Copyright & The Speed Limit
When Macrovision, the content control company, buys TV Guide, it is reasonable to ask to what extent will Macrovision implement DRM in a way that could force electronics manufacturers to engage in what writer Saul Hansell calls “electronic vigilantism.” Hansell notes this is no longer a theoretical concerning, pointing to Boing Boing’s post about a new Western Digital computer network hard drive that blocks music and video files because of “unverifiable media license authentication.”
Practically speaking, that’s a technologically complex way to say if I buy Season 4 of The Wire on DVD, and I want to rip it to QuickTime to play on my computer — a common, totally reasonable action that Time Warner likely would claim is de facto illegal — then at some point, I may be unable to because my computer would reject that file as “unauthorized.” And if I try to break the encryption code, I violate the Digital Millennium Copyright Act.
That’s patently unreasonable to the point of being stupid. And this, we posit, is a primary reason why so many people ignore contemporary copyright: it has become so ridiculous that many people choose to ignore it. Let us try to draw a quick parallel.
Legislators make a law where the speed limit is 55 mph. The rationale for 55 mph is that it is a speed at which drivers, passengers can travel efficiently and safely and cause the least amount of actual or potential harm to the surrounding environment.
Car makers build cars using the most modern technology available to them. That technology allows for faster cars that easily can exceed the 55 mph speed limit. If a more technologically advanced car exceeds 55 mph (the speed limit at which law makers determine everyone can be safe), that car is operating illegally because, theoretically, going above 55 mph increases the level of danger to others on the road.
But the technological advances that make it possible for cars to travel faster than 55 mph also allow car makers to introduce seat belts, air bags, better handling, and better brakes. All of those factors improve safety. Concurrently, police (who enforce the speed limit and determine which cars exceed it) decide by social compact that they’re not going to penalize folks who drive their cars at 56 mph. Instead, they choose a speed — say, 65 mph — that the police department decides is a safe speed and make that higher speed the effective speed limit.
The decision to write out a ticket at 65 mph instead of 56 mph can be arbitrary, but often it is informed by a mix of perceived dangers in a given situation and prevailing social custom. If there is less perceived danger, the cop will write at 65 mph. If most of the cars are traveling, say, 62 mph, the cop will write at 65 mph.
Part of the reason this situation occurs is because at some point, citizens and cops alike believe that the 55 mph speed limit is patently unreasonable to the point of being stupid. Then at some point, law makers decide that 65 mph is the new speed at which everyone can travel safely and efficiently. And eventually, the same police who decided by social compact that they wouldn’t penalize folks who drove 56 mph now decide they won’t write under the new 65 mph “speed limit” unless you’re actually traveling 72 mph.
This all seems reasonable, right?
Copyright has gone in exactly the opposite direction. The technology is allowing you to work at 65 mph; fair use and other exceptions should allow you to operate safely at 72 mph without a problem. Law makers have rewritten the Copyright Act of 1976 to have a “speed limit” of 50 mph, and content companies propose further amendments that would require a new speed limit of 45 mph. Faced with this sort of illogic, the average Joe or Jane decides, “The heck with it,” and rolls down the road at 66 mph.
The average Joe or Jane reacts that way not because they want to be rebels. They react that way because they have decided that given all the data points, 45 mph is unreasonable to the point of being stupid. If people think a law is stupid, they won’t abide by it. If they don’t abide by it, what good is the law?
Bits (The New York Times). Is Macrovision Bringing More Cops to Your Living Room? Dec. 7, 2007.
Copycense™: Incisive IP.™