Control Freaks: Modding and the Clash with Law

by Andy Oram

Modding is childish and eccentric and deeply serious. People are investing major chunks of disposable income and (astonishingly, in a flat-out work-obsessed society where no one has time) untold hours in modding. It's one of the fastest up-and-coming social trends in the United States.

And modding has already tumbled head-on into a legal snake pit. This is entirely the doing of large entertainment and media companies, although Justice Department employees without enough work on their hands sometimes take up the cause even more zealously. It will be a big paradigm culture shift when major actors look at modding as a social and business issue instead of a legal one. This article tries to explain why that's so important and what its consequences may be.

Big and Growing

Modding, briefly, is the creative alteration of devices and systems, real and virtual. Signs of the vitality of modding include:

  • The success of such mod-happy books as Andrew Huang's Hacking the Xbox: An Introduction to Reverse Engineering, and O'Reilly Media's Make magazine.

  • The related thrill (vicarious, we hope) for books about computer network attacks.

  • The popularity of modding in games.

  • Music sampling as the raw material for new music.

  • The thousands of programmers who sign up to contribute to free software projects.

Different as these are, at heart they spring from the same impulse. They all push some system beyond its generally accepted limits. That is what makes them different from the old fixtures of popular culture: movies, TV, music listening, games (video and physical), and gambling.

Related Reading

Hacking the Xbox
An Introduction to Reverse Engineering
By Andrew "bunnie" Huang

Modding hasn't come anywhere near the popularity of those cultural fixtures--not yet--but it's having an effect on them. What's most important is that it's sucking up a lot of the Yankee ingenuity and creative excitement on which the other forms of culture depend.

OK, don't press me for figures. I can't claim modding is any more widespread in this decade than it was earlier. For a long time people, have tinkered with their cars, written free software, and made personalized music tapes. But the trends are coalescing. The people doing them are finding each other. They might have been dismissed as oddballs before, but now they've got pride.

That's what turns something into a movement. And a force to be taken into account--particularly when companies lay out business plans, and the legal system decides where to tie yellow tape around some intellectual turf.

The Counterforce

There are all kinds of cultural commentators. Some focus on discourse (news and the framing of public issues). Some focus on entertainment (movies, music, and games). Some on media (the delivery of discourse and entertainment). Finally, a few of us are just interested in information (access to and accurate use of data).

All these things mill around within a legal framework. Some countries place lots of legal controls on them, but in the United States--because the First Amendment still flies pretty high--the main control turns out to be copyright law. By the way, I haven't forgotten that this article is about modding. But right now I have to talk about copyright as cultural control.

Copyright as cultural control? Commentators tend to say copyright is either something philosophical (some countries explicitly talk of authors' moral rights) or a simple economic bargain (a monopoly extended to encourage creativity). Yet copyright operates more and more as a control on culture. It's modding that brings out just how intrusive the control is.

Really, where's the big threat in music sampling, reverse engineering, and other types of playing with copyrighted materials? (Or, in some cases, trade secrets and other controls.) Why are musicians being hauled into court over the reuse of a few seconds of music or video? Why was it risky to publish Hacking the Xbox? Why do so many companies see these things as threats?

Maybe the lawyers are visionaries in reverse, Grand Inquisitors who realize they have to nip a movement in the bud before it predominates. But I have a more optimistic attitude. Entertainment companies are just stuck in old-fashioned thinking. If they realize where modding comes from and what a powerful force it is, they may adapt to it, instead of being control freaks themselves.

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