Ed Felten writes insightfully today about the flaws in the analog hole legislation recently introduced in Congress. I’m in no position to evaluate what Ed suggests are the bill’s flaws as to technology; I’m interested in Ed’s highlighting a problem described earlier, elsewhere, by Tim Lee: “professional devices” are exempt from regulation. Professionals can remix content; amateurs cannot. Do not, in other words, try this at home!
Ah, but as Ed and his commenters point out, it’s one thing to actually be a professional, and it’s something else entirely (in fact, it can be relatively easy, and inexpensive) to get your hands on equipment *intended* for professionals. (Professional devices are defined in the legislation as devices “designed, manufactured, marketed, and intended for use by a person who regularly employs such a device for lawful business or industrial purposes, such as making, performing, displaying, distributing, or transmitting copies of audiovisual works on a commercial scale at the request of, or with the explicit permission of, the copyright owner.”)
Assume that manufacturers use price discrimination to distinguish the two markets, and assume, also, that amateurs can avoid price discrimination techniques with impunity. What then? We will see shrinkwrap and clickwrap licensing for “professional devices”; there will be calls for DRM systems to close “the amateur hole.” Professional associations could issue certifications for “authentic” professional artists. Only real police officers are supposed to be able to buy police gear; the RIAA and MPAA could specify who can buy recording and editing equipment and software. Congress might deem it wise to immunize the RIAA and MPAA from the inevitable resulting antitrust claims; there would be claims of “certification misuse.”
It’s social DRM on top of content DRM; epicycles on top of epicycles; and scary and/or silly (the legislation, not the criticism) in either case. Both sides, though, can take some comfort in the myth that it’s merely turtles all the way down.