I recently received from Bill Nelson, one of my U.S. Senators, a response to a letter I had written him regarding copyright issues and, particularly, the use of copy-protection technology on audio CDs. This letter contained an interesting turn of phrase that set me to thinking hard about the challenges we face in dealing with politicians over issues of copyright, and how fair use fits in a world of technological insurgency and counterinsurgency in the access to and protection of copyrighted works.
I was recently burned by a copy-protected CD (I won't say which because I don't want to declare open season on my musical tastes) that failed to play on my notebook CDRW drive where I listen to most of my music. Failing to get any satisfaction from the retailer, who of course would not take returns on open product (ironically because I could copy and return it), I decided to complain loudly to anyone who had an interest in ensuring fair practice between business and consumers. This list of communicants included:
- The Better Business Bureau
- The Federal Trade Commission
- My State Attorney General
- My U.S. Representative
- My U.S. Senators
Note that these last two were included, not because I expected them to drop by the local Best Buy and start kicking ass and taking names, but as I routinely correspond with them on copyright and technology related issues, I was able to insert my story in my next letter to them as anecdotal evidence of the kind of harm consumers could face from mandated DRM/copy-protection technologies.
Copy Protection or Copyright Protection?
Getting back to the point of this missive, the line from the Senatorial reply that inspired my contemplation was, with my emphasis added:
Thank you for contacting me regarding copyright protection of digital media.
Here is the crux of the matter: Copy protection (the term I used) is a technological measure to inhibit certain classes of use by consumers. Copyright protection (my Senator's term) is a matter of law, implemented by law enforcement to protect the rights of copyright holders. Conflating these two is dangerous because machines cannot consider the subtleties of the law, particular of fair use exemptions, and cannot be trusted with authority to protect copyrights, only to prevent copying.
How can we make this distinction clear to the policy makers who will impact the very future of technological, even intellectual, development of our culture? Their business being the law, they view the problem as one of making users obey the law via electronic proxies. The only problem is that machines do not easily understand exceptions, particular exceptions as subtle as those posed by copyright law. They do not know when copyrights expire, or when a particular copy is protected by fair use. How can we disabuse our representatives of the notion that machines can be made as cunning as legislators? How can we communicate that there is no technological mandate that will not have grave implications for fair use?
Or am I just being short-sighted in my view of the technlogy? As a software engineer, I am well aware of how biases and blind spots develop over time. Neglecting theoretical uncomputables and intractabilities, is it possible to encode the subtlety of the copyright law in software without binding the software to some global permissions database with the attendant implications for privacy?
To their credit, both my Senators and Representative claim to prefer market-driven solutions (although Rep. Wexler co-signed the Berman Peer-to-Peer Privacy Prevention Act and is now a founding member of the Caucus on Intellectual Property and Piracy Prevention, a congressional lobbying arm of the copyright industry if there ever was one), but it is clear from recent legislative history and a survey of pending bills that there will almost certainly be some form of governmental interference soon along the boundary between technology and copyright. It seems that now the only decision will be whether this action is taken to protect consumers fair-use rights or to strengthen the copyright cartel's stranglehold over electronic media and the technology that distributes and reproduces it.