17 July 2024

Where your rights went: how technology facilitates the erosion of rights in the cultural commons

I’ve been thinking a lot lately about fiscal drag. Fiscal drag is an economic phenomenon where a person’s income and expenses increase together (due to inflation), but the thresholds for higher rates of tax remain the same. The result is that, on top of any other economic issues they might be facing, a greater proportion of their take home pay is taxed, and their spending power decreases. In other words: their life gets worse.

In technology there is a similar phenomenon, which I want to call something like “legal drag”, whereby people lose certain rights and freedoms as a mere consequence of technical change, and not because of any deliberate policy or legislation. Well, not policy from the government in any case.

A work locked up by DRM can be prevented from ever passing into the public domain. If the DRM is not broken (which is illegal), and the work is never released in a physical medium (which is going out of style, because it isn’t as profitable), then the work could remain available forever while never allowing anyone to make derivative works from it. In reality, the likely situation is that the work will be destroyed long before the end of its useful life, in order to evade taxes, or something else equally distopian. Obviously, this criticism applies equally to “fair uses” of the material - while you have the legal right to make copies of the work, there is no legal way to exercise that right.

In the EU, someone who buys a copy of software has a right to sell that copy, even if it is communicated over a network. They also have a right to make backups of software. However, if that software is distributed as a “service”, then no communication of the software happens, and the user has no rights at all. For example, if a user pays for a “perpetual” license to use a SaaS, the company is under no obligation to continue to provide the service.

More examples to follow…