Re: Reality check: The DMCA & Dissonant Paradigms?

["John Mitchell" <mitchelllist@xxxxxxxxx>]

Don,

In my experience, this does not sound like a fair characterization of the
DMCA. It was not really intended to save the CD industry. (A
second-generation CD was expected, but following a format war and lack of
consumer support, it fizzled.)  But it was already too late for the CD to be
retrofitted with copy controls like the DVD.

The greatest flaw, in my view, was that it failed to match existing law.
That is, the dissonance was not with any particular product or technology,
but with the Copyright Act. This is because the WIPO treaties that the DMCA
purported to further required prohibition against circumvention of
technologies to gain access neither authorized by the copyright owner nor
authorized "by law".  The U.S. Congress left that last part out, with the
result that copyright owners, who had claimed that the DMCA was only about
protecting their copyrights from infringement, woke up to find themselves
strangely empowered to prevent lawful business models that did not infringe
copyrights yet nevertheless circumvented the technological protections
unrelated to copyright. The DMCA became a tool to protect business models
rather than copyrights. Nothing in the WIPO treaties requires such a result,
but that is how the DMCA was written. (Arguably, to the degree that the DMCA
is used to prevent non-infringing access, it should have to pass the First
Amendment hurdle, given that the suppression of speech is not authorized
under the Copyright Clause.)

What was being artificially propped up by the DMCA was not old outdated
technology, but new untested delivery methods developed by monopolists
rather than competitors. Copyright owners wanted to use the DMCA to
disintermediate when they should have stuck to discovering, developing and
marketing new talent, and let the competitive markets develop,
competitively, the killer apps for delivery.

As for your note on Napster, it has been a while, but my recollection is
that it was not a DMCA case.

John

On 9/8/07, Don Labriola <don@xxxxxxxxxxxxxxx> wrote:
>
> 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
>
>


-- 
John T. Mitchell
http://interactionlaw.com