2006.03.18
In 2005, the Australian High Court ruled that the combination of the boot ROM and region coding in Sony PlayStations and PlayStation games was not a Technological Protection Measure (TPM). Under the old law, a device had to “prevent or inhibit” the infringement of copyright. Because Sony's technology didn't prevent a copy being made, but only stopped the copy being played in the PlayStation, then it couldn't prevent or inhibit the copying that had already taken place.
This may have changed in the recent changes to Australia's copyright legislation. The definition of a Technological Protection Measure (TPM) was changed from a device designed to 'prevent or inhibit', to a device designed to 'prevent, inhibit, or restrict' the infringement of copyright.1) This effect of inserting the broader term 'restrict' seems to be to legislate around the High Court's decision in /Stevens v Sony/, meaning that a PlayStation may well be a TPM under the new law, and dealing with mod-chips may soon be illegal.
The changes also introduce a new category of protected devices, called Access Control Technological Protection Measures (ACTPMs). An ACTPM is defined as a device used within Australia in connection with the exercise of copyright, which controls access to the copyright work.2) For ACTPMs, unlike TPMs, it is illegal not only to manufacture or supply a circumvention device or service, but also to actually circumvent the measure. Previously, if you could obtain a circumvention device (mod-chip) from outside of Australia, there would be no restriction on you using that mod-chip yourself; but you couldn't have it done for you. Now, if the device is an ACTPM (but not a TPM), then actual circumvention may result in civil liability,3) and, if done for commercial advantage or profit, criminal sanctions.4) For both TPMs and ACTPMs, the manufacture, importation, distribution, or communication of a circumvention device, or the provision of a circumvention service, will attract both civil and criminal liability, with punishments up to 5 years imprisonment.5)
There is an exception in the new law which provides that a region coding device is neither an ACTPM or TPM, and a device or service designed to circumvent it will not be either a circumvention device or a circumvention service respectively. This means that a device which only has the function of preventing use in Australia of a film, game, or computer program which was purchased outside Australia, will not be protected. (It is important to note that this exception is very narrowly worded – for example, the law may not apply to allow circumvention of a device which restricts use of a game or movie to a particular State or city within Australia.)
The situation becomes more complicated when a single device has functions which both prevent use in Australia and either (a) control access to the copyright work (an ACTPM); or (b) prevent, inhibit or restrict the infringement of copyright (a TPM). Most technical locks on current game consoles arguably have both of these functions – the Sony PlayStation itself, if found to be a TPM under the broader definition of TPM, has both a TPM function and a region coding function.
The question becomes how the new exception will be interpreted, and how tightly manufacturers couple unprotectable region codes with protected TPMs or ACTPMs. In their submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs (LACA) review into Technological Protection Measures, the IEAA stated that “[a]ccess controls used to enforce region coding are tightly coupled with additional and inseparable access controls that distinguish genuine from pirated games”.6) The LACA Committee did not accept that this must always be the case, however, and noted that it should be practically possible to isolate region coding elements from TPM elements.7)
Where the manufacturer creates a dual purpose device, it will be an ACTPM or TPM, but not “to the extent” that it controls market segmentation. This can be read to mean that to the extent that it otherwise controls access, the device will still be an ACTPM or TPM. If a user can circumvent only the regional coding, and no more, then that circumvention will be permissible. A more difficult question arises when the user, in circumventing the region coding, also circumvents the TPM, and whether it was strictly necessary to do so or not. It is unclear under the new law whether circumvention will be prohibited in this case.
There is an argument that can be made that if it is not possible to separate the functions of a legitimate TPM or ACTPM from region coding functions, then none of the combination will be a TPM or an ACTPM. Neither the legislation nor the secondary materials, however, provide any clear guidance as to the extent to which this argument is correct. If this argument is correct, then it is still unclear that where it may be technically possible but extremely difficult and expensive to circumvent only the region coding, whether a 'reasonableness' test would be implied to excuse circumvention of both.
