10 Years Of The DMCA: Time To Re-Examine The Premise

from the plan-b,-anyone? dept

One of my big complaints with the law making process is that there's no built-in process to make sure a law actually does what it's intended to do. Thanks to the law of unintended consequences, quite frequently, laws do plenty of other stuff, but do little to accomplish their stated purpose. Since politicians just want to pass laws so they can tell voters about the laws they passed, there's no real review process. So, as long as a Congress member can claim "I helped build houses/protect children/save jobs/etc.," because of a law that is called the Build Houses Act/Protect Kids Act/Save Jobs Act, they're happy -- even if the law did nothing to actually build houses, protect kids or save jobs.

In a business setting, if a course of action is agreed upon, there are usually regular milestones and checkups, whereby the business reviews whether the decided course of action has actually achieved its goals, or if those goals need to be revisited. A good business plan will often have alternative courses of action (i.e., "plan B, C, D, etc.") written in as well, so that it's easier to adjust should the original not get the job done. But, we almost never see any legislation show up that includes a clause where Congress goes back each year and determines: did this law build houses, protect kids or save jobs? So bad laws stay on the books, doing more harm than good for years, until some politician can push through an entirely new law that insists it will be the one that builds houses, protects kids or saves jobs.

So, with the DMCA hitting its 10 year anniversary today, it's good to see a bunch of folks are taking on the challenge of examining the law and noting all of its many, many faults. The EFF has released an updated version of its report on the unintended consequences of the DMCA, noting that rather than doing anything to actually help encourage the creation of new content (the purpose of copyright law) the DMCA has regularly been used to "stymie consumers, scientists, and small businesses."

Over at Princeton's Freedom To Tinker blog they're going to be running DMCA related posts all week. The first one, by David Robinson, looks at the underhanded way in which the law was first passed. Patent Commissioner Bruce Lehman wrote a whitepaper listing out a bunch of changes that he thought were necessary to improve the patent and copyright system, including much of what became the DMCA. Specifically, he claimed that content creators would never be willing to use the internet if their content wasn't protected and also claimed that an anti-circumvention clause, that banned any effort to circumvent DRM, would effectively deter copying.

Of course, it turns out he was entirely wrong on both accounts, but since there's no provision to go back and check the original assumptions against what actually happened, that doesn't matter.

Robinson highlights something even more disturbing: how the DMCA was shoved through by routing around the legislative process via international treaties -- one of our pet peeves. This is a scam used quite often by Big Content. They start frothing at the mouth about how we need to implement some sort of new draconian copyright laws "in order to comply with international treaties," leaving out the part where they were the ones who basically wrote the international treaties themselves and got unsuspecting trade representatives to approve them.

That's exactly what happened with the DMCA. Following Lehman's initial report, after there was some pushback by companies that recognized how dangerous the DMCA could be, Lehman quickly pushed for an international trade meeting, where a treaty was pushed through that was later used to urge lawmakers to pass the DMCA to "comply" (even though the DMCA went well beyond what the treaty required). This is why we should be quite worried about the similar situation shaping up today with the ACTA treaty. This copyright treaty is being negotiated in secret by both trade representatives and Big Content industry representatives, but no one looking out for the interests of consumers or the rest of society. Rest assured that if it's approved, we'll soon be hearing about the need to pass new laws to comply with ACTA and meet our international obligations.

Instead of doing that, can we take this unfortunate 10 year anniversary to get Congress to go back and look at the original rationale for the DMCA, note that it hasn't done what it was put in place to do, but has instead been widely abused to hurt other businesses and hold back innovative business models and opportunities for economic growth? And then can we repeal, or at least, amend it?

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