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In the public-policy debates this year about digital copyright, “fair use” has gotten a lot of attention. I think a lot about fair use — our rights to make unauthorized copies of copyrighted works, under certain conditions. But lately I’ve found myself wondering whether all the focus on fair use has let other, possibly more important issues fall by the wayside. Lately I’ve been worried about the freedom to tinker. Like fair use, the freedom to tinker isn’t guaranteed in the Constitution — or at least not in those terms. But maybe it should be. Tinkering or “reverse-engineering” — the ability to take things apart, analyze them, figure out how they work, and put them back together, often modified into a different and better form — is central to how many Americans think about things they own, from cars to televisions to computers and software and digital content. Tinkering is one of the great driving forces of our economy and culture. Steve Wozniak tinkering in his garage came up with the first Apple computer. Marc Andreesen tinkered with the World Wide Web, then just a document-sharing tool for academics, and created the first graphical browser. So it is strange that, for the most part, the freedom to tinker has been left out of the current debates. Take the debate about Sen. Ernest “Fritz” Hollings’ Consumer Broadband and Digital Television Promotion Act. That bill, introduced this spring by the South Carolina Democrat, would require all new digital devices to contain a “copyright cop” designed to government specification. Computer and consumer electronic makers would be required to build machines that can identify and prevent the copying of copyrighted content. It’s an amazingly broad and sweeping measure, but even so, it contains a guarantee that the government will respect fair use rights when it writes the copyright cop specifications. Or consider the Broadcast Protection Discussion Group’s report, which (if it is enacted into law) would effectively outlaw a broad range of digital devices not built to Hollywood’s specifications. This report emerged from a standard-setting process dominated by content companies. These companies have been pushing new laws and standards that they say are necessary for protecting digital television content from redistribution on the Internet. The proposal also aims to make consumer electronics and computers — no one quite knows how broadly it will sweep — untinkerable, since modifying such devices might allow unlicensed copying of digital-television shows marked with a “broadcast flag.” A flag marks content as something that digital devices like computers shouldn’t copy. But in order for the flag to work, digital devices have to be redesigned to look for it. Thus the need for legislation to mandate the redesign. Despite the focus on preventing copying, the report gives lip service to fair use — it acknowledges that individual consumers ought to have the right to engage in some kinds of copying. But it says nothing at all about the freedom to tinker. The prospect of giving content companies, through the federal government, design control over an unspecified range of digital technologies bothered the hardware, software and consumer-electronics industries asked to go along with the new standard. This is largely why the discussion group’s process seemed to break down in May: The two sides could not agree on what range of digital devices would be covered. Hollywood is worried that consumers will make perfect copies of shows and movies transmitted via digital television broadcast signals. But in order to appease Hollywood, how far should the proposal go? Should it include all hard drives? Or just those already installed in personal video recorders like TiVo and ReplayTV? What about digital-analog converters (cheap, standard components in all sorts of products) that currently ignore the broadcast flag of DTV content? Will the whole world of digital tools and consumer-electronics devices have to be redesigned, just to make sure the broadcast-flag scheme works? “The broadcast flag is defined. … But there are some significant pieces that would need to be agreed upon,” says James Burger, a partner at Washington, D.C.’s Dow, Lohnes & Albertson who represented a number of information-technology companies in the group’s discussions. In spite of these and other unsettled questions, Hollywood is expected to seek congressional endorsement of the broadcast-flag standard, either through legislation or regulation, this year. In either case, it is certain that the standard will forbid connecting certain kinds of computers and other devices to home entertainment systems. It will also prohibit tinkering with digital TV receivers and other entertainment systems in ways that might lead to unapproved copying of “flagged” content. It seems strange to contemplate laws that won’t let consumers take apart their TiVo and alter it with a “noncompliant” hard drive, or that won’t let them hook their digital TV up to a computer, or invent a new kind of computer that receives digital television. We’re talking about stuff you own — not stuff you rent or license, like a cable set-top box. Even those who criticize these proposals, like the new consumer-advocacy group DigitalConsumer.org, tend to focus on fair use rights to the exclusion of other issues. DigitalConsumer.org’s proposed “Consumer Technology Bill of Rights” (www.digitalconsumer.org/bill.html) enumerates things that consumers ought to be able do legally with other people’s content. But it doesn’t mention creating your own content that could play on a commercial DVD player (one kind of tinkering) or about being able to alter or modify consumer electronics devices (another kind of tinkering), apart from doing whatever is necessary to make fair-use copies. If the DigitalConsumer.org bill of rights became law, it might be unlawful to make a device that is unencumbered with copyright protections. “You’re right that we haven’t encoded that in the bill of rights,” admits DigitalConsumer.org co-founder Graham Spencer. Nevertheless, his group has been telling policymakers privately that these proposals are already having a “chilling effect on innovation.” “Innovation” is corporate America’s word for tinkering. Companies like Microsoft Corp. and Intel Corp. have been telling lawmakers like Hollings that they should not be tampering with the right to innovate. Hollywood rejects the argument. Why haven’t Microsoft, Intel and their peers come up with a solution to infringement, asks Michael Eisner, chief executive of The Walt Disney Co. “The killer app” of the technology companies, Eisner testified before Congress, “is piracy.” Eisner and many other Hollywood chieftains believe that computer makers see big profits in supporting copyright infringement and have no incentive to curtail it. Perhaps “innovation” is the wrong word — too portentous, too suggestive of a solution for every problem, but too narrow to describe what is at stake. Ed Felten, a computer scientist at Princeton University, prefers to stress the word “tinker.” To tinker with tools, Felten says, is more than just the freedom to innovate. The freedom to tinker with machines, he insists, should include the freedom “to take them apart, to discuss them, to explore how they work, to modify them, to make them better.” Above all, it includes the ability to share and discuss what you learn from tinkering. “As more and more of our world is experienced via electronic devices, and communications and culture are more and more mediated by these devices, it becomes increasingly important that we be able to tinker with them, to be able to understand this part of our world,” Felten says. It’s an issue close to his heart — Felten’s own tinkering with a copyright-protection scheme proposed by the music industry demonstrated the weaknesses in the scheme. Without Felten’s tinkering, the music industry and the consumer-electronics industry might have spent millions of dollars implementing a flawed scheme for protecting digital music. (The Recording Industry Association of America threatened to sue Felten for his tinkering under the Digital Millennium Copyright Act, but it backed down.) There’s both social and economic importance to the freedom to tinker, says Felten, who is working now on a book on the subject. “If we lived in a world in which there were no tinkering,” he says, “I think a lot of the new devices and new technologies that we’ve seen would not be created.” The Apple II computer and the IBM personal computer, he notes, both were designed to be “open platforms” — they had empty expansion slots and were shipped with programming languages. They constituted open invitations to new computer owners to tinker. Likewise, the Internet and the World Wide Web are largely tinker-friendly environments. But if Hollywood gets its way, the computer environment of tomorrow may be tinker-proof. That said, Hollywood’s concerns shouldn’t be glibly dismissed. Sure, copying digital files is so easy, cheap and reliable that it makes it incredibly simple to infringe copyrighted material. It’s no surprise that the content companies push standards that would forbid certain kinds of technologies and that would effectively revoke the open invitation inherent in open platforms like the PC and the Internet. It seems to me that the content companies are right to worry, and that their concerns deserve a serious response. But we must not let their proposals go too far. Whatever their solutions, they ought not undermine the freedom — the freedom to tinker — that gave rise to the digital world in the first place. Mike Godwin is a policy fellow at the Center for Democracy and Technology in Washington, D.C. E-mail: [email protected]

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