While it may be technically possible to circumvent only the region coding portion of a dual purpose device, it may be prohibitively difficult to do so. Most mod-chips bypass the entire device completely. In the Blizzard v BNetD case, the modders had to bypass a check to allow them to use their games on an interoperable server. In doing so, and because they didn't have the information required to implement their own checks, they also bypassed the CD-key authenticity check.8)) This was held to be an illegal circumvention. If a modder is required to bypass only the region coding portion of a dual purpose device, instead of a simple bypass, they may have to engage in very difficult low level reverse engineering, and may even require confidential information to reconstruct a working access control. By relying on this requirement, a manufacturer can construct a region coding which, while technically legal to remove, would be very nearly (but not quite) impossible to remove without also removing the access code.
When asking, then, whether mod-chips will be permitted under the new law, there are a number of questions:
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Does the device “control access” to a copyright work? If so, then the device may be an ACTPM, and circumvention will normally be prohibited, as will dealing with or providing mod-chips or circumvention services.
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If not, does the device “prevent, inhibit or restrict” the infringement of copyright? If so, the device may be a TPM, and while actual circumvention by people with the technical skill to do so will be allowed, dealing with or providing mod-chips or circumvention services will be prohibited. The new wider language of this test means that the device in the PlayStation may well be a TPM, where it wasn't under the old law.
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If the device also implements region coding, and the mod-chip circumvents both the region code and the access control or TPM, the position is still unclear. A Court may ask whether it was reasonable for the chipper to circumvent the TPM or ACTPM in order to bypass the region code. Alternatively, a Court may take the narrower approach and ask only whether it was technically necessary to do so. This is a fundamental uncertainty in the new law, and one which may take another test case, many years, and potentially another High Court decision to resolve.
It is not clear whether mod-chips are legal in Australia. The new law is more restrictive than the old law, because the definition of TPM is broader. This means that a mod-chip which allows the playing of homebrew games may not be allowed, where it would have been under the old law after /Stevens v Sony/. A mod-chip which only allows playing of games from other regions will probably be allowed. What about a device which does both? The answer is unclear at best.
The great danger of this new legislation, in addition to the fact that the types of protected devices has been significantly expanded, lies in the ability of a copyright owner to design around the limitations of the wording. A TPM can be designed to also be an ACTPM, in order to obtain protection from actual circumvention. An unprotected region code can be rendered protectable by creating a dual purpose device in which the functions are separated but any method of circumvention necessitates circumvention of both the access control and the regional coding. The manufacturer is the only person in the position to confine a device to specific functions, but this legislation does not impose any clear obligation to do so. Instead, it provides an incentive to create dual purpose devices.
There remains much uncertainty as to whether the circumvention of region coding in Australia will be legal under the new legislation, and the ambiguity within the legislation provides a potential loophole for manufacturers to obtain legal protection for devices which would not ordinarily be protected. It will now be up to the Courts, again, to determine when Australians have the right to remove arbitrary or anticompetitive restrictions imposed upon their property by copyright owners.
2006.03.18
Some people have argued that any unauthorised use of copyright material is likely to prejudice the legitimate interests of the copyright owner, and that market-based solutions, or statutory licences, are the most effective way of ensuring a balance between the copyright owner's rights and the ability of others to use copyright material. Fortunately, this position is supported neither by policy nor by law. The Berne convention requires that use of copyright material doesn't unreasonably prejudice the legitimate interests of the copyright owner. These concepts, reasonable and legitimate, imply a balance which is much more subtle than the simple desire of a copyright owner to be remunerated.
When we talk about legitimacy, we get to the heart of copyright policy. Copyright is not a natural right; it does not exist of its own. It is a false reification to assume that a copyright owner has a legitimate interest in being compensated for all uses of his or her work. Copyright exists for certain limited purposes. In the US Constitution, copyright exists to “promote the progress of science and useful arts”. In Australia, we have no such explicit constitutional limit. But that is not to say that copyright law does not have a purpose or objective.
