Is Whitelisting Worse?
Not all digital rights advocates were thrilled with the news last month from the RIAA president that the recording industry would no longer pursue a "broad-based legal strategy against individuals for file sharing." Some of this unease has to do with what Lawrence Lessig calls "four modalities" or "constraints" in the section from his book Code 2.0 about "What Things Regulate?": "Norms," "Laws," "Markets," and "Architecture," as the diagram above shows. Lessig argues that too often commercial media companies are unwilling to let commonly agreed-upon social norms or the pragmatic considerations of market forces dictate how they handle those who copy, remix, and circulate digital content. Instead, they exploit their relative power created by a century of one-to-many media by pushing for draconian laws and technologies that make certain common operations that consumers would expect to be able to do when they purchase a product impossible.
In Lessig's terms, the article "RIAA president: No talk of blacklisting file sharers" describes how the recording industry is moving from a strategy based on laws to one based on computer architecture, in this case by forcing Internet Service Providers to forbid certain kinds of behavior using automated technologies, even if these behaviors might be allowed under rules governing fair use for critical or educational purposes or materials in the public domain.
Update: This radio interview with Steve Knopper makes an interesting argument that the decline in record sales also represents a burst bubble from exploiting the market during the era in which CDs were first introduced.