Книга: Code 2.0
As broadcast television moves to digital television, copyright holders have become concerned about the risk they face in broadcasting copyrighted content. Unlike an ordinary television broadcast, the quality of a digital broadcast is perfect, so copies of digital broadcasts could likewise be perfect. And the spread of perfect copies of digital broadcasts on a free digital network (the Internet) terrifies copyright holders.
Their response is similar to the response with DAT technologies. First in the FCC, and now in Congress, copyright holders have pushed the government to mandate that any technology capable of reproducing digital broadcasts be architected to respect a “broadcast flag.” If that flag was turned on, then the technology would be required to block any copy of that content. The content could be played, but it couldn’t be reproduced. As Susan Crawford describes it,
The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content “recognized and give effect to” the flag by protecting content against unauthorized onward distribution. The FCC claimed that the rule would protect digital television (“DTV”) broadcasts from massive redistribution over the Internet.
There is a lot to say about the broadcast flag, and if I were doing the saying, most of it would be bad. But for our purposes, it is the form, not substance, of the broadcast flag that is relevant. This is the most direct example of a regulation of code designed to control primary behavior: law regulating code to make behavior better.
In each case, the government directs an intermediary that has some power over code to change that code to effect a change in behavior. Whether that change in code will effect a change in behavior depends upon the power of the particular application. If the application is a MOO, or an online discussion space like Counsel Connect, the power to control behavior is significantly limited. If the application is AOL or Second Life, the exit costs for a user could well be higher. The scope for effective regulation will thus be greater. And if the application is the Internet, or any digital technology produced or sold in the United States, then the power of the regulator is greater still. Code becomes law even if there remains a capacity to escape the regulation of that code.
These examples point to a general question about how regulation will function. That general point requires many significant qualifications. To understand the effect of code requirements on any regulatory policy will require, as Polk Wagner writes, an understanding that is “profoundly dynamic.” Part of that dynamic, of course, is resistance. Individuals can act to resist the force of code directly. Or individuals can act to resist the force of code through code. As Tim Wu has rightly described, code itself is not necessarily regulation enhancing — code can be used to foil regulation. A gun is a bit of code. It works wonders to destroy the peace. Circumvention technologies are code. They weaken rules reinforcing control. P2P filesharing protocols are code. They undermine the effectiveness of copyright regulations that restrict the freedom to distribute copyrighted works. Whether a particular regulation will be effective, then, requires consideration of these interactions, and any code-based resistance it might engender. As Wu puts it,
The reason that code matters for law at all is its capability to define behavior on a mass scale. This capability can mean constraints on behavior, in which case code regulates. But it can also mean shaping behavior into legally advantageous forms.
In this second sense, code functions “as an anti-regulatory mechanism: a tool to minimize the costs of law that certain groups will use to their advantage.”
More fundamentally, these complications suggest that a more general framework is needed. I’ve highlighted an interaction between technology, policy, and the law in this chapter. That interaction suggests a much broader model. In the next chapter, I describe that model. In the chapter following that, we will return to the dynamic of code regulation to consider one other important qualification.