Copyright law is generally said to exist for one of a number of reasons. From an economic utilitarian perspective, it exists to prevent market failure which results in the underproduction of classic public goods. Because expression is non-rival, in that many people may benefit from it at the same time, classical economic theory tells us that people are unlikely to invest in its creation unless the state provides legislative excludability. Copyright therefore exists as a necessary evil which provides state-granted monopoly rights in order to provide the necessary incentives to create. From an economic approach, copyright must have limits, whether that be because not all creation is economic, or because at some point the transaction costs exceed the incentives, or because the losses due to exclusion from the benefits of a good which can be reproduced at near-zero cost outweigh the benefits copyright owners gain from any increased incentives. The important thing to remember about copyright here is that while it may act in the market, it is not of the market; it is a tool to limit the effects of market failure, subject to our wider social policy.
Another justification for copyright, and particularly moral rights, is personality theory. Descending from Hegel, this romantic theory argues that an expression embodies the personality of the author, because it is through the creation and acquisition of property that a person self-actualises upon the world. Harm to a person's expression, therefore, was direct harm to the individual author, and should be restrained as such. This theory does not focus on economic harm as such, but is instead relevant to undue commodification, or material distortion of expression, or failures in attribution. One of the key limits to copyright when expression is viewed as an extension of the self, is that acquisition of property does not limit the ability of future authors to self-actualise through their own appropriation.
On the other hand, some argue that copyright exists as a property right inherent in labour. Drawing from John Locke's work, an analogy is drawn which seems to require that individuals be granted property rights in the fruits of their intellectual labour. Notwithstanding any difficulties in porting Locke's theory from the physical commons to the field of ideas and expression, proponents of this view often conveniently forget the very important provisos to Locke's theory, which place limits on the ability of an individual to appropriate goods from the commons. The two provisos are (a) that one leave “enough and as good” for others, and (b) that a person not appropriate more property than they can use, which would lead to harmful waste. Applied to copyright, these provisos clearly place limits on the ability of a copyright owner to claim exclusive rights in all uses of his or her works; at a minimum, the ability of future users to innovate and express themselves must be preserved.
These three theories illustrate a more nuanced application to copyright than copyirght maximalists would have us believe. When we consider what the legitimate interests of a copyright owner are, we must consider not only the desire of copyright owners to be remunerated, but also the interests of the public in being able to access and built upon expression. The romantic notion of an author labouring in isolation is patently false – all expression fundamentally draws upon the work of those who have gone before. The ability of future authors to express themselves must be recognised in copyright law, and cannot be simplistically limited to a requirement to pay for each use of prior expression. The theory simply does not support such a reification. The losses to those who cannot afford to pay, the losses to creativity and accidental discovery, and the losses due to transaction costs all combine to a general principle that copyright is not, and should not be, an absolute right.
2006.03.18
Imagine that the makers of a board game only allowed you to play it on wet Saturday afternoons. Now imagine that the Australian Government made it illegal to play that game on any other day. If the board game is released on a DVD or another electronic format, the new proposed amendments to Australia's copyright legislation do exactly that.
From the first of January 2006, it will be illegal to access electronic material in a way that the makers don't allow. Since 2000, it has been illegal to make or sell devices which break digital locks, but not to break the digital lock itself. Following the Australia – United States Free Trade Agreement, Australia agreed to extend liability for circumventing these locks, or Technological Protection Measures (TPMs).
The 2005 landmark High Court case of Stevens v Sony highlighted that anti-circumvention law (as it stands before these proposed amendments) exists to “prevent or inhibit copyright infringement”. It does not, and should not, exist to prevent consumers from using material that they purchase in ways which do not infringe copyright. In that case, Sony could not prevent people from modifying their PlayStations in order to play games they legitimately purchased overseas.
Copyright owners may have legitimate reasons for placing locks on their material. These locks can certainly make it more difficult for users to make infringing copies of movies, music, or books in electronic form. But these locks also have illegitimate purposes when they seek to restrict use, not copying.
Anti-circumvention law has had a troubled history on this point. The High Court ruled that copyright owners couldn't control the use of their material. The House of Representatives Standing Committee on Legal and Constitutional Affairs agreed, and recommended that, in order to grant protection to these digital locks, we should “clearly require a direct link between access control and copyright protection”. The Committee also recommended that these locks should not be protected if they restrict competition. The Attorney-General's Department has clearly said that it accepts both of these recommendations. Indeed, the first draft of the copyright amendments clearly defined TPMs as devices which prevent or inhibit copyright infringement.
