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Control Freaks: Modding and the Clash with Law

by Andy Oram
10/28/2005

Modding is childish and eccentric and deeply serious. People are investing major chunks of disposable income and (astonishingly, in a flat-out work-obsessed society where no one has time) untold hours in modding. It's one of the fastest up-and-coming social trends in the United States.

And modding has already tumbled head-on into a legal snake pit. This is entirely the doing of large entertainment and media companies, although Justice Department employees without enough work on their hands sometimes take up the cause even more zealously. It will be a big paradigm culture shift when major actors look at modding as a social and business issue instead of a legal one. This article tries to explain why that's so important and what its consequences may be.

Big and Growing

Modding, briefly, is the creative alteration of devices and systems, real and virtual. Signs of the vitality of modding include:

Different as these are, at heart they spring from the same impulse. They all push some system beyond its generally accepted limits. That is what makes them different from the old fixtures of popular culture: movies, TV, music listening, games (video and physical), and gambling.

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Modding hasn't come anywhere near the popularity of those cultural fixtures--not yet--but it's having an effect on them. What's most important is that it's sucking up a lot of the Yankee ingenuity and creative excitement on which the other forms of culture depend.

OK, don't press me for figures. I can't claim modding is any more widespread in this decade than it was earlier. For a long time people, have tinkered with their cars, written free software, and made personalized music tapes. But the trends are coalescing. The people doing them are finding each other. They might have been dismissed as oddballs before, but now they've got pride.

That's what turns something into a movement. And a force to be taken into account--particularly when companies lay out business plans, and the legal system decides where to tie yellow tape around some intellectual turf.

The Counterforce

There are all kinds of cultural commentators. Some focus on discourse (news and the framing of public issues). Some focus on entertainment (movies, music, and games). Some on media (the delivery of discourse and entertainment). Finally, a few of us are just interested in information (access to and accurate use of data).

All these things mill around within a legal framework. Some countries place lots of legal controls on them, but in the United States--because the First Amendment still flies pretty high--the main control turns out to be copyright law. By the way, I haven't forgotten that this article is about modding. But right now I have to talk about copyright as cultural control.

Copyright as cultural control? Commentators tend to say copyright is either something philosophical (some countries explicitly talk of authors' moral rights) or a simple economic bargain (a monopoly extended to encourage creativity). Yet copyright operates more and more as a control on culture. It's modding that brings out just how intrusive the control is.

Really, where's the big threat in music sampling, reverse engineering, and other types of playing with copyrighted materials? (Or, in some cases, trade secrets and other controls.) Why are musicians being hauled into court over the reuse of a few seconds of music or video? Why was it risky to publish Hacking the Xbox? Why do so many companies see these things as threats?

Maybe the lawyers are visionaries in reverse, Grand Inquisitors who realize they have to nip a movement in the bud before it predominates. But I have a more optimistic attitude. Entertainment companies are just stuck in old-fashioned thinking. If they realize where modding comes from and what a powerful force it is, they may adapt to it, instead of being control freaks themselves.

Why Is Modding Powerful?

Why do people spend so much time and money on something that will probably bring neither fame nor fortune? There must be other reasons to turn to modding.

The kind of exuberance and play we see in modding is usually thought to be associated with times of peace and prosperity. But such playfulness has also turned up in periods of mounting anxiety and suffering, such as Weimar Germany.

The U.S. and many other economically advanced countries are just wrapping up a time of peace and prosperity, which laid the groundwork for modding. (Among other things, it created the software tools and cheap physical components that bring modding within reach of a lot of people.) But inhabitants of these countries are also conscious or semi-conscious of upcoming anxiety and suffering. Whether or not they speak of it, they face the risk of:

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The spiritual effect of the last item will perhaps be worse than the physical effects of all of the rest put together.

The direct way to deal with these risks is to study them and take action, but we can see why few people do. It's a tough job, and none of the major institutions of society support this kind of questioning and forthright advocacy.

Mass media--they can't stand it. Their business rests on a consumer society, and they're already panicking over how to keep their audience sitting still long enough to shove an ad at them.

Governments--they couldn't tolerate it, because activism would impinge on their everyday role of distributing wealth to the powerful. Ultimately, legislators and regulators would have to explain what they're doing, which would be an embarrassment at the very least.

