Freedom to Tinker

Today’s New York Times runs a brief story by Matt Richtel and Tom Zeller, Jr. on the growing criticism of Sen. Hatch’s INDUCE Act (now given a less bizarre name, and a new acronym, IICA).

Sellers of clearly legitimate products, such as those in telecom and electronics industries, argue that the bill is too broad.

The RIAA shoots back with this:

But Mitch Bainwol, chief executive of the Recording Industry Association of America, a recording industry lobbying group, said the legislation was meant to be narrowly tailored to address companies that build technology focused on illegal file sharing.

The RIAA is just wrong here. There is nothing in the bill that limits it to companies. There is nothing that limits it to technology. There is nothing that limits it to file sharing. Any of those limits could have been written into the bill – but they weren’t. The language of the bill is deliberately broad, and it appears to be deliberately vague as well.

Advocates of the Act have said little if anything to justify its breadth. This will be a key issue in the debate over the bill, if any serious debate is allowed to occur.

Today there’s a Senate hearing on “The Future of P2P”. On Saturday, I gave a talk with a remarkably similar title, “The Future of Filesharing,” at the ResNet 2004 conference, a gathering of about 400 people involved in running networks for residential colleges and universities. Here’s a capsule summary of my talk.

(Before starting, a caveat. Filesharing technologies have many legitimate, non-infringing uses. When I say “filesharing” below, I’m using that term as a shorthand to refer to infringing uses of filesharing systems. Rather than clutter up the text below with lots of caveats about legitimate noninfringing uses, let’s just put aside the noninfringing uses for now. Okay?)

From a technology standpoint, the future of filesharing will involve co-evolution between filesharing technology on one side, and anti-copying and anti-filesharing technology on the other. By “co-evolution” I mean that whenever one side finds a successful tactic, the other side will evolve to address that tactic, so that each side catalyzes the evolution of the other side’s technology.

The resulting arms race favors the filesharing side, for two reasons. First, the filesharing side can probably adapt faster than the anti-filesharing side; and speed is important in this kind of move-countermove game. Second, the defensive technologies that filesharing systems are likely to adapt are the same defensive technologies used in ordinary commercial distributed systems (end-to-end encryption, anti-denial of service tactics, reputation systems, etc.), so the filesharing side can benefit from the enormous existing R&D efforts on defensive technologies.

Given all of this, it’s a mistake for universities or ISPs to spends lots of money and effort trying to develop or deploy the One True Solution Technology (OTSS). Co-evolution ensures that the OTSS would sow the seeds of its own destruction, by motivating filesharing designers and users to change their systems and behavior to defeat it. At best, the OTSS would buy a little time – but not much time, given the quick reaction time of the other side. Rather than an OTSS, a series of quick-and-dirty measures might have some effect, and at least would waste fewer resources fighting a losing battle.

The best role for a university in the copyright wars is to do what a university does best: educate students. When I talk about education, I don’t mean a five-minute lecture at freshman initiation. I don’t mean adding three paragraphs on copyright to that rulebook that nobody reads. I don’t mean scare tactics. What I do mean is a real, substantive discussion of the copyright system.

My experience is that students are eager to have serious, intellectual discussions about why we have the copyright system we have. They will take seriously the economic justification for copyright, if it is explained to them in a non-hysterical way. They’ll appreciate the wisdom of the limitations on copyright, such as fair use and the idea/expression dichotomy; and in so doing they’ll realize why there are not exceptions for other things.

This kind of education is expensive; but all good education is. Surely, amid all of the hectoring “education” campaigns, there is room for some serious education too.