Tarleton Gillespie's Wired Shut

While its too late to buy a summer beach book, for those times when you can sit back and really contemplate, I heartily recommend Tarleton Gillespie's recent "Wired Shut: Copyright and the Shape of Digital Culture,"(available for as little as $6.74 through Amazon. com's reseller program, a great price for a 394 page book). The book is not a screed against content owners, or a manifesto in favor of information wanting to be free, but rather a look by a non-lawyer at the way technology is being used by content owners to influence the design to technology. The greatest strength of the book is its demonstration of what it takes to marshal the various forces necessary to achieve that control: agreement among a diverse group of usually competitive content owners, the consumer electronics industry, standards groups, distributors, and Congress to name a few, as well as what it takes to beat back opposing forces. These issues tend to be treated in a cardboard fashion in other discussions, and it is a signal achievement of Professor Gillespie that he demonstrates the intensive effort it takes to accomplish such control.

My first experience with the issue was as a Congressional staffer in 1992, with the Audio Home Recording Act (treated very briefly in the book), and the Serial Copy Management System, where the alleged threat of hordes of digital tape machines invading from overseas was used as a justification for the first mandated technological restriction. We were told that digital changed everything, and that without the fix, profits would be in the toilet. The bill was a failure but so was the technology.

Next up was the DMCA, and here it is necessary to go back to the efforts of Commissioner of Patents Bruce Lehman in his 1994 Green Paper and 1995 White Paper to propose significant expansions of rights, including DRMs (or TPMs, whatever label one wishes). Bills were introduced in 1995, but died after the Administration and content owners refused to include safe harbor protections for ISPs. Ditto the early efforts in 1997, although by Septmeber 1997, bills include skeletal safe harbor provisions were introduced. (Note to readers, Google was incorporated on September 7, 1998, a month before the DMCA was passed and had no role in it).

I have been re-reading the DMCA hearings, which are noteworthy for the clashes between Congressman Boucher and Mr. Lehman and Jack Valenti. Professor Gillespie spends a whole chapter on Mr. Valenti's testimony, and carefully works through Mr. Valenti's colorful testimony to demonstrate its careful strategic purpose. Mr. Valenti was an extremely successful spokeperson and advocate, and reading his testimony reveals why, although I had the great pleasure of hearing it live and talking to him personally many times. After the DMCA, came one of the failures in attempted technological fixes, SDMI, which is treated to its own chapter, and the broadcast flag (its own chapter too), which had initial success, followed by defeat at least in the DC Court of Appeals.

Professor Gillespie's overarching take on technological control efforts by content owners is that they have far less to do with piracy or counterfeiting than with the effort to achieve control over the design of consumer electronics, digital broadcasting, and of course Internet distribution, in order to permit content owners to be able to decide who can access works of authorship and where (regional codes for DVD, restrictions on porting lawfully made copies), as well as pricing (pay-per-view as the future). The book is that of an outsider, and it is the insiders who know the real story. They are unlikely to ever tell it (as complaints about Mr. Valenti's posthumously published autobiography state), and so we are left, of necessity, with looks from those of intelligent outsiders to help us figure things out. Professor Gillespie's work is certainly a worthy effort in that regard.