September 20, 2020

When Is a Regulation Not a Regulation?

Often, when people say they oppose regulation, what they really mean is that they like the regulation we already have and don’t want it changed. By implicitly defining “regulation” to mean changes in regulation, they make anti-regulation rhetoric serve a pro-regulation cause.

Yesterday’s statement of principles from the RIAA and some tech companies provides a great example of this. Here is the most-quoted sentence from the statement:

How companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace, and should not be legislated or regulated.

If they really believed this as written, they would support a repeal of the anti-trafficking provisions of the DMCA. If companies want to support consumer expectations for personal use of DRM-protected content, their decision to provide devices that do so should be driven by the dynamics of the marketplace, and should not be legislated or regulated by the DMCA, right? Yet that is not the RIAA’s position.

The pro-regulation argument is hidden here (italics added):

Legislation should not limit the use or effectiveness of [DRM].

If “legislation” is read as “new legislation” then this would seem to lock in the pro-RIAA regulation that already exists, as any rollback of existing pro-RIAA regulation would limit the effectiveness of the RIAA’s attempts to get what it wants in interactions with consumers. Naturally, it’s a one-way ratchet – legislation that improves the RIAA’s position isn’t a problem, but legislation that moves in the other direction is objectionable. When you stop and think about it, this is a pretty cheeky argument.

Some reporters have fallen for the “anti-regulation” spin on the statement. For example, an AP story on the statement says

The agreement attempts to head off government intervention in the rising debate over what consumers can do with copyrighted material they have purchased.

It’s too late to head off government intervention. Maybe we could start by fixing the problems that intervention has already caused.