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I’ve been puzzling over a phenomenon lately that I’d like to talk a bit about.  I want to put this out into the ether and get feedback from all of you.  Because I can’t make sense of this—and perhaps your superior brains can.

With the rise in digital content, we’ve seen more and more examples of technology being created to enforce the law and/or a company’s terms of service for their product.  And just because technology can do this, does it mean that we as a society should allow it?

In the past, here’s how the law was enforced:

  • the law exists
  • as a member of a society, you are expected to know about the law
  • if you violate the law, in theory someone punishes you

And here’s how the law is enforced now in some cases:

  • the law exists
  • technology is created to make it difficult or impossible for you to break the law
  • if you somehow manage to break through the technology and break the law, you are punished for breaching the system as well as breaking the law itself

Here’s a real-world example of technology-enforced laws to start the discussion.  The Saudi Arabian government developed an RFID chip with a cyanide implant.  These chips were implanted in known criminals (supposedly terrorists) and if their handlers or probation officers or whoever was watching them suspected that they were violating the law again, BOOM – cyanide in the blood…instant death.  No trial, no due process, just a remotely activated death penalty.

In the world of digital content we see this same practice but in a non-lethal incarnation.

The utilization of internet filters in schools and libraries (and on school-issued computers in kids’ homes) is intended as a way to mandatorily enforce laws against child pornography and the display of harmful and obscene materials in public.  Advocates for this technology sell it as a way to enforce these laws without human intervention.  Unfortunately, the technology doesn’t actually work very well, and about 30% of sites that should be blocked aren’t and 30% of sites that should be allowed get blocked erroneously.  The intention is good, but the side effects are not worth the trade off—both access to legitimate information and the false sense of security the technology creates.  Some schools and libraries realize the inherent flaws in the technology and choose, instead, to do what we as a society have been doing for generations—trusting people to follow the law,  and when they don’t we have policies in place for reprimands or punishments (e.g. calling the cops on their asses).

Another key example is the technology used in digital rights management, called “digital restrictions management” by its detractors, including yours truly.  Once again, the technology was created to enforce the applicable copyright law as well as the company-created terms of service for their products and content.  And once again, the technology doesn’t actually work.  Why?

Digital Rights Management technology doesn’t work because it doesn’t do what the companies tell you it does: stop piracy.  If copyrighted content was easy to get legally at a fair price in an easy to access format (read: one not locked down with layers of DRM software), then more people would be willing to pay for it. Why?  Convenience and safety.  It’s why the music industry is selling DRM-free MP3s and still making money.  I’d rather give $7.99 to a band and get a full, DRM-free, legal copy of their album than try to find a complete, high quality, virus-free version on a torrent site.  Ultimately, these failed attempts to decrease piracy and (in theory) increase sales not only fail, but they drive even more users away.  I strongly believe it is the current state of DRM that drives people into the arms of the pirates—not greed, a lack of ethics, or pure evil.  Unless you count DRM as pure evil, which I do.

So…if the idea of the cyanide-laden RFID chip disturbs you, then (following my logic, anyway) the idea of internet filters and digital rights management should equally perturb you.  And if you’re a librarian, then dammit—both internet filters and digital rights management should perturb you as a professional and you should do everything in your power to fight them both—in your own library and in the profession as a whole.  Fight, librarians! Fight!

“Technology–Enforced Law”

  1. Tony Hirst Says:

    Lawrence Lessig has written eloquently about code as regulation in Code and Code v2 [ http://codev2.cc/ ] and spoken about more recently here: http://www.youtube.com/watch?v=us5CUAsH0U0

  2. Laura Solomon Says:

    When I first got started in IT, my first boss told me early on: “There are no (good) technological solutions for human behavior problems.” So far, I’ve never found him to be wrong.

  3. Steve Says:

    I would suggest that society has been engaging in this kind of technological enforcement for a long time. But, after a while, we stop noticing because the technology has become commonplace.

    Example: 1) Theft is illegal. 2) People invented locks to put on their doors. 3) Legal systems defined burglary (breaking and entering for the purpose of theft) as a more serious crime than simple theft. In some jurisdictions, posession of the tools for picking locks was made illegal.

    If we want to debate the principle, we have to separate the very real problems of improper or premature introduction of the technology from the principle itself.

    I don’t think it’s that hard to find examples of more recent technological enforcement that have been reasonably (not perfectly) effective without imposing intolerable burdens.

    - Shoplifting is illegal: stores install electronig sensing devices in their doorways
    - Stealing computer accounts and identity theft are illegal: people have to log in with passwords
    - Breaking house arrest is illegal: GPS-aware bracelets track movements of convicted criminals (or, an earlier technological device – the telephone allows law enforcement officers to conduct spot checks to see if the convicted is at home).

