Freedom to Tinker

The conventional wisdom is that yesterday’s deal between the RIAA and tech companies includes an agreement to oppose government mandates of DRM such as the Hollings CBDTPA. But look at this sentence from paragraph 6 of the joint statement (italics added):

The role of government, if needed at all, should be limited to enforcing compliance with voluntarily developed functional specifications reflecting consensus among affected interests.

This is suspiciously close to the approach taken by the Hollings CBDTPA, under which industry groups would have been asked to agree on a DRM “standard” and then government would have mandated compliance with it. (The only difference I can see is that the CBDTPA had a backup procedure under which the government would have chosen the “standard” if industry failed to agree.)

Now, you may object that the “if needed at all” clause weakens my argument. But bear in mind that they could just as well have omitted the quoted sentence entirely. Had they done so, the document would have been clearly opposed to mandates. Instead, they chose to put the sentence in, indicating at least some support for CBDTPA-like regulation.

This is consistent with the phenomenon I noted in my previous posting: the goal is not to prevent or reduce regulation, but to make sure that the regulatory framework can move only in the direction the signatories want.

Often, when people say they oppose regulation, what they really mean is that they like the regulation we already have and don’t want it changed. By implicitly defining “regulation” to mean changes in regulation, they make anti-regulation rhetoric serve a pro-regulation cause.

Yesterday’s statement of principles from the RIAA and some tech companies provides a great example of this. Here is the most-quoted sentence from the statement:

How companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace, and should not be legislated or regulated.

If they really believed this as written, they would support a repeal of the anti-trafficking provisions of the DMCA. If companies want to support consumer expectations for personal use of DRM-protected content, their decision to provide devices that do so should be driven by the dynamics of the marketplace, and should not be legislated or regulated by the DMCA, right? Yet that is not the RIAA’s position.

The pro-regulation argument is hidden here (italics added):

Legislation should not limit the use or effectiveness of [DRM].

If “legislation” is read as “new legislation” then this would seem to lock in the pro-RIAA regulation that already exists, as any rollback of existing pro-RIAA regulation would limit the effectiveness of the RIAA’s attempts to get what it wants in interactions with consumers. Naturally, it’s a one-way ratchet – legislation that improves the RIAA’s position isn’t a problem, but legislation that moves in the other direction is objectionable. When you stop and think about it, this is a pretty cheeky argument.

Some reporters have fallen for the “anti-regulation” spin on the statement. For example, an AP story on the statement says

The agreement attempts to head off government intervention in the rising debate over what consumers can do with copyrighted material they have purchased.

It’s too late to head off government intervention. Maybe we could start by fixing the problems that intervention has already caused.

In the latest Newsweek, Malcolm Jones reports on the hot new American History textbook, “Inventing America,” by Pauline Maier, Merritt Roe Smith, Daniel Kevles and Alexander Keyssar.

As soon as you start reading the new college textbook “Inventing America,” you wonder just how far the authors are going to go. They promise to tell the story of America, complete with bewigged Founding Fathers, abolitionists and the Sherman Antitrust Act—all the stuff you dutifully highlighted in yellow when you took American History 101—but with a twist: it will all be seen from the point of view of innovation.

Americans, they passionately believe, are inveterate creators and tinkerers, whether it’s the light bulb they’re inventing or constitutional government.

The spirit of experimentation is an important part of what America is about, and I’m thrilled to see that fact recognized in an important textbook. Best of all, the book appears to see the deep unity between seemingly diverse types of tinkering, whether cultural, technological, or political.

… the theme of innovation [is] woven through the sections on the Declaration of Independence and the Constitution. “The inventions of this period weren’t technical,” [a professor using the book] says. “They were inventions that put ideology into practice.” Or as “Inventing America” puts it, “The Constitutional Convention became in part an intense and productive working seminar on the cutting issue of its time, the architecture of a free government.” It was, in other words, a lab or studio, and those famous Founding Fathers were experimenting and improvising just as surely as Thomas Edison or Thelonious Monk.

The deep linkage between different types of innovation is a powerful theme for defenders of technological freedom. Technology is not separate from culture; bans on technological progress bleed over into the rest of our lives and impede cultural and political innovation as well. It’s time for our representatives in Washington to wake up and realize that the American way is to embrace innovation, not to ban it.

Jim McGee has some interesting thoughts on the problem of magical thinking, especially as manifested in policy discussions. (He also says some kind things about me. Thanks!)

Here’s one from the Don’t Believe Everything You Read Department.

The Register credulously reports that an anonymous group called “Gobbles” was hired by the RIAA to create and release a worm that infects peer-to-peer networks. The story says that 95% of peer-to-peer connected hosts are infected, and that the worm reports back the contents of infected computers to the RIAA. The story is based on a Bugtraq posting.

If this were true it would be an outrage. But it is almost certainly a hoax. The story is pretty thinly sourced. More to the point, there’s just no way the RIAA could be dumb enough to try a stunt like this. I would have thought the Register was too smart to fall for this kind of tall tale.