Against Intellectual Monopoly

highly insecure and
may easily be hacked. Those documents were leaked, and posted at various
sites on the Internet. Rather than acknowledge or fix the security problem,
Diebold elected to send takedown notices in an effort to have the embarrassing "copyrighted" material removed from the Internet. Something more
central to political discourse than the susceptibility of voting machines to
fraud is hard to imagine. To allow this speech to be repressed in the name
of copyright is frightening.

    Perhaps this sounds cliche and exaggerated - a kind of "leftist college
kids"' overreactive propaganda. In keeping with this tone here is a college
story about the leaked documents, and how the Diebold and the DMCA
helped to teach our future generations about the First Amendment:
    Last fall, a group of civic-minded students at Swarthmore [came] into possession
of some 15,000 e-mail messages and memos - presumably leaked or stolen - from
Diebold Election Systems, the largest maker of electronic voting machines in the
country. The memos featured Diebold employees' candid discussion of flaws in the
company's software and warnings that the computer network was poorly protected
from hackers. In light of the chaotic 2000 presidential election, the Swarthmore students decided that this information shouldn't be kept from the public. Like aspiring
Daniel Ellsbergs with their would-be Pentagon Papers, they posted the files on the
Internet, declaring the act a form of electronic whistle-blowing. Unfortunately for
the students, their actions ran afoul of the 1998 Digital Millennium Copyright Act
(D.M.C.A.).... Under the law, if an aggrieved party (Diebold, say) threatens to sue
an Internet service provider over the content of a subscriber's Web site, the provider
can avoid liability simply by removing the offending material. Since the mere threat
of a lawsuit is usually enough to scare most providers into submission, the law
effectively gives private parties veto power over much of the information published
online - as the Swarthmore students would soon learn.
    Not long after the students posted the memos, Diebold sent letters to Swarthmore
charging the students with copyright infringement and demanding that the material
be removed from the students' Web page, which was hosted on the college's server.
Swarthmore complied.20
    Well, the story did not end there, nor did it end that badly. The controversy went on for a while. The Swarthmore students held their ground and
bravely fought against both Diebold and Swarthmore. They managed to create enough negative publicity for Diebold, and for their oh-so-progressive
liberal arts college, that Diebold eventually had to back down and promise
not to sue for copyright infringement. Eventually the memos went back on
the Internet.
    All's well that ends well? When the wise man points at the moon, the
dumb man looks at the finger.
From Policy Error to Policy Blunder: Mandating Encryption
    Some policies, such as the retroactive extension of copyright, are bad policies, because the social cost exceeds corresponding benefit. Other policies
have potential benefits that are orders of magnitude smaller than their
potential costs. We would describe these types of policies not as merely bad
policies, but as policy blunders. Simply put, in the face of uncertainty, it is
important that the potential losses from being wrong bear some sensible relationship to the potential gains from being right; when they do not, then
you are not taking the chances of making a policy mistake, but rather you
are taking your chances at a real policy blunder. To fix ideas, think of Iraq.

    The various proposals that the government should require computer
manufacturers to install a special chip to prevent the "piracy" of copyrighted
material constitute a major policy blunder. Such a chip is sometimes called
a Fritz chip in honor of Fritz Hollings, the Democratic senator from South
Carolina (some would say from Disney), who repeatedly introduced legislation to this effect. It turns out that threatening the safety of the entire
computing industry to, possibly, protect digital music and movies cannot
be a good idea. It is, as we said, a policy blunder.
    A flavor of these efforts is given by the preamble to one of the recent bills,
known as the Consumer Broadband and Digital Television Promotion Act:
"A BILL To regulate interstate commerce in certain devices by providing
for private sector