Convergence Legal

Wired Shut

Notes on Tarleton Gillespie lecture – Wired Shut: Copyright and the Shape of Digital Culture – Communications Dept, Monday @ 3.30.

Technology as information policy. Copyright is a primary law covering the distribution and use of information and it is the rule that turns information into a commodity (that can be monetized).

Lessig – east coast code (law) and west coast code (software) have the power to regulate and govern activity. Standards and protocols are veiled political choices. And software is being deliberately designed to regulate.

Important to define terms. Copyright has been primarily a way to mediate between businesses/authors.  Consumer copyright obligations were loosely understood. Pre-digital culture.

— author’s exclusive right to duplicate, distribute, perform
— right to license these rights to others
— prohibit others through civil lawsuit

There is a risk of monopoly power and a limit to free speech. So "idea v expression". My copyright ownership ends at some point in time — which makes this very different from tangible property. You don’t have to ask permission to quote – "fair use."

Copyright is a utilitarian method – see the Constitution.

"copyright matters because culture matters."
– spur production of art and knowledge
– scientific progress
– develop an American intellectual tradition (we were a young nation) … in the beginning, our copyright laws did not protect European works (!)

What has changed?
— internet as technological system


  1. Encrypt the material
  2. Mandate rule enforcement thru hardware
  3. Attach rules to content
  4. Dream: compel all devices to honor the same rules
  5. Dream: link to micropayment system

Carlton looks at these issues in entertainment content. Of course, this extends beyond culture – ink jet cartridges.

Sociology of (communication) technology

  • artifacts have politics
  • technology is socially constructed

Heterogenous engineering (trying to get technological determinism out of our language)

  • people intervene in the world by lashing together forces (human, material, natural, discursive)
  • technologists "engineer" more than the artifact
    • Segway: the problem was not making this go
      • changing sidewalk rules, vehicles/walkers/bicycles – a political engineering effort
    • Look at TV — for it to work, we had to think of the spectrum as divisible and "ownable"

What is looked at as "technical" copy protection is more than that – it is a "regime of alignment"

Lessig’s "code as law" problem is important but it also masks missing systems, decisions. Political, cultural and economic arrangements are "consequential" — those changes have implications and are harder to spot than looking just at the technology

  • look at political mobilization and cultural legitimation
  • how do you describe it so that it appears normal, just, fair

Rather than convincing us to obey a law … make unacceptable user behavior technically impossible … requires convincing manufacturers to design devices that protect the artist.

Three examples reveal the difficulties of heterogenous engineering:

  • Secure Digital Music Initiative –
    Goal to create digital music watermark – begun in Dec 1998 – worried about Rio player. Attempt to pre-empt standards fight (beta v vhs) – 200 members – stopped in may 2001 w/no success.
    • technological hurdle – not viable.
    • legitimacy problem with the public (HackSDMI).
    • conflicting economic interests of members.
    • in the middle of this period – napster, mp3, and computer also became music device.
    • it was voluntary – how to move from voluntary to compulsory
  • Content Scramble System (CSS) for DVDs
    Designed in 1996 by small industry coalition
    • to play the dvd, device has to have a key
    • to get the key, you had to sign a license
      • device cannot allow copying
      • must keep decryption process hidden (r
      • upgrade when called upon
      • submit to surprise inspections
    • lock + license
    • DeCSS
      • Nov 1999 – used discovered key to "crack" CSS
      • this was not a hack – it was someone who deduced one of the keys
    • how to regulate those who don’t sign a license: Digital Milleniuim Copyright Act
      • designing a tool to bypass this is illegal
      • gives state power to the CSS encryption and license
  • benefits and disadvantages of calling on state authority
    • legal obligation
    • authority across all parties
    • can encourage obligations in other nations
    • lends legitimacy
    • added bureaucratic inertia
    • must find justification for state mandate
  • Broadcast flag for DTV
    • 1990 – Congress calls for "transition" to digital broadcasting
      • uproar about 1997 "spectrum give-away"
    • MPAA initiates discussion about copy protection
      • considered DVD system
      • "free over-the-air broadcasting" is meant to be "free" – everyone is supposed to be able to get it, "free and open" public airwaves
    • Build a "broadcast flag" that would go across the airwaves unencrypted — TV would encrypt
      • 2003, FCC agreed to this mandate
    • Did the FCC have the right to do this? This is not a copyright-imposing organization – did they have a right to regulate technology?
      • ALA et al v FCC, 2005
        • Court says no
        • Jurisdication over signal only
        • Use of content is not part of FCC mandate
        • In some ways, they were rejecting DRM argument of regulating "use"
        • Congress could give the FCC this jurisdication
    • Courts pulled apar this heterogenous engineering

Separate consequences of DRM as a strategy and DRM systems in particular

  • Impacts on fair use
  • What are the consequences of pursuing DRM at all?
    • These will have consequences about what consumers, Congress, FCC, etc can do
    • Ideological convergence of content and technology industries
    • Ideological convergence of content industry and Congress
    • Encryption as a means to displace law with private licensing?
  • This is not just a story about copyright, but commerce
    • DVD player will not play DVDs from another continent
    • Allows the movie industry to sell different prices, different countries at different times – technological incapability is part of the CSS license but it’s not a copyright issue at all
    • These kinds of decisions help structure and define how digital culture will work

Q/C: Systems are designed to protect the economic interests of a small set of large media companies.
    I think the very premise of DRM is analogous to the fundamental principle of copyright.

Q/C: Consumers seem to be missing in this discussion
    Congress often holds conferences to take advice — the groups of people invited are those who have an interest in copyright protection. There is no consumer/user in that room. P2P is becoming like speeding — activist organizations, free culture movement (youTube) .

Q/C: Long-term issue of archival of digital culture. When 2100 rolls around – none of this stuff will be readable.
    Copyright "ends" –  but DRM does not have an "end" where it pops open.

Q/C: Moral rights (strong in Canada, Europe – not US)

Q/C: Fair use question
    Transformative and redistributive.

Q/C: I think about Google digitizing a library — what if Google makes a standard? How do you make it not worth the effort to break DRM? It ticks me off that Google is digitizing my book without my permission?
    My optimistic answer is that the debate can happen — competing paradigms –journalists and academics are unique. Google is the institution that is going to be heard: cultural authority. They can’t be outspent by the pubisher – they have enough cultural weight will move the debate to a different level.

By Kathy E. Gill

Digital evangelist, speaker, writer, educator. Transplanted Southerner; teach newbies to ride motorcycles! @kegill

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