September 20, 2020

Self-Help

Lawyers use the term “self-help” to refer to all of the little steps people take to protect themselves. Locking your bicycle is self-help – even though it would not be necessary in a world where everyone obeyed the law, it’s a good idea in the real world. Fences and burglar alarms are self-help too.

Self-help is often a cheaper way of protecting our rights than relying on the legal system. Rather than having an army of cops to watch all of our bicycles, it’s cheaper for each of us to buy and use a lock. But self-help is only allowed in defense of your own rights – you can’t put a lock on my bike.

Some of the recent anti-tinkering laws claim to be nothing but self-help for copyright holders. That’s what some people say about the DMCA, and about the Berman-Coble bill. If those laws merely allowed copyright holders to enforce their legal rights, there would be no problem. But they go much farther.

Glenn Otis Brown, in an article in The New Republic Online, offers a helpful analogy:

Let’s say you extend the fence that runs around your yard across your sidewalk. If little Jonny hops that fence, you can’t call the cops on the pretext that he might steal your lawn furniture. The principle is simple: you can’t make an exclusive claim, through technology, on a public good (access allowed by the sidewalk). But the DMCA seems to say that the rules in the digital context are different. If little Johnny decrypts your DVD so he can watch it on a different kind of computer–something that ought to be protected under fair use–you can call the cops on the pretext that he might pirate your movie.

The analogy is an interesting one. If you fence off the real sidewalk, society will let Jonny off the hook for jumping the fence (as long as he stays on the sidewalk). But society will do more – it will condemn you for building the fence, and it might even send the sheriff to cut it down.

Some people like to argue that “intellectual property” is just exactly like real property and should have the same protection. Let’s all remember that the law protects the sidewalks too.