Copy Protection and the Reasonable Man

By Richard Menta 6/01/03

Back when I was earning my MBA, I took a number of law classes. It was there that I received my first lesson on how the law is interpreted and applied to individual cases, and how lawyers had to read the facts and pull out not one, but several legal points to address. These legal points sometimes came in conflict with each other, conflict that the competing attorneys would argue supported their argument, their side.

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It was during that class that I was introduced to one of the most fundamental concepts of law, a concept based on the notion of the “reasonable man.” After a judge hears both sides of an argument, conclusions drawn from facts from legal texts and casebooks that often seem convoluted and complicated, he asks himself, "What would a reasonable man think?" In other words, despite all the rhetoric of the law and the word parsing that lawyers apply to sway interpretation, the judge feels compelled to apply good old common sense to the case based on it’s individual nature.

I found the concept of the “reasonable man” to be the most comforting element of a civil system that is not always perfect when rendering a decision. It emphasizes the belief that it is the spirit of the intention of the law that must be upheld and followed, not the blind word-for-word application of its sentences, commas and periods. Furthermore, it suggests that laws aren’t just a rigid set of rules, but guidelines to be applied and adjusted to suit the specific case at hand in order to render a judgment that best supports the good of society.

This is what David Weinberger is saying in his recent Wired piece, "Copy Protection is a Crime." He doesn't mean crime in the literal sense; there is no law that it violates. No, he is talking about the spirit of human interaction and how copy protection laws violate it.

As Weinberger wrote in his article for Wired:

Digital rights management sounds unobjectionable on paper: Consumers purchase certain rights to use creative works and are prevented from violating those rights. Who could balk at that except the pirates? Fair is fair, right? Well, no.

In reality, our legal system usually leaves us wiggle room. What's fair in one case won't be in another - and only human judgment can discern the difference… What do computers do best? Obey rules. What do they do worst? Allow latitude. Why? Because computers don't know when to look the other way.

Weinberger goes on to make the argument that digital rights management (DRM) as a pure follower of the rules -- rules established not by the courts, but by the content holders controlling the various media -- undercuts the basis of our shared intellectual and creative lives.

Sure, Bo Diddley would love to earn a check every time another artist employed his distinctive rhythm. Last I heard, he was living in a trailer in Florida and making a modest living on the oldies circuit. What made Bo Diddley great was the creation of a unique beat that has become so pervasive it is now part of our culture, heard in movies, TV and in the records of artists as disparate as Buddy Holly, Nirvana, and any number of Hip Hop groups. This is what the freer flow of his ideas has given us.

Despite the lip service, the media conglomerates are less concerned with that than they are about the continuous stream of payment they feel their wares can and should get. They consider every action that does not result in some form of payment theft. These are their rules and the only ones they want applied to digital rights management initiatives.

"Fairness means knowing when to make exceptions," continues Weinberger. He believes we are "screwed" if we hand over the decision making process to the machinations of software and hardware, entities without the gift of sentience.

That's fine with the record industry, which wants to minimize exceptions to a point where there are no exceptions; giving it greater control over the content they hold (both the control between the industry and the consumer, and between the industry and the artist).

Bo is measured by his gift to society, not by the cash in his wallet. The law says that you can copyright songs, but you can't copyright licks or a style, no matter how obvious its source. It wasn’t other artists who robbed Bo of his mansion on the hill. They only spread his fame. It was the record company deals in the mid-fifties that paid him $45 bucks a side with no royalties. That is about what I paid for his 45-track greatest hits package from MCA, which unlike Bo, DOES make money from his music.

No, these artists only took what he created and made more great music from its inspiration. As for the record companies’ claim that digital rights management protects the artist's rights, realize that in the eye of the law Mr. Diddley sold off the rights to his own recordings years ago. So it’s quite ironic that the industry still sells his music for top dollar and is taking strong measures to restrict/control its use, but feels no obligation to compensate him.

And you want that same record industry to rewrite the rules with regards to how consumers listen and exchange music?

Let's imagine a world where Bo's music made money, but not enough to satisfy some preconceived corporate standard. As a result, his records would be discontinued and his music suppressed. Suppressed because file trading of his no longer available catalog would still be considered theft by the record industry, which would take all steps necessary to prevent the recordings flow. There are plenty of artists who's works are no longer in print, but until those recordings hit the public domain, DRM says you have no right to listen and enjoy them if you should acquire their lost tracks online.

So tell me, as sentient beings, do you think the world is strictly black and white or a continual contrast of various grays? What do you think is fair and who should be allowed to judge and police what fair is?

Mr. Weinberger feels that we live in an imperfect world, are the better for it, and should respect the nuances created by different conditions and point-of-views. His point on digital rights management is well made and certainly food for thought.


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