September 19, 2020

Discovery vs. Creation

Last week I had yet another DMCA debate, this time at the Chicago International Intellectual Property Conference. Afterward, I had an interesting conversation with Kathy Strandburg of DePaul Law School, about the different mindsets of DMCA supporters and opponents.

DMCA supporters seem to think of security technology as reflecting the decisions of its creators, while opponents (including me) think of technological progress in terms of discovery.

Two examples may help illustrate this distinction. First, consider the inclusion of a spell checker in Microsoft Word. This is a decision that Microsoft made. There is no law of nature saying that word processors must include spell checkers, but Microsoft evaluated the pros and cons and then decided to do it that way.

Second, consider Einstein’s statement that E equals MC-squared. Einstein didn’t decide that E should equal MC-squared, he discovered it. E had always been equal to MC-squared, and it would continue to do so regardless of what Einstein said or did. He didn’t create that fact; he was simply the first one to figure out that it was true.

I tend to think of computer security as a process of discovery. If I figure out that a certain system is insecure, that is a discovery. I didn’t make the system insecure; it was always insecure and all I did was to point out that fact. Nothing I did could make such a system secure, just as nothing Einstein did could have made E equal MC-cubed.

DMCA supporters sometimes seem to think of computer security as being the result of a collective decision by experts. It is as if we all, by simply acting as though a system were secure, could make it really be secure. If you think this way, then deciding to make a widely deployed technology insecure would indeed be a stupid and wasteful decision, and it might sensibly be banned. But if you think this way, then in my view you don’t really understand computer security.

When you’re making a film, or writing a song, or drafting a statute, or negotiating a contract, you’re making decisions. It might be natural for people who make films, songs, statutes, or contracts to try to apply their understanding of their own fields to the world of technology. They can decide that such an approach makes sense; but ultimately they will discover that it does not.