Even educational institutions--they'd be challenged by it, as much as they'd like to encourage it. Teachers already have trouble keeping order in the classroom. And the more these institutions are judged by rigid, measurable outcomes (whether test scores or job placement), the harder it is to embrace the joys of individual action.

Don't consider me a pessimist. I don't think change is beyond our reach. Hard, yes, but not unattainable. Governments can and do meet public needs. Media outlets do report facts and trends. Schools and colleges turn out people who can think and evaluate these facts and trends. People of integrity exist in these institutions and sometimes make themselves heard. But there is resistance all along the road.

The resistance can't help but change the behavior of millions who possess a natural creativity and an urge to get control over their lives. Blocked from acting on the risks and larger factors in their lives, they turn their creativity and desire for control to something playful, and perhaps practical.

I admit we're in the realm of seance here. I'm dealing in total speculation--but luckily, you don't have to accept this particular point to appreciate the rest of the article. I'm just suggesting a reason for the strength of the urge to mod.

So modding is full of vitality. And I think this vitality comes from powerful, even desperate, urges. That should be a warning about how to deal with it--don't try punitive discouragement.

Copyright Clash

There's no way to duck the recognition that modding is often a violation of copyright laws. And not necessarily new, radical laws such as the Digital Millennium Copyright Act, but established laws with centuries of interpretation behind them.

Copyright law, fundamentally, places limits on redistribution. Traditionally, you've always been able to sell a used book or hand your newspaper to your neighbor. (There's even a legal term for it: "the right of first sale.") But in online media there's no such right, because the law says you're making a copy every time you show something to somebody--in fact, every time you display it on your own computer screen!

That was the legal doctrine expressed in a 1995 paper put out by the Clinton administration with the characteristic title Intellectual Property and the National Information Infrastructure. It represents the moment copyright law went cuckoo and jumped off the precipice. And now it's the basis of every national and international legal framework about digital media. You are potentially infringing copyright just by accessing content--hence the legal right of content providers to impose their notorious straightjacket licenses.

Further milestones in the devolution of copyright law include:

Note that some actions are taken by companies and some by government--the two sides reinforce each other. And the voice of Congress, which too often parrots the major software and entertainment companies, gets amplified by court cases that sometimes create an even stricter environment. For instance, when some websites published a program called DeCSS that let people crack the very weak encryption protecting movie DVDs (the Content Scrambling System), courts interpreted the Digital Millennium Copyright Act to go up pretty strongly against the First Amendment. Not only did the courts order websites to take down the program; they forced other websites to take down links to sites with the program. True, a link can be functional--it lets you download a program--but it's also a fundamental part of commentary on the Web. Suppressing links is like stopping people from putting footnotes and cross-references in articles.

Entertainment companies and other big content providers seem determined to stamp out music sampling and similar activities, but they don't recognize the force they're up against. They're used to couch potatoes and mindlessly cheering fans. They think passive absorption of prepackaged content will go on forever.

Meanwhile, growing numbers of customers are scared, frustrated, and ready for something new. Some are used to free software and wikis and are chomping at the bit to mod mass culture. Hell, I've seen several movies that I thought I could improve on. All of this is illegal, and that's dynamite. There are only so many rounds the entertainment or computer companies can fire into the dynamite before something happens.

Luckily, several alternatives have been proposed by the Creative Commons. The first step for major copyright holders is to see the power and vitality of modding. Then they may move to a more open model, and the freaks can all get together.

Let's Take Modding to a Higher Level

The greatest thing about modding is that it breaks open closed systems. The effects of it may roll over into techniques that social activists can use. I've presented modding as escapism, but it's a good thing nevertheless. It presents new angles to view, a trait we sorely need in these tight times--tight in resources, tight in thought.

Social activists, too, are modders. We want to change the government into something that supports a productive society. We want institutions to stop hiding facts and to pay attention to science. We want to change corporations, change people's day-to-day behavior, and change our own social relationships.

At the very least, modders can be an inspiration. Their refusal to take no for an answer can motivate the rest of us to do the same. And their creativity can be a model for us to take new looks at the data we have available, and to push new solutions.

Andy Oram is an editor for O'Reilly Media, specializing in Linux and free software books, and a member of Computer Professionals for Social Responsibility. His web site is www.praxagora.com/andyo.


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