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2013 Open Access Day at UWM
Book Review: The Digital Rights Movement, by Hector Postigo
The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright. Hector Postigo. Cambridge, MA: The MIT Press, 2012.
Hector Postigo’s new book is a thoughtful investigation of a handful of the activist (and hacktivist) movements that have sprung up in response to passage of the 1998 Digital Millennium Copyright Act (DMCA). Grounded in the work of legal scholars including Jessica Litman, James Boyle, Lawrence Lessig and others, Postigo provides a sound narrative which details formulation of the DMCA and how it was captured by and designed to codify into law the interests of content producers including the Motion Picture Association of America and the Recording Industry Association of America. In particular, the author provides an engaging description of one of the most controversial portions of the DMCA – Section 1201(a) and (b) or the “anticircumvention provision.” Based on this and other stifling restrictions embedded in the DMCA, the author explores themes such as the meaning of fair use and related legal concepts, technology as enforcement, resistance through technology, and user agency and technology. Within these broad themes and in the context of a primarily historical analysis, the author posits the existence of a coherent, albeit reactionary, digital rights movement which has frequently coalesced around complications associated with enforcement of the DMCA in general and the anticircumvention provision in particular.
Using a series of case studies, the book outlines the reaction of various “social movement organizations” to the problems which have manifested in application of the law. These cases range across examples such as the notorious arrest and trial of Russian coder Dmitry Skylarov for his hack of Adobe’s eBook encryption; the myriad issues surrounding the exploitation of flaws inherent in the Content Scrambling System (CSS) embedded in DVDs; and the arms race which followed the release of iTunes including the subsequent efforts of Apple to secure digital copyright behind the walls of increasingly complex digital rights management (DRM) systems and of hackers to manipulate those systems in order to exercise fair use. Through all of these examples, this book is an exploration of the rights which have been limited by modern copyright restrictions, the technological systems which accompany these restrictions, and the efforts to re-take those rights through means both legal and otherwise.
Whatever the method, these movements have relied heavily on technological systems to realize their goals and this, in the author’s view, is most telling of all. Using the foundation provided by Langdon Winner and Richard Sclove, Postigo argues that click-through license agreements, terms of service and, most notably, DRM technologies have a distinctly political cast which has come to define how users can (and cannot) engage with rights such as fair use. In the face of these technical systems, individual rights have been eroded and democracy, in a very meaningful sense, has been weakened. However, as the book describes so well, these same systems can be the best tool for empowering “the movement and individuals within it beyond what has traditionally been possible.” Through hacking, decryption and clever manipulation of the code which defines DRM itself, digital rights movements have, in many instances, successfully re-appropriated the rights which have, quite literally, been locked away by copy-protection technology.
Postigo makes his case well and the choice of case studies vividly illustrates his key suppositions. However, as the reader, it is difficult to join in the conclusion that there is one all-encompassing program which coheres under the label “digital rights movement.” While individual hackers, activists and even activist groups have mobilized in response to specific and egregious instances of abuse precipitated by the DMCA, it is perhaps more accurate to describe these as a collection of movements which can loosely be assembled under the broad umbrella of digital rights more generally. Although specific organizations such as the Electronic Frontier Foundation, Creative Commons, Global Internet Liberty Campaign, Copyfight and others are actively engaging issues related to digital copyright and have complementary goals, it is difficult, in my opinion, to comprehend them as one unified and concerted movement. It may be more accurate to think of the tactics of individual actors, empowered by technology, as the foundation of more cooperative action.
This is the most powerful idea conveyed by the book – that technology empowers the individual in a historically and politically unprecedented manner. As the author persuasively suggests,
“[T]he practice of designing and distributing technologies that may, for example, circumvent copy-protection measures or work around existing paradigms for content distribution can be carried out by individuals and is not limited to organizations (a point that in itself is significant). So where once these kinds of impactful tactics would require large organizational resources, the possibility that a lone hacker can release a powerfully disruptive technology that is potentially widely adopted decenters the social movement organization (SMO) as a keystone for powerful collective action. More important, however, the material presence of such technologies realizes the world they seek.”
Jeremy Mauger is a doctoral candidate in information policy at the School of Information Studies, University of Wisconsin-Milwaukee and a research assistant at the Center for Information Policy Research.