A few years back, Julian Sanchez coined the phrase “reductio creep”:
So by now, everyone’s heard about the ludicrous case of the butterball who’s suing the fast food industry because they failed to inform him that shoving lots of cheeseburgers down your gullet will make you a very large and blubbery boy. (He thought “100% beef” meant it was healthy, y’see.) This is, of course, the sort of possibility people raised during the tobacco lawsuits of the 90s as an absurd analogy to holding cigarette makers responsible for the healthcare costs of people who knowingly chose to smoke. “What’s next?” we asked, picking what we thought was an extreme illustration, “suing McDonalds because you get fat?” I think we need a term for this sort of phenomenon, and I’m partial to “reductio creep.” Reductio creep is the process by which an insane extension of some principle, offered as a reductio ad absurdum of that principle, is soon afterwards realized.
Here’s the 2005 version of reductio creep: “plugging the analog hole.” Critics of the DMCA have long argued that one of the problems with DRM is that all digital content has to be converted into analog form in order for human beings to see or hear it, and analog signals can’t be wrapped in DRM schemes. “What are you going to do,” we asked (rhetorically, we thought), “outlaw analog audio and video?”
Some Congressmen, it seems, didn’t get the point. Once the phrase “analog hole” entered the policy lexicon, they started imagining that it’s a literal security hole could be plugged with legislation. As a result, they’ve crafted a horribly complex piece of legislation that mandates that all analog devices maintain and respect government-mandated copy-protection signals within the analog stream.
But applying quasi-DRM to analog devices isn’t going to prevent people from using the “analog hole” to strip copy-protection out of commercial content. I haven’t studied the specific copy-protection methods mandated in this legislation, but if it’s anything like past analog copy-protection schemes, (such as macrovision) any smart electrical engineering student will be able to build a device from standard electronics equipment to strip out the copy-protection encoding. Are we next going to start requiring electronics geeks to get government approval before they can order breadboards and DSPs?
More to the point, the legislation exempts audio equipment already on the market. That means that for the next two or three decades, at least, anyone who wants to circumvent this copy-protection scheme can simply buy used audio equipment.
Finally, many examples of the “analog hole” won’t be affected by this legislation at all. For example, people who smuggle a camcorder into a movie theater and record the movie aren’t going to be slowed down at all by this legislation. Same with people who stick a microphone next to their speakers and record music as they’re playing it. Yes, there will be some loss of quality, but once it’s been done it can be converted into digital format and reproduced an infinite number of times with no further loss of quality.
It’s important that opponents of this legislation not get sucked into treating the “analog hole” as an actual security flaw that can be “plugged.” The “analog hole” is a metaphor for the ease with which analog content can be copied and manipulated, regardless of what format it’s in. “Plugging” it isn’t a serious policy proposal; it’s a pipe dream for people who don’t understand how media technology works.
Update: Peter Suberman’s take on the analog hole is a must-read.