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Several things were striking at the hearing yesterday. Quick comments:
1. The proponents of HR 1201 are well aware that it would destroy the developing markets in DRM protected IP, but they do not like to have this pointed out. Due to the etiquette of Congressional hearings, in which a witness must speak only when called upon, I did not get to point out that 1201 would legalize the distribution of all code-cracking tools that might possibly be used for a "fair use." Which means, it would legalize all code cracking.
I was practically waving my hand, like the obnoxious kid in class who knows the answer, when the question was asked "but why would this encourage piracy?', but no proponent would call on me. Why not? Probably for a fear a reporter might find out. As with most such hearings, the audience seemed to be the press.
2. Perhaps the most disturbing statement all day was Professor Jaszi's comment that the standard of fair use should depend on whether the cultural value of the prosposed use out-weighs the value of protecting the creator. My view of fair use as a doctrine concerned with limiting transaction costs was prominent in academia 20 years ago, but the profs have moved on.
I don't know how to describe this standard of gooey generalization. Central planning by judicial (or academic) whim? Or, rather, non-central planning by whim. But it certainly should not qualify as law. The rot in academic thinking runs deep, except among those such as we have found for our Council -- but boy do they have a job to do.
3. The concluding paragraph in my statement was:
There is an irony here. For several years, we have been hearing pejoration about the content companies and their obsolete business models. But in the real world, as opposed to the world of academic abstraction, this is the reverse of the truth. The world of the content industries -- the marketplace -- is electric with excitement and innovation. The people defending the old doctrines are actually the ones who are mired in old models, fearful of change, and, to be blunt, trying to cling to obsolete privileges that might have been appropriate under old technologies, but not under the new. The hearing convinced me that I understated. Two groups that are seriously threatened by the rise of the Internet and the new media of communication are the academy and the library system, both of which were built on past technological possibilities. Their reaction to the threat is basically Luddite -- destroy any new institutional models that might threaten them. Then rely on the government to support the new toys.
4. As is so often the case, the pro-market, pro-innovation, pro-progress (and freedom) forces mistake the nature of the opposition. They assume that their opponents simply do not understand, and that if they explain the promise of the new technologies once more, in very simple language, everyone will say "oh, now I get it!"
Sorry, guys. The opponents do understand, and that is why they are so opposed.
posted by James DeLong @ 8:22 AM | Access: Commons, Fair Use, Orphan Works, Public Domain
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