My final contribution to the June edition of Cato Unbound is up. I criticize Doug Lichtman call for “more complicated [copyright policy] interventions that, by design, influence the development of technology tools and services”:
Back in the late 1990s, companies started to develop MP3 players that are essentially miniature musical jukeboxes. The recording industry sued to block their sale, but was unsuccessful. The result was a surge of innovation, culminating in the iTunes/iPod ecosystem that now dominates the digital music marketplace. It’s tough to say what would have happened if the recording industry had won that lawsuit, but I think it’s safe to say that it would have taken longer for portable music players to emerge on the scene, and that the digital music ecosystem would be less advanced today. Fast forward a few years, and we can see that hard drives are now large enough that one could easily build a set-top box that does for your DVD collection what the first iPod does for your CDs. Insert each DVD you own once, and the box copies it to your hard drive. From then on, you can watch any DVD you own with the touch of a button. And of course, you’d likely be able to do much more than that: stream movies wirelessly to different TVs around your house, stream them to yourself while you’re on the road, transfer them to an iPod or other mobile device to watch on the road, and so forth. Even more important, the existence of a competitive DVD jukebox market would likely produce spin-off innovations, just as the MP3 player did, with people developing devices, software, and accessories that interoperate with the DVD jukeboxes. Unfortunately, Hollywood sued the first DVD jukebox out of existence. And this time, thanks to the DMCA, they’ve won. CDs have no copy protection, so under copyright law anyone is free to make a device to play or manipulate music on CDs. But DVDs do have copy protection, so in effect no one may innovate in the DVD marketplace without Hollywood’s blessing.
Libertarians are rightly uneasy with government “industrial policy,” efforts to reshape the marketplace by legislative or administrative fiat. In a sense, I think the theory Lichtman articulates suffers from much the same defect. Policy makers will never know if the extra creative works supposedly stimulated by the DMCA are worth more than the foregone innovations. We should therefore be suspicious of proposals to encourage the development of one part of the market at the expense of another. Such efforts rarely turn out as well as policymakers hope.