xlink:href='#ch6_note_61'>[61] By banning this code, Congress aimed to add support to the code content creators were distributing to protect their content. Thus, by directly regulating code, Congress indirectly regulated copyright infringement.
Since this enactment, there has been no end to trouble and litigation surrounding it. Beginning in 1999, the DVD-Copy Control Association began suing individuals and websites that facilitated access to a program, DeCSS, which could be used to decrypt data on DVDs.[62] In July 2001, 27-year-old Russian programmer Dmitry Sklyarov was arrested while giving a presentation in Las Vegas because the company he worked for in Russia had produced software that enabled people to circumvent the access protection technologies built into Adobe’s eBook system.[63] Sklyarov spent six months in an American jail before he was permitted to return to his family in Russia.
The effect of this regulation is hard to measure. The Electronic Frontier Foundation has cataloged its view of the law’s effect five years after the law was enacted.[64] And while the EFF’s view may not be universal, there is a fairly universal surprise at the range of cases that have been brought under the statute. (I doubt the framers of the DMCA imagined that garage door companies would be suing to protect their automatic door openers from competition under the DMCA (they lost).[65])
Broadcast Flags
As broadcast television moves to digital television, copyright holders have become concerned about the risk they face in broadcasting copyrighted content. Unlike an ordinary television broadcast, the quality of a digital broadcast is perfect, so copies of digital broadcasts could likewise be perfect. And the spread of perfect copies of digital broadcasts on a free digital network (the Internet) terrifies copyright holders.
Their response is similar to the response with DAT technologies. First in the FCC, and now in Congress, copyright holders have pushed the government to mandate that any technology capable of reproducing digital broadcasts be architected to respect a “broadcast flag.” If that flag was turned on, then the technology would be required to block any copy of that content. The content could be played, but it couldn’t be reproduced. As Susan Crawford describes it,
The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content “recognized and give effect to” the flag by protecting content against unauthorized onward distribution. The FCC claimed that the rule would protect digital television (“DTV”) broadcasts from massive redistribution over the Internet.[66]
There is a lot to say about the broadcast flag, and if I were doing the saying, most of it would be bad.[67] But for our purposes, it is the form, not substance, of the broadcast flag that is relevant. This is the most direct example of a regulation of code designed to control primary behavior: law regulating code to make behavior better.
In each case, the government directs an intermediary that has some power over code to change that code to effect a change in behavior. Whether that change in code will effect a change in behavior depends upon the power of the particular application. If the application is a MOO, or an online discussion space like Counsel Connect, the power to control behavior is significantly limited. If the application is AOL or Second Life, the exit costs for a user could well be higher. The scope for effective regulation will thus be greater. And if the application is the Internet, or any digital technology produced or sold in the United States, then the power of the regulator is greater still. Code becomes law even if there remains a capacity to escape the regulation of that code.
These examples point to a general question about how regulation will function. That general point requires many significant qualifications. To understand the effect of code requirements on any regulatory policy will require, as Polk Wagner writes, an understanding that is “profoundly dynamic.”[68] Part of that dynamic, of course, is resistance. Individuals can act to resist the force of code directly. Or individuals can act to resist the force of code through code. As Tim Wu has rightly described, code itself is not necessarily regulation enhancing — code can be used to foil regulation. A gun is a bit of code. It works wonders to destroy the peace. Circumvention technologies are code. They weaken rules reinforcing control. P2P filesharing protocols are code. They undermine the effectiveness of copyright regulations that restrict the freedom to distribute copyrighted works. Whether a particular regulation will be effective, then, requires consideration of these interactions, and any code-based resistance it might engender. As Wu puts it,
The reason that code matters for law at all is its capability to define behavior on a mass scale. This capability can mean constraints on behavior, in which case code regulates. But it can also mean shaping behavior into legally advantageous forms.[69]
In this second sense, code functions “as an anti-regulatory mechanism: a tool to minimize the costs of law that certain groups will use to their advantage.”[70]
More fundamentally, these complications suggest that a more general framework is needed. I’ve highlighted an interaction between technology, policy, and the law in this chapter. That interaction suggests a much broader model. In the next chapter, I describe that model. In the chapter following that, we will return to the dynamic of code regulation to consider one other important qualification.
Chapter 7. What Things Regulate
John Stuart Mill was an Englishman. He was also one of the most influential political philosophers in America. His writings ranged from important work on logic to a still striking text about sexual equality, The Subjection of Women. But perhaps his most important continuing influence comes from a relatively short book titled On Liberty. Published in 1859, this powerful argument for individual liberty and diversity of thought represents an important view of liberal and libertarian thinking in the second half of the nineteenth century.
“Libertarian”, however, has a specific meaning for us. For most, it associates with arguments against government.[1] Government, in the modern libertarian’s view, is the threat to liberty; private action is not. Thus, the good libertarian is focused on reducing government’s power. Curb the excesses of government, the libertarian says, and you will ensure freedom for your society.
Mill’s view was not so narrow. He was a defender of liberty and an opponent of forces that suppressed it, but those forces were not confined to government. Liberty, in Mill’s view, was threatened as much by norms as by
