Archives for 2003

A court has thrown out a software contract clause prohibiting customers from publishing reviews of a product, report Matt Richtel at the New York Times and Lisa Bowman at CNet.

A New York state court made the ruling in a suit brought by the New York Attorney General’s office. The clause in question says, “The customer will not publish reviews of this product without prior consent from Network Associates Inc.”

Richtel reports that the court found the clause to be “deceptive.” I haven’t found a copy of the court’s opinion, so I can’t be sure what exactly that means. But the New York Attorney General had argued that the clause was clearly unenforceable, so that inserting the clause was essentially a way to trick users into believing it was illegal to review the product.

More on this once I find a copy of the court’s opinion.

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.

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.