the pages fall out,
or you may smear the print with your thumbs to the point of illegibility.
However, if you memorize the argument, you can continue to “use” it even
after the pages are destroyed. A book may be exhaustible, but the “work”
itself is not. Culture cannot be consumed.
Second, cultural expression is nonexcludable, in that once it is sold to one
consumer it is difficult to prevent it from being enjoyed by others. We
might think of this as having two dimensions: collective use of the same
object, and duplication of one object into many. As noted before, cultural
works are particularly susceptible to simultaneous and sequential use by
many consumers—the hockey team rents a DVD to watch together in a
dorm lounge, or the same magazine is read by every person who comes
through the doctor’s office waiting room. It was (until recently) difficult
to extract any payment from those additional consumers. In addition,
intellectual property can be easily duplicated in a way that, say, a sandwich cannot. The fact that it is difficult to exclude those who did not purchase the work from using it, because of both sharing and copying, makes
26
Chapter 2
it even more difficult to extract compensation from those additional
users—or to impose rules on them. As Lessig notes, this does not mean
that the work cannot be guarded in any way; it can depend on the manner
of distribution. Before I publish this book, I can exclude people from it by
keeping it locked in my office; if I distribute a film via national theaters, I
can keep people out who do not buy a ticket; but if I sell a CD, I have
much more difficulty keeping people from making copies for their friends.
The fact that cultural expression is (more or less) nonrivalrous and
nonexcludable tends to undercut the ability to maximize its value in the
market. If the sale of the work to one consumer can lead to it being used
endlessly by many, profit will not return as effectively to its producers, no
matter how clearly defined their rights are. One sale represents many uses,
meaning substantially less compensation returns to the producer. The price
of pirate copies can be low, since the original producer bears all the costs
of production, whereas the pirate need only cover the miniscule costs of
copying.
The market by itself, then, is clearly insufficient for ensuring that suitable compensation returns to authors of cultural expression. The promise
of the market, that through competition worthy authors will be paid for
their efforts by consumers, is undercut by a competing logic, that producers will find the cheapest way to provide what their customers want—that
is, piracy.16 What is further required is a legal standard that legitimizes the
part of the market that compensates authors, and outlaws the part of the
market that undercuts them. Copyright does this by making the author
the owner of the work and granting exclusive rights of reproduction and
distribution to that author/owner. Copyright secures an alliance of
legal and commercial mechanisms—the market will serve the interests of
the law, and the law will ensure that the market functions such that it can
do so.
It is worth noting that these differences also matter for the demands they
make on the economics of cultural production and distribution. All production incurs startup costs—hiring employees, building or renting spaces
for manufacturing and management, gathering raw materials, designing
prototypes. Plenty of money had to be spent before Nike ever sold their
first sneaker. However, the cost of producing each additional sneaker also
incurs significant costs: more materials, more manufacturing, more labor,
more packaging, more display. When a pair of sneakers enters the market,
its price must primarily cover the cost of producing that actual pair; the
startup costs are spread across all Nike sales, and in the long run end up
being a fraction of the price of each individual commodity. There cannot
The Copyright Balance and the Weight of DRM
27
be piracy of sneakers, since a pirate producer incurs the same costs of
making each shoe as the original manufacturer, making it much more difficult to undercut their prices and lure away customers. There are no
sneaker pirates, only competitors and knock-offs.17
The production of creative work, on the other hand, tends to function
on an economy of scale: the overwhelming majority of the costs of production are incurred before the very first product is made; the cost of
making each additional commodity is tiny by comparison. The cost of
making a film is practically the same whether you only produce the master
reel or you distribute millions of copies on DVD. With discursive goods, it
is the additional cost of each copy that is negligible.
Markets that exhibit an economy of scale tend to privilege large and wellestablished corporations. They are more likely to have the financial heft
to commit significant capital up front and can afford to wait for the
returns. Digital technologies of production and distribution may be changing this, as the barriers of entry are in some instances lowered, but this
affects different kinds of content differently, and can never completely
undo this dynamic. The problem is at its most extreme when the cultural
work is most costly—that is, the summer blockbuster, the celebrity biography, the pop phenomenon, the sprawling documentary, the comprehensive database. This means it is those producers best positioned to
produce expensive cultural work who will have the most vested interest in
protecting and enforcing copyright.
