Книга: Code 2.0



The most significant feature of digital media is that copies can be perfect. Digital media is just data, and data is just a string of 1’s and 0’s. Computers have complex algorithms to verify that when they’ve copied a string of data they’ve copied that string precisely.

This feature thus creates a new risk for sellers of content. While the code of analog copying technology meant that a copy was a degraded version of the original, the code of digital technologies means that a copy could be identical to the original. That means the threat to content providers from “copies” is greater in the digital world than in the analog world.

Digital Audio Technology (DAT) was the first technology to expose this risk. Like any digital recording, it can, in principle, copy content perfectly. Content providers were thus terrified that piracy from DAT tapes would destroy their industry, so they lobbied Congress effectively to add new laws to protect them from the digital threat.

Congress could have responded to their request in any number of ways. It could have used law to regulate behavior directly, by increasing the penalty for illegal copying. It could have funded a public ad campaign against illegal copying or funded programs in schools to discourage students from buying pirated editions of popular recordings. Congress could have taxed blank tapes and then transferred the revenue to owners of copyrighted material.[57] Or Congress could have tried to regulate DAT technology to weaken the threat that technology presented for copyright.

Congress chose the latter two. The Audio Home Recording Act both taxed blank tapes slightly and regulated the code of digital reproduction technologies directly. The Act requires producers of digital recording devices to install a chip in their systems that implements a code-based system to monitor the copies of any copy made on that machine.[58] The chip would allow a limited number of personal copies, but on copies of copies, the quality of the recording would be degraded. Congress in essence required that the code of digital copying be modified to restore the imperfections that were “natural” in the earlier code.

This again is Congress regulating code as a means of regulating behavior — mandating that multiple copies be imperfect as a way to minimize illegal copying. Like the telephone regulation, this regulation succeeds because there are relatively few manufacturers of DAT technology. Again, given a limited target, the government’s regulation can be effective, and the effect of the government’s regulation is to make more regulable the primary targeted behavior — copyright infringement.

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