wired shut: copyright and the shape of digital culture

Reading Wired Shut. I picked up this book at one of my favorite stores, the Chicago Borders on North Michigan (next to the water tower), and later attended a phone presentation by its author, Tarleton Gillespie. The presentation and book emphasize the increasing role of DRM, or "regulating the design of the technology so as to constrain use (6). One notable problem related to DRM concerns fair use: "the translation of legal rules into code may not prove particularly adept at handling copyright's legal subtleties" (8). Beyond DRM, the concept of "robustness rules" requires software designers to create systems resistent to enhancement or hacking (depending on your point of view) by users.

Reading this book brings a realization of the importance of balance between public and private interests in copyright law, and how much the balance has shifted against the former. The limit upon copyright expressed in the Constitution ("limited times") has been undermined by laws that have increased the term of protection, capped off by the Bono Copyright Term Extension Act. The other significant balancing mechanism, fair use, has more limited value in the digital realm (when compared with analog materials). Why is this true? Gillespie notes that "multiple copies for use in the classroom are also included in the fair use exemption, although subsequent case law has designed very specific restrictions on that activity" (30). But, has Lawrence Lessig notes, multiple copies are intrinsic to computing technologies.

In early October, a jury decision favoring the RIAA was announced. It's hard to say what this means for the long term. You'd assume that the RIAA will continue suing music downloaders, including its customers, and that the pressure to settle will be significantly greater than it already was. There is a lengthy discussion in Wired Shut, beginning on page 40, about music, copyright law, and how changes in encoding and distribution technologies fit into the cultural landscape. Certainly, this jury decision is consistent with the decisions described by Gillespie in this section: A&M v. Napster, MGM v. Grokster. Ultimately, the content owners win, the permission culture expands. Even with this domination, content owners are shifting their emphasis towards DRM, moving to trusted systems, which builds rights holder protections into systems architecture, at the expense of legally-encoded concepts such as fair use. As Gillespie notes, "the most obvious way in which privatized technical copy protection can distort the subtle balance built into copyright law is with fair use" [59]. Instead of the current ambiguity built into copyright law thru fair use's four factor test, DRM systems would logically be designed to block any uses that would fall into the grey areas. Gillepie quotes Edward Felten, who noted that "the legal definition of fair use is, by computer scientists' standards, maddeningly vague...the vagueness of the fair use test makes it essentially impossible to create a DRM system that allows all fair uses" [60].

Chapter 4 is centered on the late Jack Valenti, former head of the MPAA, who presided over a sharp decline in the decency in motion pictures and launched what Pamela Samuelson called (quoted by Gillepsie in the chapter) the "copyright grab." That is, using the changes forced by digital technologies to lead the public into forgetting the true constitutional intent of copyright (encoded in Article I, Section 8, Clause 8). Gillespie recaps Valenti's demonization of content downloaders. As one facet in this argument, Valenti asserted that "piracy" threatened the film industry's ability to market its product worldwide. Gillespie's analysis notes that "it is precisely the US content industries' push to colonize international markets that makes their product so culturally problematic for the rest of the world..." (117).