Do I Hate Markets?

Jim will have to stop needling PFF for ignoring my paper, as Patrick Ross has posted a truly epic three part critique.

I found his responses disappointing for several reasons.

First, he engages in a fair bit of name-calling, insinuating that anyone who agrees with EFF can’t possibly be a libertarian. (I wonder if Ross has actually bothered to peruse their site? While I don’t agree with every position they’ve taken, I would imagine that he, as a libertarian, would find a lot to like.) The entire critique is suffused with this kind of black and white, “us versus them” attitude. For example, he faults me for both criticizing and praising Apple, as though there’s something inconsistent about praising one aspect of a company and criticizing another. He also, bizarrely, argues that my comparison of DRM to a Maginot Line means that my “friends who like to breach DRM” are the Nazis.

Second, it doesn’t appear that he really engaged my central arguments. For example, he doesn’t make any effort to address the point that DRM hasn’t been an effective piracy deterrent. He doesn’t seem to have grasped my specific criticism of OpenCable–that the DMCA has put consumer electronics companies like TiVo at the mercy of the cable industry, thereby stifling the development of any devices that might be a competitive threat to cable companies. The analogy to the IBM BIOS case (a case in which a platform was opened against the will of its originator) seems to have made no impression on him. And most generally, the distinction between inter-platform and intra-platform competition appears to be completely lost on him.

Finally, throughout the paper, he makes statements like this:

The author also freely admits that some court decisions have not been in accord with his belief in this “balance,” yet we are told that we shouldn’t trust Congress or markets but rather unaccountable judges.

Note the question-begging use of the word “markets.” In point of fact, that’s precisely where we disagree: whether the DMCA is an interference with the free market. A free market is an economic system in which individual rights are protected, contracts are enforced, but people are otherwise left alone by the government. While a circumvention ban might be compatible with market principles, it certainly isn’t required by them. Yet whenever I point out problems that have been caused by the DMCA, he responds by accusing me of being hostile to markets. That’s a non-sequitur.

Mr. Ross and I have some serious policy disagreements about the real-world consequences of the DMCA, and we have some different opinions about whether some of those consequences are good or bad. I plan to address a couple of his specific criticisms in a subsequent blog post. But I wish he’d focus a bit more on engaging on those policy disagreements instead of constantly insinuating that I should have my libertarian card revoked.

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