    So I would argue that the principle is nothing new. I think that it can be applied in reasonable ways. But society retains an obligation to make wise choices about where and how to employ technology. But, isn’t that true of all use of technology?

  4. Burk Says:

    I agree with Steve.. the technologies may be crappy, but they are not a legal problem per se. For instance, red light cameras. I am in favor of 100% enforcement of traffic laws- not sometime, whenever cat-and-mouse enforcement. If the law is good, it is worth enforcing uniformly if appropriate technical means exist. If that enforcement is problematic, the law itself is the issue, not the enforcement.

    On DRM, we had a wonderful system with the physical book- something that is durable, but degrades gracefully and promotes both limited sharing and personal ownership. The move to Kindles and the like is disastrous from a civilizational standpoint, with its central corporate chokepoint and transience/lack of durability. As well as lack of sharability.

    Ideally, we would move to a use-fee based electronic media system where all media are completely freely available and sharable, but each user is micro-charged for each use/view. Creators would then be fairly paid for their actual impact, and the cost of use would be fairly borne by consumers. The micro-charges could be reversed in the case of advertisements, for instance.

    Getting rid of DRM completely doesn’t seem to be a long-term solution, since digital media can be infinitely copied. I’m copying CD’s from the Library, for instance. We just need a more graceful technology than this the-consumer-is-a-criminal approach, by imposing a cost-per-copy instead of a prohibition of all copying.

  5. Teague Says:

    I agree that the solution is to make it easier, not harder, to buy content legally instead of stealing it. It’s probably wishful thinking that major studios, record labels, publishers, etc. will voluntarily surrender the distribution model that gave them near-complete control over artistic output. It’s going to take new generation(s) of artists who believe in the new channels of distribution and will use them, instead of the current legacy systems whose corporate corpses slump over the markets.
    On a tangent, I also have difficulty believing the cyanide chip news story, but that’s really not relevant to the metaphoric role it served for the post on this excellent blog.

  6. M. Bear Says:

    Laws can be tricky, there are lots of stupid and crazy laws are still on the books, a quick will find plenty of sties listing them. So just because a law is absurd and shouldn’t exist doesn’t mean it will be removed from the books or for that matter selectively enforced.

    That we become accustomed to bad laws and sketchy form of enforcement doesn’t change the fact that they are bad and sketchy. Seems that people had gotten used to Slavery for some time and that fact didn’t make it right.

    As for the conflation between theft and piracy when it comes to technology is one of the hardest obstacle to reasonable debate I’ve seen. Copying illegally is not the same as removing property that does not belong to another without their consent. The iteration of the false equivocation between the two is one of the easiest ways to discern just how well someone understands the issue at hand.

    The justification for DRM rest on the premise that artificial scarcity can shape market forces in a way that that the physical scarcity has done for so long which is just not going to happen and subjecting people’s property (your computer) to rather invasive DRM schemes (downloading programs that monitor you used of borrowed media and can delete it) is creepy.

  7. Eric Z Says:

    Sarah – Thanks for this!
    Please keep informing the public about this absolute rape of our rights!
    Big Brother is wrong in every way shape or form.
    Unfortunately – like your article says – it is CREEPING into our lives through the back door unnoticed.
    George Orwell and Ayn Rand have written soooo many books about this – trying to warn us about this – IN THE 40′s and 50′s ALREADY!
    It is up to us to fight this everywhere we encounter it.
    e.g. did you know that Sweden is now in the process of trying to get rid of paper/coin money? They want their nation only to use plastic/credit!
    Why?
    Yeah – we know why – government control.
    Right now the Swedish government is rolling out a huge campaign+media blitz about how real/paper money is “dirty” money.
    They are using the ruse that only criminals like paper money because you can’t track it like credit. Credit is “transparent”….what’s the inverse of this?
    George Orwell warned us about this – it is called “NEWSPEAK” and our modern politicians are doing everything to prove Orwell’s book everyday – “Political speech is designed to make lies honorable and murder respectful”.

    It’s a sad world we live in – but we can change it.

  8. Belinda Says:

    You make some great points Sarah, I agree wholeheartedly with your assertion of paying a band full price for a copy of a DRM free, legal copy of their work rather than having to troll the piracy sites to find a quality version. The other issue that really cheeses me off is the locking in by certain DRM technologies to certain devices. If I have purchased my CD, e-book, movie, etc legally and fairly, I want to be able to use it on whatever device I have or ‘choose’ to buy for myriad purposes and not have to purchase a specific device (eg. Kindle) because I have no choice.

