September 18, 2020

When is a Mandate Not a Mandate?

The conventional wisdom is that yesterday’s deal between the RIAA and tech companies includes an agreement to oppose government mandates of DRM such as the Hollings CBDTPA. But look at this sentence from paragraph 6 of the joint statement (italics added):

The role of government, if needed at all, should be limited to enforcing compliance with voluntarily developed functional specifications reflecting consensus among affected interests.

This is suspiciously close to the approach taken by the Hollings CBDTPA, under which industry groups would have been asked to agree on a DRM “standard” and then government would have mandated compliance with it. (The only difference I can see is that the CBDTPA had a backup procedure under which the government would have chosen the “standard” if industry failed to agree.)

Now, you may object that the “if needed at all” clause weakens my argument. But bear in mind that they could just as well have omitted the quoted sentence entirely. Had they done so, the document would have been clearly opposed to mandates. Instead, they chose to put the sentence in, indicating at least some support for CBDTPA-like regulation.

This is consistent with the phenomenon I noted in my previous posting: the goal is not to prevent or reduce regulation, but to make sure that the regulatory framework can move only in the direction the signatories want.