posted Oct 30, 2003
in Communication Ethics

Communication Ethics book part for The Law. (This is an automatically generated summary to avoid having huge posts on this page. Click through to read this post.)

As I mentioned at the outset, I don't really think it is my place to lay out a complete legal framework, nor am I necessarily qualified to do so. As long as I was speaking only about ethics and generalities, I feel relatively safe that my opinions are meaningful, but constructing laws is a bit out of my domain. However, I do believe that the analysis of the issues can give lawmakers at least a few concrete guidelines while trying to formulate the practical ethics for the next few decades.

First, as I emphasized repeatedly, catastrophic effects occur when technology is directly addressed; contradictions are inevitable, and the legal loopholes will proliferate. Laws should not address technology directly, but be solely concerned with effects on humans. Even recent laws have been falling down on this criterion; the DMCA outlaws "circumvention of a technological access protection measure", instead of the more proper, more general, and more human-centric "accessing of a message without paying the owner a reasonable fee", or some other reasonably human-centric formulation of the real point of the law. By mentioning technology at all, one invokes a morass of issues about what constitutes circumvention, the logic behind outlawing DeCSS even when used only to view DVDs the viewer owns a fully legal copy of, free speech implications of such outlawing, etc. If one merely bans the effect of viewing a protected work without paying, with regard only to the payment and without regard to how the protections were circumvented, a much more general and yet simultaneously less objectionable law is created.

Second, once that principle is understood it becomes clear that the primary public policy question to answer is "Shall a given effect be legal, illegal, or something in between?" Rather then asking if a particular annotation technology is legal, ask if anything with an annotation effect is legal, or under what circumstances it may be legal. Rather then trying to define "framing" in the context of HTML itself, ask if the idea of re-wrapping somebody else's content in a new border is legal, and under what circumstances it is. Once a list of basic effects is created over time, through legislation and court cases, a coherent and meaningful body of law could be created that is actually fair, predictable, and workable. Even if someone creates the World Wide Web Squared, a wonderful new digital frontier as different from the WWW as the WWW is from a world with just email, that case law would still be very useful in determining what was legal and illegal in that new environment.

Prof. Touretsky's Gallery of DeCSS descramblers, previously mentioned in the Software Patents section, brings up a serious of concrete questions about what constitutes a circumvention device under current DMCA law. It highlights the absurdities that are inherent in the way the DMCA tries to define a "circumvention device". Such a gallery is an excellent concrete example of how one can try to skirt the law by dancing around the line; there is a very smooth continuum between "graphic" and "program" shown in the gallery. This highlights the absurdities in the way the DMCA tries to define a "circumvention device"; as soon as you try to nail down a definition of "device", somebody can come up with something that isn't quite a "device", but would allow "circumvention" with a reasonable amount of effort.

With my formulation of the issues, even if you do decide to "ban DeCSS" there's a reasonable answer to what constitutes a "circumvention device": DeCSS is a "circumvention device" the moment it is used to do something that affects a human, in this case, decoding a DVD that the law says should not be decoded. Even a copy of the DeCSS algorithm, sitting on the hard drive, one simple command away from running on a DVD, is not a circumvention device. It must be loaded into memory and actually executed in such a way as to affect a human, and only that copy is a circumvention device. Even a partial application of these principles would correct some of the outright absurdities embedded into current law. Again, this boils down to the following the effects: The question is whether a movie was illegally watched, not whether a program was executed.

In many of these cases, there is a societal judgement call in where the line is, and while I have my opinions, I certainly believe that there are a number of other valid opinions. Thus, I don't really see the point in trying to enumerate these effects and giving my opinions. What I really care about is that these principles be used to create good law, better then the inconsistent, incoherent trash currently being passed and judicated currently.


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