That cultural expression doesn’t work like other tangible goods, even in
its most tangible forms, is a problem only because we have chosen to
embrace the legal metaphor of possession. With the “intellectual property”
frame in place, other qualities of cultural expression are systematically
ignored. There is no natural reason why we must conceive of it in such
terms, but in the Western regulation of discourse, the property metaphor
has long been the overwhelming and (for the most part) binding approach.
Striking the Balance
To assume that imposing this metaphor of property and regulating the
market for culture will facilitate “progress in the science and useful arts”
requires another very particular leap in faith. The fundamental risk with
copyright law as it is currently designed is that, for each cultural work, it
produces a legally enforced monopoly—I am the only one authorized to
sell this book, or by contract the MIT Press is, which means there is no
legitimate competition for buyers. Like all monopolies, this arrangement
28
Chapter 2
is prone to commercial exploitation. But because the commodity in question is information, abuse of this monopoly position would not merely
inflate prices or make a worthwhile product hard to acquire; it might
deplete public debate, disable democracy, or starve art and culture. As Julie
Cohen notes, “A model that attempts to relate ‘property’ to ‘progress’ must
consider the public-good nature of creative and informational works, and
cannot assume equivalency between private wealth and social gain.”18 The
risk of a legally enforced monopoly over information is that publishers
may be able to restrict the circulation of expression, which may in turn
restrict the circulation of important ideas. In an attempt to avoid this, U.S.
lawmakers and courts have built several limitations into copyright law,
aiming to restrain the power it gives to authors/owners and pass some of
that power back to the public at large.
Perhaps the most important of these conditions is the “limited
times” referenced in the constitutional clause. These two words are perhaps
the most powerful evidence that, despite relying on the property
metaphor, copyright law does not intend to treat cultural expression
exactly like property. Over the years, the duration of copyright protection
has been dramatically lengthened,19 but the principle remains that authors
may only enjoy their rights over publication and reproduction for a certain
number of years. Once this time has elapsed, the work enters the “public
domain”20 and can be freely reproduced by anyone. Unlike material property, this kind of property reverts to public ownership after a certain period
of time—we might say it is returned to the original owners, if we think of
copyright as a right temporarily granted to authors by the public they
serve.
Copyright also protects only an author’s particular expression, and not
the underlying ideas it conveys. In other words, although I am granted
ownership and control over this book about copyright and the Internet, it
does not mean that I can prevent others from also writing about copyright
and the Internet; I can only prevent their use of my specific words. If copyright privileges extended too broadly around a work, any work that
addressed similar topics might be deemed infringement.21 Without this distinction, copyright could easily become a mechanism for controlling information, depleting the public domain, and chilling free speech. Ideas are
free to circulate, and can never be constrained; copyright, as long as it
honors this distinction, will then never run afoul of the First Amendment’s
assurance that no law can prevent me from saying what I please.22 All that
I must avoid is actually using the phrasing or design of existing work. As
James Boyle puts it, “The idea/expression division resolves (or at least
The Copyright Balance and the Weight of DRM
29
conceals) the tension between public and private . . . By disaggregating the
book into ‘idea’ and ‘expression,’ we can give the idea (and the facts on
which it is based) to the public world and the expression to the writer, thus
apparently mediating the contradiction between public good and private
need (or greed).”23 The problem, of course, is that the distinction between
idea and expression is really only a theoretical one; the two always coexist
in practice, and the task of distinguishing infringement from works that
simply explore similar ideas is left to jurists.
The most important of these limits, especially in light of recent controversies, is the “fair use” doctrine. The greatest risk of an unlimited copyright is that copyright owners might be able to enforce their rights in ways
that inhibit the production of new work, squelch the expression of particular opinions, or undermine the health of public discourse. Quoting
someone’s book requires copying and distributing some of their work; so
does making copies of an article for use in a classroom. Both would require
asking permission of the owner and, in most cases, compensating them
financially. But if quoting someone’s work means having to ask permission
to do so, the author is in a position to simply say no if they don’t like how
their work will be used. If teachers cannot afford to pay for the use of works
vital to their courses, they might not use them despite their value to the
students. This is particularly problematic when either the use is critical of
the original (a damning news report or a negative book review, for
example) or the sheer cost of seeking permission of the owners and paying
for the right to use their work would be prohibitive (amateur documentary filmmaking, for example). Some of these reuses are common to the
most important democratic mechanisms of our society: education, scholarship, journalism, and criticism.
