William Blackstone is a towering legal authority, whose 18th century Commentaries on the Laws of England are still studied today. Blackstone was big on private property as a cure for humanity’s woes. In Commentaries, he wrote one of the most famous definitions of private property in English-language history:
There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.
The term ‘‘intellectual property’’ is a novelty. Until the 1970s, it was very unusual to hear it uttered, especially in legal contexts. As a term of art, it obscures more than it illuminates: when I say ‘‘you have violated my intellectual property,’’ you have to guess whether I’m upset about copyrights, or trademarks, or patents, or database rights, or medical research data rights, or broadcast rights, or trade secrets, or whether I’m using the term colloquially to mean, ‘‘You’ve done something with an idea I think of as ‘mine,’ for some reason, that I object to’’ (think of comedians who object to other comedians telling similar jokes, something that violates no law but is still often called ‘‘stealing intellectual property’’).
Before IP, the rights were spoken of in the specific: ‘‘you have violated my trademarks,’’ ‘‘you have infringed my patents,’’ and so on. If they were classed together, as sometimes happened with rights of creators (as opposed to corporations), they were called ‘‘authors’ monopolies,’’ a term that reflected their aberrant status in US law, as they were legally protected, government-granted monopolies over who could say or publish certain combinations of words – an idea that’s hard to square with the US Constitution’s First Amendment: ‘‘Congress shall make no law … abridging the freedom of speech, or of the press.’’
‘‘Author’s monopolies’’ didn’t become ‘‘intellectual property’’ by accident: the linguistic shift was engineered by the entertainment industry, who wanted to hitch their wagon to Blackstone and his ‘‘sole and despotic dominion.’’ The trick of calling regulatory monopolies ‘‘property’’ upended the idea of real, tangible property. Is a book you buy and treasure something over which you exercise ‘‘sole and despotic dominion?’’ Well, yes and no. You share that dominion with the author (or perhaps the corporation who publishes the author, or, these days, the author’s corporation). You can read the book to your kid at night, and you can read it to yourself on the bus, but you can’t read it aloud on the bus, or make copies of it for your kid.
Old paperbacks sometimes contain dire warnings that ‘‘This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated’’ on pain of law. This kind of restriction – which would mean that you couldn’t give your books to your kids, or loan them to a friend, or sell them to a used bookstore, or give them away to someone nice on the bus – makes sense if you believe that ‘‘authors’ monopolies’’ are ‘‘intellectual property.’’ If I let you use my lawnmower, you don’t get to lend it to someone else, or give it away, or pawn it.
If copyright law were a system of magic in a fantasy novel, we’d never buy it. It’s full of exceptions and carve-outs that ignore its alleged underlying rationale and just fiddle things around for the sake of narrative convenience. That’s why copyright contains the ‘‘doctrine of exhaustion,’’ which says that when I sell you a book I wrote, my interest in that book is ‘‘exhausted’’ and you can sell it to someone else, give it away, or lend it, etc. Why? Because books are a lot older than copyright, and common sense recoils from the idea that the dead hand of the author weighs down the volumes on your bookcase, dictating how you may read and dispose of your books.
In other words: those warnings in old paperbacks are bullshit (the modern equivalent, found on the copyright page of every book, is no less bullshit, by the way: ‘‘No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher’’).
When software appeared in the world, no one was sure what manner of beast it was. A series of landmark court cases and legislative initiatives established, gradually, that software was something like a literary form, and thus entitled to the same copyright as books. For example, 1992’s Bernstein case established that the National Security Agency couldn’t continue to ban the publication of cryptographic code that could be used to scramble messages so well that the NSA couldn’t read them, because this violated computer science student Daniel J. Bernstein’s First Amendment rights to express himself in code. In parallel, the Copyright Office and Congress worked to extend copyright protection to software code, creating an overlapping justification for thinking of code as an expressive form of literature.
Then came the 1998 Digital Millennium Copyright Act (DMCA), which was a giant, gnarly hairball of a law with many sections and subsections. One clause, Section 1201, established a new kind of copyright that reached into the lives of creators’ customers in a new, radical, unprecedented fashion.
DMCA 1201 creates an ‘‘anti-circumvention’’ right. Under DMCA 1201, it’s a crime (punishable by a five-year prison sentence and a $500,000 fine for a first offense) to tamper with a software-based lock that restricts access to a copyrighted work. DMCA doesn’t distinguish between tampering with locks for legal and illegal purposes: once there’s a lock in place that controls access to a copyrighted work, the lock itself is sacrosanct.
