Confused reasoning about the DMCA

Over at CNET, Adam’s colleague Patrick Ross has an incredibly confused defense of the Digital Millenium Copyright Act:

When content producers know that they can experiment with various protection approaches, they’re more comfortable entering the online market. Also, investors are more inclined to fund such efforts. Imagine a world of unlimited digital content, packaged with a range of TPM at varying prices. In that world, consumers can purchase exactly the amount of use they need and not pay for more.

But if HR-1201 [the Digital Media Consumers Rights Act, introduced by Rep. Boucher] becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn’t codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider.

No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that’s what HR-1201 permits. That hated TPM would disappear from the market, as there’s no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it.

The first sentence of the last paragraph is a simple, unambiguous falsehood. The Boucher bill specifies “that it is not a violation of [the DMCA] to circumvent a technological measure in connection with gaining access to or using a work if the circumvention does not result in an infringement of the copyright in the work.”

You tell me how that abrogates any contracts.

This isn’t just nitpicking. TPM schemes can place any kind of restriction they want on their cusomers, including restrictions imposed retroactively and without notifying their customers. (Apple, for example, unilaterally reduced the number of copies of its songs existing customers were allowed to burn to CD after the songs had already been sold) There is no reason whatsoever to assume that a TPM scheme constitutes a “contract” between a company and its customers. Prohibiting circumvention of TPM schemes doesn’t aid contract enforcement, because a TPM isn’t a contract.

On the other hand, the Boucher bill would not in any way prevent the enforcement of actual contracts. Fair use is not a defense against breach of contract, and Boucher’s legislation wouldn’t change that. So if a user signs an agreement promising not to break a TPM scheme, and then breaks it anyway, the company that designed the TPM would have every right to sue the customer.

There’s also absolutely no reason to think that content wouldn’t be made available for download without TPMs. Every CD is effectively TPM-free. I could take any CD I own, “rip” the songs on it, and upload them to a P2P network. Yet the recording industry still sells CDs. Why would we think online downloading would be any different?

The folks at PFF desperately want to portray the DMCA as a “free market” approach to copyright problems. But the shoe just doesn’t fit. TPM systems are not contracts, and circumventing them, as such, is not theft. Simply stated, the DMCA is a government-imposed restriction on the design of technological devices. It’s fine to argue that such restrictions are needed to curtail piracy, but such restrictions have nothing to do with freedom of contract.

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