WORSE version of the DMCA proposed by White House
When will Netfolks learn? Don’t ever endorse a politician–Republican, Democratic, liberal, conservative, Martian, you name it–without asking about copyright issues. The latest example of the need for this approach is the White House’s plan to make the DMCA even tougher on consumers. When will so-called populist politicians like John Edwards get the message and speak out? Or how about the AARP? From CNET:
The draft legislation, created by the Bush administration and backed by Rep. Lamar Smith, already enjoys the support of large copyright holders such as the Recording Industry Association of America. Smith is the chairman of the U.S. House of Representatives subcommittee that oversees intellectual-property law….
The 24-page bill is a far-reaching medley of different proposals cobbled together. One would, for instance, create a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.
It also represents a political setback for critics of expanding copyright law, who have been backing federal legislation that veers in the opposite direction and permits bypassing copy protection for “fair use” purposes. That bill–introduced in 2002 by Rep. Rick Boucher, a Virginia Democrat–has been bottled up in a subcommittee ever since.
But one of the more controversial sections may be the changes to the DMCA. Under current law, Section 1201 of the law generally prohibits distributing or trafficking in any software or hardware that can be used to bypass copy-protection devices. (That section already has been used against a Princeton computer science professor, Russian programmer Dmitry Sklyarov and a toner cartridge remanufacturer.)
Smith’s measure would expand those civil and criminal restrictions. Instead of merely targeting distribution, the new language says nobody may “make, import, export, obtain control of, or possess” such anticircumvention tools if they may be redistributed to someone else.
A close-to-home consumer angle: Among other things, current copyright laws and proprietary formats will reduce competition in the e-book industry. Bottom line: Higher costs and fewer choices for consumers–and, yes, publishers as well.
Detail: TeleBlog newbies should know that I’m picking on John Edwards, the former Democratic vice presidential candidate, because he served on a copyright-related Senate committee and heads a poverty institute at my old school, which he also attended. Got the least connection with a politician–however indirect? Speak up! Let ‘em know they can’t take the Net vote for granted. Meanwhile, if Democrats are smart, they’ll stop rubber-stamping or remaining mute on Republican initiated proposals like the latest DMCA revision. They will also keep in mind DMCA’s risk to free speech and democracy in general, as illustrated by the Diebold case. If nothing else, I wonder how neutral will be legal interpretations of DMCA when politically sensitive matters come up. We truly are getting into Stamp Act territory.
Related: DoJ to Propose Major New Internet Controls via David Farber’s list. I heartily approve of the war against child porn, but you’ll notice that the feds want Net providers to reduce the amount of privacy that ordinary people have on line. Oh, well. Maybe the morals cops will find a few more predators working for the Department of Homeland Security.
April 24th, 2006 at 5:37 am
Hi Dave, thanks for all your reports.
This one, again, highlights the blinked approach to copyright. Law makers can’t or choose not to understand the fundamental changes that digital technology brings to the copyright regime and their response is to blindly try and keep to the ‘copy based’ model no matter what the impact on society as a whole.
Below is part of my submission to the UK’s, Gowers Review of Intellectual Property, where I reiterate some of the arguments to try and have reason, logic and science prevail rather than outmoded commercial interests.
Regards,
Nicholas
Self regulation is the issue:
In the world of analogue media the intangible intellectual product was closely linked to a physical product (a book for instance) that was used to distribute the intellectual content. These physical products are private goods in the economic sense, both excludable and rivalrous, and they effectively endowed the intangible content with the same private good status. Private goods lend themselves to trade and hence these intellectual goods could be fairly distributed and traded. In addition, copying of these intellectual goods was expensive and difficult, especially for the general public, and so regulation of these physical proxies for the intellectual content was largely self-regulating.
As these intellectual goods become digital they become “increasingly easy to copy and share” as you say in the call for evidence. The intellectual goods become almost as intangible as the intellectual content and the distributed product becomes a public good, neither excludable nor rivalrous. Because the general public can easily copy and share these new digital public goods the inbuilt self-regulation of the analogue world is lost.
To try and replace copyright’s traditional self-regulatory characteristics two trends are taking place. First, more regulation is enacted and increasingly these regulations have to be enforced in the courts on an individual basis. Second, Digital Rights Management (DRM) is used to try to restore digital copies to a tangible status by using encryption and other Technological Protection Measures (TPM) to control copying.
Both these measures are expensive: Expensive in regulatory time and effort, expensive in the DRM infrastructure required, and expensive in the social arena ranging from potential loss of privacy through to effects that might limit social exchange of creative ideas and the availability of archived material.
I urge the review team to look for measures in the copyright realm that will continue to promote self-regulation rather than costly measures that require increasing levels of central control and regulation.
