Crawford on Legal Ecosystems

The Biology of the Broadcast Flag [via Derek and Ernest] — note that while most point to her abstract, it’s her conclusion that includes the most compelling point — the dangers of an inflexible policy in the face of a demonstrated inability to predict the future — a failure to incorporate discretion in a policy of control (a defect of many "architecture-based" policies)

The encouragement of innovation has long been a goal of intellectual property law. Achieving this end is now complicated, however, by the fact that law and code need to be looked at together for their effects on innovation. The challenge for the next generation of intellectual property policymakers is to design and implement rich background code/law environments that allow for continued evolution.

From this perspective, the MPAA s use of code/law to instantiate their particular vision of copyright law (and assure a controlled, successful digital future for their products) looks unattractive. A heavy reliance on technology mandates makes sense if today’s decisionmakers are both capable of predicting which innovations are likely to be most beneficial to the overall state of the world and correct in striving to impose one regime’s view of copyright law on the future. But neither proposition makes sense, either as a descriptive or normative matter. We have very weak powers to predict the future, and the one thing we do know is that a more interesting future (in a biological sense) will be more resilient and adaptable.

There is reason to suspect that instead of helping us to achieve progress, the broadcast flag, plug and play, and analog hole proposals now under discussion may cause legal and technical problems for later innovators and consumers. Members of the present MPAA may need to conclude that their conception of "survival of the fittest" will have to change, because their creatures (i.e., their business plans) may become extinct in light of the realities of the digital world. Instead, the best strategy may well be to adopt private DRM solutions, with the hope and expectation that new forms of content and new privately-ordered marketplaces will arise. Hollywood may have to abandon the illusion that they have some natural right to preservation that can be implemented by restricting the choices of future generations. Their successors in business will thank them. Loss of resiliency and adaptability, both in innovation and in law-creation, may not be worth trading away.