As a libertarian from a state that knows something about libertarianism (Arizona produced a senator named Barry Goldwater, perhaps you've heard of him), I was dismayed to see that my beloved libertarian Cato Institute has decided to align itself formally and loudly with EFF and the Copyleft. I'm referring to a paper Cato published on Tuesday titled "Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act." Despite the title, there's actually very little concrete discussion of the DMCA. It's mostly a lengthy assortment of disjointed complaints that any casual reader of Lessig's Free Culture or the EFF web site will find highlighted with prominence. (It even opens its conclusion with the 1982 quote of Jack Valenti comparing the VCR to the Boston strangler; gee, never heard that one before! Thanks!) Cato has long juggled admirably the inherent struggle between resistance of government power and the role of property in markets. It seems the think tank no longer chooses to keep all the balls in the air.

Some in the blogosphere, noting the Cato connection, have said this paper is a free-market denunciation of the DMCA. They obviously didn't read the paper. This paper drips throughout with disdain for markets and market competition, and for the market revolution that is currently occurring in digital content. It also shifts the usual libertarian distrust away from government and instead applies it to a long litany of corporations -- content distributors, cable companies, video streaming software creators, even CE manufacturers like Apple, usually a darling of the technological elite -- and makes Cato sound as paranoid as Lessig does in the subtitle of Free Culture -- "How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity." This paper conducts a morality trial of corporations of all types, and finds them all guilty of pursuing their self-interest in the market.

The paper opens with a strong show of faith in the US court system to address the balance of copyright in society. "A body of law analogous to trespass was providing robust, sensible, and flexible protection for intellectual property rights," the author writes. He then suggests that the content industry wanted more and forced the passage of the DMCA. In so doing he ignores the fact that the DMCA was passed to bring the U.S. into compliance with obligations it had accepted pursuant to the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, and that it was widely supported on Capitol Hill (most votes were voice vote, but an early vote on the version of the DMCA by Senator Orrin Hatch of Utah cleared the Senate 99-0).

Common law may have been emerging in copyright -- it would be impossible to believe it wasn't -- but the development of common law doesn't preclude future legislation, especially when a revolution in technology threatens to throw that balance off faster than common law can respond. MGM v. Grokster was a solid decision, and supports the wisdom of the courts in copyright (although the justices to a large extent avoided directly addressing portions of copyright law such as fair use in making their decision) but it also took years. The author also freely admits that some court decisions have not been in accord with his belief in this "balance," yet we are told that we shouldn't trust Congress or markets but rather unaccountable judges.

There are two cases revisited by the author that I've written extensively about, the Lexmark and Chamberlain cases. Both involved companies attempting to use the DMCA to advance other business interests from the ones intended to be addressed in the DMCA. In both cases the courts ruled against the plaintiffs. In a section called "DMCA Abuse," the author acknowledges up front the fact that the cases didn't succeed. "Although none of the examples that follow resulted in favorable verdicts for the plaintiffs, they illustrate just how ripe for abuse the law is." This is not an illustration of how the DMCA is ripe for abuse. This is an illustration of the fact that it was written narrowly enough that courts -- the very courts the author claims to be comfortable with -- haven't permitted any attempts to abuse the DMCA. If the author truly had the faith in the court system he professes to have, he would leave the DMCA to the courts, and not devote two pages to these dead cases.

He also says: "It's unlikely that Congress intended to give the creators of digital media technologies broad powers to control how their products are used, but that has been a major effect of the law." It's hard to guess congressional intent, particularly after the fact. But consider this. The DMCA is nearly eight years old. Throughout that time, Representative Rick Boucher of Virginia has fought to dilute the bill by permitting circumvention of copy-protection measures. I spent years on the Hill following this effort, and have interviewed Boucher on this topic more times than I could ever recall. I have also spoken to innumerable other members of Congress on the Boucher legislation. To say that there is a lack of interest in moving forward on this legislation is a vast understatement.

Why would Congress have so little interest in revisiting the DMCA? Perhaps because they disagree with the tiny fraction of a minority in this country who, like the Cato author, donate to EFF. Perhaps they see a vibrant marketplace of DVDs, music downloads, portable music and video players, handheld and console gaming devices, and all of the other innovations that have occurred not only following the DMCA's passage but because of the DMCA's passage.

To spare readers from too lengthy a blog, I will continue my criticism of this blog in another entry.

posted by Patrick Ross @ 12:27 PM | Free Culture Movement

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