I mostly agree with Tom Lee’s point here, but I think he’s being a little bit unfair in his characterization of Ed Felten’s post on the AACS/Digg incident. Tom says:
I’m no fan of DRM, and I think the AACS LA’s actions are pointless and stupid. But Doctorow and Felten are being disingenuous — they’re simply too smart not to see the problem with this argument. Namely, that any type of data, sampled at a chosen level of precision, can be represented as a number. Consequently, if you believe that one or more types of information deserve legal protection — as Felten seems to, when he refers to songs & movies — then the argument that “it’s just a number!” becomes ridiculous.
Sixteen bytes is probably too short to merit a copyright. But that’s not the right that the AACS LA is asserting: they’re calling the code a “circumvention device” under the DMCA. And even if you don’t recognize the DMCA’s validity, there are other forms of intellectual property protection that may apply — there are laws related to trade secrets, for example. If you just think about it a little, it should be obvious that even a very short piece of data can enjoy some kinds of legal protection. Sixteen bytes is more that enough room to encode the words “Coca-Cola”, after all.
The thing is, geeks like to pretend that the legal system is some sort of Rube Goldberg contraption, easily foiled by their unparalleled cleverness. Sadly, this isn’t the case. All the IANAL-prefixed prattling on Slashdot about quick & easy ways to make yourself legally bulletproof when the cops/MPAA/interpol come knocking are little more than wishful thinking. It’s like holding your finger an inch from your sibling’s face and yelling, “I’m not touching you!” over and over. Your parents weren’t dumb enough to fall for that, and neither is the legal system.
He’s right about the Rube Goldberg thing. As a matter of law, the fact that something is “just a number” won’t help you if you’re guilty of violating copyright law. Moreover, the position that anything that’s “just a number” should never be restricted is obviously ridiculous. I’m perfectly comfortable with restricting (say) numbers that are JPEG representations of child pornography or PDFs of sealed grand jury testimony. Clearly some “numbers” ought to be legally restricted.
But I do think that focusing on the “number-ness” of the information at issue here is a useful rhetorical tactic. Part of what gives the DMCA a patina of legitimacy is the idea that it restrict shady “hacker tools.” Of course, this is an inaccurate and unfair characterization. Many “circumvention devices” have little to do with infringing copyright, and banning them is bad for technological progress and competition. But this is very difficult to explain to ordinary voters who don’t have the slightest idea how software works.
Although this incident didn’t exactly make that point clear, it does illustrate the breadth of the DMCA’s restrictions. Sixteen bytes is long, but it’s not that long. I think most people don’t clearly understand that “hacking tools” are, in fact, information—the kind you can write on a T-shirt or sing in a song. It bears very little resemblance to a crowbar or a lock-picking kit. And expecting to control the distribution of a 16-byte number once it’s been released into the wild is rather silly.
And I think this is the point Felten was getting at when he wrote that
When I wrote the thirty-digit number that appears above, I carefully avoided writing the real 09F9 number, so as to avoid the possibility of mind-bending lawsuits over integer ownership. But there is still a nonzero probability that AACS LA thinks it owns the number I wrote.
As a practical matter, the odds that he found one of the MPAA’s secret numbers by accident is close enough to zero that we can discount it entirely. But asserting ownership of a 16-byte number is still dramatically different than asserting ownership over a thousand-byte (text), million-byte (music), or billion-byte (movies) number. Thinking about it as an integer is still vaguely plausible—you can write it on a T-shirt or poster with lots of room left over. On the other hand, while you can theoretically represent the latest Harry Potter movie as an integer, you’d need a whole library full of paper to do it. So while we shouldn’t entirely rule out laws restricting the distribution of 16-byte numbers, such restrictions deserve much greater scrutiny than restrictions on the distribution of million-byte “numbers.”
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