Reality check: The DMCA & Dissonant Paradigms?

["Don Labriola" <don@xxxxxxxxxxxxxxx>]

I'm editing a paper that proposes the thesis that the reason that laws like
the DMCA were "unable to save the CD industry" is because of
 i) a fundamental mismatch between intent and application; and
 ii) it attempted to constrain the effect of disruptive technology on old
paradigms by artificially propping them up, when a better approach would be
to strive to ease the pain of transition and facilitate the application of
technology (in this case, consumer broadband networking and public
peer-to-peer network topologies) to new paradigms.

Specifically, it speaks of "paradigm dissonance," asserting that, for
example, because portions of the DMCA were written to support an old
music-distribution model (shiny silver discs) that was already doomed by
emerging technologies, it could not succeed and, if anything, was bad public
policy b/c it interfered with innovation. The result was that the major
labels were free to squash competitors like Napster, a strategy that many
analysts now see as a key misstep. The argument goes that, if the RIAA had
been forced to deal directly with a transitioning market, perhaps being
forced into the alliance that Napster had tried to forge, one where both
sides could bring significant assets to the table, that we would today have
a mature online music-distribution industry. The author cites many examples
where this laissez-faire approach worked and where attempts to legislate
"dissonant paradigm" laws created turmoil. These examples go back to the
Industrial Revolution (and, generally, even beyond), but the most on-point
example is Sony v. Universal, where the Supreme Court rejected the MPAA's
argument that home VCR copying should be outlawed.

My question is this: Does this sound like a fair characterization of the
DMCA (and similar laws enacted over the last decade)? Did the
anti-circumvention portions indeed ignore the fact that a better solution
would have been to smooth the transition between dissonant paradigms? Is
this argument something new, or is it merely a "Larry Lessig lite"?

Any perspective would be greatly appreciated. Thx!

Just to put this into perspective, this paper is slated to appear in a law
journal, not the popular press or a technical publication.

Don Labriola