Law making meets technology

To do nothing, is not an option. It is very important to understand that. It is to let others go and take the technology where they will. That, then, is the first parable. Where law-making meets technology we must usually be modest in our aspirations.

The second parable: the democratic deficit

The second parable arises from something that I did in 2005 in the number one courtroom in Canberra.

The case involved the Sony PlayStation, in which a Mr Stevens attempted to get around a “technological protection measure” which Sony Corporation had put into their PlayStation in order to ensure a limitation which they decided should apply to the use that may be made worldwide of their PlayStation. (See (2005) 224 CLR 193; [2005] HCA 58).

Mr Stevens’ argument was that he was entitled to manipulate the CD-ROM in and could exercise his rights of ownership over an object that he had purchased. He argued that the law enacted by the Federal Parliament had not allowed a body like Sony to prevent him from doing so.

Ultimately the High Court decided the Sony claim could not be upheld. Mr Stevens was perfectly entitled to burn his CD-ROM and to get around the technological measure that Sony had placed in its system.

Very soon after this decision the USA called up the US-Australia Free Trade Agreement and said it is our understanding that you in Australia will give full protection to “technological protection measures”. If you don’t already give legal protection under Australian law, you’ve got to do it. And pronto! Parliament quickly amended the Copyright Act in order to do just that.

The moral of this story is that first, people have rights, which ordinarily include using their property as they see fit. This includes rights of fair usage of property, which is the subject of copyright protection. Independent courts exist to uphold those rights. They will not derogate from them unless Parliament makes its law very clear.

Now it hasn’t come back to the High Court since the law was amended. So I’m not making any predictions, one way or another, as to whether Parliament got it right on the second attempt.

But there is an issue as to the extent to which people can take copies and use copies in fair usage of copyrighted material. It’s a very important issue. It affects the balance between the protection of copyright and the protection of free speech: fair usage and the use of your own property.

The second moral therefore is that we are moving to the point in the world where more and more law will be effectively expressed, not in terms of statutes - but in the technology itself. What Professor Lawrence Lessig calls, “Code”. Embedded in the Code, on a multinational basis and effective across borders, will be effective regulation, expressed in the technology itself.

This is a very important and new development. It’s a development that is not initially in the hands of democratic legislators. They don’t set the balances and adjust the competition between free usage and fair usage, free expression and protection for copyright. This is not going to be done in that way. It’s going to be done in big corporations, protecting their own interests.

So this is the second parable. It teaches the lesson that however much we are proud of our democracy and even concerned about the “democratic deficit”, it is inherent in the development of Code, imposed on us from outside by the technology developers, that we face the reality of the limitations of what we - a country like Australia - can actually do to control the use of the technology.