June 26, 2017

More on Meta-Freedom

Tim Lee comments:

The fact that you can waive your free speech rights via contract doesn’t mean that it would be a good idea to enact special laws backing up those contracts with criminal penalties. I think you’re missing an important middle ground here. The choice isn’t between no tinkering rights and constitutionally mandated tinkering rights. There’s a third option: the the law should neither restrict nor guarantee tinkering rights. You’re welcome to tinker, but you’re also welcome to contract away your freedom to tinker.

The DMCA sticks its thumbs on the “no tinkering” side of the scale by giving DRM creators rights beyond those available to parties in ordinary contract disputes, and by roping third parties into the DRM “contract” whether they’ve agreed to it or not. If I sign a NDA, and then I break it, the company can sue me. But they can’t have me thrown in jail. And they can’t necessarily sue the journalist to whom I divulged the NDA’d information.

But repealing the DMCA would not create an inalienable right to tinker. It would simply put the freedom to tinker on the same plane as all our other rights: you’d have the right to sign them away by contract, but in the absence of a contract you would retain them.

He is right. There is an important middle ground possible that calls for DMCA repeal without calling for the contracts that restrict tinkering rights to be unenforceable. There is certainly a great deal to be said in favor of such a position. I would still say that the mixture-of-motives issue applies, because when people are allowed to sign away their tinkering rights, many of them will, and this outcome will be particularly unwelcome among power users and technology policy activists.

Comments

  1. Randy Picker says:

    Tim and I have blogged back and forth about this. It is important to recognize that the contracts option embraces a high-cost enforcement mechanism, while the DMCA opts for low-cost contract-type enforcement.

    The saga of the Lexmark printer is critical on this (I detail this in my paper Copyright and the DMCA: Market Locks and Technological Contracts, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=690901). Lexmark started with a contracts approach to restricting re-use of toner cartridges. Consumers could freely choose between more expensive refillable cartridges without the contract restriction or cheaper single-use cartridges with the restriction. They chose the latter and ignored the restriction. Enforcing the contract in court would have been quite expensive and choosing one consumer at random would have been seen as arbitrary (see the RIAA suits against end-users). Lexmark switched to a technological approach: a lock out chip attached to the cartridge, one that it hoped would be protected by the DMCA. More importantly, a low-cost enforceable substitute for high-cost contract enforcement.

    You have to take into account the different costs of enforcing different types of contracts (technological contracts vs. paper contracts). The latter are hugely expensive to enforce and we don’t have a good means to reduce the cost of enforcement. The DMCA does exactly this for some types of contracts (though not those implemented by Lexmark; see the paper for more).

  2. Randy Picker says:

    And see Tim’s comment on one of my posts to get his perspective on this:

    http://uchicagolaw.typepad.com/faculty/2006/07/laws_we_cant_af.html#comment-19770252

  3. Regarding Randy Picker’s comments on contract enforcement, if a contract is made with so many people and so many people violate it that it can’t be enforced, perhaps that particular term doesn’t deserve to be enforced.

    If you’re going to be selling printers and ink to thousands of people with contractual obligations that they buy your ink and no effective technological control over the customers’ actions, then that’s a boneheaded business move and isn’t the sort of model that I believe the government should enforce.

  4. Randy Picker says:

    That is why Lexmark switched from practically unenforceable paper contracts to technological controls. The question is then whether the government should validate the enforcement of these controls–these much cheaper ways of enforcing contracts. The anti-DMCA crowd doesn’t want the gov’t to make those tech controls enforceable and wants to stick producers instead with the next-to-worthless paper contracts. Michael Ash’s comment makes clear why the paper contract approach is a loser.

  5. Mark Christiansen says:

    The government should not enforce printer and ink business models. Instead it should protect citizens from this borderline fraud.

  6. enigma_foundry says:

    I largely agree with Tim, although I think there is one issue to expand upon here. I’d like to here what Tim thinks about shrink wrap or click wrap licenses. That is where the rubber meets the road on this issue.

    These, I feel, are examples of consumers being put in an inferior bargaining position, and historically that is where special laws have been enacted to protect consumers. So while I agree that in the case of Tim signing away his freedom to tinker, I disagree with the enforcability of click wrap or shrink wrap lisences which purport to be legally enforcable contracts, when they infringe upon First Amendment rights.

  7. Doug Lay says:

    Although I thoroughly disagree, I appreciate Picker’s honesty in defending Lexmark’s attempted use of the DMCA to protect their business model as a paradigmatic use of the law, and not as an extreme example. According to Washington DC DMCA apologists like the BSA’s Emery Simon, the failure (so far) of lawsuits like Lexmark’s is a pont in the law’s favor – apparently we (and more importantly Congress) can rest assured the DMCA protects only bona fide “creative works” and not mere programming interfaces. I wonder if Picker would be willing to emphasize his support for Lexmark’s position were he to testify before Congress in support of the DMCA.

