Contracting Away the Freedom to Tinker

by on July 28, 2006 · 8 comments

There’s an interesting discussion going on at Freedom to Tinker about the interaction among the DMCA, DRM, and contract law. After David Robinson painted a stark dichotomy between legal restrictions on the freedom to tinker (such as the DMCA) or legally mandatory tinkering rights, I pointed out a middle ground: that the law should neither restrict the freedom to tinker nor give that freedom special legal status.

Cory Doctorow had a response that I think is worth highlighting:

I think that an important point is often missed in discussions of this sort: that a marketplace works best when both opponents and proponents of business-models engage in discourse and attempt to sway customers towards or away from a market.

So while I favor the abolition of the DMCA and the clarification of copyright law to improve the tinkerer’s lot, I likewise believe that it is useful and good to warn people that in a no-DMCA world, it would *still* be a bad idea to contract out of your freedom to tinker, and to agitate against the contracts under discussion here.

There’s an important distinction between the two positions: On the one hand, I think that the law regarding the DMCA should be changed–this is a political/legal response I want to see from government. On the other hand, I have arguments I’d like to publicize arguing against accepting DRM even in the absence of the DMCA, but those arguments don’t call for a legal or governmental response, they merely seek to change a potential customer’s mind.

Imagine that there was a law against spearmint gum. I might want this law repealed. I might also want to convince you that you should buy spearmint gum and not cinnamon.


This distinction should be familiar to libertarians. For example, most of us oppose the war on drugs, but we are more split on whether drug use is a good idea. Many of us believe that drug should be legal, but we don’t approve of it and support non-coercive mechanisms (such as peer pressure and public education) to reduce its use. Other libertarians have argued that not only should drug use not be illegal, but that it’s not that bad for you either. Libertarians frequently stress that not everything that’s wrong should be illegal, and not everything that’s good should be mandatory.

The same distinction can be usefully drawn with respect to digital rights management technologies. Whether DRM ought to receive special legal protections is a separate question from whether DRM is a good thing. One can reasonably believe that the DMCA should be repealed but that DRM is nevertheless useful technology that should be employed without the benefit of special legal protections. Others (such as myself) believe both that the DMCA should be repealed and that DRM is bad technology that ought to be abandoned.

The latter is not, strictly speaking, a policy question. But it’s impossible to talk sensibly about the DMCA without discussing the merits of DRM as such, because a major argument in favor of the DMCA is that it prevents copyright infringement. If that’s false (as I believe it largely is) then the argument for the DMCA is severely undermined. But it’s conceivable that one could oppose the DMCA for other reasons (such as its effects on interoperability) while nevertheless considering DRM to be an important anti-piracy tool even without the DMCA on the books.

I do, however, think that Doctorow is wrong about this:

The problem with placing “DMCA should be repealed/contracting into DRM should be allowed” in the middle is that it sets up a straw-man on the extreme. I don’t know anyone who believes that it should be impossible to contract out of your right to tinker, but many people believe that doing so is a bad idea and will tell you why. It’s a mistake to assume that because we believe you *shouldn’t* do something, we want it to be *illegal* to do so.

In fact, it seems to me that’s precisely what the French government is doing with its mandatory interoperability law. True, signing a contract waiving tinkering rights isn’t literally illegal, but the contract is unlikely to be unenforceable under French law.

For that matter, EFF’s position in the BNetD case could be plausibly described as opposing of the freedom to contract away your tinkering rights. EFF’s brief argues that federal copyright law preempts Blizzard’s end user license agreement, because the EULA impermissibly sought to curtail the defendents’ fair use rights.

Rendering contracts legally unenforceable has the same effect as outlawing their creation in the first place. So unless I’m mis-reading that brief, EFF seems to believe “that it should be impossible to contract out of your right to tinker.”

  • enigma_foundry

    Well this line of reasoning makes many mistakes, but I’d like to start with the most fundamental one: It considers the market-place alone without any recognition of the larger social and cultural reference environment in which the marketplace exists. The market-place exists to serve this larger reference environment. Those who think otherwise should read on.

    Without this set of assumptions, Cory’s reasoning, as another poster had commented, would lead to the repeal of the Amendment XIII to the U.S. Constitution which took away the “freedom” of people to be contract their ownership. Admittedly, that is an extreme example, however it has been a cornerstone of many Consumer Protection Laws (for example, those against unjust contracts in rent-to-own schemes, against usury, or those providing remedies in the case of defective products (e.g., Lemon Laws), which consumers cannot “contract away.”

    In my work as an Architect and Urbanist, I frequently deal with restrictions placed on property which the owners never ‘contracted’ away. I even am involved in establishing those restrictions, for example in Urban Planning projects. There exist restrictions on the type and character of the architecture in my neighborhood (it is an Historic Conservation District). I cannot put siding on, (or for that matter even paint) my brick house, without special permission. In the case of siding, I would never get that permission. This is because my house is also a part of a network (i.e., a neighborhood) in which there exist many stake holders who could suffer a loss because of my actions. Without these protections, there would just be a bunch of houses; with those protections, there can exist a neighborhood, a network that has a greater value than the sum of its parts. Our entire society is connected and considering a part apart from the whole is very risky, and almost always leads to wrong (or very limited) conclusions.

