April 17, 2014

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The Freedom to Tinker with Freedom?

Doug Lay, commenting on my last post, pointed out that the Zune buyout would help make a world of DRM-enabled music services more attractive. “Where,” he asked, “does this leave the freedom to tinker?”

Anti-DMCA activism has tended to focus on worst-case, scary scenarios that can spur people to action. It’s a standard move in politics of all kinds, aptly captured in the title of a 2005 BBC documentary about Bush and Blair, The Power of Nightmares. In the context of a world of DRM gone mad, it’s obvious why we need the freedom to tinker. We need it because (in that world) opaque, tinker-proof devices protected by restrictive laws would be extremely harmful to consumers. The only way to make sure that the experience of the average media viewer or software user doesn’t go down the tubes, in this scenario, is to make sure that consumers, either legislatively or through individual choice, never let DRM get off the ground.

But consider an alternative possibility. The Darknet is a permanent backdrop for any real-world system. The major players know this – after all, it was a team at Microsoft Research that helped to launch the Darknet idea. The big players will, in the long run, be smart enough not to drive users into the arms of the Darknet. They will compete with the Darknet, and with each other, and will end up producing systems that most consumers think are fine. Yes, consumers will (still) chafe at the restrictions on DRM-protected systems ten or twenty years from now. But on the whole, they will find that these systems are attractive, and worth investing in.

Who loses in this scenario? Ed and others have argued that all consumers will suffer to some degree because we all enjoy the benefits that come from a few intrepid power users excercising the freedom to tinker. There are educational benefits that come from tinkering and, perhaps most importantly, the freedom to tinker keeps technologies flexible and leaves room for them to interoperate in surprising ways not initially envisioned by their creators. And, as Alex has pointed out to me, the social costs of tinkerproofing are cumulative in such a way that there may be a collective bargaining problem–we may have a situation in which the freedom to tinker does not matter very much to most individuals, but we’d all be better off if, collectively, we assigned a higher value to our individual freedom to tinker than we actually feel for it.

These arguments certainly have significant merit. Together, they (and others like them) might be enough to make it the case that we should create legal protection for the freedom to tinker, or at least build a social consensus for the importance of tinkering.

But I think the people who lose the most, in this DRM-isn’t-so-bad scenario, are the power users. People who like to poke around under the hood. People who are outliers, attaching more importance to the freedom to tinker than a typical consumer attaches to it. I’m talking, in other words, about us.

We the reader-participants of www.freedom-to-tinker.com are an unusual bunch. We really like to tinker. In my own case, I know that I care more about things like being able to time and space shift my media collection than the average person does. I derive a certain strange pleasure from being able to change the way the interface on my desktop computer looks. I buy books so I can mark them up, even though it would be much cheaper and more space-efficient to use a library.

In fact, when I think about it, I have to admit that I would find a world where DRM works and the ability to tinker can be bargained away to be a bit of a downer. I know that the equilibrium point the market reaches, in such a case, will be based on the moderate importance most people attach to tinkering, rather than the high importance that I attach to it. I’ll probably still buy in to some DRM-based music scheme in the long run, just as I still go to the movies even while wishing that they would focus more on plot and less on special effects. But I’ll miss the tinkering.

If the government were to put a legal guarantee behind the freedom to tinker, it would be reducing peoples’ freedom to contract by telling them they can’t bargain away their tinkering rights. It would force on consumers as a whole an outcome that they would manifestly not choose for themselves in the private market. Yes, it is possible that externalities or collective action issues could justify this coercion. But even if those considerations didn’t justify the coercion, part of me would still want it to happen, because that way, I’d get to keep tinkering rights that, under a different terrain of options, I would end up choosing to relinquish.

I apparently haven’t mastered the art of ending a blog post, so just as I closed last time with a “bottom line,” this one gets a “moral of the story.” The moral of the story is that many of us, who may find ourselves arguing based on public reasons for public policies that protect the freedom to tinker, also have a private reason to favor such policies. The private reason is that we ourselves care more about tinkering than the public at large does, and we would therefore be happier in a protected-tinkering world than the public at large would be. We all owe it to ourselves, to each other, and to the public with whom we communicate to be careful and candid about our mixture of motivations.

Comments

  1. enigma_foundry says:

    Well, I feel this post is an example of a pernicous trend, which differentiates our freedom to tinker with the freedoms that we already have under the bill of rights.

