Technology, Magic and Bill C-11

It was just about 50 years ago that Arthur C. Clarke wrote Profiles of the future: an inquiry into the limits of the possible (New York: Harper & Row, 1962) [Amicus No. 10912514]. On page 19, he wrote:

Suppose you went to any scientist up to the late nineteenth century and told him: "Here are two pieces of a substance called uranium 235. If you hold them apart, nothing will happen. But if you bring them together suddenly, you will liberate as much energy as you could obtain from burning ten thousand tons of coal." No matter how farsighted and imaginative he might be, your pre-twentieth century scientist would have said: "What utter nonsense! That’s magic, not science."

In a footnote on page 36 of the revised edition (New York: Harper & Row, 1973) [Amicus No. 1126794], Clarke articulated his "Third Law", i.e. "Any sufficiently advanced technology is indistinguishable from magic."

Two books that I happened to be looking at recently made me think of Clarke’s Third Law.

The first book was one that I bought in Ottawa in 2003 and rediscovered when rooting about in my personal collection: Henley’s twentieth century book of formulas, processes and trade secrets, ed. by Gardner D. Hiscox and rev. by T. O’Connor Sloane (New York: Norman W. Henley Publishing Company, 1937) [Amicus No. 28920457]. You’ll get the general idea from this formula, on page 414, for making a reliable writing ink:

Aleppo galls (well bruised), 4 ounces; clean soft water, 1 quart; macerate in a clean corked bottle for 10 days or a fortnight or longer, with frequent agitation; then add of gum arabic (dissolved in a wineglassful of water), 1½ ounces; lump sugar, ½ ounce. Mix well, and afterwards further add of sulphate of iron (green copperas crushed small), 1½ ounces. Agitate occasionally for 2 or 3 days, when the ink may be decanted for use, but is better if the whole is left to digest together for 2 or 3 weeks. When time is an object, the whole of the ingredients may at once be put into a bottle, and the latter agitated daily until the ink is made; and boiling water instead of cold water may be employed. Product, 1 quart of excellent ink, writing pale at first, but soon turning intensely black.

(Seventy-some years later, I suppose we have also learned to ask if this particular formulation is too acidic.)

The second book is one that I bought for $1.50 at this year’s Nova House Book Riot in Niagara Falls: Joseph Dullinger, Dullinger’s complete encyclopedia of magic (London: Spring Books, 1970) [Amicus No. 26109354]. Here’s a sample from page 93:

EFFECT: Three coloured lead pencils are given out for examination, red, white and blue, for example. The performer leaving the room, tells anyone to choose any color pencil they wish, while he is out of the room, and to wrap it up in any color piece of paper or cloth, and to hand it to him securely wrapt when he returns to the room. Upon receipt of same the performer passes hand over pencil and tells exact colour.

SECRET: Two of the pencils are "faked" in this manner. One of them is drilled with a 1/16 inch drill in the rubber end about 1 inch, and the other one is drilled half-way down or in the middle. Two pieces of Stubb’s drill rod, ½ inch long by 1/16 inch diameter, are hardened, magnetized and inserted in the drilled holes and a piece of lead is inserted on top of the magnetized pieces and made flush with wood in rubber end of pencil, the rubber is placed on top and the trick is ready; the third pencil contains no fake whatever. In leaving the room the performer attaches a small compass inside his shirt cuff, (some of these compasses can be obtained as small as a dime, or even of less diameter), which aids him in detecting what pencil is wrapped up or concealed in the cloth or paper in this way: He slowly passes pencil in front of compass and watches needle until it quivers, which it will do when that part of pencil containing the magnetized steel passes needle. If the needle moves when the end of pencil is near it, the performer knows it is the red one. If it moves near the middle of pencil, he knows it is the white one; if needle does not move, it must of course be the blue one. As the back of hand faces audience, the compass is invisible.

Technology indistinguishable from magic? It depends, I think, whether you’re the artist or the mark.

It bothers me that I know so little about the world around me and how it works. Buying the books is a poor substitute for acqually acquiring the know-how, but it’s a small step in the right direction, isn’t it? That’s what I tell myself, anyway. I try to be philosophical about my limitations, but the uneasiness never completely goes away.

The good thing about proverbial expressions is that their wisdom and pithiness have been tested and refined over the ages. The bad thing about them that they’re usually too old to be gender inclusive. So please make the effort in reading to understand these two inclusively: 1. "A good workman is known by his tools." 2. "Only a poor workman blames his tools." If there’s any wisdom in these proverbs, then the ideal type would seem to be the blacksmith who makes her or his personal blacksmithing tools. Hardly a practical thing for the rest of us.