In cases like these, fair use allows some breathing room for the reuser by
limiting the conditions under which they can be prosecuted for infringement. The fair use exception grants special protection to uses that would
otherwise be infringement, that would be unlikely to receive authorization
from the copyright holder, and that without fair use would be a violation
of the law. The law delineates four factors24 that courts weigh when determining if an infringing use should be protected: What kind of work is
being copied, how much is taken, what financial impact the copying might
have on it, and to what use it is put.
Fair use originally focused exclusively on what William Patry calls “productive uses”: uses that create a new work by a new author.25 But in the
last half century fair use has been expanded, hesitantly, to include certain
“passive uses”: uses that duplicate some or all of the copyrighted work
30
Chapter 2
without any obvious intellectual contributions, but do so in order to facilitate access to it.26 The 1976 Copyright Act created a special dispensation
for photocopying copyrighted materials under specific circumstances:
single copies, for educational purposes, by libraries and public archives.27
Multiple copies for use in the classroom are also included in the fair use
exemption, although subsequent case law has designed very specific restrictions on that activity. The Sony v. Universal decision made room for copying
television broadcasts onto videotape, again under specific circumstances:
for the purposes of limited educational use or “time-shifted” personal use,
with restrictions on how long copies can be kept.
There are a number of justifications for such an exception. Fair use serves
as a further safety valve between copyright law and the First Amendment.
If copyright law permitted authors to restrict how others could speak when
using their work to do so, it could limit free expression; fair use offers the
second speaker some breathing room, setting limits on how they can be
held liable for infringement, and bounding the reach of copyright owners
when the use of the work does not directly damage its market value.28 Fair
use also helps mitigate the transaction costs involved; if each and every
use required a license, the cost and difficulty of locating the proper copyright holder and negotiating each license might inhibit some uses.29
Finally, fair use has allowed for some flexibility for technological innovation. New technologies often allow users to do things with information
that can look like copyright infringement on first glance (for example,
taping television programs using a VCR); fair use allows the courts to first
consider, and sometimes indemnify, a new technological practice that
could otherwise have been squelched as copyright infringement by existing economic forces.30
If ideas both do and do not act like property, then the law of copyright
alone cannot fully ensure their circulation. The installation of a property
law entails orchestrating a massively complex alliance between law and
market, lashing together stubborn and sometimes conflicting cultural
rhetorics to justify it. Copyright is imagined to be the best means of circulating ideas and nourishing those aspects of society that rely on them,
but even its designers fretted about its consequences and vulnerabilities.
Most clearly in the doctrine of fair use, the law itself acknowledges that
the commercial exchange of intellectual property is far from an ideal mechanism for the circulation of discourse. Some argue that copyright is sufficient, the best compromise for achieving important cultural goals. Others
fear that the premise itself is flawed, and that a mountain of caveats
couldn’t undo the damage copyright law does.
The Copyright Balance and the Weight of DRM
31
Accommodating New Technologies
Thanks to a series of technological innovations, copying and distributing
cultural works has grown easier over the last century. With the Internet, it
has reached unprecedented simplicity. And whereas the casual redistribution of intellectual property was always a problem for the culture industries, the new scope of that distribution is unheralded.
With each information technology, be it the jukebox,31 radio broadcasting, television,32 Xerox machines, the VCR, or cable, has come a reappraisal
of the copyright balance. Of course, it isn’t just technology that stirs up old
copyright questions: The logistical compromises of the past can be unraveled by an innovative business model, a new alliance between producers
and manufacturers, or a shift in the way culture is consumed. The current
debates about copyright have as much to do with the cultural dominance
of media content, the increasing concentration of the industries that
produce it, and the political climate of market deregulation as they do with
the computer and the Internet. The embrace of the global information
economy and the shift toward what David Harvey calls “flexible accumulation”33 models of post-industrial production have not only fueled the development of digital information networks and put personal computers on
every desk; they have also encouraged a “digital culture” in which users
expect information to be instantly accessible and easily portable, increasingly see themselves as producers and collectors of information as much as
consumers of it, and accept the commingling of leisure- and work-related
communication activities. All of these changes put pressure on copyright
and the traditional forms of information distribution.
But typically it is the technologies that come to herald and stand for the
cultural and economic shifts that helped produce them, and as such they
become the flashpoints for the legal dispute that follows. The technologies
represent both the potential of shifting the balance of copyright to account
for new dynamics in the circulation of culture, and the justification for
why an older balance must be preserved or regained. Of greater consequence than the new technologies themselves are the decisions—legal, economic, political, cultural—that we make around them.
