Someone else has finally come out and said it, so it’s safe for me to say it publicly: the DMCA is like gun control laws.
Cory Doctorow remarked to me last year that the EFF had evolved from being a Fourth Amendment organisation (which cared about, for example, whether the police needed search warrants to look inside your computer), to a First Amendment organisation, caring about freedom of speech. This got me thinking about where anti-circumvention law fitted in, and I came to the unhappy conclusion that, in terms of the division of subject matter in the US Bill of Rights, anti-circumvention (and banning inconveniences such as Linux) was really in Second Amendment territory.
Of course one starts questioning, was this whole digital computer and Internet thing a good idea in the first place, given the massive potential for abuse? If we’d known twenty years ago what we know now, what would we have done differently? Should people be allowed to have unrestricted digital computers and Internet connections?
Most people don’t have unrestricted digital computers. Due to strong network effects, most people have little practical choice but to use MS Windows. To a limited extent, Windows is capable of preventing you from using your computer the way you want to – you can’t switch off the ads, etc. It can be forcibly upgraded to behave however Microsoft wants, however, and there’s little market forces can do to prevent that.
Of course, absent control over your computer, you have no way to protect yourself against anything anyone might be willing to pay Microsoft to require your computer to do to you. Things they might be willing to fork out for include knowing how much you use particular digital media – that data is of commercial value. On a Linux system, they wouldn’t bother thinking about it, since you can always switch off whatever software is there to tell them how many times you turned the pages of your eBook; on Windows, if they can make it financially worth Microsoft’s while, then they can gather that data; they can also force you to acquiesce in whatever technological régime they can come up with for copyright-like enforcement of restrictions on copying of that digital content.
So, should people be allowed to run Linux and prevent all this? Is the cost of the availability of Linux just so great that it has to be got rid of so we can watch DVDs on our laptops? These are empirical questions which the rightholders refuse to answer.
These technological systems take policy out of the hands of democratically elected lawmakers and the impartial experts in the judiciary and privatise it. Is the availability of the means to protect oneself from being forced to obey the results of such State-delegated private lawmaking something which should be entitled to high levels or protection?
Leaving aside the question of the increased accuracy of firearms over the last two hundred years, the Second Amendment seems to contemplate as its effect (ignoring that teleological guff about militias, which is purpose, not effect) that everyone will be able to opt out of any social obligation by having access to lethal force. Don’t want to pay taxes? Fine, feel free to escalate the situation to the point where you and a few government agents and whatever hostages you might have felt like taking are all dead. That’s the sort of worldview one seems to be aligning oneself with when one analogises anti-circ law to anti-gun law, with the crucial difference that no-one is getting killed.
So those who oppose anti-circ law do have a hill to climb: their free computers allow them to opt out of social obligation; TCP/IP has the same property inasmuch as you can’t be forced to send packets. The point however remains: it may be that social policies such as copyright ought not to be enforced by restrictions on freedom of computation, though admittedly this is an argument from authority, and the dubious authority of the Second Amendment at that.
So, with a contemptuous scowl towards one of the most evil groups in human history (the US militia movement), will we one day be saying “A well regulated Internet being necessary to the security of a free Society, the right of the people to install run and modify Linux shall not be infringed”?
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