To understand these controversies, it is important to understand the law of copyright and the forces that have shaped it over three centuries. The law represents the slow accumulation of years of disputes and compromises; cutting it open reveals this legacy just as tree rings reveal seasons of growth and tumult. Chapter 2 introduces the reader to the workings of copyright law and the premises on which it is based. It is written for readers who are largely unfamiliar with copyright law and the recent controversies, but even those well versed in both will find some new approaches for moving beyond the first wave of concerns. Arguments for why copyright exists and how it should be applied are considered in light of its fundamental contradiction: that it aspires to serve the public good by constructing a property regime premised on private gain. The effort to strike a balance between these often competing interests requires limits and exceptions that are both fundamental to copyright law and, at the same time, revealing of its inherent tensions.

The emergence of new technologies tends to disrupt the balances within this legal regime that manage its structural tensions. Like many technologies before it, the Internet made visible ambiguities that copyright law had not had to deal with before, and afforded an opportunity for those most invested in the workings of copyright law to tip the scales to their benefit. In response, traditional content industries and self-appointed Internet enthusiasts made very different claims for how the distribution of culture would work in a digital age, and how copyright should change to accommodate it. This largely theoretical dispute became all too real with the arrival and astounding popularity of Napster and peer-to-peer file-trading. This chapter offers a quick and dirty history of the music industry's legal attempts to shut down the deluge of unauthorized music sharing, and introduces the technical solutions being proposed: digital rights management (DRM), a means of encrypting digital content in order to limit access to it; and the "trusted system," a scheme whereby hardware and software authorized to access encrypted content will police what can be done with that content. The chapter ends by introducing some of the concerns that have already been raised about this shift to DRM as a copyright solution, particularly around its implications for the fair use doctrine of copyright law.

three ~~ The Speed Bump
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Using encryption technology to govern cultural distribution is only an example of how we regulate human activity through the built environment. Chapter 3 attempts to arm the reader for scholarly inquiry into this phenomenon by exploring recent thinking in the fields of communication, science and technology studies, and information studies. Technologies can powerfully shape the social activities in which they intervene, sometimes with significant political consequences; at the same time, technologies are also powerfully shaped by the individuals and institutions that produce them and reshaped in powerful ways by users, suggesting that their impact has a lot to do with the meanings that are negotiated and the cultural contexts in which that negotiation occurs. We can resolve this tension between seeing technology as constructed versus seeing it as consequential by noting that technology is constructed so as to be consequential. In every instance, designing and implementing a technology is an attempt to intervene in social practice. To the extent that designers of technology can agree about how they would like to choreograph the practices of users, this regulatory role of technology is enhanced; to the extent that designers cannot control what happens to the technology after it leaves their hands and cannot entirely predict its consequences, it is diminished. Understanding the complexity of technology as a political artifact is useful as we begin to consider the implications of deliberately using technologies in place of the law.

However, while technologies can have political consequences, and the move to install DRM encryption systems into digital distribution of culture seems to depend only on technology's ability to do so, an exclusive focus on technology would mask the way it requires much more than mere objects to effectively regulate the movement of culture. To the extent that the actors powerful in this negotiation about the meaning and purpose of a technology are also often powerful in other domains, they can appeal to law, policy, and public discourse to buttress and normalize the authority of the tools they build. Alongside the new technologies come new laws to back them, new institutional and commercial arrangements to produce and align them, and new cultural justifications to convince legislators and users to embrace them. This is not engineering culture through technology, but a more heterogeneous effort to regulate through the alignment of political, technical, legal, economic, and cultural elements that must be held in place for a new paradigm of copyright to take hold.

four ~~ A Heroic Tale of Devilish Piracy and Glorious Progress, by Jack Valenti
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Chapter 4 analyzes the construction of the cultural justifications necessary for the trusted system approach to gain any traction at all with manufacturers, artists, legislators, and users. The regulation of the Internet had, before the copyright wars, been largely hands-off; when it first appeared, Napster was wildly popular not only with music fans but with the press as well. To counter these attitudes and to justify a massive change in the character and enforcement of copyright law required a powerful tale of sin and redemption. This narrative not only reframed the debate, it set the stage for the kind of institutional alignments that content providers needed to establish.