    Now those who are advocating the seemingly unregulated expansion of the marketplace without consideration of its social, cultural or ethical impacts need very much to consider the following fact: the unregulated growth in the (relatively) unfettered marketplace, without connection to it reference environment, has lead to a very real backlash against the market itself. In particular, it has enormously strengthened the radical populist left in much of South America* and given strength to what should be outlier parties in much of Europe. Witness the obvious anger in France over a series of very modest reforms, and the recent strength in Poland (once the poster child for Sach’s-style freeing of markets) of populist anti-liberal reform parties, and any reasonable observer has to conclude the growth of global free market capitalism has reached its high water mark. To those who think America is immune to such a populist movements, I have two words: Ross Perot.


    So, back to the issue at hand: America is a free society, and that freedom is rooted in its cultural and social life, and therefore the market-place cannot be considered outside of its political, social, and moral dimensions. The conclusion that one should be able to ‘contract away’ their First Amendment Rights is just as objectionable and deeply flawed as the proposal that someone should be able to ‘contract’ themselves in to slavery, in contradiction to the XIII th Amendment. Continued attempts to place the marketplace outside of its reference environment actually endanger the continued existence of that marketplace.

    *there is a series of essays by Jorge Casta�?�±eda, in particular Old Left Versus New Left in Latin America on the website Project Syndicate (www.project-syndicate.org) which shed light on this phenomena. Regarding the situation in Europe, I would recommend the series of articles about the recent Polish Government in the Financial Times (or for those more interested in a different perspective in Tygodnik Powszechny in http://tygodnik.onet.pl/ (some articles available in English)

  • http://enigmafoundry.wordpress.com eee_eff

    Well this line of reasoning makes many mistakes, but I’d like to start with the most fundamental one: It considers the market-place alone without any recognition of the larger social and cultural reference environment in which the marketplace exists. The market-place exists to serve this larger reference environment. Those who think otherwise should read on.

    Without this set of assumptions, Cory’s reasoning, as another poster had commented, would lead to the repeal of the Amendment XIII to the U.S. Constitution which took away the “freedom” of people to be contract their ownership. Admittedly, that is an extreme example, however it has been a cornerstone of many Consumer Protection Laws (for example, those against unjust contracts in rent-to-own schemes, against usury, or those providing remedies in the case of defective products (e.g., Lemon Laws), which consumers cannot “contract away.”

    In my work as an Architect and Urbanist, I frequently deal with restrictions placed on property which the owners never ‘contracted’ away. I even am involved in establishing those restrictions, for example in Urban Planning projects. There exist restrictions on the type and character of the architecture in my neighborhood (it is an Historic Conservation District). I cannot put siding on, (or for that matter even paint) my brick house, without special permission. In the case of siding, I would never get that permission. This is because my house is also a part of a network (i.e., a neighborhood) in which there exist many stake holders who could suffer a loss because of my actions. Without these protections, there would just be a bunch of houses; with those protections, there can exist a neighborhood, a network that has a greater value than the sum of its parts. Our entire society is connected and considering a part apart from the whole is very risky, and almost always leads to wrong (or very limited) conclusions.

    Now those who are advocating the seemingly unregulated expansion of the marketplace without consideration of its social, cultural or ethical impacts need very much to consider the following fact: the unregulated growth in the (relatively) unfettered marketplace, without connection to it reference environment, has lead to a very real backlash against the market itself. In particular, it has enormously strengthened the radical populist left in much of South America* and given strength to what should be outlier parties in much of Europe. Witness the obvious anger in France over a series of very modest reforms, and the recent strength in Poland (once the poster child for Sach’s-style freeing of markets) of populist anti-liberal reform parties, and any reasonable observer has to conclude the growth of global free market capitalism has reached its high water mark. To those who think America is immune to such a populist movements, I have two words: Ross Perot.


    So, back to the issue at hand: America is a free society, and that freedom is rooted in its cultural and social life, and therefore the market-place cannot be considered outside of its political, social, and moral dimensions. The conclusion that one should be able to ‘contract away’ their First Amendment Rights is just as objectionable and deeply flawed as the proposal that someone should be able to ‘contract’ themselves in to slavery, in contradiction to the XIII th Amendment. Continued attempts to place the marketplace outside of its reference environment actually endanger the continued existence of that marketplace.

