Part 10 (2/2)

Imagine that a bustling group of colonists has just moved into a new area, a huge, unexplored plain. (Again, a.s.sume the native inhabitants have conveniently disappeared.) Some of the colonists want to farm just as they always did in the old country. ”Good fences make good neighbors” is their motto.

Others, inspired by the wide-open s.p.a.ces around them, declare that this new land needs new ways. They want to let their cattle roam as they will; their slogan is ”Protect the open range.” In practice, the eventual result is a mixture of the two regimes.

Fields under cultivation can be walled off but there is a right of pa.s.sage through the farmers' lands for all who want it, so long as no damage is done. This means travelers do not need to make costly and inefficient detours around each farm. In the long run, these ”public roads” actually increase the value of the private property through which they pa.s.s. They also let the ranchers move their cattle around from one area of pasture to another. The ranchers become strong proponents of ”public, open highways” (though some people muse darkly that they do very well out of that rule). Still, most people want open highways; the system seems to work pretty well, in fact.

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Two new technologies are introduced. First, the automobile is developed. Now thieves can drive through the farmers' fields, stop quickly to grab some corn or a lettuce, and be back on the highway before they can be caught. Of course, the farmers' costs have also fallen dramatically; now they have tractors to work their fields and trucks to take their products to distant markets. The farmers do not dwell on the benefits of the new technology, however. Understandably, they focus more on the profits they could reap if they could get all the advantages of the technology and none of its costs. They demand new legal protections aimed at producing that result. ”What's good for agriculture is good for the nation,” they say. But now comes the second technological shock--the development of barbed wire. The cost of erecting impa.s.sable barriers falls dramatically. The farmers begin to see the possibility of enclosing all of their land, roads and fields alike. This will help them protect their crops from pilfering, but it will also allow them to charge people for opening the gates in their fences--even the gates on public roads. That is a nice extra revenue stream which will, the farmers say, ”help encourage agriculture.” After all, more fences mean more money for farmers, and more money for farmers means they can invest in new methods of farming, which will mean everyone is better off, right?

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What is to be done? a.s.sume that each side presents its case to the legislature. There are three obvious possibilities: 4

First, the legislature can simply tell each side to work it out amongst themselves. The law will continue to forbid trespa.s.s, but we are neither going to make it a crime to put up a barbed wire fence if it blocks legitimate public rights of way nor to make it a crime to cut a barbed wire fence, unless the fence cutter is also a trespa.s.ser. The farmers can attempt to enclose land by putting barbed wire around it. Ranchers and drivers can legally cut those fences when they are blocking public rights of way. Trespa.s.s remains trespa.s.s, nothing more.

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Second, the legislature could heed the ranchers' fears that barbed wire will permit the farmers not only to protect their own land, but to rob the public of its existing rights of way, turning open highways into toll roads. (The ranchers, of course, are more concerned with the rights of cattle than people, but most drivers agree with them.) As a result, the state could forbid the erection of a barbed wire fence where it might block a public right of way--cla.s.sing it as a kind of theft, perhaps.

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Third, the legislature could take the farmers' side. Theorizing that this new automobile technology presents ”a terrible threat to agriculture, because of rampant crop piracy,” the state could go beyond the existing law of trespa.s.s and make it a crime to cut barbed wire fences wherever you find them (even if the fences are enclosing public lands as well as private, or blocking public roads). To back up its command, it could get into the technology regulation business--making the manufacture or possession of wire cutters illegal.

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The state picks option three. Wire cutting becomes a crime, wire cutters are cla.s.sed with lock picks and other ”criminals'

tools,” and the people who make wire cutters are told their business is illegal. A storm of protest arises in the rural driving community. The wire cutter manufacturers claim that their products have lots of legitimate uses. All to no avail: the farmers press on. They have two new demands. Cars should be fitted with mandatory radio beacons and highways put under constant state surveillance in order to deter crop theft. In addition, car trunks should be redesigned so they can hold less--just in case the owner plans to load them up with purloined produce. Civil libertarians unite with car manufacturers to attack the plan. The farmers declare that the car manufacturers are only interested in making money from potential thieves and that the civil libertarians are Nervous Nellies: no one has anything to fear except the criminals. ”What's good for agriculture is good for the nation,” they announce again. As the barbed wire gates swing shut across the highways of the region, the legislature heads back into session.

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BETWEEN PARANOIA AND REALITY: THE DMCA 9

I have argued that confusing intellectual property with physical property is dangerous. I stand by that argument. Yet a.n.a.logies to physical property are powerful. It is inevitable that we attempt to explain new phenomena by comparing them to material with which we are more familiar. While the content companies'

tales of ”theft” and ”piracy” are the most prevalent, they are by no means the only such a.n.a.logy one can make. In this chapter I try to prove that point.

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The Farmers' Tale is my allegorical attempt to explain the struggle over the single most controversial piece of intellectual property legislation in recent years, the Digital Millennium Copyright Act, or DMCA.1 The DMCA did many things, but for our purposes its crucial provisions are those forbidding the ”circ.u.mvention of copyright protection systems,” the technological measures that copyright holders can use to deny access to their works or control our behavior once we get access. These measures include encryption, controls on how many times a file can be copied, pa.s.sword protection, and so on.

Copyright protection systems are, in other words, the digital equivalent of barbed wire, used to add an additional layer of ”physical” protection to the property owner's existing legal protection. But, unlike barbed wire, they can also control what we do once we get access to the property.

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The rules that forbid circ.u.mvention of these systems are logically, if not elegantly, referred to as the anticirc.u.mvention provisions. They are to be found in Section 1201 of the Copyright Act, an ungainly and lumpily written portion of the law that was inserted in 1998 as part of the complex set of amendments collectively referred to as the DMCA.

I will explain the significance of these rules in a moment. My hope is that the a.n.a.logy to the Farmers' Tale will make them a little easier to understand--at least for those of you for whom talk of digital rights management, anticirc.u.mvention provisions, and network effects is not second nature.

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Notice the differences between this allegory and the ”Internet Threat” story line I described in the last chapter. There are two sets of bad guys in the Farmers' Tale. The greedy thieves (who are still thieves in this story--not heroes) and the greedy farmers who use a genuine if indefinite ”threat” posed by a new technology to mask a power grab. The Internet Threat is the story of an industry devastated by piracy, in desperate need of help from the state to protect its legitimate property interests. By contrast, the Farmers' Tale is the story of a self-interested attempt not only to protect property but to cut off recognized rights of public access in a way that will actually make the whole society worse off. The legitimate role of the state in protecting private property has been stretched into an attempt to regulate technology so as to pick winners in the marketplace, enriching the farmers at the expense of consumers and other businesses. In the long run this will not be good for business as a whole. A patchwork of private toll roads is an economic nightmare.

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That is not the most worrying part of the story: the farmers'

proposals are moving in the direction of regulating still more technology--the mandatory radio beacons and constantly monitored roads conjure up a police state--and all to protect a bunch of hysterical vegetable growers whose political clout far outweighs their actual economic importance.

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Both the Internet Threat and the Farmers' Tale are, of course, ways to understand what is currently going on in the intellectual property wars. In the digital realm, the part of the farmers is played by the content companies, the recording industry a.s.sociations, the movie and software trade groups.

Pointing to the threat of digital piracy, they demanded and received extra legal protection for their copyrighted content.

Unlike earlier expansions--longer copyright terms, more stringent penalties, the shrinking of exceptions and limitations, expansions in copyrightable subject matter--this was not a protection of the work itself; it was a protection of the digital fences wrapped around it, and a regulation of the technology that might threaten those fences.

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