different contexts of regulation. If Second Life can use code to better control behavior, what about first-life? If AOL can use code to better control fraud, what about America off-line? If the Internet can use the design of e2e to better enable competition, what does that teach regulators on the ground? How do these techniques of policy inform the practice of policy makers?
The answer is that policy makers have done the same in real space for a long time. Just as Chapter 5 described regulators using code to make behavior more regulable, so too have regulators used code to directly control behavior. Consider a few obvious examples:
Tapes
The most significant feature of digital media is that copies can be perfect. Digital media is just data, and data is just a string of 1’s and 0’s. Computers have complex algorithms to verify that when they’ve copied a string of data they’ve copied that string precisely.
This feature thus creates a new risk for sellers of content. While the code of analog copying technology meant that a copy was a degraded version of the original, the code of digital technologies means that a copy could be identical to the original. That means the threat to content providers from “copies” is greater in the digital world than in the analog world.
Digital Audio Technology (DAT) was the first technology to expose this risk. Like any digital recording, it can, in principle, copy content perfectly. Content providers were thus terrified that piracy from DAT tapes would destroy their industry, so they lobbied Congress effectively to add new laws to protect them from the digital threat.
Congress could have responded to their request in any number of ways. It could have used law to regulate behavior directly, by increasing the penalty for illegal copying. It could have funded a public ad campaign against illegal copying or funded programs in schools to discourage students from buying pirated editions of popular recordings. Congress could have taxed blank tapes and then transferred the revenue to owners of copyrighted material.[57] Or Congress could have tried to regulate DAT technology to weaken the threat that technology presented for copyright.
Congress chose the latter two. The Audio Home Recording Act both taxed blank tapes slightly and regulated the code of digital reproduction technologies directly. The Act requires producers of digital recording devices to install a chip in their systems that implements a code-based system to monitor the copies of any copy made on that machine.[58] The chip would allow a limited number of personal copies, but on copies of copies, the quality of the recording would be degraded. Congress in essence required that the code of digital copying be modified to restore the imperfections that were “natural” in the earlier code.
This again is Congress regulating code as a means of regulating behavior — mandating that multiple copies be imperfect as a way to minimize illegal copying. Like the telephone regulation, this regulation succeeds because there are relatively few manufacturers of DAT technology. Again, given a limited target, the government’s regulation can be effective, and the effect of the government’s regulation is to make more regulable the primary targeted behavior — copyright infringement.
Televisions
By the mid-1990s, parents’ concern about the effect that violence on television has on their kids had caught the attention of Congress, and Congress responded through legislation. But given the state of First Amendment law, it would have been difficult for Congress to block violence on television directly. Thus, Congress sought a way to block violence on television indirectly. It sought to require that those broadcasting television conte nt tag their content with labels that signaled the level of violence in the film, and it mandated that the television industry develop a technology to block content on the basis of those labels.
This was the “V-Chip”, mandated as part of the Telecommunications Act of 1996.[59] The V-chip would facilitate the automatic blocking of television broadcasts, based on criteria of content that have not yet been completely determined. The crudest proposals involve something like the Motion Picture Association’s movie rating system; the more sophisticated envision selections based on a much richer set of factors.
This again is Congress regulating code to affect a targeted behavior (providing violent programming) rather than regulating that behavior directly. The constraint on direct regulation here is similarly a regulability problem. But the lack of regulability in this context comes from constitutional limits, not the inability to track those being regulated by the technology. The constraint of the Constitution thus pushed Congress to require technology to empower parents. By giving parents more power to discriminate, Congress indirectly discourages an ill (exposure to violence) that it is constitutionally unable to regulate directly.[60]
Anti-Circumvention
Whatever problem the content industry had with DAT tapes, no doubt they look tiny compared with the problems the content industry has with digital content and the Internet. Although DAT makes perfect copies possible, it doesn’t make distributing those perfect copies any easier. That honor fell to the Internet. Now digital technology not only assured perfect copies of the original, it also made it trivial to distribute those digital copies for free.
As I describe more in Chapter 10, one response to this “feature” of digital technologies is “digital rights management” technology. DRM technologies add code to digital content that disables the simple ability to copy or distribute that content — at least without the technical permission of the DRM technology itself.
Thus, the songs I’ve purchased and downloaded from Apple’s iTunes music store are protected by Apple’s “fairplay” DRM technology. That technology permits me to copy the song to a limited number of machines, but it restricts my ability to copy those songs broadly.
This restriction is effected through code. The “copy” function is produced through code; the DRM technology modifies, or qualifies, that “copy” functionality. It is thus a classic example of code being deployed to restore control over something that (different) code had disabled.
These systems of DRM are privately created. But in 1998, they got an important subsidy of protection from Congress. In the Digital Millennium Copyright Act, Congress banned the creation and distribution of technologies “produced for the purpose of circumventing a technological measure that effectively controls access ” to a copyrighted work, or “primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner.”