The immediate effect of this was to radically shift the balance of power in the entertainment industry, though the industry was slow to recognize this. After DMCA 1201, a company that made an entertainment platform (Apple’s Itunes, Amazon’s Audible, Netflix) where other peoples’ works got locked away behind Digital Rights Management (DRM – another word for these locks) became the sole arbiter of whether and how customers and competitors could alter the locks’ functioning.
That meant that every time Hachette (proprietors of the Orbit science fiction imprint) sold a Kindle book that was encumbered with Amazon’s DRM, they were shackling an Orbit customer to Amazon’s platform. Only Amazon could remove those shackles, on penalty of civil and criminal prosecution under the DMCA. Hachette learned what this meant when, after 10 years, they attempted to renegotiate their deal, only to have Amazon tell them to get lost, locking all new Hachette titles out of Amazon’s storefront, and locking all the previously sold Hachette titles inside the Kindle platform, so readers couldn’t simply move their libraries to one of Amazon’s rivals and switch their book-buying to that platform. After all, you buy one of Hachette’s Harry Potter books because you love J.K. Rowling, not because you love Amazon – it shouldn’t matter which retailer formats Ms. Rowling’s text file and sends it to you, but it does, because Amazon has used its dominance and its DRM to reinforce each other.
From a reader perspective, Amazon’s DRM meant that the legal rights that publishers had been falsely insisting that copyright gave them for all those years suddenly became enforceable. Copyright’s ‘‘doctrine of exhaustion’’ still applied, meaning you could sell or give away your e-books, but because you had to break a DRM to do so, you couldn’t. By failing to distinguish between lock-breaking for legal and illegal purposes, DMCA 1201 gave publishers and movie studios and game companies the power to make up their own private laws and outsource their enforcement to the public courts and police. Breaking a DRM in order to lend your e-book to a friend is just as illegal under the DMCA as breaking the DRM in order to make your own edition and sell it on the Silk Road by the million.
Early in the DMCA’s history, companies tried to use the law to enforce rights in non-entertainment contexts. Lexmark – then an IBM division – used the DMCA to sue Static Controls, which had a competing business refilling old Lexmark laser-printer cartridges and selling them. This is totally OK under the law – indeed, it’s fundamental to how market-based, competitive economies work, and certainly squares nicely with Blackstone (your despotic dominion over your toner cartridge definitely stretches to putting more toner in it for the same reason that it’s legit to keep pens in an old coffee can).
Lexmark had manufactured its cartridges to prevent refilling. When a cartridge emptied out, a bit inside its online storage flipped, recording the cartridge as ‘‘empty.’’ Even if you refilled the cartridge, the printer would still register it as empty, and reject it – so Static Controls figured out how to bypass Lexmark’s controls and flip the bit back to ‘‘full.’’
Lexmark asked a Federal Circuit to rule that the ‘‘empty’’ bit was a copyrighted work (it’s not), and also that the software that prevented you from changing the empty bit from a ‘‘1’’ to a ‘‘0’’ was also a copyrighted work (it is), and that by bypassing the latter to change the former, Static Controls was violating DMCA 1201.
The court disagreed. After rejecting the copyrightability of a single bit, they also set aside the argument that the DRM itself was the copyrighted work that the DRM was protecting. It was just too circular, too nakedly anticompetitive.
As I write this in late September 2016, owners of hundreds of millions of HP printers have woken up to discover that HP had planted a timebomb in their gadgets when, last March, HP updated the printers with a new operating system that silently counted down to September 9th, at which point it triggered a new routine that checked all print cartridges to see whether they were original HPs, or competing brands. In the latter case, HP’s printers reject the cartridges as ‘‘damaged.’’
But HP’s cartridges are a decade more advanced than Lexmark’s old laser-cartridges. Back in the Lexmark days, computing was expensive. Now, it’s virtually free. Like virtually every other gadget, HP’s cartridges have general-purpose computers in them with millions of lines of code running on them – code for cleaning and calibrating printer-heads and many other utility functions. This code is definitely separate from HP’s DRM code, and it’s definitely copyrightable. It’s no single bit.
