Sole and Despotic Dominion: how a 20th century copyright law is abolishing property for humans (but not corporations)

In the 18th century, William Blackstone wrote the seminal "Commentaries on the Laws of England," which contained one of the foundational definitions of property: "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."

Today, software enabled devices can and are controlled by their manufacturers long after they've been sold on to customers, and laws like Section 1201 of the DMCA make it a crime to prevent this kind of meddling. This allows companies to force their customers to arrange their affairs to the maximum benefit of the manufacturers' shareholders, not their own, and to punish customers for taking steps that thwart the manufacturers' business models.

In my latest Locus column, Sole and Despotic Dominion, I describe how this is a kind of new feudalism, in which the only "people" who have sole and despotic dominion are the artificial life forms known as corporations, and this new aristocracy makes us into tenant farmers of our toasters and thermostats, cars and pacemakers — and I describe how the Electronic Frontier Foundation has launched a lawsuit to make it legal to use your devices in the ways that are most advantageous to you, even if the manufacturers don't like it.

If you make a gadget with software inside it, you can simply add a thin skin of DRM to it, and configure the device so that the DRM has to be bypassed in order to do anything that lowers your profits. GM uses it to prevent third-party mechanics from diagnosing problems in their cars (and VW used it to prevent independent researchers from discovering that they were cheating on emissions tests). Philips uses it to make sure that you only buy Philips lightbulbs to go in your Philips sockets. Google's Nest smart thermostats use it to make sure that only they can extend the device's features, so they can promise power authorities that when the authority turns down your furnace, you can't turn it back up again.

This is almost too good to be true. Every company has commercial preferences that they wished were legal obligations. Now, thanks to a stupid law from 1998 and the proliferation of cheap computation, every company can make their wish come true.

This is an affront to Blackstone. If the mere presence of a copyrighted work in a device means that its manufacturer never stops owning it, then it means that you can never start owning it. There's a word for this: feudalism. In feudalism, property is the exclusive realm of a privileged few, and the rest of us are tenants on that property. In the 21st century, DMCA-enabled version of feudalism, the gentry aren't hereditary toffs, they're transhuman, immortal artificial life-forms that use humans as their gut-flora: limited liability corporations.

Under DMCA 1201 rules, security researchers who learn of defects in covered products can be threatened, prosecuted, and jailed just for disclosing that the manufacturer made a dumb mistake (the manufacturers get to decide who can embarrass them by revealing those mistakes), meaning that the camera in your living room and the wireless insulin pump your six-year-old is wearing and the Internet connected car you're driving down the highway every day are all reservoirs of long-lived digital pathogens that criminals are free to discover and exploit, but that security researchers are not able to tell you about.

Obviously, this is a disaster.

Sole and Despotic Dominion [Locus]