Wired Shut Wired Shut Copyright and the Shape of Digital Culture Tarleton Gillespie The MIT Press Cambridge, Massachusetts London, England © 2007 Massachusetts Institute of Technology All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher. MIT Press books may be purchased at special quantity discounts for business or sales promotional use. For information, please email special_sales@mitpress.mit.edu or write to Special Sales Department, The MIT Press, 55 Hayward Street, Cambridge, MA 02142. This book was set in Stone Sans and Stone Serif by SNP Best-set Typesetter Ltd., Hong Kong. Printed and bound in the United States of America. Library of Congress Cataloging-in-Publication Data Gillespie, Tarleton. Wired shut : copyright and the shape of digital culture / Tarleton Gillespie. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-262-07282-3 (hardcover : alk. paper) 1. Copyright—Electronic information resources. 2. Piracy (Copyright) I. Title. K1447.15.G55 2007 346.04′82—dc22 2006030129 10 9 8 7 6 5 4 3 2 1 Contents Acknowledgments vii 1 The Technological Fix 2 The Copyright Balance and the Weight of DRM 3 The Speed Bump 4 A Heroic Tale of Devilish Piracy and Glorious Progress, by Jack 105 Valenti 5 Why SDMI Failed 6 Protecting DVDs: Locks, Licenses, and Laws 7 Raising the Broadcast Flag 8 Effective Frustration 9 The Cultural Implications of Encryption Notes 283 References 345 About the Author Index 383 381 1 21 65 137 193 223 247 167 Acknowledgments I owe a great debt, one that I suspect I cannot calculate nor ever repay, to all those who offered their help, support, and insights throughout the writing of this book. A special thanks for the guidance of Chandra Mukerji and Robert Horwitz. Many thanks to Geof Bowker, Dan Burk, John Caldwell, Julie Cohen, Shay David, Josh Greenberg, Jeff Hancock, Peter Hirtle, Steve Jackson, Joe Karaganis, Leah Lievrouw, Michael Lynch, Lev Manovich, Helen Nissenbaum, Trevor Pinch, Matt Ratto, Lucy Suchman, and Fred Turner for taking the time to read and improve the manuscript. Thanks to Doug Sery, Valerie Geary, Kathy Caruso, Amanda Nash, and Emily Gutheinz at the MIT Press, as well as the anonymous reviewers for their thorough and helpful critiques. A special thanks to Nat Sims for designing the cover of the book and to Alexa Weinstein for her meticulous proofreading. Thanks to all my colleagues in Communication at UCSD, and in Communication, Science & Technology Studies, and Information Science at Cornell, for providing the rich intellectual environments from which this work sprang. Thanks to the people at Claire de Lune Coffee Lounge in San Diego and at Wownet Cafe and Juna’s Cafe in Ithaca for their caffeine and hospitality. And for their endless support, patience, and encouragement, my eternal gratitude to my parents, my family—and most of all to Jenna and Jonas. Portions of this book were assisted by a grant from the Digital Cultural Institutions Project of the Social Science Research Council, with funds provided by the Rockefeller Foundation. Thanks also to the participants of the “Digital Cultural Institutions and the Future of Access: Social, Legal, and Technical Challenges” workshop at the Center for Science, Technology, and Society, Santa Clara University, October 21–23, 2004, for their advice. Thanks also to the Center for Internet and Society at the Stanford Law School for the support and community provided by its 2005–2007 fellowship award. viii Acknowledgments Pieces of this research, at various stages of completion, were presented at conferences hosted by the Association of Internet Researchers (AoIR) and the Society for the Social Study of Science (4S), and as colloquia for the department of Science & Technology Studies at Rensselaer Polytechnic Institute, the department of Information Science at Northeastern University, the Information Society Project at Yale School of Law, and the Center for Internet and Society at Stanford Law School. Many thanks to the participants and audiences in all of those places for their attention, questions, and suggestions. A version of chapter 6 appeared as “Copyright and Commerce: The DMCA, Trusted Systems, and the Stabilization of Distribution,” The Information Society 20.4 (Sept. 2004): 239–254. Reproduced by permission of Taylor & Francis Group, LLC., http://www.taylorandfrancis.com. A version of chapter 8 appeared as “Designed to ‘Effectively Frustrate’: Copyright, Technology, and the Agency of Users,” New Media and Society 8.4 (Aug. 2006): 651–669. It appears here with the permission of New Media and Society and Sage Publications. A portion of chapter 9 appeared as “Autonomy and Morality in DRM and Anti-Circumvention Law,” Triple C: Cognition, Communication, Cooperation (2006), co-authored with Dan Burk. It appears here with the permission of Triple C, and with gratitude to Dan Burk. A portion of chapter 9 will also appear as “Price Discrimination, Regional Coding, and the Shape of the Digital Commodity,” in Joe Karaganis and Natalie Jeremijenko, eds., Structures of Participation in Digital Culture (forthcoming, 2007). 