More on Nesson’s Technodefense

Regarding his own proposal for copyright holder self-help, Professor Nesson asks, “Why is first reaction to it to look for ways to condemn it rather than for ways to support its legality?”

I don’t think it’s necessarily a knee-jerk reaction, if that’s what he means. Myself, I’m somewhat closer to where Professor Fisher seems to be at on this issue, as expressed at the HLS discussion: “I don’t think it would be terrible to move in [Professor Nesson’s] direction. Actually it would be better than where we currently stand. But it would be unfortunate, on balance. Better than where we currently are, but far less good than the place we could be.”

Nesson’s question is quite similar to ones asked by proponents of the DMCA.  We’ve got this new way of protecting IP called DRM – why don’t we enact a law that supports its viability? Why is the first reaction to look at all the ways that it will hurt consumers rather than the ways it will support new business models and lead us into a thriving digitial era for consumers and producers?  This argument can be used even if you’re not talking about the DMCA and just talking about whether using DRM and trusted computing is a good direction.

And, to some extent, those advocates are right, just as Nesson is right. If you can constrain these self-help measures, and you can create DRM that isn’t totally evil and used to monopolize secondary markets (via the end of interop), and these digital music services continue to move towards reasonable prices and terms of use, then there are some benefits.  But there are also plenty of potential costs.

Riffing on this particular issue, I don’t believe that the benefit of Nesson’s self-help is worth the possible cost.  His discussion of damages doesn’t really take into account the collateral damage or the harm to innocents that I discussed earlier (Nesson and Ernest Miller on pho – Nesson: “Directing the focus of this artist’s self-protective service only against those who are actually ripping and sharing the artist’s work is not rocket science.” Miller: “It may not be rocket science, but why does the RIAA keep screwing it up?”). Perhaps he thinks those risks are acceptable.  For me, those risks are too great.

Moreover, I’m not even sure that reliance on technodefense will ultimately be an effective strategy. New DRM? It’ll get cracked. New type of DoS attacks? It’ll get duped. Subpoening by IP? They’ll anonymize. Nesson claims spoofing is effective, but is there any proof that it’s slowed down downloaders?

And that’s where my main fear comes from. A technological arms race can only have one result: going nuclear. It won’t end with this limited self-help ability. Each new type of defense will incrementally accumulate into something resembling Professor Fisher’s “property” scenario.  Like he said, in some ways, that’s better than where we’re at now. But it’s nowhere near optimal. 

Maybe limited technodefenses will annoy enough people that piracy falls to “reasonable” rates, maybe not. Sometimes I have hope that I’m wrong, and that somehow these lawsuits and competition between digitial music services will magically solve everything, without a lot of intrusive technological defense systems, but I have my doubts.

Update: Professor Felten has a fine post on this matter. His testimony last year was one place that solidified my thinking about the “arms race” idea, so a proper cite is in order.  Look to Donna and Frank, among others, for more.