Artificial Interruption
by Alexander Urbelis (alex@urbel.is)
Reverse Engineering the Trade Wars
With a light that is softer and which has more of a golden hue than the rest of the floors of the establishment, the Strand's rare book room is a special place. Special in its own right, the Strand is the oldest bookstore in New York City (aged 97) and one of the most recognizable names in the book trade worldwide. The hardwood floorboards seem to creak and give just the right amount of bounce to your step, adding a hint of old-worldly gravitas to the ambience. It was there that I sat with my friend and colleague, Nick Johnson, the founder of the Ethereum Name Service, and next to him, another dear friend, Aaron Amendolia, Deputy CIO of the NFL (who you may remember from this column in 40:2), and in front of us, sitting on a leather chair perched on a podium was (((Cory Doctorow))), being interviewed by the comedian John Hodgman. Genius, it has been said, lies not in simply knowing one subject or art very well, but in the ability to synthesize ideas and concepts. It was not shocking that in this heady setting - amidst domestic and global political turmoil - ideas were flowing. It is here that the subject of the strategic and retaliatory repeal of strong-armed intellectual property protections was first broached.
The synthesis of these concepts was not my own. It was a question from Nick to Cory about his prediction as to which technologies would likely be used in unintended ways that the creators of the technologies did not envision and would like to prevent, a common theme throughout Cory's works. The twists and turns of Cory's answer is what brought forth the germ of this idea, which I shall unpack.
Many readers will recall - and many younger readers will likely not recall - the fight that 2600 Magazine had on its hands in 2000 with the Motion Picture Association of America (MPAA) over the publication of DeCSS, a program written by a teenager that effectively bypassed the monumentally stupid and simple content scrambling system that encrypted DVDs.
Rather controversially at the time, Section 1201 of the Digital Millennium Copyright Act (DMCA) made it illegal to circumvent technological means - no matter how simplistic or idiotic such means were - that controlled access to copyrighted materials. Unscrambling the scrambled, decrypting the encrypted, or removing whatever measure a copyright owner put into place to protect work would fall under the prohibitions of Section 1201.
The legal saga between 2600 and the MPAA - which ended with the dean of Stanford Law School arguing pro bono on behalf of 2600 in the U.S. Second Circuit Court of Appeals - involved none other than those very anti-circumvention provisions of the DMCA. And sadly, despite the legal firepower at work, it was not a great outcome. The MPAA prevailed in obtaining a permanent injunction against 2600, preventing the publication of the DeCSS source in the magazine. But no one, not even the MPAA, was silly enough to think that a single U.S. law and an injunction against one magazine could stem the free flow of information or prevent a budding generation of reverse engineers from deconstructing their flimsy copyright protection regimes. The MPAA needed help. They needed teeth. They needed leverage. And, over the years, they found all of those things with U.S. Trade Representatives.
This curious office, you may be wondering, is responsible for developing, coordinating, and implementing U.S. trade policies. And the U.S. Trade Representative (USTR) herself acts as the President's principal trade advisor, negotiator, and mouthpiece on all issues of trade involving the United States.
Indeed, with that background in mind, it should not come as a massive surprise that the MPAA lobbied the USTR to negotiate for more active measures for copyright protection of movies. In the name of safeguarding the global competitive nature of the U.S. movie industry, the MPAA pushed the USTR to require stricter copyright regimes as a condition of doing business with the United States. And as it turns out, pressuring foreign countries into adopting strict intellectual property protection laws that align with U.S. values is one of the stronger suits of the USTR.
Since 1989, the USTR has issued something called the Special 301 Report, through which the USTR specifically calls out countries that it considers to be lacking effective protections for American intellectual property rights. Countries on the USTR's naughty list might face trade sanctions, lose trade preferences, find themselves facing a World Trade Organization dispute settlement proceeding, or have to deal with additional U.S. diplomatic pressure. The very fact, however, that a country may be on the USTR's naughty list can cause reputational damage leading to the loss of trading partners and foreign investment.
Seen in this light, the Special 301 Report (a.k.a., the naughty list) is a big stick that the United States can wield against nations that dare to hold differing values when it comes to IP rights. The values with which the USTR happen to wish other nations align are coincidentally those very same principles and measures found in the DMCA that prohibit bypassing technical measures put in place to protect copyrights. Thus, many nations now have some form of DMCA-equivalent legislation on their books.
But this fear of the USTR's naughty list may be subsiding - and national interests may be stronger - than the fear of not being best business buddies with the United States. As the world has watched Trump single out our allies and largest trading partners (i.e., Canada and Mexico) for massive 25 percent tariffs on imports - ostensibly tied to issues completely unrelated to legitimate trade, e.g., drug trafficking and illegal immigration - other nations will inevitably begin thinking that it may not be in their best interest to hitch their economic wagons to the United States.
When other nations diversify their trade partnerships away from being U.S.-centric, this simultaneously weakens the strategic position of the United States and strengthens the relative positions of our competitors, such as China. And in so doing, the USTR naughty list becomes less and less relevant.
What becomes more and more relevant on account of these ridiculous trade wars is self-reliance. When you cannot count on your trading partners to furnish you with the technologies a nation needs to sustain its economy, that's highly problematic and a sufficient reason to reform policies to foster domestic innovation. What may very well fall away are the anti-circumvention and reverse engineering restrictions that nations the world over have put into place simply to appease the USTR and stay off the naughty list.
And there are strategic reasons for a nation to foster reverse engineering: if there is a fear that an inability to source certain materials could disrupt critical supply chains, or if certain essential technologies may be difficult to source, then reverse engineering the functionality of these products begins to look more like an economic imperative and less like a liability. Thus the embodiment of the phrase, attributed to Hubert Humphrey that "foreign policy is domestic policy with its hat on."
Reverse engineering thus becomes a viable alternative to tit-for-tat tariffs. In fact, tariffs do not even come into play if a nation is able to successfully reverse engineer products and manufacture them domestically, or with the aid of trade partners who do not penalize their allies. If the strictures of the DMCA-like legislation around the world begin to fall, then countries that promote rather than prohibit reverse engineering will gain an economic advantage while the United States remains at a disadvantage.
Reverse engineering will bolster domestic economic growth: it will create jobs, it will increase the share of knowledge that can be spread amongst a local ecosystem of builders and doers, and in so doing, close the technological gap between rich nations and poor nations. What is more, reverse engineering can make otherwise costly products or technologies more accessible and can cause markets to be more efficient - it reduces reliance on monopolies and closed source systems. Ultimately, should it ever come to bear, a global community of reverse engineers who can operate without fear of legal repercussions would break the chain of major U.S. tech company hegemony, all the way from consumer applications to the dominance of the U.S. military industrial complex.
And why should this not be the case? Have we forgotten that ideas are public goods? Does every idea with economic value need to belong to someone or some entity?
Deep within the Strand, possibly in the rare book room, I would bet that one could find the correspondence of Thomas Jefferson, and in that compilation of letters one might come across Thomas Jefferson's missive of August 13, 1813 to Isaac McPherson in which he wrote that, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea."
Going on, Jefferson argued that "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper [candle, archaic] at mine, receives light without darkening me.' This 18th century wisdom - that ideas, like fire, spread without diminishing their source - may not only be the key to defeating Trump's trade wars but could unfetter generations of hackers and builders, unlocking the next level of collaboration and human potential.