Subject: Re: A reply to Lessig's _Code_ Date: Wed, 22 Dec 1999 17:03:12 -0800 From: Brian Holtz Organization: Sun Microsystems To: Larry Lessig Larry Lessig wrote: > > But government still has to pull the regulation trigger, > > which is the exact opposite of laissez faire. > > the last step is not laissez faire, true, but it > will be easy to execute because of everything that happened before. Easy to execute, but also easy to recognize as being executed, and easy to unexecute with a countermanding fiat. > >>> * code can protect data IP more than law can; > > > > Downloaded any MP3s lately? :-) It requires Gestapo-style > > tactics to stop theft of data: text, music, images, video. > > I think you should pay some attention to the battle over DVD. DVD proves my point, in three ways. First, once decoded for playing by a sanctioned decoder, the decoded data stream can trivially be captured and stored in a different format, allowing for easy piracy. Second, even the sanctioned decoding scheme has apparently been broken, and DVD vendors may have to choose between making new DVDs that are a) incompatible with existing players or b) readable by unsanctioned decoders. Third, DVD duplicators will soon be ready for consumer retail. No technological innovation (e.g. code) can stop developments like these (in particular the first one). They can only be stopped by handcuffs and prison bars like those that behind the DCMA. > Commerce and the DCMA will do lots to kill the free MP3 movement. _Only_ something like the DCMA can limit the availability of technology for pirating data. > > If filtering and editing and otherwise declining-to-associate by readers and > > publishers and ISPs is "censorship", then we need a new word > its called inducing private industry into doing its regulating for it. Without handcuffs and prison bars, it can't work. If there is profit to be made (i.e. if there is demand), then some firm will supply any thing that most firms have been "induced" to suppress. The market will only fail if some legislator (or monopolist) _orders_ the suppression. > e.g., FCC Chairman Kennard can go around hawking censorware which would > limit content more extensively than the CDA (PICS?) In the absence of government regulation or monopoly power, content will only be "limited" by legitimate market forces. (Or would you agree with conspiracy theorists like Noam Chomsky and Ted Kaczynski who say that when the market gives consumers what they want it's because the market has brainwashed consumers?) > this is the future. if you want to say it is great because there are no > handcuffs and prison bars (except for those who try to reverse engineer > contrary to the DCMA), that's fine. but just don't call it free. If there is no use of force, fraud, or monopoly, then it's free. Please don't call a market outcome unfree just because you don't agree with it. And please don't call private parties censors just because they decline to read or publish what you want them to. If you want to limit free association in the name of diversity or discourse or some other goal, then say so boldly, instead of disguising your target with the bullseye of "censorship". Such linguistic bait-and-switch bespeaks a lack of confidence in the position one is trying to sell.