How is Guantanamo like DRM, you ask? They’re alike in two ways: First for what they are not, and then for what they represent.
Let’s begin with the first: Both are used by the people who have created them for purposes other than what they’re ostensibly used. In the case of DRM, it exists not primarily to combat piracy but to amputate the right of “fair use.” In the case of Guantanamo, it isn’t primarily for harboring dangerous terrorists but for concretely embodying the extra-constitutional idea of expanded executive powers.
Both represent different immediate aims, but both are bad for precisely the same reason: they’re about taking a society based on rights and turning it into a society based on access. In the the case of DRM, the idea being posited is that we don’t have fair use, or the right to personal copies of work we’ve purchased — the originator of the material has every right to the work, in perpetuity, and access to that work is given on sufferance. In the case of Guantanamo, the idea being posited is that the executive has the ability to create a new framework of rights, irrespective of those outlined in the Constitution, which means that the executive, not the Constitution, is that from which our rights derive, and access to those rights is given on sufferance. And in fact in both cases there are no rights at all for the individual or the public. There’s only access, controlled by entities whose list of priorities are not notably congruent to those of the public, and are likely to become less so over time, so that access is progressively more strictly managed.
None of this is new, of course, and it’s axiomatic that yesterday’s freedom fighters are today’s rights pocketers. Hollywood — where the push for DRM is based — was founded by pirates who fled the east coast and the monopoly imposed on film by the Edison Trust. The Bush Administration — which has vigorously attempted to expand executive power — is the final reduction of a political movement began in part as resistance to the expanded executive powers assumed by FDR. But just because these are merely This Year’s Model of rights arrogation doesn’t mean they don’t need to be fought against.
One of the interesting things about right now is that I think we’re in the (very) early days of the pushback. People are better educated about how DRM messes with their ability to do what they want with the stuff they own; people are fatigued with and suspicious of the Bush Administration and its goals and motives. Naturally neither DRM promoters nor the executive ascendancy crew are going to go down without a fight; the question is whether now being on the defensive makes them more canny in achieving their goals or will simply cause the backlash to be even more intense. I have no idea, personally, although I suspect things aren’t going to get any easier for either group from here on out.
I’ll tell you what I hope for, however. In the case of DRM, I think the entertainment companies will eventually recognize it’s bad business. I have nothing against renting when I’m actively renting (I love my Rhapsody music service for a reason), and I think DRM is perfectly fine there. When you buy something, however, you shouldn’t need permission to do what the hell you want with it. I personally ignore or break DRM when I come across it on things I buy, and if it’s not possible to do either I don’t buy the product. In the case of executive overreach, naturally I’d like to see that reined in by more active and engaged Congress and courts, and by members of all political persuasions who at least temporarily will put the text of the Constitution ahead of political expediency. I suspect by dint of its sheer incompetence, the Bush administration has admirably exemplified why the executive branch should not be legally ascendant above the other branches of government; this may indeed be the only useful thing to come out of this administration. But as in all things we will have to see.
I will say I’m looking forward to the day that DRM and Guantanamo — and the philosophy of rights they symbolize — plop onto the dustbin of history. That’ll be a good day for me, and for us.