Bad Arguments for a Canadian DMCA

by on June 6, 2006

The Progress and Freedom Foundation has a new study out by Michael Einhorn (who also did a Cato study on DRM last year) urging Canada to adopt stronger anti-circumvention laws. I have to admit I’m having trouble figuring out what his argument is. He describes the state of the marketplace in great detail, but he never gets around to explaining in any detail why the world would be worse without anti-circumvention rules like the DMCA.

Case in point: one of the longest sections, titled “The Music Services,” surveys the most popular DRM-based music services. We’re told that the growth of online music stores demonstrates “the potentialities of DRM.” Yet he doesn’t really make the case that things wouldn’t be working so well without DRM. He doesn’t mention the rapid growth of DRM-free eMusic. Nor does he mention, a DRM-free service that attracted hundreds of thousands of users before it was shut down by the industry in 2000.

The closest we get to an argument is the statement that the growth in music sales occurred because “the labels feel safe enough with the security” provided with DRM to allow their catalogs to be used online. He apparently believes that without the DMCA, the labels would have refused to permit their music to be released in digital formats online. But that’s absurd: the labels have been releasing virtually every song they produce in a high-quality DRM-free format since the early 1980s. It’s called the CD. If Einhorn’s argument were true, we would have expected them to begin phasing out CDs as soon as DRMed alternatives became available. But of course they haven’t done so.

In any event, the growth rate of the online music market tells us precisely nothing about whether the DMCA was good policy because we have no idea what the alternative growth rate would have been. It stands to reason that the widespread adoption of broadband would be followed by a rapid increase in digital music sales, with or without the DMCA.

It’s quite possible that the growth would have been slower without DRM, but it’s also possible that it would have been even faster. So we’re left with a crude post hoc ergo proctor hoc fallacy: the passage of the DMCA preceded the growth of online music services, therefore the the former must have caused the latter. If you already found that argument plausible before you read the paper, you might find it convincing. But otherwise, this paper isn’t likely to convince you.

It seems to me that the remainder of the paper similarly failed to engage likely arguments on the other side. Nowhere does he mention the darknet critique, and he only mentions interoperability issues in passing–and seems to react to them with a shrug. To the criticism that DRM prevents people from excerpting copyrighted works, he replies that users can always type the works out by hand, ignoring the obvious point that this won’t work so well with audio and video works. He seems not to understand the concerns of libraries at all–he focuses on better licensing models, while libraries concerns revolve around the fact that clumsy DRM technologies make it physically impossible to do their jobs without breaking the law. And he fails to even mention the security problems introduced by DRM technologies such as the Sony BMG rootkit.

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