Is the DMCA a Legal barrier?

Solveig Singleton comments on my recent post about the dismal state of DRM standards.

She emphasizes that DRM, however imperfect, is a second-best solution to the problem of piracy. I think we just disagree about that: I don’t think DRM is an effective piracy deterrent, nor do I think employing DRM technologies is an effective business strategy. But since I’ve made that point in the past I won’t rehash it now.

What I do want to comment on, though, is this:

Physical or technological barriers, DRM included, are in a lot of ways preferable to legal ones. They operate by prevention. They are responsive to consumer demand. They operate across international boundaries. They don’t have associated policing or enforcement costs (though they aren’t free, either). Imagine if the police had to keep burglars out in an environment where no one had thought of or invented locks on doors, or even walls. It would be grossly inefficient, even absurd.

I’m not sure what to make of the contention that DRM has no enforcement costs, and is not a “legal barrier.” DRM gets its force not by technology alone, but by a legal prohibition on tinkering with that technology. It requires doing such things as punishing people who make unauthorized DVD-playing software, unauthorized streaming video players, and unauthorized iTunes Music Store clients.

Ms. Singleton may consider these restrictions to be a necessary cost of preventing piracy. But regardless, they are legal restrictions. They require the use of police and courts to enforce. They restrict our freedom to tinker with the electronic devices we legimately own–a right that may not be important to her but is of importance to a lot of computer geeks. And they should, I would hope, at least be treated with skepticism by libertarians.

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