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:
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