    Granted, the First Amendment does not explicitly give me the right to right code which uses the DeCSS to decode a DVD, but I feel it does give me the right to write the source code for such a program. The ability for me to compile a program on my own computer is protected by my rights to privacy. this rights are essential to living in a free society, and are non-negoitable. Any attempt to infringe on these rights is fascism. That our law makers are so willing to over-ride our freedoms for some corporations business plan speaks to their lack of integrity and the lack of the education of the populace as to the importance of their freedoms.

    Put simply: It is the responsility of corporations to exist in a free society, and adapt their business plans to society, NOT to change a free society to adapt to their business plan.

    So, for example, I object to this statememnt:
    If the government were to put a legal guarantee behind the freedom to tinker,

    I object because I have the freedom to tinker now. I do not acknowedge the constitutionality of any law that deprives me of my rights. My freedom to tinker is guarenteed NOW. It is up to the corporate fascist to try to take my freedoms away.

    Thanks to organizations like the electronic Freedom Foundation, they will not have an easy time.

  2. John Doe says:

    Summarizing this post:

    - Don’t worry about the law. You can always break it.
    - If you are a power user your arguments should not be given much weight because you stand to benefit more than the average user even though he too stands to benefit significantly.

  3. Tim says:

    It seems to me that the freedom to tinker impacts the pace of innovation in high-tech industries. Compare the rapid proliferation of innovative MP3 players and music software between 1998 and 2001 with the relatively paltry market for portable video devices and video software in the last 3 years. Unlike the early MP3 player market, which saw the introduction of dozens of stand-alone MP3 players, the only significant portable video player that I know of are the iPod and the PSP–both of which are devices built for other markets and retro-fitted for the video marketplace. It seems hard to deny that the market for digital video devices would be more vibrant if it weren’t tied up in DMCA red tape.

    So no, DRM won’t be a complete disaster–companies will find ways to get content to consumers. But the cartelization of the market for digital media devices will lead to fewer choices and a slower pace of innovation. That hurts power users of course, but it hurts everyone else as well.

  4. Tim says:

    You might also be interested in my recent series of posts on the economic case against platform monopolies, which you can see here:

    http://www.techliberation.com/archives/cat_open_source_open_standards_and_peer_production.php

    Platform cartels impose significant costs on the economy by preventing what I call gains from interoperability (by analogy to gains from trade). True, an economy can function with its media technology balkanized into mutually incompatible platforms, just as the world economy could survive without free trade. But the lack of those things make the world a less prosperous place.

  5. enigma_foundry says:

    An article that is extrememly topical to this discusion has just been posted on Groklaw.

    It is titled “The Generative Internet, by Jonathan Zittrain, Esq.

    It was originally published in the Harvard Law Review, and is being expanded into a book.

    Jonathan is making the point that the genrative capacity of the PC is threatened by some of the possible reactions to security issues, and he sees that the PC is at a cross roads. Very interesting that he sees the same threat that RMS did in the Tivo.

    http://www.groklaw.net/article.php?story=20060725152958389

    BTW, The Power of Nightmares, referenced above is available as a download from the web archive. I highly reccommend.

  6. Doug Lay says:

    David Robinson says:

    “If the government were to put a legal guarantee behind the freedom to tinker, it would be reducing peoples’ freedom to contract by telling them they can’t bargain away their tinkering rights.”

    Maybe I’m missing something, but this just doesn’t seem accurate. Certainly freedom of speech enjoys the highest level of legal guarantee under the U.S. legal system, yet people sign NDAs all the time, thereby bargaining away their freedom to speak of certain topics.

    The DMCA anti-circumvention provision provision removes the freedom to tinker, whether or not the would-be-tinkerer has entered into any sort of contract, and whether or not the contract is legally valid. Remove this provision, and consumers will still have the right to bargain their tinkering rights away.

    Perhaps David is not referring to the DMCA, but rather to some hypothetical affirmative freedom to tinker that could theoretically be written into law. If so, I think he should clarify.

  7. Matt Austern says:

    Seems to me that the way in which average users will be hurt is that they’ll lose small features, ones they may or may not be aware they’re missing. It’s not just tinkerers and power users, after all, who find that they’re unable to fast-forward through an ad on a DVD, or play a disk they bought on vacation in another country.