1 The Technological Fix It seems like ages, although it’s been only a few short decades, since Alvin Weinberg posed the question, “In view of the simplicity of technological engineering and the complexity of social engineering, to what extent can social problems be circumvented by reducing them to technological problems? Can we identify Quick Technological Fixes for profound and almost infinitely complicated social problems, ‘fixes’ that are within the grasp of modern technology, and which would either eliminate the original social problem without requiring a change in the individual’s social attitudes, or would so alter the problem as to make its resolution more feasible?”1 We may be a bit amused, or perhaps a little shocked, by the naïveté of Weinberg’s tragically optimistic question—especially when we discover that his answer was a qualified “yes” pointing to, of all things, the hydrogen bomb as a successful technological fix for the social problem of war. We can only hope we’ll never again be so naïve as to think we can somehow simply and justly resolve social problems with technologies, or so oblivious to their own intricate consequences when we try to do so anyway. But it’s a surprisingly elusive lesson. We still search for, and long for, such “technological fixes”—even as we give perfunctory lip service to how they are only stopgap measures or technological add-ons to social policies. As Carolyn Marvin wrote, “People often imagine that, like Michelangelo chipping away at the block of marble, new technologies will make the world more nearly what it was meant to be all along.”2 And the social problems we hope to resolve are as intractable as when Weinberg wrote. We hope trigger locks will reduce violent crime, cameras and facial recognition algorithms will ensure privacy and public safety, smart ID cards will squelch terrorism, the V-chip will protect children from images of sex and violence. These technologies hold out the promise of attaining progressive social goals, and of doing so effectively, fairly, and without 2 Chapter 1 discrimination—a promise built upon the persistent sense that technologies exist outside the frailty, inertia, and selfishness of human politics. This faith in technology as an inherently progressive force is a powerful Western paradigm wrapped tightly into the ethos of American culture. Yet it is an illusion. By itself, technology can never solve the problems its proponents aspire to solve. Imagining that new technology will rescue us from our persistent social ills allows us to momentarily forego the much harder questions: What are the social bases for the problem, how do they work, and why does the problem persist? What forces shaped this technology, what is it supposed to accomplish, and what does it demand of us in order to work? Technological fixes also help abrogate the responsibility of both the people involved in the problem and the designers of the technology themselves. Perhaps this sense of determinism is appealing—don’t we want the new dishwasher to scrub our cares away? Rob Kling notes that these “utopian visions” resonate with the public imagination because “their causal simplicity gives them great clarity and makes them easy to grasp, to enjoy or to abhor. They can resonate with our dreams and nightmares.”3 And in a culture bound tightly to an economic and ideological commitment to a never-ending flow of new commodities, planned obsolescence, and the luxurious promises of advertising, the claim that technologies will fix what ails us is an all-too-familiar marketing ploy. Whenever a new technology arrives, it typically evokes a flurry of questions, hopes, fears, and predictions about what it will do, marked by an underlying faith in social progress through technology. The particular character of the claims about what the technology will accomplish will depend on which of its features are most novel. But, even more, the claims will depend on the particular dilemmas we as a society are facing at that moment. The arrival of a new tool will often get entangled in current tales of social conflict and cultural failings, championed as a long-awaited solution. The printing press would bring forth a new era of learning; electricity would end the tyranny of nighttime over human accomplishment; the radio would unite the nation into a single community; television would bring the world into our living rooms; weapons of mass destruction would banish war.4 Discourses surrounding new technologies typically “predict a radical discontinuity from history and the present human condition”;5 we expect technologies to intervene in precisely those aspects of society we find most troubling, those we have secretly hoped to finally resolve. Paul Duguid suggests that these cycles of technological prophecy regularly depend on two principles: supersession, “the