Lamar Smith spoke words of wisdom at today's Cato conference, frankly saying far better than I could have some of the things I myself planned to say. The chairman of the House Judiciary IP Subcommittee (who was overly modest in his claim that he knows little about IP, he probably knows more than almost any member of Congress) lamented that the DMCA "is blamed for everything under the sun." He said instead it was "the foundation of our nation's digital economy." His points in defense of both the DMCA and DRM, protected under the Act:

* DRM can reach a balance with consumers. If Apple was overreaching with FairPlay, consumers wouldn't be buying iPods and downloading from iTunes.
* Without that DRM, the rights holders wouldn't have allowed those songs to be released.
* The marketplace can decide on DRM as consumers "vote with their wallets."
* The US Copyright Office has a triennial review to address these issues, and is doing its third now.
* Courts have struck down misuse of the DMCA (toner cartridges and garage door openers come to mind).
* A better solution would be to "go after the lawyers," and he would do so with his Lawsuit Abuse Reduction Act that has passed the House and is waiting action in the Senate.

The chairman opened the conference with these words, and in my opinion no one provided an effective rebuttal to them the rest of the day. Perhaps that's why, as Zoe Lofgren said, there are only at most 4 or 5 members of Congress enthusiastic to reopen the DMCA.

On another note, before the conference began the chairman told me he hopes to act soon on orphan works. As I have written, I think the US Copyright Office has struck for the most part a workable balance in addressing this thorny issue; it's not perfect, but we can hope that the legislative process can improve it. Despite how much I love to bash Congress, anyone who knows Smith and his subcommittee knows that he listens to every possible argument and seeks to reach the broadest consensus possible. I expect nothing less on orphan works, as his recent hearing suggested.