April 24th, 2006 at 11:53 am
It used to be nearly impossible for individuals to copy information on a non-tiny scale. Thus people gladly gave up their right to do this thing, which was impossible for them, for even a remote possibility of gaining something else.
Now that it is no longer impossible for individuals to copy (and distribute) a lot of information we should reassess how much of this right people are willing to give up, and in exchange for what.
Such a discussion is not what we see, thought. Instead big organizations and corporations have coerced, and still are coercing, governments to steal the individuals’ rights by force, like a big copyrape.
April 24th, 2006 at 1:49 pm
Nicholas and Marcus…
N.: You’re welcome!
M: I was intrigued by your observation over the efforts of copyright holders to turn intangible into tangible property. It’s prt of a greater pattern, of course. Here in the States, the big boys allow eminent domain to override property rights of small home owners and little business people. But these days Hollywood’s copyright-holders are winning in Congress and the courts–over even traditional fair use. The reason is no mystery: massive political donations. I don’t mind Edwards-style pols getting Hollywood money. I do mind their wimping out on matters such as the DMCA, and thus undermining faith in government.
Thanks,
David
April 25th, 2006 at 9:44 am
> in the States, the big boys allow eminent domain to override property
> rights of small home owners and little business people
It’s similar here in Finland. However, I actually support this, but only when it’s fair and with proper compensation (both of which are subjective, of course, which makes it a difficult issue).
> Hollywood’s copyright-holders are winning in Congress and the courts–over
> even traditional fair use. The reason is no mystery: massive political
> donations.
I think you hit the nail on the head. Perhaps the political bribing system should be reformed.
By the way, here is a link to the draft in question: http://r00tshell.com/static/Draft_DOJ_IP_bill.pdf
April 25th, 2006 at 1:02 pm
> Here in the States, the big boys allow eminent domain to override property> rights of small home owners and little business people.
To follow up on Marcus’ comment, I think most of Europe has eminent domain laws for ‘real’ property but this juxtaposition of arguments highlights the fallacy of treating intellectual works as ‘property’. Your home is rivalrous, either you live in it or the government acquires it for a new road, you can’t do both (the trade-off is supposed to be that the new road is of wider benefit to society as a whole).
Intellectual works, on the other hand, are non-rivalrous; no mater how many personal copies you make (and destroy) it has absolutely no impact on the right holder or any others who hold copies. Thinking of intellectual works as property means that the copyright law has set off in the wrong direction and it is difficult to back-track now that digital has come along.
Mark Lemley, Stanford Law School, has written, Property, Intellectual Property, and Free Riding, where he puts forward a complete discussion of just these issues.
April 26th, 2006 at 2:32 pm
It’s not the works that are treated as property, it is the copyrights themselves that are treated as property. Copyrights can be sold, works cannot, as they belong to the public.
April 27th, 2006 at 5:34 am
> It’s not the works that are treated as property, it is the copyrights themselves
> that are treated as property. Copyrights can be sold, works cannot, as they
> belong to the public.
That’s not what most less-rights-for-the-public people claim. They say that the contents of, e.g., a CD belongs to the artist (or the record company or whatever), and that the actual CD consists of two things; a disc that is sold and content that is licensed. This way they can also argue that the license doesn’t cover playing the CD e.g. in an elevator, on the radio or in a store.
Besides, treating the right to do some particular thing as property is even more absurd than treating information as property. While the latter actually somewhat resembles some forms of real property the former does not. In fact, I’ve never heard anyone give a reason for why copyrape^H^H^Hight should (or even could) be treated as property.
April 27th, 2006 at 10:15 am
“That’s not what most less-rights-for-the-public people claim.”
I cannot say I really care what these people claim.
“I’ve never heard anyone give a reason for why copyright should (or even could) be treated as property”
Because it is tradeable.
(That’s not to say that makes it like property, because not all property is tradeable. I’m sure that if you own an atomic bomb, you’re not allowed to sell it to just anybody.)
April 27th, 2006 at 3:51 pm
> > That’s not what most less-rights-for-the-public people claim.
>
> I cannot say I really care what these people claim.
Too bad they are the ones bribing the law-makers.
> > I’ve never heard anyone give a reason for why copyright should (or even
> > could) be treated as property
>
> Because it is tradeable.
You’ve got it backwards. Artificially treating it as property is what makes it tradeable. The right to copy some particular thing isn’t inherently any more tradeable than the right to play a particular chord.
Anyway, I find the whole “copyright itself as property” point of view interesting, even though it is deeply flawed. Thanks for bringing it up.
April 28th, 2006 at 12:34 pm
“It’s not the works that are treated as property, it is the copyrights themselves that are treated as property. Copyrights can be sold, works cannot, as they belong to the public.”
Branko, you are right. I should be careful of the terminology I use. Although when works are reproduced in analogue, physical, books the books can be traded as property because the author’s distribution right has been exhausted after the first sale.
Thanks for the reminder.