idea that each new The Technological Fix 3 technological type vanquishes or subsumes its predecessors,” and liberation, “the argument or assumption that the pursuit of new information technologies is simultaneously a righteous pursuit of liberty.”6 These make a kind of logical sense together: An old technology imposes constraints on its users, an improved technology resolves those problems and thus replaces its now worthless predecessor. Social limitations (e.g., the stultifying isolation of life in the vast American wilderness) are tied to established technologies (newspapers, which require human proximity to be distributed); the new technology (radio) will fully replace the old because it removes the barrier it imposed.7 The “pioneer in the wilderness, the farmer on his isolated acres” will have the news of the nation at their fingertips, will find themselves connected to their fellow man despite the miles, and will be free to exercise their democratic rights as citizens in a way that they could not before.8 It is a cohesive vision well suited to an Enlightenment idea that history itself is always a tale of broad social progress. It is also well suited to the interests of capital, which must convince consumers that, despite the quality, durability, and initial appeal of the old commodity, the new product is an urgent improvement rather than a frivolous luxury. Most of all, the broader social structure survives intact; the break is not only resolved, it’s welcomed, assured somehow by “the paradoxical prediction that freedom from technology can be achieved through technology.”9 This requires, of course, that tales of a technology’s progressive potential must follow, or be paired with, tales of the previous technologies’ limits, failings, and dangers. Dystopic worries about technology are the necessary flipside of the coin; faith in the new technology requires that we perennially forget, or ignore, our faith in each technology that preceded it. This deliberate aphasia allows us to map social ills onto the caricatured evolution of our tools, conjuring a reassuring tale of benevolent and unproblematic progress. Discussing an optimistic faith around the coming of electricity, James Carey notes that “electricity promised, so it seemed, the same freedom, decentralization, ecological harmony, and democratic community that had hitherto been guaranteed but left undelivered by mechanization. But electricity also promised the same power, productivity, and economic expansion previously guaranteed and delivered by mechanical industrialization”10—the very ills that critics were looking to electricity to cure.11 Instead of addressing the complexity and specificity of the interaction between technologies and the sociocultural activities in which they are embedded, critics prefer to embrace this compelling fantasy of waves of technological progress. 4 Chapter 1 The Internet and the Question of Copyright There are certainly better ways to think about the relationship between technological and social change, yet this naïve optimism persists. The Internet brought with it the same rhetoric of supersession and liberation in the whirlwind of hype and hoopla that surrounded its arrival.12 In a culture fascinated with technological innovation and devoted to the religion of progress, it should come as no surprise that the Internet captured our imagination, spurring the same optimistic predictions as electricity, the automobile, radio, even the hydrogen bomb. According to the Internet’s proponents, education would become truly universal as all human knowledge became perfectly and instantly accessible to all. Championed by both the left and the right,13 the Internet would allow democracy to flourish as citizens went online to debate important issues and politicians spoke directly to the people. Environmentally destructive urban populaces would scatter to the natural idylls once they could work flexible hours from home. The social barriers of race, class, and gender would disintegrate as identity became a virtual plaything, a costume put on with a keystroke. Censorship would fail and wisdom would flourish as those who deserved to be heard could speak freely. Or as Wired announced (ironically, in an article about technological disasters), “We think technology is rapidly opening up possibilities and revolutionizing the old order in a way that gives a chance to smaller players. We are unabashed optimists about our collective opportunities as we round the corner into the next century. We are skeptical of anyone’s claims (including our own) to know what the future brings, but we look at the glass and see that it is no longer half-full but brimming over.”14 Yet amid all this promise, the Internet was also being criticized as a grave threat to culture, morality, and society. The earliest legislative attention paid to the new medium concerned the proliferation of pornography online, accessible to anyone in any community