Freedom to Tinker

Elisa Batista at Wired News reports on the Cellular Telecommunications and Internet Association (CTIA) trade show. Rep. Billy Tauzin gave his perspective in a speech:

But Tauzin did offer [CTIA CEO Tom] Wheeler some advice in order to avoid more regulation: Have the industry clean up its act. If it doesn’t want to be hit by legislation, it should improve cell-phone coverage, roll out enhanced 911 service in a timely fashion so that anyone who dials 911 on a cell phone can get help immediately, and build a mechanism to protect content from piracy over wireless devices, he said.

That’s right, folks – DRM for cell phones.

(Thanks to Mark Seecof for the link.)

Regular readers know that one of my running themes is the harm caused when policy makers don’t engage with technical realities. One of the most striking examples of this has to do with DRM (or copy-restriction) technologies. Independent technical experts agree almost universally that DRM is utterly unable to prevent the leakage of copyrighted material onto file sharing networks. And yet many policy-makers act as if DRM is the solution to the file-sharing problem.

The result is a kind of regulatory ratchet effect. When DRM seems not to be working, perhaps it can be rescued by imposing a few regulations on technology (think: DMCA). When somehow, despite the new regulations, DRM still isn’t working, perhaps what is needed is a few more regulations to backstop it further (think: broadcast flag). When even these expanded regulations prove insufficient, the answer is yet another layer of regulations (think: consensus watermark). The level of regulation ratchets up higher and higher – but DRM still doesn?t work.

The advocates of regulation argue at each point that just one more level of regulation will solve the problem. In a rational world, the fact that they were wrong last time would be reason to doubt them this time. But if you simply take on faith that DRM can prevent infringement, the failure of each step becomes, perversely, evidence that the next step is needed. And so the ratchet clicks along, restricting technical progress more and more, while copyright infringement goes on unabated.

James Grimmelmann at LawMeme offers a typically insightful and entertaining summary of the recent Berkeley DRM Conference. Here’s my favorite part:

And thus, the sixty-four dollar question: Is any of this [DRM technology] really going to work? The question tends to come up about once per panel; most of the panelists do their best to avoid dealing with it. The techies are split. The ones who go to great pains to say that they don’t speak for their companies say “no, DRM is a pipe dream.” The ones who don’t include these disclaimers either avoid the question or say “well, we’re doing our best.” The content industry reps treat effective DRM as almost a foregone conclusion. It must exist, because if it doesn’t, well, that would be too horrible a future to contemplate.

The lawyers in attendance, strangely enough, don’t seem to care whether DRM can work. I would have thought that the technical feasibility of effective mass-market DRM was the critical threshold question, but apparently not. I suppose it’s because they’re so accustomed to speaking in hypotheticals.