    How many poeple get annoyed when they hit fast-forward and get a “not permitted” error? Probably everyone who watches DVDs. Most people probably just shrug it off as yet another way in which electronics is annoying. The power users are the people who wonder just why some shadowy consortium has the power to grant or refuse me permission to hit a button on my own video player.

  8. bonapart says:

    Legal restrictions on technological tinkering also slows the progression and transference of such knowledge. The people who are now designing, engineering and implementing security software and DRM are the same people who tinkered with it in order to obtain the knowledge they use today.

    There aren’t any DRM101 or ROOTKIT101 courses offered by any institution I can find. Knowledge of these technologies is usually acquired by reverse engineering, experimentation, and most importantly; discussion with others who are doing the same. With all of this being illegal, the progression of the knowledge of this technology is bound to stagnate at least some.

  9. Neo says:

    Consumers will also be hurt in the form of elevated prices. The costs of DRM are passed on to the consumer, and the lockin will enable price gouging like you wouldn’t believe.

  10. enigma_foundry says:

    Well, I am trying very hard to derail the economic aspects which seem to be the center of the discussion.

    I am very curious whether anyyone finds the loss of freedoms and rights troubling?

    Apparently everyone is fine with losing some of their rights in th digital realm…but as that realm becomes more and more important our loss of rights in this realm will take on greater significance….

  11. pfogg says:

    There is also a social cost to these sorts of technical and legal restrictions which I occasionally see mentioned, and which I regard as at least as significant as economic and pragmatic issues. The practice of ‘tinkering’ with any commonplace items or technology in non-dangerous ways is intuitively harmless. This is true both for fiddling with software or hardware, and for bypassing DRM to make yourself a mix tape or CD. Passing laws against hardware tinkering would be transparent to most people (since they weren’t planning to do it anyway), but since such laws don’t closely match any culturally defined moral norms (and on a deeper level, seem to arbitrarily and unnecessarily limit the natural curiosity and desire to fiddle with things found among most primates), following those laws won’t seem very important even to people who don’t tinker, and they will weaken people’s respect for the law either in the specific domain of intellectual property, or overall. In practice, one cannot legislatively create any behavioral environment one wishes and expect it to work — illegal activities are meant to be ‘wrong’, and arbitrary restrictions encourage citizens to become scofflaws who would otherwise advocate and practice moral behavior. A free society is built on the active participation of moral actors, so there is a social cost to losing some of that support.

    This perception also applies to contracts ‘freely entered’ if practical alternatives aren’t available. The freedom to contractually bargain away tinkering rights will only be regarded as just and fair if the practical option exists to add those rights back (e.g. an unencumbered version available for a reasonable additional fee). If a realm as large and important as ‘all popular music’, ‘all recent model automobiles’, or ‘all commonly used software’ are legally available only where tinkering rights have been contractually bargained away, this may be perceived as a legal restriction rather than ‘bargaining in a free market’, and people may set contract law aside just as readily as if the practical restrictions were due to inappropriate legislation.

    In public policy terms, it’s clear that one does not have to legislatively guarantee that alternatives to DRM exist for them to appear (the pathway to burn an unencumbered CD from Fairplay-encumbered products appeared in the market without the intervention of government regulation, for instance), but on the other hand, the argument above might be a condemnation for legislatively implementing strong punishments for violations of such non-tinkering contracts. The additional cost in the marketplace for unencumbered versions of products cannot be much greater than the cost of violating restrictions on an encumbered version, so if the punishments are moderate, there is no leverage for an absurdly large additional cost for
    ‘tinkering’.

  12. Fuzzy says:

    David Robinson writes:
    “If the government were to put a legal guarantee behind the freedom to tinker, it would be reducing peoples freedom to contract by telling them they can’t bargain away their tinkering rights.”

    You write this like it is a bad thing, like freedom to contract is some divine right that must not be tampered with.

    I disagree.

    A legal guarantee to freedom to tinker is no more injust that Amendment XIII to the U.S. Constitution which took away the “freedom” of people to be contract their ownership.
    http://www.law.cornell.edu/constitution/constitution.amendmentxiii.html

  13. jacen says:

    “In fact, when I think about it, I have to admit that I would find a world where DRM works and the ability to tinker can be bargained away to be a bit of a downer.”

    in my view on the world, this is not only “a bit of a downer”, but a pretty big setback. tinkering is not only fun, but also, as you said, has a very important educational purpose. now if i wouldn’t have been able to disassemble most of my hardware in the past, i wouldn’t know how these things work at all. but now i DO know and i CAN predict what happens if you change something, i CAN advice people to buy certain things to almost exactly fit on their need.