at any age. Though these particular worries turned out to be dramatically overstated, we continue to fret about the “promiscuity” of the Internet, facilitating the circulation of not only the loftiest elements of our culture, but also the basest: pornography, hatred, misinformation, unbridled gossip. Concerns also erupted about the “death of privacy” harkened by the Internet: personal information vulnerable to identity thieves, corporate information open to clever hackers, children’s personal safety threatened by online stalkers offering virtual candy.15 Again, the concerns about the Internet’s impact on privacy have since shifted. Nevertheless, the fear that the “radical discontinuity” The Technological Fix 5 of the Internet would lead to social ills rather than progress persists. So once again we look to technological solutions to seemingly technological problems, now with the Internet as the problem in need of a technical solution so that its liberatory promise can be fulfilled. Nowhere has this been more visible than in the recent controversies around copyright law in the digital environment. Once the exclusive domain of corporate lawyers and policymakers, copyright spilled into public awareness with the emergence of the Internet. Designed to regulate the movement of culture by making it a market commodity, copyright now faced a technology that dramatically reimagined how and by whom culture is produced, sold, distributed, and consumed. At the same moment, those industries most invested in copyright found themselves scrambling to keep up with the accelerated stakes of the so-called knowledge economy. The game had changed, not only technologically but economically, politically, and culturally. Would the Internet prompt the renovation of copyright law and the proliferation of new techniques of cultural production that could exceed traditional copyright’s limited imagination? Or would it require the imposition of even more stringent versions of the law, to compensate for the absence of those material and economic constraints endemic to physical manufacture and exchange?16 Many have argued that this battle extends well past the definition of copyright to a clash of paradigms about the control of information: Lawrence Lessig describes it as the choice between “free” versus “permission” culture, Siva Vaidhyanathan calls it a struggle between “anarchy” versus “oligarchy.”17 The rapid rise of Napster and peer-to-peer file trading offered the flashpoint, provoking the major U.S. entertainment corporations to declare a legal war: against Napster, against proponents of an unregulated Internet, and at times against their own customers. Some foretold the death of copyright; others railed against the sin of piracy and called for new laws to save the endangered species known as artists. Record labels found themselves suing their own consumers; movie studios produced expensive trailers lecturing reluctant audiences, some of whom were, at that moment, automatically downloading Hollywood blockbusters on their computers at home. Digital startups looking to take advantage of the ease of distribution the Internet provides found themselves caught in the crossfire, while the major content providers took flak in the press for not pursuing new business models themselves. Some artists proclaimed their support for their publishers, while others looked the other way as their work appeared online, or even helped it get there; Metallica sued Napster to protect its copyright while Chuck D spoke out in Napster’s support. Apple courted 6 Chapter 1 the middle with an industry-friendly plan to sell content through iTunes, only to find itself in competition with a resuscitated Napster providing authorized digital music by subscription. For the most part, these battles have taken place in the courts and in the court of public opinion; a legal effort to use copyright to stem the tide of “piracy” faces a cultural movement enamored with the appeal of the new technology. But under cover of this noisy debate, content providers and lawmakers have begun to implement significant changes in the way copyright is applied in a digital culture. At the core of these changes is a fundamental shift in strategy, from regulating the use of technology through law to regulating the design of the technology so as to constrain use. Such strategies aim to take advantage of the fact that, while digital technology may facilitate a dizzying array of choices and opportunities at blistering speed and with total access, it can also be used to keep close tabs on what is being done and by whom. Technical barriers and rules can be incorporated directly into the communication networks that we increasingly use to participate in community, in commercial exchange, in politics, and in the conversation of culture. What we might call “social engineering” has come full circle back to actual engineering, where the tools and the environment are built to assure that