    Despite Picker’s honesty, his position is still offensive to me as one who values the freedom to tinker. While David Robinson appears to be calling for balancing rights against rights (freedom to tinker vs. freedom of contract), Picker is calling for rights to be trumped by (claimed) economic efficiency.

    There is, I think, be an argument to be made that low-cost “technological means of contract enforcement” (aka DRM) may well continue to be effective in certain circumstances whether or not the DMCA exists. It shouldn’t be necessary to make this point, however, for the injustice of the DMCA anti-circumvention provision to be clear, and for the law to be repealed.

  8. enigma_foundry: To be honest, I haven’t really studied contract law enough to have a firm opinion about how they should be treated. I don’t really buy the concept of “unequal bargaining power.” However, I do think click-through contracts are troubling because in practice people hardly ever read them. If Apple inserts a clause in the iTunes Terms of Service saying you agree to give them $10,000, I don’t think you should be required to pay up. But on the other hand, to some extent I think the potential for a PR backlash helps discipline unreasonable contract terms. The first time a company actually tries to enforce an unreasonable term in a click-through contract, it’s likely to generate enough negative publicity to make them wish they hadn’t tried it.

  9. Randy Picker says:

    I want to be clear, let me see if I can be. I think that the Lexmark example makes clear why low-cost contract enforcement is important. The DMCA makes low-cost contract enforcement work in some cases. Lexmark tried to shoe-horn its situation into the DMCA. Notwithstanding my general support for the DMCA and for Lexmark’s appropriate desire to have enforceable contracts at a low-cost, I don’t think that it actually works for them under the DMCA as currently written, given the precise language of the DMCA. I detail all of that in the paper that I link to in my first comment.

    Tim Lee’s point about the bad publicity associated with insane contract terms is important. Tim has pushed for court enforcement of contracts rather than the DMCA approach in part because of the greater transparency of the court system. These days given the viral quality of blogs, it is hard to keep anything opaque for very long.

  10. Anonymous says:

    “….I haven’t really studied contract law enough to have a firm opinion about how they should be treated. I don’t really buy the concept of “unequal bargaining power.”

    Well, like it or not, that has been the cornerstone of many consumer protection laws, and I don’t see any reason that a special exception should be made for software licenses, esp. when the average consumer can not be expect to be knowledgable about licensing. MS on the other hand can have a whole team of lawyers write there contracts. Those contracts will likely call for some type of restraint of trade, and on both economic grounds and preservation of our Freedoms, consumers need protection from pernicious monopolies.

    Also a correction: “The fact that you can waive your free speech rights via contract….”

    You cannot waive your Free Speech rights with a Contract. If you sign an NDA, you could still have the Freedom of Speech to disclose whatever you want. Now, of course, you’ll probably be sued, and maybe even lose. If you disclose it to someone else, not a party to that contract, they are under no obligation to abide by the terms of the NDA. Now, there have been some attempts to change this, but none have been successful, and as of this writing they are still just wet dreams of the corporate fascists.

  11. I think that this is a fascinating discussion, and appreciate the idea of a middle-ground. Indeed, I think that most of DRM’s opponents inhabit this middle-ground: we favor the abolition of the law that prohibits tinkering, the DMCA (and its cousins like the EUCD).

    However, I think that an important point is often missed in discussions of this sort: that a marketplace works best when both opponents and proponents of business-models engage in discourse and attempt to sway customers towards or away from a market.

    So while I favor the abolition of the DMCA and the clarification of copyright law to improve the tinkerer’s lot, I likewise believe that it is useful and good to warn people that in a no-DMCA world, it would *still* be a bad idea to contract out of your freedom to tinker, and to agitate against the contracts under discussion here.

    There’s an important distinction between the two positions: On the one hand, I think that the law regarding the DMCA should be changed — this is a political/legal response I want to see from government. On the other hand, I have arguments I’d like to publicize arguing against accepting DRM even in the absence of the DMCA, but those arguments don’t call for a legal or governmental response, they merely seek to change a potential customer’s mind.

    Imagine that there was a law against spearmint gum. I might want this law repealed. I might also want to convince you that you should buy spearmint gum and not cinnamon.

    The problem with placing “DMCA should be repealed/contracting into DRM should be allowed” in the middle is that it sets up a straw-man on the extreme. I don’t know anyone who believes that it should be impossible to contract out of your right to tinker, but many people believe that doing so is a bad idea and will tell you why. It’s a mistake to assume that because we believe you *shouldn’t* do something, we want it to be *illegal* to do so.

  12. enigma_foundry says:

    I don’t know anyone who believes that it should be impossible to contract out of your right to tinker,

    Well consider this notice that such people do exist. I suppose, to be consistent you beleve that someone should be able to sell themselves into slavery?

