An excellent story by BNA tells us Rep. Rick Boucher (D-VA) plans to reintroduce yet again a bill to defang the DMCA. When Tech Daily approached me about this possibility recently, they quoted me thusly:

Patrick Ross, a senior fellow for the Progress and Freedom Foundation, is not optimistic that the bill would be 'any more market-friendly' than previous versions. He called the legislation 'hazardous to competition.' Boucher is 'inclined to use the power of the federal government to mandate terms he would like to see in the digital content industry instead of letting consumers demand through the market what they would like to see,' Ross said.

The BNA story suggests that for once in my life at least I was prescient. Boucher plans to put into law a fair-use exemption for space-shifting creative works in the home environment. Never mind the fact that I saw all sorts of business models doing just that at CES in Las Vegas, from the opening keynote by Bill Gates through the entire conference. Boucher makes clear in his BNA interview that he doesn't want to let consumers in the market direct the process; he instead hopes to impose mob rule through congressional fiat.

BNA paraphrases Boucher as saying that "most reasonably minded people would find format shifting to be permissible." Okay, by that standard, most people seem to find exceeding the speed limit by 5-10 miles per hour to be permissible. Thus, Congress should increase the federal speed limit by 10 miles per hour. Of course, then most drivers would find exceeding the new limit by 10 miles an hour to be permissible. We're in a bit of a bind now.

That example involves government safety mandates. But there is far more cause for Congress to intervene there than there is in space-shifting, which is purely a market issue. More than that, it is a theft of the property rights of creators. Creators have upon creation of their works the right to dictate how their work will be used. If a movie studio only wants a DVD to play on DVD players, not on video MP3 players, that is its right. Should we legalize illegal hacking tools to deprive rights-holders of monetizing space-shifting? And where do we draw the line? Can I hack a PlayStation 3 in my bedroom to play a Nintendo Wii game from my family room?

Boucher's reasonably minded people, his mob, want space-shifting. Fine. I'll actually concede that the demand is growing, at least among those who actually have the latest high-tech devices that could play back the creative works. And I saw at CES plenty of CE vendors looking to capitalize on that. If we assume this mob has formed, why does Boucher want to appease the mob by changing the law? Oh right, because he's a congressman, that's what congressmen do. But the far better approach is to let new consumer-friendly versions of DRM roll out in the market and see how they're received.

BNA cites the Advanced Access Content System, which allows consumers to move "contents of a DVD to his or her computer and from there to a portable media player" or to "use a home media server to beam the contents of a DVD to a variety of TVs within the home." Yet Boucher says "[i]t remains to be seen how effective [AACS] will be." If so, shouldn't we at least wait until we legislate? Boucher is acknowledging he's willing to cut short a market solution in favor of legislation.

BNA also cites Microsoft's PlayReady DRM, which permits space-shifting of "music, games, videos and pictures between their PCs and their mobile devices." Microsoft's Andy Moss (one of the most knowledgable people on the planet regarding DRM) seems resistant to Boucher's desire to reduce the protections of the DMCA for creators, saying the 1998 law "seems to have served its purpose" by providing "reasonable checks and balances." He predicts the DMCA will evolve over time but sees no need for "wholesale changes."

Now there is one angle to note here; if Boucher is successful in gutting the DMCA, much of DRM becomes irrelevant and Microsoft's business models are harmed. But the consumers are also harmed. We are rapidly moving to a world where Consumer A who is happy with a TV and a DVD player can buy a DVD that only plays on DVD players, while Consumer B who has every CE toy under the sun can buy a DVD that can have the content move around across all of that consumer's devices. Now Consumer B would have to pay more than Consumer A; more usage, more cost. There would not be any free-riding on Consumer A, who doesn't need the space-shifting of Consumer B. This, of course, is the rub; the mob Boucher speaks with is comprised solely of Consumer Bs, who like the free-riding model and don't want a market where they have to pay more for more uses. Understandable, but not the best way to make law. Let's hope Boucher's colleagues recognize that, and redirect the mob to the market.