Here’s a story I heard recently from an anonymous source. Based on the source’s identity and some of the details of the story, I believe it to be true. I have omitted some details here, to protect the source.

A well-known company, running a massive multi-player virtual world, was considering adding a new space to their world. Due to the nature of the space, characters there would probably want to make music. So the programmers created a set of virtual musical instruments, and tools for players to create their own instruments. The plan was that players would get virtual instruments and make music, for all of the reasons people make music in the real world.

But management nixed the idea, on advice from lawyers, because of concerns about copyright infringement. The problem was that players might use their virtual instruments to play copyrighted songs, and the game company might be sued for contributory or vicarious copyright infringement, for failing to prevent this.

Stop for a minute to think about this. All kinds of virtual objects exist in this virtual world, including a wide variety of weapons. But saxophones? Too risky. Presumably management would have approved a magic saxophone that was only capable of playing non-copyrighted songs, but the engineers had no idea how such a thing could be built.

To put this in context, recall that programmable virtual instruments are widely sold and used in the real world. They’re called synthesizers, and they’re really just computers that can be programmed to play any sequence of sounds, whether copyrighted or not. It’s not so easy to draw a principled line between real-world synthesizers and game-world instruments that makes one legal and the other illegal.

Perhaps the company was being overly cautious and the lawsuit risk was illusory. But I’m not so sure. This would hardly be the most farfetched copyright lawsuit we have seen.

John Mark Ockerbloom emailed an interesting story about Federal regulation of tinkering with household chemicals, which I quote here with permission:

I just washed our kitchen floor tonight. And (I admit guiltily)I haven’t done it in a while– usually I “let” my wife do it. So I look at the small print on the label of our Lysol All-Purpose Cleaner to remind me what to do, as I fill a bucket with water. And there I see the words “It is a violation of federal law to use this product in a manner inconsistent with its labeling.”

And I get to wondering: what law? And why? It’s all well and good that, for now at least, I can tinker with my digital TV signal, and I’m right with you at wanting to be able to tinker with my software. But supposing I like hacking cleaners or chemicals instead of code– why can’t I tinker with my cleaner like I should be able to with my computer?

Maybe, I think, it’s just like one of those overbroad warnings you sometimes see affixed to copyright notices. And I start to think about what the *real* regulation might be– using it to make a drug? An explosive? Poison? What can I really do with this, and what can’t I? And why?

15 minutes after firing up Google, I think I have my answer. Technically, under federal law I really *can’t* do anything with it other than what the label tells me to do– unless it’s to use a lower dose than what’s on the label. The relevant law appears to be in Title 7, Chapter 6, Subchapter II: Environmental Pesticides. 7 USC 136j tells me it really is illegal to use pesticides in a manner inconsistent with the labeling. And “pesticide” is defined in 7 USC 136 (u). I don’t see that it obviously includes my Lysol bottle, but another web page tells me that the EPA considers this definition to include disinfectants. My Lysol bottle claims to disinfect, so I gather this makes it a pesticide, and therefore subject to this federal law, and thus illegal to hack, as it were.

Now, my question: is this legal overreaching, and if so, where exactly is the overreach? I can see a legitimate reason for a government (if not federal, than at least state) to stop people from polluting the environment, as might occur if they dump too much bug killer– or even household cleaner– into the air or water. But can they really prevent me from doing anything other than what the labeler allows with my cleaner? (Like try to mix it with other ingredients to make a safer cleaner, or doing cleaner-vs-Twinkie endurance experiments, or seeing if I can separate some ingredients from the rest– in all cases being careful to contain and control the liquid and its vapors, and keep them on my property?) Or is the EPA, or Congress, overstepping its powers somehow?

And if not, then is there anything stopping Congress from giving, say, the FCC broad powers to prohibit using, say, digital media or devices in a manner inconsistent with the labeling their manufacturers give them? (There might be the First Amendment… or there might not be. It’s not clear it would apply in all electronic tinkering cases, and cases like Pacifica show that it can overridden in some cases where it would seem to apply.)

I’d be interested in finding out more, before I start seeing notices saying “it is illegal to record this program in a manner inconsistent with the presence of commercials” on my TV…

He also notes this:

I do see that it’s possible to get an “experimental use permit” to tinker with things considered pesticides, described in 7 USC 136c. Though it sounds like it’s not trivial to get; among other things, there’s a sentence in 136c that states “The Administrator may issue an experimental use permit only if the Administrator determines that the applicant needs such permit in order to accumulate information necessary to register a pesticide under section 136a of this title.”