The first draft enshrined the principle highlighted by the High Court that Australians should have the liberty to use their legally acquired property as they see fit. In three short weeks and a legislative two step, that principle has been destroyed. The new copyright bill doesn't require protection of copyright interests. Instead, it gives copyright owners the broad ability to control use of their work, if they can merely show that the lock is used “in connection with the exercise of copyright”. Interpreted broadly, this potentially means that any lock will be protected from circumvention, as long as it controls access to copyright material.
This new broad language has enormous consequences for Australian consumers. The proposed law will give copyright owners wide ranging powers to restrict the use of copyright material any way they want. Subject to competition law and express exceptions for region coding, the copyright owner now has the unfettered ability to determine how you can use your legitimately purchased DVD, game, music, or electronic book. We're talking about CDs you can't use in your car, games you can't play with your kids, and books you can't read on Thursdays. This may seem far-fetched, but it is really a fundamental reshaping of consumer law in the guise of copyright legislation.
Copyright exists to protect people from unauthorised copying of their material. It does not exist to allow the authors of a legitimately purchased item to control how a consumer uses it. There is no justification for giving this power to copyright owners. International law doesn't require it. The Australia – US Free Trade Agreement doesn't require it. Even our High Court has said that we shouldn't do it. So why have we? What has changed so much in the last three weeks, that the Australian Government has suddenly severely reduced the rights of consumers without any public debate or explanation? Why exactly have we sold out our consumer liberty to the benefit of large media corporations?
Copyright law is important. If Australia is to remain competitive in the global marketplace, we need to ensure that hard work and investment in the knowledge economy does not go unrewarded. But that doesn't mean that we should protect the interests of copyright owners at any cost. This new bill destroys the balance between copyright owners and consumers. It gives protection to the most absurd of limits that can be imposed by technology. There is no reason why copyright owners need to be able to control how and where we interact with copyright material. This bill simply goes too far.
The only way that Australia will survive such a bold attempt to reduce our freedom and quality of life is for ordinary Australians to actively engage in this debate – go online, talk to family and friends, and most importantly, voice your opinions to your local member and your state Senators. We have little more than a few weeks before parliament will decide what law will be implemented. Educate yourself on these issues, as they promise to fundamentally alter our rights, our economy, and the way we use digital technology. Say it clear: technological protection measures should protect copyright itself, not the use of copyright material.
2006.03.18
Below you can find a thrilling multimedia experience – a text and image based slide set, with audio accompaniment.
This is a summary of the starting position for my PhD research, presented at the QUT lunchtime research seminar series. There's not much that's not in the proposal, but I've been told that that podcasts are cool.
So, grab:
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the slideset in ODP or PPT formats; and
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the audio in 12MB OGG or 10MB MP3.
2006.03.18
(my title, not hers)
At the VI Computer Law World Conference, Yueyue Wang presented a paper titled “Will Fair Use Survive? – Regulating File-Sharing in Research and Education.” Yueyue's central argument rests upon the proposition that fair use is losing out, particularly in peer-to-peer networks. Hence the choice is between not having fair use at all, or finding an alternative, such as 'fared use' – where copyright owners are remunerated for fair uses.
Yueyue justifies this proposition by showing that Fair use != Free Use – citing Coase, she notes that because transaction costs always exist, fair use is never monetarily free.
In my opinion, there is a major flaw in this conception. Fair use may not be 'free', but it is /non remunerated/ – the copyright owner is not rewarded. Transaction costs are waste. The moment you make fair uses remunerated uses, you are effectively saying that anyone who can afford to pay the transaction costs, but not the fair use levy, will be denied access to the information. This is classic deadweight loss in the economic sense.
There is an argument that fair use exists because transaction costs for users to find the copyright owner and ask for permission would be too high for the kind of uses envisaged. Potentially, a compulsory licence would alleviate a significant portion of these, allowing copyright owners to be remunerated for uses on which they could not otherwise not collect.