    I got a psp last year, and eventhough i am very interested, i know almost nothing about its internals. I always updated the firmware, and thus was never able to use homebrew, let alone write my own. now if people ask me if they should by a psp or a ds and what are the advantages of both systems, i can’t give them the full perspective.

    I see innovation as combination of already availible information. If you tinker, you can get much more information than by just using technology, this tinkering is a huge motor of innovation. A world without tinkering wouldn’t just be “boring” but would evolve alot less fast (at least on the tech sector).

    note:
    this is also why i am against patenting software, patenting the human genome or patenting certain “ideas”. i DO acknowledge that people should get compensation for what they accomplished, but they shouldn’t be given the right to decide who is using their information to what extent like the current patent system is effectively used.

  14. john s erickson says:

    jacen wrote, I see innovation as combination of already availible (sic) information. If you tinker, you can get much more information than by just using technology, this tinkering is a huge motor of innovation. A world without tinkering wouldn’t just be “boring” but would evolve alot less fast (at least on the tech sector).

    This is a huge point, especially if we broaden the scope of “tinkering” from diddling with PSPs and secured media files to studying and expounding upon pre-existing intellectual property. Let’s not forget that it was precisely this concept that let to the birth of the US intellectual property system; Article I, Section 8, Clause 8 of the US Constitution empowers Congress To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    This was no so much about “ownership” as it was about creating a system to get the intellectual property “out there” for citizens in the young country to use and develop. Thinkers like Jefferson and Madison realized that unless they created a system to protect IP, there would be no incentive for creative types to make their works public, and by doing so to develop the economy. It was expected that creators would build upon the works of others; the IP system (in principle, if not in practice) ensures that a work is protected, unless a new work is sufficiently distinct.

    I assert that this is tinkering at its very essence: exploring and understanding “published” intellectual property and building upon it, perhaps sending it in new directions, and thus contributing to society. By “publishing” in this context I mean everything from the usual meaning, to patent filings, to physical works that can be re-engineered.

    Laws like the DMCA fundamentally attempt to turn statements like “No User Serviceable Parts Inside” (which I saw for the first time on the first solid-state radio my family owned) into statements of law. This is more that a violation of my personal space; this violates the original intent of intellectual property systems, which exist to encourage the exploitation of IP and thus the improvement of societies…

    As an aside, I am reminded of the old days of leased mainframe computers and periperals, in which the customer did not own anything exacept (maybe) the information on the computer. All sorts of contracts and licenses would be violated if they opened the box or (gasp) the code. Interesting times we’ve returned to…

  15. Scott Aaronson says:

    David: Would you make the analogous argument about speech? There are very few “power-users” of the First Amendment — people who write or say things that would get them arrested in a police state. It follows, then, that these power-users would be the principal victims were the First Amendment curtailed.

  16. David Robinson says:

    Scott: We appear to have different views about which argument in the free speech area would be analogous to the one I have made in the above post. My argument concerned the reasons for and against permitting people to enter into contracts that restrict their freedom to tinker, so (in my view) the analogous question in the free speech area would be the question of whether or not people should be permitted to enter into contracts restricting their freedom of speech.

    I’m not a lawyer and am not familiar with the law in this area, but isn’t it already the case that people are, at least in many circumstances, permitted to sign away the legal freedom to say certain things, as part of a contract? For example, employees in a business setting are often required as part of their employment contracts not to divulge private company business in public.

    There are sensible “carve outs,” if you will, to the free speech restrictions in employment contracts. For example, certain kinds of whistle-blowing by employees enjoy inalienable free speech protection and cannot be restricted by a contract. Likewise, it may be that certain kinds of copying — e.g., fair use — either currently cannot or in any case in an ideal legal environment would not be restricted by legally-reinforced DRM.

    But to reply directly to your question: I do think that there are at least some circumstances under which the contractual restriction of both tinkering and rights and speech rights by consenting parties ought to be permitted.

  17. Tim says:

    David,

    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.

  18. Neo says:

    “If a realm as large and important as ‘all popular music’, ‘all recent model automobiles’, or ‘all commonly used software’ are legally available only where tinkering rights have been contractually bargained away, this may be perceived as a legal restriction rather than ‘bargaining in a free market’, and people may set contract law aside just as readily as if the practical restrictions were due to inappropriate legislation.”

