Braden Cox at Technology Liberation Front writes about a law school symposium on “The Economics of Self-Help and Self-Defense in Cyberspace”. Near the end of an interesting discussion, Cox says this:
The conference ended with Dan Burk at Univ of Minnesota Law School giving a lefty analysis for how DRM will be mostly bad for consumers unless the government steps in and sets limits that preserve fair use. I had to challenge him on this one, and asked where is the market failure here? Consumers will get what they demand, and if some DRM is overly restrictive there will be companies that will provide more to consumers. He said that the consumers of DRM technology are not the general public, but the recording companies, and because society-at-large is not properly represented in this debate the government needs to play a larger role.
I would answer Cox’s question a bit differently. I’m happy to agree with Cox that the market, left to itself, would find a reasonable balance between the desires of media publishers and consumers. But the market hasn’t been left to itself. Congress passed the DMCA, which bans some products that let consumers exercise their rights to make noninfringing use (including fair use) of works.
The best solution would be to repeal the DMCA, or at least to create a real exemption for technologies that enable fair use and other lawful uses. If that’s not possible, and Congress continues to insist on decreeing which media player technologies can exist, the second-best solution is to make those decrees more wisely.
Because of the DMCA, consumers have not gotten what they demand. For example, many consumers demand a DVD player that runs on Linux, but when somebody tried to build one it was deemed illegal.
Perhaps the Technology Liberation Front can help us liberate these technologies.