  9. Wayne Says:

    I can’t get behind the statement that DRM is evil. It’s clunky, and annoying, and at times privacy invading, but it’s not evil. For centuries the copyright has been protected from large scale abuse by the simple fact that it was physically hard and difficult to copy something in large quantities. The inherent nature of digital copies and the ability to quickly and easily distribute those copies over the internet blows this difficulty out of the water. Of course copyright holders are going to act to protect their intellectual property. Some of them overreact; and the technology they use is clunky, doesn’t work well, and doesn’t cross platforms. It creates more problems than it solves, puts off more customers than it saves, and doesn’t really stop the ones that would pirate for profit anyways. Yes, it’s a technology designed to keep you from breaking the law instead of tracking you down after you have done so, but, as Steve said above, I don’t see the difference between that and other security measures like locks, alarms, and cameras.

    The only solution I can see is either a sound business model that takes into account the risks and rewards and/or a foolproof and user friendly DRM technology. Not exactly the most useful piece of advice. But it’s all I got at the moment.

  10. David S Says:

    DRM does *not* exist to “stop piracy”, at least from a business perspective.

    DRM exists from a business perspective to recreate the barriers to content that are required in order for publishers of content to capture revenue from the sale of access to that content. Without barriers (aka DRM), how would publishers ever make money on their content?

    That’s the fundamental question that still needs to be answered.

    Apple’s approach to iCloud effectively monetizing piracy by removing DRM as an issue by introducing instead a flat annual fee for access to your music content, with a “no questions asked” policy on where it came from. That’s genius.

    Solve the revenue problem for publishers and I promise the annoyance of DRM will disappear on that day.

  11. Terezita Says:

    Steve, you are a wise man. I’m just as opposed to DRM as the next… free-thinking liberal?… but your examples of older technologies that work really got me thinking. I came off this post thinking, “YEAH, librarian in black, YEAH!” But it is very true that as these technologies get older and have the chance to get their bugs worked out, they’ll be just as accepted and institutionalized as door locks and electronic sensors in department stores.

  12. The Librarian With No Name Says:

    I’ll give you an even more sinister example of technological pre-enforcement.

    Ethanol is an important solvent with a bewildering range of industrial and household uses. Unfortunately, it is also chemically identical to Everclear, and is no more dangerous to drink in its natural form.

    So you’ve got a situation where you can purchase a quart can of ethanol from the hardware store for seven bucks or a liter bottle of ethanol from the liquor store for two or three times that amount, depending on your jurisdiction and what taxes and duties you’re expected to pay on hard liquor.

    Rather than trust upstanding citizens to purchase a taxed bottle of grain liquor instead of just brownbagging a can of industrial solvent, governments added poison to a perfectly drinkable product. “Denatured alcohol” just means “alcohol that contains stuff that will make you blind or kill you if you drink it.” In the US, the denaturing program started during Prohibition, and killed around 10,000 people by the time it was repealed.

    How’s that for DRM?

  13. Eric Hellman Says:

    Speaking of DRM, do you use RFID tags in your library? Are they an outrage?

    This general issue has been recently of great interest to me because of IDPF’s proposal to study lightweight DRM as part of the EPUB standards process: Lightweight Content Protection Brian O’Leary’s blog on that has generated some very interesting discussion: 50 Shades of DR.

    Libraries have a lot of grey area with respect to DRM. I think that ebook lending has zero chance of success without some form of “content protection”. The cognitive dissonance between ebooks and lending (what i call the pretend-it’s-print model) is large and will only get larger. Which is why we’re working on non-lending models for public-sector ebooks (Unglue.it)

    In the case of ebook DRM and libraries, the DRM has the main function of enforcing a license restriction (one-copy-at-a-time lending), not enforcing a law. In that case, is technological enforcement objectionable if it’s perfect- that is to say, it enforces only the license (with fair-use allowances) and nothing else? Are the license restrictions themselves objectionable?

  14. Sarah Says:

    No, we do not use RFID in the library I work for. Are they an outrage? As a librarian I say no. As an individual, speaking outside my role at work as a librarian, I say yes. We could get into that later. :)

    There is cognitive dissonance between eBooks and lending. Absolutely. Which is why I support Unglue.it!

    That being said, I think that DRM enforcing a license restriction is just as scary as if it was enforcing an actual law. Some DRM does enforce law (e.g. copyright law). To me, it’s worse when it’s less than a law–when it’s a license restriction it’s more like using a 20 ton brick to squash a bug. Unnecessarily complicated and powerful.

    And to me both as a librarian and as an individual, license restrictions themselves are not objectionable. Using technology that doesn’t work to enforce them is. But that’s just me…

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