David Weinberger explains the value of “leeway,” or small decisions not to enforce the rules in cases where enforcement wouldn’t be reasonable.

Imagine that your mother were visiting your apartment, and she got sick, so you let her stay overnight because she wan’t well enough to travel home. If this happened, no reasonable landlord would enforce a no-overnight-guests rule against you. Weinberger says:

Leeway is the only way we manage to live together: We ignore what isn’t our business. We cut one another some slack. We forgive one another when we transgress.

By bending the rules we’re not violating fairness. The equal and blind application of rules is a bureaucracy’s idea of fairness. Judiciously granting leeway is what fairness is all about. Fairness comes in dealing with the exceptions.

And there will always be exceptions because rules are imposed on an unruly reality. The analog world is continuous. It has no edges and barely has corners. Rules at best work pretty well. That’s why in the analog world we have a variety of judges, arbiters, and referees to settle issues fairly when smudgy reality outstrips clear rules.

The problem, Weinberger says, is computers don’t give leeway. Would the computer toss your sick mother out on the street, or cancel your lease because you let her stay?

Of course, you can always change the rules to add exceptions, such as a sick-mother allowance. Doing this would cover some cases, but you would be left with a more complex set of rules that was still enforced inflexibly. You can change the rules, but you can’t teach a computer to give leeway.

Weinberger goes on:

Which brings us to “digital rights management” which implements in code a digital view of rights. Yes, vendors and users should have a wide variety of agreements possible, but the nature of those agreements is necessarily digital….

If we build software that enables us to “negotiate” usage rules with content providers, the rules can be as favorable as we’d like but their enforcement will necessarily be strict, literal and unforgiving. Binary, not human.

DRM raises very difficult leeway issues. Fair use is an officially sanctioned leeway mechanism, designed to prevent enforcement of certain rules when the particular circumstances would make enforcement unwise. Fair use is just the kind of subtle and context-dependent leeway mechanism that computers can’t handle.

Weinberger’s message can be summed up in a quote attributed to him by Jon Udell:

That’s the problem with DRM. Computers are too stupid to look the other way.

Seth Schoen raises two interesting issues in his response to Richard Stallman’s essay on “trusted computing.” (To see Seth’s posting, click here and scroll down to the “Trusted computing” heading.)

Stallman says

[Trusted computing] is designed to stop your computer from functioning as a general-purpose computer.

Schoen responds:

Neither of these concerns is applicable at all to Palladium (as Microsoft has described it to us) or to TCPA (as the TCPA has specified it and as it has been implemented). While Microsoft could be misleading us about Palladium, the TCPA specification is public and implementations of it have already been made.

It’s possible that some other trusted computing system could have such a misfeature, but the design of TCPA and Palladium doesn’t require these properties at all, as far as I can tell, and they seem to be more or less independent.

Schoen is right here – Palladium and TCPA do not do what Stallman says it does. Stallman seems too eager to blame Microsoft for the sins of others.

The conversation then moves on to the connection between Palladium and the Hollings CBDTPA. The Hollings bill mandates that some kind of “trusted computing” restrictions be made mandatory in essentially all digital devices. But what kind of restrictions would be mandated?

Stallman implies strongly that the CBDTPA would mandate the use of Palladium. Schoen disagrees, saying that he is “not convinced that something like Palladium is the infrastructure contemplated by the CBDTPA.”

Here I don’t know who is right. The CBDTPA is cleverly constructed so that it doesn’t say what it is mandating – it leaves that to be decided later, either by the FCC or by a vaguely-specified industry consortium. This gives CBDTPA advocates a way to dodge hard questions about the bill’s effects, by invoking a hoped-for perfect technical solution that is just around the corner. Given the track record of copy restriction and its advocates, I think we should insist on taking a test drive before we buy this used car.