Singularity Law

I was intrigued by a recent study of the views of entering college freshman done by Beloit College. Many of the items related to technology, such as:

• With cell phones to tell them the time, there is no need for a wristwatch.
• Email is just too slow….
• They never twisted the coiled handset wire aimlessly around their wrists while chatting on the phone.
• Unless they found one in their grandparents’ closet, they have never seen a carousel of Kodachrome slides.
• Computers have never lacked a CD-ROM disk drive.
• The first computer they probably touched was an Apple II; it is now in a museum.
• They first met Michelangelo when he was just a computer virus.

We all know that technology is evolving at breakneck speed. But it’s always interesting to see just what impact these changes are having on our next generation of workers, inventors and policy makers. It’s amazing how developments in technology have fundamentally affected their worldview.

The difficulty of predicting what technology is going to catch on, and the impact such technology will have on society, is obvious. However, another interesting issue is what impact technology will have on the law. The traditional mantra is that technology changes too fast for the law to keep up. Legislatures are hard-pressed to anticipate technological changes and deal with the legal issues that such changes create. However, in some cases legislatures have attempted to anticipate technological developments – often with interesting results.

I have been developing lectures for an online LLM course I will be teaching this fall in Internet and E-Commerce Law. I was reminded of two pieces of legislation that were enacted in the 1990s to deal with “emerging” technologies that can be seen as somewhat anachronistic in light of later developments.

The first is the Audio Home Recording Act of 1992. The Act was Congress’s response to a controversy between the music industry and the consumer electronics industry regarding the introduction of digital audio recording technology into the domestic consumer market. Everyone thought digital tape recording was going to be the “next big thing” and the music industry was concerned about the ability of these recording devices for piracy. Exempted from the Act were computers, which were viewed in 1992 as an unlikely device for music copying. Well, we know how well that prediction panned out. Portable music players, like the iPod, were not covered by the Act, while digital audio tape recorders (what are they, you might ask?) were. Neither the music industry nor Congress foresaw such technologies as the Internet, broadband, or audio compression (MP3) that would make the copying and transmission of music files over the Internet quick and easy. Oops.

Another interesting, but somewhat irrelevant law, is the DMCA provisions on copyright management information. In 1998, pundits saw a day when digital content files would contain “copyright management information” (CMI) that would be “read” by software and hardware devices and would control the uses that could be made of a digital work. For example, futurists foresaw a time when Internet users could download or share content files and the computer would read the CMI from the file and, depending on what the user wanted to do with the file, would automatically transmit a micropayment from the user’s bank account to the copyright owner’s bank account for an appropriate license. Photocopiers would “read” microscopic barcodes printed on each page of a book or magazine, which would determine whether a particular page could be copied at all, and if so, whether a micropayment should be made to the copyright owner for that copy.

Twelve years later, CMI technology is little used and certainly not a hot topic in legal circles or the courts.. The “problem” that proponents of the CMI legislation identified has never materialized. Oops.

That is not to say that legislatures should never legislate in anticipation of new technologies, only that they should be careful in determining which issues are ripe for legislation and which are not.

Perhaps they should ask an entering college student?