I don't accept this construction. I believe that fair use is an exception to the copyright monopoly because it is a set of uses which we understand are so important that we can't deny it to anyone. Costs of access (i.e., getting to the library, cost of photocopying, etc) are a different problem – undoubtedly one we should also try to alleviate. I think it's a logical fallacy to go from the preposition that because fair uses are never zero-cost, to the conclusion that copyright owners should be remunerated for fair uses of their works.
I'm not convinced that the only way we can deal with the apparent problem of file-sharing is to charge for fair uses. It would be far too early to say that fair use will not survive if we don't start charging for it, and the dangers of charging for fair uses are simply not justified on the available evidence.
2006.03.18
Nic Garnett is the principal consultant for Interight.com (DRM consultants), and was talking at the VI Computer Law World Conference about his report produced for WIPO – Automated Rights Management Systems and Copyright Limitations and Exceptions. Garnett has been representing copyright industries and TPM developers for over a decade, and was heavily involved in the development and negotiation of the 1996 treaties (WCT and WPPT). He set out to prepare as objective a report as he could. I'll leave questions of objectivity as an exercise for the reader.
I'm more interested in the process of legislating as a pre-emptive response to disruptive technologies. Garnett noted that during the 1996 WIPO treaty discussions, we accepted rather quickly that technology is going to have a large part in the regulation of copyright, and didn't spend much time thinking about the consequences. As a result, we ignored the details and are now struggling with shortcomings in that law. Garnett seemed to say that 1996 was probably too early to develop the treaties – the technology had not yet matured. Interestingly, he also noted that the future would be radically different to what we see today (“blogging will be seen as so 2006”).
The conclusion I'd draw is therefore that we should be _very_ careful next time – when we're creating regulation in response to what _may_ happen, there's a good chance we will get it wrong. When asked whether in the future we should try to legislate against disruptive technologies before the technologies had matured, Garnett was less certain. He noted that copyright law has always struggled to keep up with technology, and seemed to think that the alternative to early regulation was to ditch copyright law altogether instead of trying to keep up. The clear fear is that we're either going to regulate early, or leave our policies to technological determinism (and, implictly, to watch our industries whither in the meantime).
Unfortunately, I'm not convinced. The decisions we make at these early stages have far-reaching effects, and premature regulation always carries a significant danger of destroying future technologies – technologies that we can't currently imagine. This is a continuation of the theme Andres was talking about (below) – we are generally quite scared of new technologies, and it skews our discourse towards an artificial preference for the current state of affairs (even though once technologies mature, we no longer regard them as scary; indeed, we hardly regard them as technologies at all – Andres used the example of /I, Robot/, where Will Smith was able to save the world after catastrophic technological failures, where nothing was working, because he had a motorcycle – dependable, old-fashioned transport).
When we are trying to regulate future developments, we necessarily exclude potential stakeholders – we simply don't know what the future will bring. This means that there will obviously be an over-representation of the stakeholders who have an interest in the status-quo. Certainly I'm not saying that we have to refrain from any prospective decision making (there may be future developments we do want to prevent before they arise), but I think we need to be very careful before we do so.
Update:
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Ian Brown argues that this report provides an example of why WIPO should open up its decision making process by openly soliciting tenders for its reports.
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Andrew Adams has a good review of Garnett's presentation in much more detail.
2006.03.18
At the VI Computer Law World Conference, Lilian Edwards presented a good overview of the growing problem of insecurity of consumer computers, in the context of zombie networks. Having understood the problem, what are the possible solutions?
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Incentivise ISPs to provide better security: get ISPs to monitor traffic to identify infected systems, or block outgoing port 25, for example. The negative here, of course, is that ISPs will monitor traffic and block access to services.
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Imposing Criminal or civil liability on end users: this option is generally distasteful, because it is effectively a sanction on the elderly, poor, or undeducated. On the other hand, it may be effective if there are viable ISPs which restrict access to trusted services, and insurance providers begin to provide accessible policies. In this way, users who want more flexible access are exposed to greater liability, and are therefore expected to take better care of their systems. The same negatives apply here: the majority of home users will be restricted in what they can potentially do. The argument that granny doesn't need anything other than access to the ISPs mail sever and HTTP proxy virtually guarantees that new services will never find critical mass.
