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would agree such a use is bad. Or a handgun can be used for target
practice or to protect against an intruder. At least some would say that
such a use would be good. It, too, is a technology that has both good
and bad uses.
The obvious point of Conrad’s cartoon is the weirdness of a world
where guns are legal, despite the harm they can do, while VCRs (and
circumvention technologies) are illegal. Flash: No one ever died from
copyright circumvention. Yet the law bans circumvention technologies
absolutely, despite the potential that they might do some good, but
permits guns, despite the obvious and tragic harm they do.
The Aibo and RIAA examples demonstrate how copyright owners
are changing the balance that copyright law grants. Using code, copyright
owners restrict fair use; using the DMCA, they punish those who
would attempt to evade the restrictions on fair use that they impose
through code. Technology becomes a means by which fair use can be
erased; the law of the DMCA backs up that erasing.
This is how code becomes law. The controls built into the technology
of copy and access protection become rules the violation of which is also
a violation of the law. In this way, the code extends the law—increasing its
regulation, even if the subject it regulates (activities that would otherwise
plainly constitute fair use) is beyond the reach of the law. Code becomes
law; code extends the law; code thus extends the control that copyright
owners effect—at least for those copyright holders with the lawyers
who can write the nasty letters that Felten and aibopet.com received.
There is one final aspect of the interaction between architecture
and law that contributes to the force of copyright’s regulation. This is
the ease with which infringements of the law can be detected. For
contrary to the rhetoric common at the birth of cyberspace that on the
Internet, no one knows you’re a dog, increasingly, given changing technologies
deployed on the Internet, it is easy to find the dog who committed
a legal wrong. The technologies of the Internet are open to
snoops as well as sharers, and the snoops are increasingly good at tracking
down the identity of those who violate the rules.
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