Digital Manifest Destiny

In class today, I heard someone remark off-hand that hacking an iPhone to work on carriers other than AT&T is "illegal." Whether or not he or she misspoke (I'm pretty sure it's more of a warranty issue than a legal issue), it points out something that a lot of us aren't willing to admit—that we really don't know a whole lot about what we can and cannot do with our newfound freedom. You may think you do. But then something comes out of left field.

It reminded me of an article on Ars Technia that compared the struggles of copyright law today with the struggles of property law during America's westward expansion. Then, property law was based on the British Common law system. In Britain, land was scarce and ownership well-defined. The opposite was true on the American frontier. Inevitably, landless Americans moved out west, settled on an arbitrary plot of land, and built homestead. These squatters were there illegally, and frequently, blood was shed over their claims. It was a widespread problem. Ultimately, however, it was solved, not by more strictly enforcing the laws of the time, but by adapting the law to new realities on the frontier and legitimizing squatter claims.

In copyright, we have a similar situation. Twentieth-century copyright law was geared toward large firms like publishers, broadcasters, record labels, etc.

Because few individuals could afford their own printing presses or broadcasting equipment, 20th-century copyright law hardly ever impacted the actions of ordinary Americans. The large firms that were subject to copyright law could afford to hire lawyers to advise them on what the law required. But the emergence of the Internet and other digital technologies have brought the technologies of wide-scale content creation and distribution to the masses [read: convergence]. As a result, millions of people suddenly have to worry about copyright issues that previously applied only to commercial firms. Many of them find the requirements of copyright law unreasonable, and they have reacted by simply ignoring it.

Essentially, I see two things happening, here.

1. Technology is evolving faster than the US government can legislate. The Digital Millennium Copyright Act of 2000 was amended with exemptions only six years after entering force (it was originally an amendment to a 1976 act), and even amended, is outmoded in regards to the problems of today.
   
2. The average citizen probably doesn't even know about the DMCA, let alone its content.
   

When it comes down to it, though, it doesn't matter how much ordinary citizens know about copyright law. Congress doesn't pass legislation completely devoid of influence, it's meant to reflect the morality of Americans. Clearly, we need to think about the consequences of this so-called convergence culture. But just like the evolution of property law on the frontier, this thinking won't be done by legislators; the digital frontier will be settled by the people.