    Even judges and juries may set contract law aside in cases like these. Such unavoidable contracts are termed “contracts of adhesion” and strongly one-sided clauses in them may be found null and void.

  19. Scott Aaronson says:

    Thanks, David. If all we’re talking about is people’s right to sign “NTA’s” (Non-Tinkering Agreements), then my First Amendment analogy is indeed a bad one. I think the source of confusion — for me and (perhaps) several other commenters — is that you explicitly mentioned “anti-DMCA activism,” and in this universe, the DMCA prohibits many kinds of tinkering before you’ve ever signed anything.

  20. enigma_foundry says:

    I’m not a lawyer and am not familiar with the law in this area, but isn’t it already the case that people are, at least in many circumstances, permitted to sign away the legal freedom to say certain things, as part of a contract? For example, employees in a business setting are often required as part of their employment contracts not to divulge private company business in public.

    NO! You can not contract away your rights. 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.

  21. koz says:

    The idea that the people who suffer most are power users is very awkaward and counter intuitive. Everytime yo lose a piece of control it gets very expensive both monetarily and practically – for example there was a well known operating system that you used to be able to configure yourself,but now you have to pay more if you decide to configure youe old desktop ans a server… – DRM is a similar concept but much more severe in practice. I think you need to re-calculate the costs to the non-power user. In my calculations the difference between the power user and the non-power user is negligable.

  22. Dan Lockton says:

    This is an extremely interesting discussion. I think I’d ask the question, “Even if it becomes illegal to tinker with a device, what is there to to stop someone doing it?”

    If it is purely the fear of getting caught, then tinkering will be stifled, to some extent. But power users will form groups just as they do now, and some tinkering will still go on. (If the tinkering is advanced enough, it will be too difficult for law enforcement to detect/understand it anyway).

    At present much file-sharing activity is illegal, but it still goes on in vast quantities. The fear of getting caught is a major retardation to that activity, I’d suggest; there may also be an ethical component to the decision in many people’s minds. They’re told it’s analogous to stealing a CD from a store, and they believe or are persuaded, partially at least, by that. It seems immoral or unethical.

    But does anyone seriously believe that tinkering with devices is unethical? (There are probably a few people who do, e.g. ZDNet’s Adrian Kingsley: http://architectures.danlockton.co.uk/?p=80 )

    Tinkering with devices will never seem immoral or unethical to the vast majority of the public, hence the only barriers to stop them doing it are a) fear of getting caught and b) lack of knowledge or desire. Most people don’t bother tuning up their cars or tinkering with their computers, even though they could. Power users do, and in a future where tinkering is illegal, it will again only be power users who do it, and fear of getting caught will be the only reason for not doing it.

    So what about this fear of getting caught? How likely is it that one’s modifications or tinkering will be detected by some kind of enforcement agency? The only way I can see that this oculd be carried out in any kind of systematic way would be if observation/reporting devices were embedded in every product, e.g. every PC reporting home every few hours to squeal if it’s been modified.

    But we already have that! Or at least we will soon, and therefore it seems irrelevant whether or not it becomes illegal to tinker with devices. If every computer is ‘trusted’ and spies and reports on its user’s behaviour, whether it reports to Microsoft or a Federal Anti-Tinkering Agency is, perhaps, beside the point. Architectures to prevent or stifle tinkering can be designed into products and technologies whether or not there is a law requiring them. The user agrees to have his/her behaviour and interactions monitored and controlled by the act of purchasing the device.

    Even if the law went the other way, and there were a legally guaranteed right to tinker, all that would happen is that manufacturers will make it more difficult to do so by the design of products. Hoods (bonnets) would start to be welded shut, in Cory Doctorow’s phrase, (the Audi A2 already has this, sort of – http://architectures.danlockton.co.uk/?page_id=6#Audi-A2 ), backed up by stringent warranty provisions. You might have a right to tinker with your device, but no law is going to compel the manufacturers to honour the warranty if you do so.

    This, I think, is the crucial issue: the points Lessig makes about the designed structure of the internet, the code, superseding statute law as the dominant shaper of behaviour in the medium, apply just as strongly to technology hardware. Architectures of control in design (http://architectures.danlockton.co.uk ) will control users’ behaviour, however the laws themselves evolve.

  23. Michael says:

    The more corrupt the republic, the more numerous the laws.
    -Tacitus