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.