I’m not going to stop driving my car, or cooking with a microwave oven, or watching television, just because I don’t really know how these things work or how to make them. But I wouldn’t pretend that my use of these things amounts to a technology either. I take it on faith that the making of these things is a technology for somebody, but it might as well be magic for all I personally know of the processes involved.

I suppose in an ideal world, lawyers, law teachers and law librarians would understand their writing tools at least. In practice, however, although I might be able to steal a quill from one of the geese nesting between the Pond and the law school parking lot, I’d be very hard pressed to make serviceable ink and paper. There’s no hope at all that I could collect silicon from the beach and build an integrated circuit, even with all this helpful information from Intel: "From Sand to Silicon – the Making of a Chip".

According to Merriam-Webster, an Aleppo gall is “a hard brittle spherical body that is about the size of a hickory nut and is produced on the twigs of an oak (Quercus infectoria) by a gall wasp (Cynips tinctoria).” So the formula for black ink reminds us that there’s always been magic in the world. We have, however, made progress. Most of the information revolution we’ve enjoyed has taken place since Clarke articulated his third law 50 years ago. That revolution was possible, it turned out, because people like Alan Turing and Alonzo Church had figured out that mechanical processes could be modeled abstractly. For me, at least, that puts coding and programming in an interesting middle ground between the technology of writing with driftwood on sand, and the magic of integrated circuits. I can enjoy figuring out how programs work without having to spend very much on materials.

Which brings me to Bill C-11 (the Copyright Modernization Act). The definition of "technological protection measure" in the proposed section 41 is odd:

… any effective technology, device or component that, in the ordinary course of its operation, controls access to a work …

To the extent that some particular measure can be circumvented, how is it an effective technology? Isn’t it obvious that Parliament is being asked to get involved just because this so-called technology doesn’t actually work? And wouldn’t you think the need for Parliamentary involvement would be decreasing, rather than increasing, if it were becoming more and more ordinarily the case that such measures did control access to works? The legislation protects all and only those works which don’t quite protect themselves. Let’s consider one particular literary work, the Copyright Act, as amended by this bill. Will it protect itself? I suppose it depends what’s meant by "technology" and by "access". OK, I am stretching, but the definition does remind me of Russell’s paradox, which Russell popularized as the barber paradox: The barber shaves all and only the men who don’t shave themselves. But who shaves the barber?

This nonsense didn’t originate in Canada. We can thank Article 11 of the WIPO Copyright Treaty (Geneva, December 20, 1996). And, as Pamela Samuelson and Suzanne Scotchmer have argued in "The Law and Economics of Reverse Engineering", Yale Law Journal 111(7):1575 (May 2002) at 1640 (Hein):

The DMCA gives no incentive for the content providers to moderate their prices, and it gives little incentive to employ effective technical measures. … Under the DMCA, any trivial technical measure may suffice because circumventing a technical measure raises the specter of criminal prosecution. Thus, the stringent penalties under the DMCA for individual acts of circumvention could have the odd consequence of reducing reliance on technical protection measures, as compared to the situation before the DMCA was enacted and as compared to the narrower rule we propose. By reducing the market for effective technical measures, the DMCA also reduces the incentive to develop them and improve them, as we discuss below.

Be that as it may, it’s likely enough that, thanks to Parliamentary make believe, wishes will become horses and beggars will ride. The measures aren’t actually effective, but we’ll keep on telling ourselves (legislatively) that they are. Don’t the psychologists call this "magical thinking"? And since the reason for putting legislative barbed-wire around these "effective" measures would appear to be to discourage us from shedding any light on how they work (and don’t work), wouldn’t it be more accurate just to call them "dark magic" instead? I suppose Parliament could (abusing a different word, but in the customary way) clarify the meaning by changing the phrase to "reasonably effective technology". But the method would still be misdirection. The only technology that really seems to matter here is the technology involved in the litigation of rights under the Copyright Act.


  1. David Collier-Brown

    I wonder if there is a case to be made that an ineffective effective protection measure doesn’t fall under the act (;-))


  2. Is there a case to be made that the Bill means by ‘effective technology’ a technology that is intended to produce an effect, i.e. of controlling access, rather than a technology that does something else? Or does all technology by definition aim to have an effect of some sort, so ‘effective’ is redundant in the sense I propose?

    Otherwise the Bill seems to make the fundamental drafting error of putting a substantive provision into a definition. The problem with that is that if the phenomenon under consideration does not meet the substantive rule, it may not ‘exist’ for the purposes of the statute. That would be the result contemplaed by David C-B above – not the one intended by the drafters or at least by the policy leaders for the Bill, one presumes.