the right practices are facilitated, the wrong are inhibited. These technologies are largely being developed and deployed below our cultural radar, enamored as we are with the thrill of the “information revolution,” the faith in progress, and the freedom of individual agency. Turning to Technology Consider the court’s decision in the lawsuit against the Napster peer-topeer (p2p) network. While the most important aspect of the decision at the time was the fact that Napster lost the case, it is the particular way in which they lost, at least in the courtroom, that offers an important harbinger of the broader shifts in law, technology, and culture we are now experiencing. Cursory histories of the Napster case may remember only that the courts, finding on behalf of the major record industries, shut down Napster for contributing to massive online copyright infringement. But the Ninth Circuit Court of Appeals actually did no such thing; although it may have been their underlying intention, the court did not mandate that Napster turn off its servers or cease its business operations. Instead, noting that “Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users The Technological Fix 7 who engage in the transmission of infringing files,”18 they called for a technological fix, one designed to change Napster so it would systematically discern and filter out the unauthorized music the Recording Industry Association of America (RIAA) had complained about. Set aside for the moment the legal question of whether the maker of a tool should be held accountable for the uses the tool is put to. This effort to deploy a technological artifact as a legal intervention represents a larger strategy that, even in the short time since the Napster decision, has become a full-fledged project on behalf of the major culture industries.19 Rather than articulating what can and cannot be done legally with a copyrighted work, this approach favors the design of encryption technologies (once reserved for military secrecy) to build the legal standards of copyright directly into the artifact—such that some uses are possible and others are rendered impossible. While the proponents of this approach (most notably the U.S. music and film industries) have taken great pains to maintain that this is simply a practical improvement required to counter the hazards of the Internet, matching copyright law in terms of the ends it will achieve, this use of encryption represents a dramatic new intervention into communication and culture. Once again, we are putting faith in a technical solution to a social problem. The film and music industries are in some ways following in the footsteps of the software industry, which in the 1980s had to grapple with the ease of unauthorized reproduction and distribution of their content; indeed, they are expanding on some of the solutions the software industry developed in response. But what was once simple password protection is becoming something much more significant. Current encryption techniques allow content owners to decide who gets access to their work according to much more precise, subtle, and modifiable criteria. Today, digital content can include information indicating how, when, and where that content can be used, rules that will be honored automatically by the devices we use to consume it. With these innovations, film and music distributors are going far beyond what the software industry had once imagined, to govern not only whether we copy their work, but also how we buy, share, experience, and interact with it. The inflated rhetoric of the copyright wars has provided a compelling cover for a sometimes concerted attempt to develop this technological architecture. This intervention aspires to regulate not only copyright but also nearly every dimension of the distribution and consumption of culture. These control strategies have thus far been of limited effectiveness in the face of persistent hackers, the efforts of commercial bootleggers, the 8 Chapter 1 powerful appeal of free and accessible entertainment for a generation that has known little else, and the ubiquitous cultures of sharing pervasive to the societies and economies of India, China, and elsewhere. However, regardless of (or even in spite of) its likelihood of success, this strategy warrants critical attention, and not only for its possible consequences for copyright. Enlisting technological design as a way to regulate its users will have significant consequences for the trajectory and cultural life of digital technologies, and for how we get to make use of them. We don’t usually think very explicitly about how the construction of walls subtly regulates our activity. Certainly, some of us are aware of this at moments—prisoners know it is the walls and the guards, and particularly their combination, that restrict their freedom so effectively; the residents of what was once East 

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