Not only does Libertarian extremist Michael Badnarik hail from Indiana, but my hometime is featured on NPR today.

Nick Tarasen at What Would Phoebe Do? is criticizing the juvenile death penalty.

I submit a few observations:

1: Categorical rules and individualized determinations are different things-- that's why the fact that people under the age of 18 can't vote shouldn't imply that juries can never find them to be subject to the same moral culpability as 19-year-olds.

2: Would Nick favor a constitutional rule to prevent even those states that wished to from extending the franchise to 17-year-old kids?

3: Contrary to Nick's desires, it's simply not the case that there's a single age at which all legal responsibility and right vests. We try people under the age of 18 as adults all the time. If it's true that 17-year-olds are a psychologically pre-mature bunch who it would be unusually cruel to kill-- even when they commit heinous crimes-- then we ought to reform the criminal justice system wholesale, not use the kids as pawns in the nickel-and-diming of the death penalty.

4: The intellectually curious should go read the Alabama amicus brief, although it's not a pleasant tale. Now imagine those ages all increasing by two years. Would that really make the crimes much more heinous, or the perpetrators more likely to be evil?

5: Sometimes prophylactic constitutional rules do indeed protect rights that would otherwise fall by the wayside. Despite the criticisms, I suspect Miranda is one example. But there's no evidence here that juries are bad at sorting out the really heinous and evil killers from the only moderately heinous and evil ones.

Thirty years ago, the only significant self-help mechanism available to an author who wanted to maintain control of his work was to keep the work confidential. Once a work went public, its author had no choice but to turn to copyright law for any semblance of control over reproduction, dissemination, adaptation, and performance. As a result, authors also had no choice but to accept the constraints that came along with federal rights, constraints like the fair use doctrine, the first sale doctrine, and limitations on the ownership of facts and ideas. This landscape changed significantly, however, with the introduction of “digital rights management” and related mechanisms that allow content owners to opt out of copyright law and instead rely on encryption and monitoring technologies to control access to their work. Encryption and monitoring allow a content owner to package content such that it (say) stops functioning after a predetermined number of uses, or can be accessed only from a specifically licensed geographic location. The implication is not merely that authors can use the technology to expand on copyright law’s default package of rights while rejecting copyright law’s policy-motivated limitations, but also that authors can use it to assert control over phone books, databases, and other subject matter that the copyright system would leave in the public domain.

How much of a change this will turn out to be is admittedly a difficult question.

But three factors suggest that the change might not be particularly severe. First, hackers have thus far been remarkably effective at defeating digital rights management systems, freeing protected content and rendering implausible the fear that every scrap of content will soon be trapped behind lock and key. Put differently, unauthorized duplication and distribution is a far more pressing problem than is digital rights management; that has been true over the last ten years, and seems likely to remain true for the foreseeable future. Second, even at the theoretical extreme, digital rights management can only be so controlling. It is hard to imagine how any technology could stop a person from hearing a song and then (say) later humming it in the shower or creating a humorous parody. Indeed, the Achilles’ heel in every system designed to control access to content is that at some point customers must be able to read, hear, or otherwise experience the purchased information. Whenever that happens, the information is necessarily vulnerable. Third, content producers do not necessarily want air-tight control over their work in any event, and thus there is no reason to expect that content owners will use extreme forms of digital rights management even if they in fact become available. Magazine publishers, for example, likely benefit from the fact that consumers share magazines, passing a given issue from one friend or family member to another. The reason is that sharing in this manner is a less expensive way to distribute magazines than is the next-best alternative: printing, packaging, and shipping another copy. Thus, as long as a publisher can increase the price of an original magazine to compensate for expected patterns of sharing, the publisher has little incentive to thwart the practice. Sharing makes everyone better off, with both publishers and consumers benefiting from the savings made possible through the use of a cheaper distribution channel.

All this is not to dismiss the possibility that digital rights management might someday overstep proper bounds, threatening the host of concessions currently built into federal copyright law and at that point warranting a response. The question would then become how. One option would be to rely on consumers to develop their own counter-measures, answering new encryption technologies with new decryption techniques, and offsetting increased content control with expanded efforts at unauthorized duplication and distribution. The drawbacks to this approach are many, in that the result is an arms race—recall the discussion on point in the previous section—and, besides, there is no reason to believe that this sort of back and forth will yield anything close to an optimal division between rights and restrictions. Another option would be to regulate encryption technologies directly. The federal government has never explicitly regulated the use of encryption technologies domestically, but there have long been export restrictions in place, and law enforcement authorities do from time to time urge that manufacturers be required to build backdoors into otherwise-secure telecommunications equipment so as to facilitate government access under appropriate conditions. Regulation along these lines might be particularly effective in the copyright setting because the encryption at issue would be used in mass market products. Regulations targeting criminal or other unlawful encryption, by contrast, have always been hard to enforce because the relevant products and people were typically underground in any event.

A third and more distinctive response to digital rights management might come through the doctrine of copyright misuse. Copyright misuse is an equitable defense to copyright infringement. It immunizes an infringer from liability in cases where the infringer can show that the relevant copyright holder has, in this or some unrelated interaction, used the relevant copyright “in a manner contrary to public policy.” An example of a copyright holder potentially vulnerable to the defense would be a software firm whose contracts forbid licensees from reverse engineering copyrighted computer code. A court might in response invoke the doctrine of copyright misuse and refuse to enforce the implicated software copyright in any dispute—even one completely unrelated to reverse engineering—until the disfavored practice is stopped and its ramifications on the market undone.

Like any unclean hands doctrine, the principal charm of copyright misuse is that it can be used to discipline self-help behaviors that are difficult to regulate directly. No need to catch a copyright holder actually encrypting his work, or even to wait for a specific dispute involving the encryption scheme per se. Instead, copyright misuse comes into play the moment the relevant copyright holder turns to the courts for help in enforcing any aspect of the implicated copyright. This is also the central limitation on the doctrine: it has no bite as applied to content producers whose self-help options are so appealing that they have no need for copyright. Luckily, however, few copyright holders will fall into that category, given that copyright will maintain its importance with respect to certain classes of violations—say, unauthorized public performance—even if it loses its primacy with respect to others, such as unauthorized duplication and distribution. Concretely, there is no technology that will stop unauthorized bands from recording their own versions of Madonna’s copyrighted tunes, and so even in a world where Madonna can use encryption to protect her recordings from unauthorized distribution, she will still turn to copyright to stop unauthorized emulation by rival singers. Misuse could therefore effectively pressure copyright holders to choose between copyright law and self-help, taking away the option of using both regimes to protect any single copyright-eligible work. The result is less draconian that an absolute prohibition on self-help encryption in that it leaves copyright holders with the option of using self-help instead of law; and it is also easier to enforce, given that courts implement the doctrine simply by declining to act when called upon to do so by a disfavored copyright holder.

I'm still reading Closed Chambers. Lazarus writes:

Only a single challenged practice has ever survived strict scrutiny, and that was the infamous case of the Japanese internment during World War II.

Incidentally, thanks to all of you who wrote in with advice about how to remove the stain of cayenne from my white dress shirt. The award goes to co-Crescatter Amy, whose solution saved the day (and shirt): Oodles of bleach. (A course I now recommend to Heidi Bond.)