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Push liability to software publishers: an idea that appeals to Microsoft-bashers, but neglects to consider (a) the fact that most users are reluctant to upgrade to new versions of software; (b) the upwards pressure on software costs; and © the effect on other producers of software, particularly free software developers.
Lilian concluded that computer security needs to be treated as a common good if we are to protect ourselves. Surprisingly, there was quite a lot of support at the conference for a redesign towards trusted networking – there is a danger that people may not be considering exactly who will be prevented from benefiting from cheap communication when only trusted providers can speak. The increasing fears for security (not to mention the near-panic over spam) are leading people towards knee-jerk reactions. Thankfully, when the negative impact of trusted networking was explained, most people at the conference seemed prepared to take a more reasoned approach.
Interestingly, most people were broadly supportive of A A Adams' suggestion that governments provide open source virus and firewall products, with funded free updates. I think that this is a very sensible approach. With education and free security updates, we should see a real increase in security of consumer computers, without interfering with end-to-end neutrality.
2006.03.18
At the VI Computer Law World Conference, Andres gave an interesting presentation about the distribution of nodes in networks (definitely not random), and the impact of this particularly on regulation.
This reminds me of a presentation at the recent iCi Research Symposium by Sandy Pentland, where he explained the research being undertaken at MIT on predicting human behaviour through wearable computing. Sandy showed results that he could identify social outliers and influencers, predict the location, associations, and health of participants, and even predict the outcomes of wage negotiations and blind dates, with astonishing accuracy, using such things as movement sensors in mobile phones and voice pattern matching (not speech recognition, but pitch and tempo etc).
In a previous abstract, Andres asks:
“How should we regulate networks if we can find certain deterministic characteristics to them? Is enforcement of illegal behaviour easier to regulate because we understand the technology?”
Obviously these focal points provide big juicy targets for regulation; one comment from the discussion was that we would have a much larger effect if we regulated Google rather than any other random node. Indeed, we need to seriously consider how we apply or let pressure be applied to central nodes.
I'm a little bit more concerned with forces internal to these powerful nodes. Instead of regulating Google, what happens when Google changes itself to effect everyone else? We've already seen this debate with reference to alteration of results on the Chinese Google site. Fundamentally, a little bit of social engineering on the part of a small number of core private companies could radically change the way the Internet looks. Everyone trusts Google – maybe they could convince a critical mass to adopt new root name servers, for example…?
2006.03.18
As part of the GikII workshop, there was a really interesting discussion centering around the representation of surveillance, privacy and fears for technology in fiction. Presentations by:
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Judith Rauhofer, “Defence against the Dark Arts: How the British Response to the Terrorist Threat Is Parodied in J K Rowling's Harry Potter and the Half Blood Prince”
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Andrew Adams, “From 1984 to V for Vendetta via Minority Report”
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Andres Guadamuz, “Killer Robots, Evil Scientists and Other Tales of Woe: How Technophobia in Culture Affects the Law”
Judith spoke about how the Harry Potter novels are a subtle parody and a criticism of the Blair government's response to terrorism. Andrew discussed examples of surveillance in Fiction (1984, Minority Report, V for Vendetta, Demolition Man, Gattaca, etc), and the current and future state of surveillance in fact. Andres noted that throughout fiction, technology has largely been regarded negatively (Prometheus, Icaraus, Vulcan, Babel, Frankenstein, etc) – humans are punished when they try to become like gods. Andres' conclusion was that fiction is highly technophobic, and that as a society, we tend to swing between technophilia and technophobia, and our fear of the new often ignores the advances of the past.
What I'd like to know is to what extent fiction is descriptive, and how much it potentially shapes the public view. In an age where the mainstream media is not providing a strong criticism of privacy, security trade-offs, or scientific research (to name but a few areas), is fiction going to be increasingly important in introducing counter-values? The readership of Harry Potter is quite large – do the subtle criticisms contained within breed a healthy cynicism amongst its readership? What about images of killer robots and all pervasive surveillance? Are we scared enough by these tales of woe that we are cautious in our own development, or do we dismiss them as either (a) mere fiction, or (b) stylised and removed from reality?
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