    There exist a substantial body of law that limits what rights can be limted by a contract. Most of our Consumer Protection laws are predicated on this belief. For example there are limits on usury, and one rent to own contracts. You may be against those protections as some part of a libertarian extremist minority, but the consensus of established law is that there are very real public policy reasons to limit what fredoms can be limited by contract. I would conjecture that the bar for the negoitiation of any infringement on Bill of Rights should be very, very high…

    If I sign an NDA, I still have my freedom of speech, and can still divulge what I want (This is American Law I am talking about–Switzerland is different, and you can go to prison for divulging commercial secrets. Of course there is a special case, in matters related to national security, but let’s leave those aside for now) Now, I may be sued, and lose, but I need have no fear of going to prison, and if others now know what I have divulged to them, they are under no obligation to protect that information from disclosure.

    Also, at common law, any restraint of trade or agreement not to engage in your trade was an unenforcable contract. Since then, as long as the non-compete agreement is limited in time and scope and is reasonable, non-compete contracts have been allowed. But in summary: There are very real limits to what rights you can surrender in a contract.

  13. Isn’t the French government planning to prohibit consumers from contracting away their freedom to tinker?

  14. Randy Picker says:

    PLN,

    Yes, the courts ultimately have to enforce the provisions of the DMCA, indeed, that was how the Lexmark case arose (a third party came up with a tech way to beat the tech control; Lexmark claimed that the third party violated the DMCA in creating the tech end-run).

    But as you point out correctly, this is about how frequently the tech contract is broken vs. how frequently the paper contract is broken. For Lexmark, the latter was ignored routinely; the former wasn’t until the third party came up with the tech end-run. That simplified pursuit for Lexmark: a single company rather than thousands of end-users.

    So it isn’t just about whether you have to go to court; it is about how often and against how many.

  15. Randy seems to sympathize with the DMCA making it easier to enforce some kinds of contracts.

    So far, though, the only examples I’ve ever seen of contracts hard to enforce without resorting to DMCA-like tactics are contracts that are not in the consumer’s interest. Lexmark is evil. Many of these corporations are evil. They are greedily self-interested and will use whatever legal bludgeons are made available to lock in consumers and force them to pay through the nose. Why should we do anything but oppose them?

  16. bonapart says:

    Neo wrote:
    So far, though, the only examples I’ve ever seen of contracts hard to enforce without resorting to DMCA-like tactics are contracts that are not in the consumer’s interest.

    Well, of course. When anti-consumer contracts are weak on their face, industry pushes legislation to make them strong. As is most legislation nowadays, the DMCA is pre-written industry legislation. There isn’t any legislation in the consumer’s interest because we don’t write any or pay anyone off to pass it. It will go on like this.

  17. Alexander Wehr says:

    In response to Randy Picker’s advancement of DRM as “cheaper contract enforcment”..

    I posit that consumers as a matter of course sit at an inferior position on the bargaining table, and as such it is beneficial to the balancing the consumer’s inferior position in the market that contracts require judicial oversight. This protects non-commercial and financially irrelevant tinkerers.

    This is the same reason why people will always look for a human when confronted with an automated phone system… it’s better for humin individuality to have human oversight of contracts rather than robotic and inflexible control.

  18. enigma_foundry says:

    In response to Cory Doctorow’s comments above

    Well this line of reasoning makes many mistakes, but I’d like to start with the most fundamental one: It considers the market-place alone without any recognition of the larger social and cultural reference environment in which the marketplace exists. The market-place exists to serve this larger reference environment. Those who think otherwise should read on.

    Without this set of assumptions, Cory’s reasoning, as another poster had commented, would lead to the repeal of the Amendment XIII to the U.S. Constitution which took away the “freedom” of people to be contract their ownership. Admittedly, that is an extreme example, however it has been a cornerstone of many Consumer Protection Laws (for example, those against unjust contracts in rent-to-own schemes, against usury, or those providing remedies in the case of defective products (e.g., Lemon Laws), which consumers cannot “contract away.”

    In my work as an Architect and Urbanist, I frequently deal with restrictions placed on property which the owners never ‘contracted’ away. I even am involved in establishing those restrictions, for example in Urban Planning projects. There exist restrictions on the type and character of the architecture in my neighborhood (it is an Historic Conservation District). I cannot put siding on, (or for that matter even paint) my brick house, without special permission. In the case of siding, I would never get that permission. This is because my house is also a part of a network (i.e., a neighborhood) in which there exist many stake holders who could suffer a loss because of my actions. Without these protections, there would just be a bunch of houses; with those protections, there can exist a neighborhood, a network that has a greater value than the sum of its parts. Our entire society is connected and considering a part apart from the whole is very risky, and almost always leads to wrong (or very limited) conclusions.

