[Concluding my criticism (found here and here) of a Cato paper attacking the DMCA]

Many of the author's arguments seem opposed to innovation, particularly where he advocates interoperability. He chooses as a positive example of interoperability the 3.5-mm headphone jack. This is a true innovation, although there are still some devices using the older, larger jack (and some audiophiles that say this gives a better listening experience). But the 3.5-mm port is not as ubiquitous as he would suggest. Many cell phones that put size at a premium use smaller jacks, requiring you to go to the wireless store and buy a compatible ear piece. Is this wrong? The market seems to be working here. For the most part CE devices have adopted the 3.5-mm, which is good for consumers, but when it is more in the consumer's interest to have a razor-thin phone, then a smaller jack is used. Advocates of true interoperability would resent the innovation being used by the cell phone manufacturer, arguing it's just trying to carve out market power for itself.

This, of course, is the charge Apple is facing in France right now with its iPod and iTunes.

The author, after criticizing Apple, pastes in a disjointed defense of contract law as a solution to copyright. This, of course, is a standard libertarian attempt to write a government role out of copyright so as to be able to embrace the empowering nature of copyright in a market without actually having to embrace the government. The fatal flaw of all contract law arguments, however, is that no third party is bound by a contract. Normally libertarians hope that part is overlooked, as the only way to target third-party violators is with copyright law. In this case, the author seizes on the third-party issue as a defense for anyone who would create a circumvention tool. "Apple should be free to offer whatever contractual arrangement consumers will accept, including agreements to abide by DRM systems that most consumers would find oppressive," he writes, with odd editorializing in that iTunes sales are through the roof, so it doesn't appear most consumers do find them oppressive, just the author and his friends at EFF. "Consumers circumventing the DRM features in iTunes may be violating their contractual obligations," he continues. "However, that does not justify using copyright law to prohibit third parties from producing circumvention tools for iTunes music. Those third parties are not parties to the Terms of Service and are not bound by its terms."

Exactly. That is exactly why there need to be laws against the creation of circumvention tools, because the tool creators are not parties to the contract. Anyone making this argument obviously wants the contract to fail, because as the author notes, it is all too easy for third parties to transmit content. But the author writes: "If Apple wishes to enforce its contracts, the company should enforce them in the open, by bringing lawsuits against customers who violate their terms." We have seen in recent years how difficult it is to bring lawsuits when it comes to digital music, and it's unclear to me how exactly Apple would surf the Web and identify which songs came from iTunes and from which customers they bled onto the Internet. Should Apple put more sophisticated tracking tools in their software? Should Congress mandate such tracking? There is little consideration of the implications of the proposals in this paper; rather, it throws rocks at what it dislikes (or finds personally inconvenient) without offering any constructive alternatives.

On this issue of interoperability, the anti-market nature of this paper is truly present when the author actually complains that there are three video streaming formats -- Real, Windows and QuickTime -- and then acknowledges that Google is adding a fourth. This is a bad thing, we're told, because some content will only play on that player, and apparently open-source programmers have been frustrated in their attempts to break through these proprietary walls. How does this relate to the DMCA? "The reasons are complex, but the DMCA is clearly one of the culprits." Yes, shame on the DMCA for giving us four video formats, with providers experiencing market incentives to offer the fastest, highest-quality, most streamlined content. That's a terrible thing. Better all the standards be forced open so any open-source programmer can fiddle with them. That will produce far better products for consumers. Again, this is the Cato Institute we're talking about here, advocating the obliteration of a growing market to enable the "freedom to tinker."

In its rant against DRM, the paper makes the shocking argument that DRM tends to be breached. Ironically, it quotes Steve Jobs as saying this. Of course, the author also attacks Apple for using DRM, but suggests it was forced to by the music industry. I suppose that's why Jobs is fighting the French Parliament so fiercely now -- because the music industry is forcing him to.

The author says "digital rights management is the Maginot Line on the war on piracy." That's an interesting analogy, in part in that it compares his friends who like to breach DRM to the Nazi army. We all know the Nazis captured France by going around the Maginot Line through the Low Countries. But is every consumer a Hitler, bent on conquest at all costs and willing to walk over Belgium to get to France? Or would most say, "I don't need to conquer France, I just want to see Paris, so I'll take a train?" I don't think the Maginot Line was built to deter tourists. The bottom line is, despite its ineffectiveness, the Maginot Line was within France's right to build. The author seems to feel that because it was potentially breachable, its construction should have been forbidden.

The author instead advocates "speed bumps," such a flooding P2P sites with bogus files. These are fine as far as they go. And the author says "speed bumps are likely to be sufficient to deter the vast majority of casual copying by non-technically-savvy users, who are the vast majority of computer users." Not necessarily, but take "speed bumps" out of that sentence and put in "FairPlay tools," Apple's DRM, and I think you'd find that the statement is true. Most consumers don't want to steal, most don't know how to steal when it isn't made easy for them as it was with Grokster, so DRM -- not just "speed bumps" -- is the answer, even if it can be breached by those determined to do so.

The fear of corporate America is clear in the conclusion: "So it should concern us that the DMCA gives industry incumbents broad new powers to erect legal barriers to the introduction of new technologies. Given the industry's track record, there is little reason to think that incumbents will use those powers wisely or with restraint." We are a nation of laws. If corporations abuse the law, they can be sanctioned in court, and Congress can step in to change the law. Nowhere in this lengthy paper does the author list any abuses of power that would merit either response. To the extent one might see an abuse under the DMCA -- a matter of interpretation, naturally -- one would want a strong market that would punish that actor. Yet the author seems to want to undermine if not obliterate markets, except when his definition of a market is nonprofit open-source hacking software. If there's no market to correct abuses, that leaves what? The government. That's a very peculiar place for a libertarian paper to lead itself, but that is the inevitable conclusion here.

I'd like to thank IPCentral readers for their patience with this lengthy 3-part response.

posted by Patrick Ross @ 12:38 PM | Free Culture Movement

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