November 2005

Not much in the case of Sony’s latest clumsy attempt at copy protection. The Register links to a report at Sysinternals that investigates the sketchy things that Sony does to prevent you from making too many copies of its CDs:

The Sony CD creates a hidden directory and installs several of its own device drivers, and then reroutes Windows systems calls to its own routines. It intercepts kernel-level APIs, but then attempts to disguise its presence, using a crude cloaking technique. Disingenuously, the copy restriction binaries were labelled “Essential System Tools”. But the most disturbing part of the tale came when Russinovich ran his standard rootkit-removal tool on the post-Sony PC. “Users that stumble across the cloaked files with a RKR scan will cripple their computer if they attempt the obvious step of deleting the cloaked files,” he writes.

So here’s my question, in all seriousness: how would the DMCA apply to this case? Poorly-written device drivers can be a threat to your computer’s stability and security–not to mention that it apparently slows down your computer even when you’re not playing a CD. But maybe removing it would constitute circumvention of a copy-protection scheme? Maybe I can remove it when the CD is not in the computer, but I have to allow it to be re-installed when I’m playing the CD? Would an anti-virus program that prevents it from being installed constitute a circumvention device? What if I disable the “autorun” feature in Windows? Is that circumvention?

The DMCA debate often proceeds as though “circumvention” is a clearly defined, obvious concept. But I think this example shows that it ain’t so. I assume that disabling auto-run (which requires changing one value in the registry isn’t illegal, but then where do you draw the line? Does “circumvention” require a minimum amount of technological sophistication? Or does the law simply require that I keep badly written device drivers on my system forever if they were put there as part of a DRM scheme?

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James DeLong has a good post on the copyright issues raised by Google Print. He highlights past cases in which property rights have been changed to reflect changing technological and institutional realities:

The controversy highlights one of the most important dimensions of property rights, in both theory and practice, which is that property rights regimes are not cast in stone. They are established under a particular set of technological and institutional conditions, and as these change some rethinking and evolution is required and inevitable.

Such change is tricky business, because any concession that property rights are malleable turns into a handy excuse for massive rent-seeking. One road to riches is to persuade governments to redefine property rights so as to take what other people had and give it to you, pleading the need for adaptation to new circumstances.

I actually think there’s a fairly clear distinction to be drawn between changes to property rights on the one hand, and clarifications on the other hand. He talks about the case of airplanes. In theory, property law said that a property owner owned all the air above his land, but with the advent of commercial aviation, that doctrine quickly fell by the sayside. Here’s DeLong’s take:

So, obviously, there was a massive transfer of property rights in the heavenly sphere away from landowners to the nascent aviation industry. You can say that property rights were simply redefined so as to recognize the reality that you do not really own all the way to the sky, or you can say that pre-existing rights were indeed taken, a la eminent domain, and that compensation was due, but that the value of the right to the landowner was zero, so the compensation due was zero. But there is still a redefinition involved because, obviously, the right to extract ransom from airplanes, once they have been invented, is not zero.

I think there’s a third way to think about it: property rights were neither re-defined or transferred. Rather, an ambiguity in the existing rules was resolved. The common law property rights doctrines that existed at the time of the Wright Brothers flight had been developed over centuries by judges who had never seen, and probably couldn’t have imagined, commercial airflight. So while the official doctrine was that you owned the air above your land, it wasn’t clear what that meant. No one had ever been able to fly, so what exactly constitutes tresspass wasn’t well-defined. You could make a plausible argument that flying over someone’s land at 10,000 feet was so fleeting a presence on any particular landowner’s land (indeed, it might be difficult to determine exactly whose land a particular airplane passed over) that it didn’t merit being called tresspass.

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