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"?
I've just found Koowarta v Bjelke-Petersen (1982) on the web. Koowarta is arguably one of the greatest modern cases in common law jurisprudence. It's the case that has it all: a racist State government policy foolishly committed to writing, a plaintiff whose ancestors were dispossessed of their property by force, judicial scepticism about overreaching human rights rhetoric, an international treaty which really only concerns domestic affairs, and at root a constitution which seems to confer treaty making power on a federal executive without any concomitant implementing federal legislative power to override the legislative competency of the States. In the end, all that is upheld is the sagacity and gravitas of the judiciary.
Well, I enjoyed it anyway. Gibbs CJ makes arguments concerning the executive granting itself powers by concluding agreements with other states; considering this in the light of the behaviour of the UK Government in relation to the EU is enlightening.
In the UK, copyright is supposedly limited by Article 10 of the European Convention on Human Rights. The analogous provision in the US is the First Amendment. In both jurisdictions, former political leaders have had their memoirs purloined and sued when someone else published extracts. President Ford and Lord Ashdown both won, but in the course of their victories the courts conceded that copyright must be limited by freedom of expression. It's my belief that both the Ashdown and Harper Row cases actuallly served to undermine the limitations on copyright.
The US Supreme Court in Harper Row held that the effect on the potential market for a work was "undoubtedly the single most important element of fair use" (the US copyright statute gives great weight to four matters which the courts should consider when determining if a use was fair). This is in effect largely an acceptance of the market failure theory of fair use which Wendy Gordon was propounding around the time the case was handed down. It implies that fair use might grow or recede as the ability of the rightholder to capture the value of the work changes. In a world where DRM may permit price-discriminating rightholders to capture much more of the value of a work there is likely to be a qualitative diminution in the scope of fair use. To protect fair use from becoming coextensive with that proportion of the value of a work which can never be economically exploited might be achieved by a reformulation of the fair use rule along the lines of the commercial competitive conduct of the unfair user as opposed to the resultant cumulative market impact of his (and others') use.
In the UK case, Ashdown v Sunday Telegraph, the Court considered the interaction between copyright and the right to freedom of expression as formulated in Article 10 of ECHR. The Article incorporates a three-part test: abridgement of the right may only be done if prescribed by law, if necessary in a democratic society, and if for the protection of the rights of others.
The Court rejected without consideration the view put forth by Boukema in the 1960s that the rights against which Article 10 is ineffective ("the rights of others") only refers to other rights set forth in the Convention, as opposed to other interests covered by the Protocols or outside the ECHR system altogether, and opted for a more arbitrary and fluid standard of so-called fundamental rights liable to permit restrictions on freedom of expression wherever this is in the public interest, the opposite of what many have mistaken the ECHR provisions to mean. Into the first Protocol to the Convention, which concerns itself with private property rights in "possessions", the Court read a protection of a much broader conception of private property interests in general. Arguably the reading was more general than the word "possessions" can reasonably be held to cover, as it was extended to interests in intangibles such as copyright.
The third part of the test having been circumvented, the second part, relating to democratic necessity, is practically ignored; the treatment seems to revolve around whether or not ECHR would need to be considered in relation to the facts of every IPR case (which argument I admit to not understanding), and the number of statutory exceptions to copyright. It is concluded on the basis merely of the existence of statutory exceptions to a right that the right does not infringe some other right more than is necessary in a democratic society (though the Court of Appeals did employ a comparative law justification in support of this). This all begs the question of how much the copyright statute could be tightened up before it infringed ECHR.
So in the US, fair use is made to lean most heavily on that one of its four pillars most susceptible to the ground moving beneath it. The situation in the UK appears to be that, to the extent that Ashdown was rightly decided at all, copyright is unaffected by freedom of expression so long as it has at least some exceptions. Both seem to permit copyright to expand almost to the total exclusion of fair use.