In his role as the director of the Motion Picture Association of America (MPAA), the U.S. film industry's powerful lobbying organization, Jack Valenti was the most powerful and articulate of the storytellers, offering up a narrative arc that went something like this: Movie production is an economic boon to the nation; Internet file-trading is a financial danger to that business; content producers, faced with this threat, will withhold valuable content and the medium in question will suffer; however, with stronger copyright protection and technical measures of self-enforcement, the culture industry will provide a rich consumer experience. The entire chain of assertions was wrapped in a narrative of good beset by evil, coated with dramatic metaphors and salacious scares, and contrasted against a rosy alternative only possible if copyright law were strengthened. Valenti's logic is just one version of the situation, and has been contested on a number of fronts. Nevertheless, it is slowly becoming the standard understanding of how copyright does and should work, and how digital culture depends on the fullest imposition of technical copy protection.

five ~~ Why SDMI Failed
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Technologies for the production and distribution of culture have long been designed so as to guide the activity of users, from early printed folios locked to the lecterns on which they sat, to sophisticated password protection systems on consumer software. In order to orchestrate such a system of control, content producers require the cooperation of technology manufacturers, but this turns out to be difficult to achieve: manufacturers are numerous and commercially competitive, and generally see value in offering users as much choice as possible. One attempt to wrangle these interests into agreement, initiated by the record industry, was the Secure Digital Music Initiative (SDMI). The major record labels gathered consumer electronics manufacturers, information technology providers, and fledgling online distributors to produce copy protection for music and the standards for all hardware to honor these protections. Chapter 5 traces the history of this effort, investigating how the music industry attempted to forge a consensus, and the reasons why it collapsed. SDMI is a reminder that the alignment of technology and content envisioned in such plans cannot be imposed without a matching alignment between the commercial players that produce them, and such an alignment is not so easily achieved.

six ~~ Protecting DVDs: Lock, License, and Law
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In stark contrast to the failed SDMI project, the encryption that protects Hollywood DVDs from duplication is a revealing case of how such a trusted system can be produced, and how the necessary institutional alignment can be achieved despite the strategic differences between content and hardware manufacturers. Chapter 6 reveals how the Content Scramble System (CSS) encryption used to protect DVDs is merely the technical edge of a complex arrangement of content, machines, licenses, and industry partners that together work to contain the activities of users.

In this case, the trusted system also required recourse to the law when that arrangement was breached, as it was when a "crack" called DeCSS was posted online. The industry turned to the Digital Millennium Copyright Act (DMCA), itself a dramatic shift in copyright law produced by the rethinking of copyright around the Internet and, in particular, the powerful "Valenti logic" offered by the content industries. Prohibiting circumvention of technical protections rather than copying itself, the DMCA embodies this shift toward technical solutions, while also revealing that the technology cannot function without support from the law. Rather than regulating users, the DMCA shores up the arrangements imposed by the content industries on the manufacturers, and forms the fourth side of this heterogeneous square of regulation: technical artifact, commercial agreement, cultural justification, legal authority. And it does so in a way that allows these industries to impose new controls on users that were not available under copyright law before this moment. The trusted system, then, is built on a fundamental mistrust - a mistrust of the technology manufacturers, who must be licensed into submission, and a mistrust of users, who are seen as immoral pirates until they can be technologically compelled to be good consumers.

seven ~~ Raising the Broadcast Flag
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The record industry tried to organize a voluntary agreement with technology manufacturers, and failed; the movie industry got one by holding their content ransom and forcing technology manufacturers to sign away their interests, but found they were still vulnerable to upstart manufacturers who would not agree to their terms. The next step is to seek the authority of the state to make such systems mandatory. Calling on the state promises to more powerfully bind this trusted system together and impose it on users, but it also brings new forces into play. As chapter 7 describes, the movie studios hoped to impose similar technical controls onto digital television, and called upon the FCC to give their system legitimacy and assure its imposition. An industry coalition proposed the "broadcast flag," a technical means to mark digital TV content as deserving protection, and to set rules for manufacturers for how to treat that content so as to prevent redistribution over the Internet.

