On technical restrictions and social justice

Hardware and software vendors have invented many excuses to design software and hardware that impose restrictions on users. Some design their business models such that the restrictions are an inherent and essential part of their strategy; some implement restrictions to abide by conditions established by third parties. Both behaviors are unethical and immoral, therefore society should not tolerate them.

Vendors that offer services through infrastructure (hardware and/or software), and configure the infrastructure such that they will only function as long as the customer pays for the services. They can thus start the business relationship at a loss, luring customers in by selling the infrastructure below cost or even at no charge, but with a reasonable assurance of recovering the loss through highly-priced services.

In the end, most customers end up paying the full cost of the infrastructure, which means the argument often used by vendors, that the customers wouldn't be able to afford the full cost, is a sham, since they do end up paying for that one way or another. And then, with this pricing structure, they keep on paying for the services at a higher prices after the customer-engagement investment is fully recovered.

In the same market niche, potential competitors with enough ethics to not fool their customers charge fair and independent prices for the infrastructure and the services, but end up not getting as much business, or even not surviving, because of the steeper initial price.

Unfortunately, most people don't realize the traps they're getting into before they're already nailed to a deceiving vendor. So they download or purchase software that grants them access to network-based phone calls, games, file sharing or other subscription services, that cannot be modified to use the same services from another provider. They purchase general-purpose computers disguised as mobile phones, digital video tuners and recorders, and even pay-as-you-go computers, none of which permit users to adapt the software that runs in them to their needs. And then, when they experience the frustration of the limitations imposed on them, they seldom relate it to their own past decision to accept the restrictions. They don't realize they made a mistake, and they don't even attempt to fix it or avoid it in the future.

But tying the customer to the vendor is not the only kind of restriction enforced through software, quite often with help from the hardware. Technical measures are often used by private entities, under the pretext of enforcing law, be it the law between parties set forth by contracts, be it the law that all are subject to.

One problem is that the software that implements the restrictions often fails to model precisely the law. It is often the case that boundaries set by law are soft, fuzzy or otherwise grey areas yet to be explored. When the software prevents users from performing fair uses, that could be defended, in good faith, as permissible by law, it's going beyond its stated purpose. It turns the vendor that adopts such software into a private lawmaker, who acts not in the interest of the public, but rather in its own.

Even more dangerous than private lawmaking is private law enforcement. In states of law, law enforcement is an exclusive prerogative of the state, and it's subject to a justice system. When a single private entity is in charge of making laws and punishing those who break them, everyone ends up at their mercy. Could it get any worse than this?

Unfortunately, it can. A justice system that controls law enforcement and that citizens can appeal to should unjust laws be passed or abusive enforcement be put in place can keep the private lawmaker a police in check. Citizens can still explore the boundaries of fair use and not be punished for acting in good faith and within their rights, even against the private interests that attempt to control them.

But what if the justice system is cut off from the picture? If law enforcement focuses in preemptive prevention of violations, in such a way that people don't have an opportunity to get even close to a potential violation that they might have defended as permitted by law before a court, what could people resort to in order to fight injustice? Unable to test the boundaries of laws, unable to use civil disobedience against unjust laws, unable to appeal to a justice system to correct distortions in law enforcement, and unable to break the law, even at the risk of facing punishment, the entire society is subjugated.

This is how digital restrictions management (DRM) systems work. Digital TV, DVDs, music and video players and recorders, and non-Free operating systems are plagued with techniques designed to impose restrictions beyond those permitted by copyright law. Their designers come up with rules even more stringent than existing laws, and then arrange for software and hardware to stop users from escaping these rules.

Sadly, sometimes, in order to implement such restrictions, they even use copyleft software, i.e., software licensed under terms intended to ensure that all of their users are free to run the software, study it, modify it and distribute it, with or without modifications. We call this unfortunate practice Tivoization, after a company that sells digital video recorders that use Free Software to stop users from recording or copying certain TV shows, using hardware tricks to prevent the user from running modified versions of the software.

Unfortunately, this is just the beginning. Treacherous Computing, the subversion of the Trusted Computing techniques that could have made computers trustworthy to the user into means for computers to betray their users and act against their interests, is a very serious threat. It can make it impossible to create the relatively easy work arounds that exist today for most DRM systems. It can be the end of fair use.

Our society must reject devices and software that restrict their users in such inescapable ways. There are justice systems in charge of applying and enforcing the laws that are in place, as unjust as they are. Meanwhile, we ought to work with lawmakers such that they fix unjust laws and refrain from furthering injustice.