With the emergence of the Internet as a technological and a sociocultural phenomenon, the already unsteady balance of copyright seemed,
quite visibly, to explode. The proclamations were dramatic. Some believed
that the law needed to be fortified and expanded to counter the Internet’s
effects. Some thought copyright could shift from a law of property to a
kind of contract law for managing relationships between content providers
32
Chapter 2
and consumers.34 Others believed that copyright could be discarded
altogether.35
Long before this vox populi eruption of excitement and concern, the
Internet was an obscure engineering project commissioned and overseen
by the Advanced Research Projects Agency (ARPA), a subsidiary of the U.S.
Department of Defense (DoD).36 Drawing on innovations in digital computing and packet-switching communication networks developed in
semi-autonomous research centers (including most notably the RAND
Corporation, a nonprofit research group devoted to projects with broad
military relevance37), researchers at ARPA developed the protocols to allow
computers to interface—that is, to exchange digitized information between
geographically disparate locations and allow users to access and manipulate remote computers from a distance. Only four computers at first, the
ARPANET slowly grew as university computer science departments with
military funding established their own nodes fitted with the same shared
protocols and logged on to what would eventually become the Internet.38
The network’s early uses were mostly just efforts to test the system; it
was too new to be trusted with important tasks, but too exciting to be left
alone. Operators of the system tended to encourage any use at all; according to Janet Abbate, “In the early years the ARPANET was underutilized,
and ARPA had little reason to discourage users or activities that might make
the network more popular. Increased use of the network would also make
it easier for ARPA’s computer scientists to evaluate the system’s performance.”39 So it was of little concern that some early users, particularly graduate students at the various university research centers, began to use
ARPANET to send messages from site to site.
The emergence of these communicative activities ended up broadening
the early focus of network research. While the military interest in network
technology did include sending messages to remote sites, particularly
under adverse conditions of war, researchers had more generally assumed
the network would be a way to share computing power over a distance; a
user at site A could log onto and run a computer at site B that specialized
in crunching data in a way he needed, without having to send that data
away to be processed, or having to purchase another costly computer
himself. The growing population of users seemed to have a different idea.
As Katie Hafner and Matthew Lyon tell it, “In the mind of its inventors,
the network was intended for resource-sharing, period. That very little of
its capacity was actually ever used for resource-sharing was a fact soon
submersed in the tide of electronic mail . . . The ARPANET’s creators
didn’t have a grand vision for the invention of an earth-circling message
The Copyright Balance and the Weight of DRM
33
handling system. But once the first couple of dozen nodes were installed,
early users turned the system of linked computers into a personal as well
as a professional communications tool. Using the ARPANET as a sophisticated mail system was simply a good hack.”40
As researchers noticed the activities of ARPANET users, the initial focus
on distance computing gradually shifted to include this interest in distributed communication.41 Both purposes would persist in the further
development of the Internet, but much of the Internet’s design and
deployment would revolve around imagining new forms of distribution of
cultural expression—by all users. Still, it’s worth noticing that the initial
premise of the network, computing at a distance, was based on the principle of transmitting exact copies of digital content so that the computer
at the remote site could run that program or crunch those numbers and
return the result. Though the copyright implications of this may not have
been fully anticipated, the idea of transmitting perfect copies of authored
work was by no means the invention of peer-to-peer file-traders, but was
crucial to the earliest notions of what the network would be for.
With this surge in interest in distributing information across the new
network came a particular politics about doing so. Early users were fascinated by the way the network seemed to be almost self-organizing: Data
could move without centralized oversight, and users seemed able to share
the network without needing a controlling authority to oversee them.
Once the shared protocols (the technical language each computer would
speak) were established, each user could focus simply on their own contribution to the system. The activity would be patrolled, if at all, by the
users themselves; the tool seemed to encourage certain activities without
enforcing them as explicit rules. Eventually, when the military began to
fret that so many unauthorized users were accessing this system, they chose
to split off their own proprietary network that they could control access
to, rather than attempt to wrestle this unruly community of ARPANET
users into submission.
