Cameron Wilson at the USACM Policy Blog writes about a Cato Institute event about copyright policy, which was held Wednesday. The panel on the DMCA was especially interesting. (audio download; audio stream; video stream)
Tim Lee, author of the recent Cato paper on the ill effects of the DMCA, spoke first.
The second speaker was Solveig Singleton of PFF, who offered some amazing arguments. Here is her response to the well-documented list of DMCA misuses:
Even if you set aside some of the errors in the Cato paper, you’re left with a set of examples, many of which have happy endings, without any change to the law. Ed Felten’s case, for example. There are other cases. There were lawsuits that were threatened but not brought. Lawsuits that were brought but ultimately failed. Lawsuits that succeeded but on grounds other than the DMCA.
(This is my transcription from the audio stream.)
To call the case of my colleagues and me a “happy ending” takes some real chutzpah. Let’s catalog the happy consequences of our case. One person lost his job, and another nearly did. Countless hours of pro bono lawyer time were consumed. Anonymous donors gave up large amounts of money to support our defense. I lost at least months of my professional life, and other colleagues did too. And after all this, the ending was that we were able to publish our work – something which, before the DMCA, we would have been able to do with no trouble at all.
In the end, yes, we were happy – in the same way one is happy to recover from food poisoning. Which is not really an argument in favor of food poisoning.
She goes on to argue for the efficacy of the DMCA, using the example of Apple’s FairPlay technology (which is used by the iTunes music store):
But … are they [Apple] going to be able to get music developers to the table to negotiate with them to help create this library [of music] if they can’t make some reasonable assurances that that content isn’t going to show up free everywhere else?
Never mind that all of the songs Apple sells are available for free on P2P networks, despite FairPlay and the DMCA. Never mind that FairPlay has a huge and widely known hole – the ability to burn songs to an unprotected CD – which Apple created deliberately.
It’s understandable that DMCA advocates don’t want to give a realistic, straightforward explanation of exactly why the DMCA is needed. If they tried to do so, it would become clear that the DMCA, as written, is poorly suited for their purpose. Instead, we get strawmen and arguments from counterfactual assumptions.
I’ll close with a quote from Emery Simon of the Business Software Alliance, another speaker on the same panel, making a claim so far off-base that I won’t even bother to rebut it:
[If not] for copy protection technologies, whether it’s Macrovision or CSS or Fairplay, my VCR and my television set would be devices no more useful to me than my car without gasoline.