A who’s who of the copyright industry have submitted comments in the Librarian of Congress’s triennial review of the DMCA’s anti-circumvention provisions. In it, they argue that the Librarian shouldn’t grant any exemptions to the anti-circumvention provisions because they have done such a splendid job of stimulating the production of creative works:
The “availability for use of copyrighted works” is perhaps the most important statutory factor to be considered when assessing the impactof § 1201. The Joint Reply Commenters believe that the undeniable success of the current digital marketplace, which has given consumers of copyrighted material more choices than ever before, should weigh heavily against the recognition of any exemption in this proceeding. When the Register and the Librarian “carefully balance the availability of works for use, the effect of the prohibition on particular uses and the effect of circumvention on copyrighted works,” it will become clear that the DMCA has come a long way toward achieving its goals without burdening noninfringing uses in any significant way.
It’s certainly true that there are a lot of copyrighted materials for sale today, and that’s great. But I don’t understand what the copyright industry thinks would have happened in the absence of the DMCA. Would Disney, Paramount, Universal, et al have cut back on the number of movies and albums they produced? Would they have liquidated their assets and returned the capital to their shareholders? Would they have refused to release any content in digital formats?
Of course not, and that’s not just speculation. We know exactly what the content industry would have done if DRM technology hadn’t been available: they would have continued to sell as much content as they could, just as they do now. How do I know that? Because to this day, the recording industry sells millions of copies of new music in the DRM-free CD format.
If the music industry really believed its line that content owners will only offer their content with DRM protections, then they would have stopped selling CDs the moment DRMed formats like iTunes became widely available. But of course they didn’t, because they don’t even believe their own spin. They know perfectly well that the vast majority of their customers are honest and wouldn’t steal their music even if they had the physical capability to do so. But if they admitted that they’d continue producing content with or without DRM, it would make it much harder to pretend that they support the DMCA for the benefit of consumers.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
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