Today, it’s not clear whether one of HP’s competitors will simply reverse-engineer their DRM and go back into business. But if they do, I’d give good odds that HP sues them under the DMCA. The printercartridge business is HP’s bread and butter, and it is shrinking fast, and if this timebomb proves anything, it’s that they’re getting desperate. What’s more, if I’m smart enough to understand that the DMCA 1201 analysis is potentially different than it was in the Lexmark days, then HP’s lawyers are, too. I’m sure nothing in the preceding paragraphs would come as a surprise to HP’s general counsel.
Printer cartridges are just the tip of the iceberg. Every three years, the US Copyright Office entertains petitions for very limited, mostly symbolic exemptions to DMCA 1201. In 2015, they heard from people who’d been stymied by DRM in John Deere tractors, voting machines, insulin pumps, cars, thermostats, lightbulbs, and so on.
This shouldn’t surprise us. Anything with software in it, by definition, has a copyrighted work inside of it. Everything has software these days: smart rectal thermometers (which are really a thing) and smart birdhouses (ditto) and smartphones and smart TVs, of course.
If you make a gadget with software inside it, you can simply add a thin skin of DRM to it, and configure the device so that the DRM has to be bypassed in order to do anything that lowers your profits. GM uses it to prevent third-party mechanics from diagnosing problems in their cars (and VW used it to prevent independent researchers from discovering that they were cheating on emissions tests). Philips uses it to make sure that you only buy Philips lightbulbs to go in your Philips sockets. Google’s Nest smart thermostats use it to make sure that only they can extend the device’s features, so they can promise power authorities that when the authority turns down your furnace, you can’t turn it back up again.
This is almost too good to be true. Every company has commercial preferences that they wished were legal obligations. Now, thanks to a stupid law from 1998 and the proliferation of cheap computation, every company can make their wish come true.
This is an affront to Blackstone. If the mere presence of a copyrighted work in a device means that its manufacturer never stops owning it, then it means that you can never start owning it. There’s a word for this: feudalism. In feudalism, property is the exclusive realm of a privileged few, and the rest of us are tenants on that property. In the 21st century, DMCA-enabled version of feudalism, the gentry aren’t hereditary toffs, they’re transhuman, immortal artificial life-forms that use humans as their gut-flora: limited liability corporations.
Under DMCA 1201 rules, security researchers who learn of defects in covered products can be threatened, prosecuted, and jailed just for disclosing that the manufacturer made a dumb mistake (the manufacturers get to decide who can embarrass them by revealing those mistakes), meaning that the camera in your living room and the wireless insulin pump your six-year-old is wearing and the Internetconnected car you’re driving down the highway every day are all reservoirs of long-lived digital pathogens that criminals are free to discover and exploit, but that security researchers are not able to tell you about.
Obviously, this is a disaster.
That’s why, nearly two years ago, I went back to the Electronic Frontier Foundation (eff.org), a non-profit dedicated to defending the freedoms of the offline world in the digital realm. I went back to work on Apollo 1201, a moonshot project devoted to killing all the DRM in the world by eliminating the laws that protect it. In the absence of those laws, it’s not hard to break DRM, and there are plenty of good reasons to do so (for starters: you can sell the jailbroken, more capable versions to the customers who’ve been trapped by the extractive, feudal versions).
In July, we filed a federal case against the US government seeking to invalidate Section 1201 of the DMCA. We’re representing Matthew Green, a Johns Hopkins security researcher who’s seeking permission to break DRM in order to investigate the security of systems like voting machines and financial transaction processors, and Andrew ‘‘bunnie’’ Huang, a hardware engineer and entrepreneur who wants to break the DRM on high-def video to enable his customers to make lawful, transformative uses.
When we prevail – which could take a decade, assuming we go as high as the Supreme Court – we will be doing something fundamentally conservative: restoring your ‘‘despotic dominion’’ over the things you buy and own. On the way, we will be campaigning in the dozens of countries whom the US Trade Rep has arm-twisted into passing their own versions of the DMCA, as a condition of ongoing trade with the US. Our argument will be simple and powerful: the DMCA is doomed in the USA, and if they’re not going to enforce it, and you do, then your people will be using American technology to get more out of their property, meaning that only American companies will benefit. Suicide pacts are mutual: when America pulls out, you should too.
This is a big, ambitious plan, but it’s an important one, too. In a world where our bodies are filled with and enclosed by software-enabled devices, we can’t afford to have structural impediments to disclosure of software defects. In a world where inequality is already at pre-French-Revolutionary levels, we can’t afford to give the powerful another means to deprive us of our rights to our own things in order to maximize the rent they extract from us.