Contracting Away the Freedom to Tinker

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 I might want this law repealed.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.”

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