    Now those who are advocating the seemingly unregulated expansion of the marketplace without consideration of its social, cultural or ethical impacts need very much to consider the following fact: the unregulated growth in the (relatively) unfettered marketplace, without connection to it reference environment, has lead to a very real backlash against the market itself. In particular, it has enormously strengthened the radical populist left in much of South America* and given strength to what should be outlier parties in much of Europe. Witness the obvious anger in France over a series of very modest reforms, and the recent strength in Poland (once the poster child for Sach’s-style freeing of markets) of populist anti-liberal reform parties, and any reasonable observer has to conclude the growth of global free market capitalism has reached its high water mark. To those who think America is immune to such a populist movements, I have two words: Ross Perot.

    So, back to the issue at hand: America is a free society, and that freedom is rooted in its cultural and social life, and therefore if the market-place cannot be considered outside of its political, social, and moral dimensions that tradition of freedom needs to be respected.. The conclusion that one should be able to ‘contract away’ their First Amendment Rights is just as objectionable and deeply flawed as the proposal that someone should be able to ‘contract’ themselves in to slavery, in contradiction to the XIII th Amendment. Continued attempts to place the marketplace outside of its reference environment actually endanger the continued existence of that marketplace.

    *there is a series of essays by Jorge Castañeda, in particular Old Left Versus New Left in Latin America on the website Project Syndicate (www.project-syndicate.org) which shed light on this phenomena. Regarding the situation in Europe, I would recommend the series of articles about the recent Polish Government in the Financial Times (or for those more interested in a different perspective in Tygodnik Powszechny in http://tygodnik.onet.pl/ (some articles available in English)

    Note this is also posted at Tech Lib Front, but I am reposting here as Tech Lib Front has a pernicious habit of deleting my posts…
    Posted by: enigma_foundry at July 29, 2006 10:44 AM

  19. Bonapart says: “There isn’t any legislation in the consumer’s interest because we don’t write any or pay anyone off to pass it. It will go on like this.”

    So, voting for legislators doesn’t count for anything anymore? All the campaign contributions in the world won’t get one into office if he doesn’t get enough votes. In all this loyalty to the contributors, where is the loyalty to the voters, also necessary to make their legislating term happen?

  20. Freedom to tinker is ‘solved’ by two inalienable human rights: privacy and freedom of speech.

    1) Published intellectual property belongs to the public
    2) People must be free to develop their own private intellectual property in their own privacy
    3) People must have freedom of choice to publish or not publish their private intellectual property.
    4) All private intellectual property is ultimately a derivative of public intellectual property

    So firstly, no-one should be granted control over the intellectual property that they publish, whether in the form of designs or realisations thereof. This is because it consequently and unjustly removes freedom from the people.

    Secondly, being published designs, the public is free to privately explore, utilise or develop derivatives. To disallow this is to violate the human right to privacy.

    Thirdly, as long as truth is not impaired (no misattribution), anyone should be free to publish their privately developed derivative of a published design.

    If anyone desires to control and retain ownership of their private designs (even though derived from public IP), they are of course free to do so. This is because they have the right to their own privacy and the right to choose not to publish their IP.

    The violation of the people’s freedom to tinker comes firstly, when corporations seek to retain control over IP after they’ve published it, and secondly, when they seek to exert this control even in people’s private domains.

  21. So, on the question of ‘contracting away the right to tinker’…

    The human right to privacy should be inalienable – you can’t contract it away. You may of course permit invasive surveillance, but you can’t sell your right to deny invasion of your privacy at any time – caveat emptor. Hence it is impossible to contract on anything that you may do in private – you can only contract what you will or will not do with another’s property in public or with other parties (and this excludes private IP given it can only belong to another if it is in their private domain – which it is not the moment you become privy to it).

    The human right to free speech should also be inalienable – you shouldn’t be able to contract away your right to publish any IP you have in your possession.

    That means NDA’s should never be applicable to people, although they may be applied to companies.

    If someone wishes to share their private IP with you this necessarily duplicates the IP and makes you a separate owner (it is no longer a single item, so you cannot be joint owners). The most they can do is to obtain a sale agreement in advance of the disclosure, e.g. “I will sell this IP to you for X, and given our individual appreciation of its unpublished value we retain some degree of confidence that we will collaborate in exploiting it or realising its maximum value”. You cannot promise to never disclose or publish it.

    This also cannot prevent any private reverse engineering or development on your part – because you cannot contract away your right to privacy. Companies can of course make such agreements.

    I should add that privacy trumps freedom to publish. No-one has a right to invade another’s privacy, steal their IP and publish it against their will.

  22. lotro gold says:

    Bonapart says: “There isn’t any legislation in the consumer’s interest because we don’t write any or pay anyone off to pass it. It will go on like this.”