    *there is a series of essays by Jorge Casta�?�±eda, in particular Old Left Versus New Left in Latin America on the website Project Syndicate (http://www.project-syndicate.org) which shed light on this phenomena. Regarding the situation in Europe, I would recommend the series of articles about the recent Polish Government in the Financial Times (or for those more interested in a different perspective in Tygodnik Powszechny in http://tygodnik.onet.pl/ (some articles available in English)

  • Braden

    enigma_foundry makes an all too common mistake – confusing Constituional rights with contractual rights. The U.S. Constitution is a limit on GOVERNMENT action. Private limitations on speech – through employee confidentialitiy agreements, etc. – are very common, indeed encouraged, between private parties. It is illogical that people “contract” around the First Amendment, unless such a contract is with the GOVERNMENT, and even then I’m sure there are Defense contractors and FBI agents that willingly enter into confidentiality agreements with the U.S. that may limit their speech freedoms.

    Unfortunately, the confusion inherent in this post dooms the comment.

  • Braden

    enigma_foundry makes an all too common mistake – confusing Constituional rights with contractual rights. The U.S. Constitution is a limit on GOVERNMENT action. Private limitations on speech – through employee confidentialitiy agreements, etc. – are very common, indeed encouraged, between private parties. It is illogical that people “contract” around the First Amendment, unless such a contract is with the GOVERNMENT, and even then I’m sure there are Defense contractors and FBI agents that willingly enter into confidentiality agreements with the U.S. that may limit their speech freedoms.

    Unfortunately, the confusion inherent in this post dooms the comment.

  • enigma_foundry

    There really is no such thing as a ‘private limitation on speech.’ A confidentiality agreement, in the US, only would grant the party I contracted with the right to recover their losses from me if I broke that confidentiality agreement. And except for a very few exceptions, it is very unlikely that an injunction would be granted against my attempt to exercise my freedom of speech. There is not a chance of that becoming a criminal act, as the DCMCA purports to make certain types of Tinkering. In the US, I need have no fear of going to jail for breaking such an agreement.

    The limitation of disclosing issues of National Security, which you had raised, does not arise from contract law, but criminal code.

    There are many many limits on what rights an individual can contract away. Most of our consumer protection laws are founded on this. For example: there are protections against unfair rent-to-own schemes, and there are ‘lemon laws’ which can not be contracted away in most states. A contract to sell myself into slavery, for example, would be struck down as against public policy. It is also illegal for me to contract to sell my vote. Non-compete clauses, unless carefully crafted for limited reasons, are often ruled to be against public policy, and can be held to be unenforcable contracts. All of these limitations on our ability to contract exist and were informed by forces other than free market economics. They were informed by ideas about justice, freedom, and morality, and this shows that these cultural values are of more importance than the sheer efficiency measures of market economics.

    My point is that the Freedom to Tinker, for me, is implied by freedoms found in the Bill of Rights, and that therefore the Freedom to Tinker is no less deserving of protections that have already been established for illegal contracts.

    Also, consumers, not having the benefits of the large legal staff which wrote the ‘click wrap’ liscence, and being at a disadvantaged bargaining position due to monopolies (for example: Computer OS’s) need protection from certain kinds of contracts.

    The idea that certain types of contracts should be unenforcable may be unpalatable to you, but such safeguards have a long legal precedent.

  • http://enigmafoundry.wordpress.com eee_eff

    There really is no such thing as a ‘private limitation on speech.’ A confidentiality agreement, in the US, only would grant the party I contracted with the right to recover their losses from me if I broke that confidentiality agreement. And except for a very few exceptions, it is very unlikely that an injunction would be granted against my attempt to exercise my freedom of speech. There is not a chance of that becoming a criminal act, as the DCMCA purports to make certain types of Tinkering. In the US, I need have no fear of going to jail for breaking such an agreement.

    The limitation of disclosing issues of National Security, which you had raised, does not arise from contract law, but criminal code.

    There are many many limits on what rights an individual can contract away. Most of our consumer protection laws are founded on this. For example: there are protections against unfair rent-to-own schemes, and there are ‘lemon laws’ which can not be contracted away in most states. A contract to sell myself into slavery, for example, would be struck down as against public policy. It is also illegal for me to contract to sell my vote. Non-compete clauses, unless carefully crafted for limited reasons, are often ruled to be against public policy, and can be held to be unenforcable contracts. All of these limitations on our ability to contract exist and were informed by forces other than free market economics. They were informed by ideas about justice, freedom, and morality, and this shows that these cultural values are of more importance than the sheer efficiency measures of market economics.

    My point is that the Freedom to Tinker, for me, is implied by freedoms found in the Bill of Rights, and that therefore the Freedom to Tinker is no less deserving of protections that have already been established for illegal contracts.

    Also, consumers, not having the benefits of the large legal staff which wrote the ‘click wrap’ liscence, and being at a disadvantaged bargaining position due to monopolies (for example: Computer OS’s) need protection from certain kinds of contracts.

    The idea that certain types of contracts should be unenforcable may be unpalatable to you, but such safeguards have a long legal precedent.

  • http://www.floridadefectiveproductlawyer.net/ defective_product_lawyer

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  • http://www.floridadefectiveproductlawyer.net/ defective_product_lawyer

    This is the great blog, I'm reading them for a while, thanks for the new posts!

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