Ideological gaps between these industries, and between these industries and the regulators who have jurisdiction over them, have always been narrow; nevertheless, they have been important in preventing an industry view of copyright law from completely dominating other public interests. Now these gaps are closing around technical copyright protection, thanks in part to the efforts of these industries, the increasing sense of the inevitability of this project (and thus the desire of manufacturers to be on the winning side of its commercial consequences), and the persuasive power of the piracy narrative. This suggests that, whether or not such trusted systems are ever installed and ever succeed, the changes in industry alignment being pursued in order to produce them may themselves have consequences for culture and technology. This may extend to the increasingly close ideological partnership of the content industries and legislators. However, as the broadcast flag case reveals, the FCC did make significant adjustments to the plans proposed by the movie industry and its consumer electronics partners. Furthermore, the courts subsequently decided that the FCC did not have the authority to install such a technical control regime, revealing further cracks in the political alignments necessary for a comprehensive trusted system to work.

eight ~~ Effective Frustration
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Ideological gaps between these industries, and between these industries and the regulators who have jurisdiction over them, have always been narrow; nevertheless, they have been important in preventing an industry view of copyright law from completely dominating other public interests. Now these gaps are closing around technical copyright protection, thanks in part to the efforts of these industries, the increasing sense of the inevitability of this project (and thus the desire of manufacturers to be on the winning side of its commercial consequences), and the persuasive power of the piracy narrative. This suggests that, whether or not such trusted systems are ever installed and ever succeed, the changes in industry alignment being pursued in order to produce them may themselves have consequences for culture and technology. This may extend to the increasingly close ideological partnership of the content industries and legislators. However, as the broadcast flag case reveals, the FCC did make significant adjustments to the plans proposed by the movie industry and its consumer electronics partners. Furthermore, the courts subsequently decided that the FCC did not have the authority to install such a technical control regime, revealing further cracks in the political alignments necessary for a comprehensive trusted system to work.

The attempts thus far to impose technical solutions onto the promiscuity of the Internet have all faced intrepid users who refuse these constraints: from the casual users of peer-to-peer networks to the amateur DJs creating innovative forms of digitally reworked music; from the widespread use of "black market" circumvention technologies to the hackers that take on every new system; from academic critics who challenge these strategies to the campus activists who mobilize against them. This kind of agency with culture and with technology has been the biggest hurdle for content owners' attempt to realign digital culture in more commercially viable terms. In some ways, it is this agency that must be curtailed if the broad and heterogeneous strategy of technolegal control is to succeed. Chapter 8 turns its attention to the robustness requirements that accompany most DRM systems, which require manufacturers of hardware and software not only to limit what users can and cannot do, but also to design their tools to fend off the attacks of hackers, the prying eyes of hardware enthusiasts, the curiosity of tinkerers.

nine ~~ The Cultural Implications of Encryption
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Just as digital rights management threatens the agency we have with the culture we encounter, these robustness rules threaten our sense of agency with the technology itself. Critics of the CSS encryption and the broadcast flag made this point by noting that both systems exclude the possibility of open source innovations in the distribution and consumption of film and television. To prevent users from seeing how content is protected and potentially circumvented, robustness rules require technology designers to "weld the hood shut" - something very much at odds not only with open source design, but with the traditions of user appropriation and innovation. What is clear is that these solutions are not just strategic, they are paradigmatic, embodying and imposing a persistent worldview on what is otherwise a much richer set of options for how we interact with culture and technology.

Chapter 9 attempts to step back from these cases in order to consider the cultural implications of the technology at the heart of these protec- tion schemes. Once a mechanism for ensuring secret communication between confidantes, encryption is being employed here for a very different purpose: extending control over otherwise public materials. In terms of the distribution of culture over the Internet, encryption is the digital means to assure a subtle, complex, and context-sensitive system of regulation. By encoding a film, the owner of the copyright can dictate to an unprecedented degree what can and cannot be done with it. Most importantly from a philosophical perspective, encryption intervenes before an infringement occurs rather than after. Such a preemptive measure not only treats all users as would-be criminals, it makes the imposition of copyright less open to exceptions like fair use, renders unavailable the ability to challenge a law through civil disobedience, and undercuts the individual's sense of moral agency in a way that can undermine the legitimacy of the rule itself.