Circumventing Competition: The Perverse Consequences of the DMCA

[David Farber <dave () farber net>]

Begin forwarded message:

From: Glenn Tenney <gt_IP060107 () think org>
Date: March 21, 2006 11:19:12 AM EST
To: Dave Farber <dave () farber net>
Subject: Circumventing Competition: The Perverse Consequences of the  
DMCA

(for IP if you wish)

http://www.cato.org/pub_display.php?pub_id=6025

March 21, 2006
Policy Analysis no. 564

Circumventing Competition: The Perverse Consequences of the Digital  
Millennium Copyright Act

by Timothy B. Lee

Timothy B. Lee is a policy analyst at the Show-Me Institute in
St. Louis. He holds a degree in computer science from the University
of Minnesota and is the science and technology editor of the online
magazine Brainwash and a contributor to the Technology Liberation
Front website.

Executive Summary

The courts have a proven track record of fashioning balanced remedies
for the copyright challenges created by new technologies. But when
Congress passed the Digital Millennium Copyright Act in 1998, it cut
the courts out of this role and instead banned any devices that
"circumvent" digital rights management (DRM) technologies, which
control access to copyrighted content.

The result has been a legal regime that reduces options and
competition in how consumers enjoy media and entertainment. Today, the
copyright industry is exerting increasing control over playback
devices, cable media offerings, and even Internet streaming. Some
firms have used the DMCA to thwart competition by preventing research
and reverse engineering. Others have brought the weight of criminal
sanctions to bear against critics, competitors, and researchers.

The DMCA is anti-competitive. It gives copyright holderbsand the
technology companies that distribute their contenbtthe legal power to
create closed technology platforms and exclude competitors from
interoperating with them. Worst of all, DRM technologies are clumsy
and ineffective; they inconvenience legitimate users but do little to
stop pirates.

Fortunately, repeal of the DMCA would not lead to intellectual
property anarchy. Prior to the DMCA's enactment, the courts had
already been developing a body of law that strikes a sensible balance
between innovation and the protection of intellectual property. That
body of law protected competition, consumer choice, and the important
principle of fair use without sacrificing the rights of copyright
holders. And because it focused on the actions of people rather than
on the design of technologies, it gave the courts the flexibility they
needed to adapt to rapid technological change.

Full Text of Policy Analysis no. 564 (PDF, 159 KB)
http://www.cato.org/pubs/pas/pa564.pdf


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