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Control Freaks: Modding and the Clash with Law
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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:

  • The No Electronic Theft Act of 1997. Even though the initials spell NET, it is more like a crack than a plank in the structure of the internet. The intent of the law was to discourage people from distributing warez (free versions of proprietary programs, distributed without authorization by the copyright holder). Why is the NET act a big deal? Because it made history in a subtle way: it was the first law in the United States to make copyright infringement a criminal matter. Up till then, it was a civil matter, so companies had to spend their own money to defend their copyrights. Now, in some cases, the public has to pay for the government to do it.

  • Software licenses that include a ban on reverse engineering. If you haven't ever read one of those overstuffed and indigestible licenses, try reading one the next time you download software (any media player, browser, anti-spyware program, and so on). Unless the software is open source, the license is almost guaranteed to include a ban on reverse engineering, along with other obnoxious restrictions on what you can do. Some licenses even prohibit you from criticizing the software in public! All of these clauses tend to get struck down by courts when they're challenged, but they keep getting included anyway, and the threat of legal action kind of takes the fun out of modding.

  • Don't care about the unenforceable stinkin' license? You'll reverse engineer the product anyway? Companies use various forms of encryption to enforce the restrictions themselves. They call this Digital Rights Management, and believe me, the rights they're protecting aren't yours. Most famously, movie DVDs are scrambled using an encryption system called the Content Scrambling System (CSS). For a long time, there was no legal way to play a DVD on a Linux system, because the companies simply didn't include Linux among the platforms that had CSS decryption programs.

  • Plan to break the encryption and do what you want anyway? Watch out for the extravagantly titled Digital Millennium Copyright Act, passed in 1998. There are a huge number of changes to the copyright law (some beneficial) in this enormous bill, but the parts that draws the ire of creative technologists are the anti-circumvention clauses. These clauses outlaw software or devices that help users get around the encryption mentioned above. One programmer--Dmitri Sklyarov, a Russian graduate student--spent substantial time in jail thanks to this law. By the way, the DMCA is generous in allowing reverse engineering for many useful purposes, but those clauses are sometimes ignored in zeal of courts to suppress it.

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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