Assorted comments have filtered in concerning my DMCA paper, and I respond here:
SympathyI again underscore that I am sympathetic to Ed Felten and others caught up in litigation. My point was not to trivialize their concerns, but to put them in a larger perspective. The plight of a hungry person arrested for snatching bread is a real plight, but it is not an argument for abolishing the law in question. I am not an “act utilitarian.” I do not believe that every application of a rule needs to be optimal for the rule to do more good than harm. The courts are good at dealing with individual hard cases; forums exists for reform and for exemptions; but, still, in boundary disputes, lines must be drawn somewhere. If one has a strong concept of natural rights, that will be jarring. But I believe that rights need some flexibility or they will not survive the transformation of the economy into one where less value is bound up in physical capital and more in intellectual capital.
Piracy and more Piracy and Less PiracyYes, there is rather a lot of it, isn’t there? Offline, online, and so on. If DRM does nothing to impede it, and if keeping hacker/cracker tools in the realm of black market or grey market does nothing to inconvenience anyone even slightly, then that is certainly a problem. But I do think that there is a vast stretch amount of ground between failing completely and preventing all piracy of any kind. And although there is a great deal of piracy going on, there could easily be a great deal more.
A note about P2P. Of course the DMCA doesn’t do anything about that, the stuff is already decrypted. To address that problem, we have the Grokster case. Different problem, but similar analysis. Markets can contend with black-market P2P, fraught with viruses and other nasty things. The expectations of students are misleading here. Students are used to getting things for free from their parents and others. They generally do not buy the machines or software they use, and have little cash flow to spend on content. So they are not averse to risking giving their machines horrible diseases, and on the other hand “need” to get content for free. They have a great deal of time on their hands. Flash forward a few years; these same people have jobs, many of those jobs (an increasing number) will involve intellectual property (journalism, photography, science, trade secrets). They will be short on time and have more money. They will be much more wary of viruses. Their views are quite likely to evolve.
If DRM itself is all a waste of effort, well, one ought to see investors supporting business models that use something else. But, again, we see only a few small experiments. Very few. Very small. I find it extremely implausible that everyone across a wide range of content developers–games, music, movies, photos, books, and all their investors so on, should be entirely lacking in vision. There is money to be made here.
It remains possible that someone will come forward and discover how it is to be done without relying on any of the types of boundaries that have traditionally been used. The idea of voluntary compliance is attractive, but unrealistic in a large community. People do voluntarily comply with a great many laws. But how these norms came to be internalized is, in part, due to centuries of past enforcement patterns and the gradual evolution of human expectations accordingly.
It is also possible that some of the need for liability rules to take up the slack on the enforcement side would lessen if the Internet for other reasons evolves in the direction of being more friendly to enforcement. An infrastructure supporting identification, authentication, and reputation mechanisms might help. But bear in mind that should such an infrastructure develop, so will efforts to crack and spoof, and then we are right back at the problem of the DMCA again.
Beyond Short Papers and Hard Arguments The best response to my paper comes from Fred Von Loehmann at EFF, who brings the argument back to the question of whether the DMCA and/or DRM is needed at all. The larger point of my paper is that if the DMCA is necessary, the hard cases we have seen cannot justify its repeal, but rather call for tinkering or further explication from the courts; I underscore that my paper was not intended as a final or complete defense of the DMCA, it would have had to be much longer. But FVL’s argument takes us beyond the scope of the paper, where I think the debate is more serious.
To justify repeal, one would need to show that the DMCA is not necessary for the viability of markets. This argument can take two forms:
a) Arguing that DRM alone will do the trick. This tack is generally not taken, because DMCA skeptics are often DRM skeptics as well. But we could try one without the other. The question is, can the market stand the lack of security? Not the mere existence of hacker and cracker tools, but their perfection and mass marketing by corporate legions. I think it is implausible. But I doubt there is a general answer to this question for all media for all time. A study might show a healthy market for music sales pre-DMCA; or a failing market. Neither proves the case one way or another. Because every year, every day, markets change. So what is the answer? We can only come up with rules of thumb and hope to do more good than harm. At the time the DMCA was passed, I would say that the burden of proof was on advocates of the law to show that it was unlikely that investment in quality content would go forward without it. But now the law has been around for a few years and while there have been problems, again, these problems are far from overwhelming. Investment in content has picked up. Maybe a coincidence, but it seems implausible. I’m afraid the burden of proof is now on the other side.
b) Arguing that both DRM and the DMCA are the wrong way to go, as FVL does. This is a harder argument to pursue than a) above. One would need a very strong demonstration of realistic alternatives. Fortunately us abstract thinkers need not tax ourselves to come up with them. As I note above, there is money to be made here. Entrepreneurs ought to be doing this, trying different things to see what works. But, again, it isn’t happening except on a small scale here and there.
I’ve never seen DRM skeptics explain this away convincingly. If they are correct that the content industry (the entire morass of it, games and software and music and movies and… on and on) is populated by idiots, well, that should attract even MORE investment in alternatives. Other arguments hints that “the media” have some kind of monopoly or cartel-based power. But on close examination, the media fractures into a hundred subparts most of which are pretty competitive and furthermore compete against each other. The idea that a cartel would be stable seems more than far-fetched. The whole structure would be inefficient… it ought to be attracting alternative business models like flies.
And this is not happening. Because in the absense of some infrastructure to support trust, no investment. Grokster was not an alternative business model; it does not produce content, it merely moves it around.
Details, Details
I add that if I was unkind to Tim in my discussion of errors in his paper, I do apologize. Fact-checking is a passion with me. People tend not to give libertarian policy analysts the benefit of the doubt; errors reflect poorly on all of us, and tend to give rise to (groundless) accusations of deliberate distortion.
Re the CSS discussion: My main point, I reiterate, is that there is no evidence that the CSS licensing process is hostile to Linux. If it were inherently impossible to comply with both the Linux license and DRM, there wouldn’t be any Linux players at all. If “open” must mean one can’t hide *anything* from the user, well, open source is going to have problems implementing *any* security technique, but that would be a limitation of open source and has little to do with the DMCA. But I don’t believe that it means that.
Re the DeCSS discussion: Seth F. cites the transcript of testimony from the DeCSS case. The difficulties that I referred to in treating DeCSS like a fine example of open source teamwork, however, stem from events outside of the scope of the inquiry in this case. I was referring DeCSS developer Jon Johansson’s “borrowing” Derek Fawcus’s code without attribution or complying with the GPL, the difficulty in persuading him to release the DeCSS source code at all, and, finally, the fact that DeCSS was released first as a Windows application. I probably ought not to have opened up this can of worms at all, as it doesn’t particularly matter what the purpose of DeCSS was; the effect of a legalized DeCSS was likely to be mischievous.
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