The Netizen Vision
So perhaps it is no surprise that, as this technology gained public visibility, the prevailing opinion among its early users was that it should be given
free rein, rather than being regulated by government. These (self-described)
“Netizens” ardently believed in the liberating potential of the new technology, and of technology in general. Many had cut their teeth on the
anti-authority counterculture rhetoric of the 1960s.42 They had been
enlisted (ironically, by the military) to design a tool that wouldn’t have or
34
Chapter 2
need a central mechanism of organization and control. Their solution was
a decentralized network designed and maintained by an equally decentralized set of user communities working by association rather than under
regimented, official oversight. This produced a network distinctly open in
both its technical workings and its cultural ethos.
Part of this community’s enthusiasm was a faith that changes in technology have the power to transform the world. The early rhetoric is revealing: Now-familiar platitudes like “the Net treats censorship like damage
and routes around it”43 and “information wants to be free”44 accord a sense
of agency to things and ideas (“the Net treats,” “information wants”) and
presume that change is nearly inevitable (the same declarative certainty so
common to sociopolitical rhetoric). The assumption may in fact be a disempowering one. As Duguid observes, “Freedom of information, once a
citizen’s right to gain access to information, by a sleight of argument
becomes the right of information to move freely, free of material impediment.”45 But the appeal of this notion is undeniable. The Internet represented a complex network on a scale never before envisioned, with much
of that complexity managed by the interaction of tools rather than by
authorized institutions. In the eyes of these user-designers, the Internet
seductively offered a ground for potentially perfect freedom, which, to
them, meant free speech, human creativity, unfettered innovation, and
robust community.
Much of the early community discussions focused on authorship and
the shifting politics of distribution. The Netizen vision held the new technology up as a solution (sometimes characterized as inevitable, sometimes
as the best among many) to a fundamental problem of communication—
that the division of labor between the production of information and its
distribution often affects what can be said and by whom. The system of
distribution Netizens wanted to undo (i.e., corporate broadcasting and
mass-market print) exaggerates the distinction between producers and the
rest of us; they hoped the Internet would up-end that distinction by allowing everyone to be a user, a participant, a citizen of cyberspace. Instead of
the “consumer-as-commodity”46 model common to broadcasting, the
Internet would foster a network of users bound by loose social ties; their
work would circulate according to a gift economy rather than strictly
commercial imperatives.47 By handing the power of distribution to anyone
who wanted it, Netizens hoped to create communication that would be
more about open interaction than exclusive publication.
What happens to copyright, a law that grants authors the power of
distribution within a market-structured culture (and generally through
The Copyright Balance and the Weight of DRM
35
professionalized media to a mass audience), when a new communication
medium reimagines what is distributed, by whom, under what conditions,
and to what ends? Some believed that copyright wouldn’t work online
because the market transactions it supported wouldn’t survive in a digital,
networked environment. John Perry Barlow, for one, speculated that the
immateriality of digital information would undermine the traditional distribution of culture. When information is delivered in a material form—
book, CD, film, photo—rules about information can depend on its material
dynamics. With the Internet, “digital technology is detaching information
from the physical plane, where property law of all sorts has always found
definition.”48 The material existence of cultural expression gave the law
something to hold onto, just as it gave the market something to assign a
price to. Once digitized, information might travel from author to reader
without taking any more physical form than an electrical impulse. Would
we need copyright at all in such a frictionless environment? Nicholas
Negroponte focused on the ease of distribution. With a global, digital
network, the process of distributing someone else’s work was simpler, and
enjoyed a dramatically broader scope. Mass distribution, once the near
exclusive domain of institutions, now became available to the individual.
Copyright would not need to assure the kind of financial incentives it once
did, because the costs of distributing information would so significantly
decrease in a digital world as to be negligible. Esther Dyson argued that
content providers would do better to forego selling their content and
instead recoup costs from ancillary markets or charge for service relationships around the use of the work: maintenance, training, arrangements
with businesses that want users to seek them out, and so forth. “Content
providers should manage their businesses as if it were free, and then figure
out how to set up relationships or develop ancillary products and services
that cover the costs of developing content.”49 Copyright, instead of imposing a metaphor of property, could instead oversee the ancillary human
interactions such that profit could flow from them.
Some went even further. Weaned on the viral communities developing
over the Internet, some believed that the social dynamics of those communities and of the Internet itself would sustain the flow of information.
In a Netizen utopia, cyberspace would not only be freed from the limitations of the human body and the impositions of government legislation,
but also shed the demands of the market. Ideas would run free across a
networked “hive mind”50 organized around information flows rather than
the well-worn routines of real-space commerce. Copyright simply has no
place in this vision of the Internet as a gift …

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