A Silly Critique of My DMCA Paper

I missed this IPI essay when it came out last month. In its opening paragraphs (and its conclusion) the paper purports to be a critique of technologists’ arguments against the DMCA, with my own paper and EFF’s Unintended Consequences as exhibits A and B. There have been relatively few substantive criticisms of my paper (it got little more than a sneer from IPI’s president, for example) so I was excited about the opportunity to read a serious, essay-length critique of my arguments against the DMCA.

Boy was I disappointed.

Instead of presenting and then rebutting the arguments I make in my paper, Hollaar rebuts my paper thusly on page 2:

The Cato paper simply parrots some of the episodes in the EFF paper.

Yup, that’s the closest he comes to a substantive critique. A couple of paragraphs later, he complains that I don’t give enough credence to the problems of piracy. And (aside from a perfunctory mention in the conclusion) that’s the last time either my paper or EFF’s paper is mentioned.

Instead of offering a substantive critique, Hollaar spends the remaining four pages of this short paper speculating on the various reasons why geeks tend to be so obtuse about the law. We learn, for example, that:

Technologists seldom consider how laws can actually help solve a problem. Law is not a familiar area to most of them, legislation is never written with the precision of a computer program, and the art of compromise is often uncommon for technologists.

He then proceeds to argue that without the DMCA, Hollywood would have to change DRM formats every time the old one was broken, requiring consumers to (I’m not making this up) purchase a new DVD player every few months. I suppose he has a point there, as we can all remember the Great Music Format Transition of 1997 when the recording industry stopped issuing its music in the CD format (which had been compromised by the invention of MP3 players) and began selling music in encrypted DMD format, requiring people to toss out their CD players and purchase new DMD players. Luckily, Congress passed the DMCA the following year, sparing us from having to go through that nightmare every 6 months.

Then we get to the part of the paper that makes me wonder if Hollaar even bothered to read my paper:

Just as many technologists see legislation as a problem, and not something useful in developing a solution, they see courts as something to be avoided. But the time-tested solution for peacefully resolving differences in opinion is having a neutral person listen to both sides and make a decision. For legal issues, that generally means going to court, where the decision is made by a judge skilled in understanding the law and its past interpretations, after hearing the evidence and arguments of both sides.

Much as they might make it easier to decide things, bright-line rules are often undesirable. They can provide a roadmap for those who want to get around a law and can make the law so infl exible that it hurts legitimate activities. As an example, the requirement for considering four factors to determine whether there is “fair use” of a copyrighted work is far better than a mechanical test that says that the copying of less than a statutory percentage is fair and the copying of more is infringement. It allows the copying of an entire work if that is a necessary part of reverse engineering, while not permitting the copying of the heart of a work.

As those who’ve read my paper might remember, my central argument was that the courts were doing a good job of adapting copyright law to the evolution of technology until the DMCA came along and put its thumb on the scales on the side of copyright holders. I discuss at length the fact that fair use is a flexible doctrine that has evolved with technological changes. So while I certainly would prefer a legal system that minimizes the number of innovators who are hauled into court on spurious copyright charges, I don’t think you could possibly conclude that I think the courts have done a bad job of resolving copyright disputes.

What’s really remarkable, for a paper that’s put out by a nominally free-market organization, is that the primary criticism seems to be that technologists lack political pragmatism. For example:

He notes that technologists and policymakers exist in “two worlds, two cultures” when it comes to viewing a problem and developing a solution. In particular, he notes that “When technologists see both good and bad in a policy proposal, they tend to attack it” because they have lost sight of the big picture or ignore political constraints on solutions.

I’m not sure what “political constraints on solutions” are relevant here. Perhaps he means the fact that the RIAA has a larger lobbying budget than the EFF. Whatever might be said for this sort of argument, it certainly has nothing to do with good public policy.

He closes his essay with this advice to DMCA critics:

If the tendency of technologists to concentrate on molehills and ignore the real mountains could simply be regarded as a quirk, it would have little propose solutions to concerns in light of problems. As an example, a trade group concerned with being able to reverse engineer programs so that new programs could be written that interoperate with the protected program made a clear case for their particular problem. They put forth language that both satisfied their concerns and did not gut the anticircumvention provisions, and they got what they wanted.

So when someone proposes legislation that enacts broad restrictions on peoples’ freedom, the appropriate response is not to organize a grassroots effort to oppose it, but rather to get the best-connected interest groups around the table and carve out narrow exceptions for each of them to ensure that their oxes won’t get gored. If the general public doesn’t have a “trade group” to make the case that everyone’s freedom should be protected, that’s just too bad for the general public.

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