Why The DMCA Was An Avoidable Failure (Or: How Politicians Work)

from the and-so-it-goes dept

There’s an ongoing discussion of Fred von Lohmann’s new paper about the failure of the DMCA (which, for some unknown reason is only being offered in pdf format) — and Ed Felten picks up on an important point that we’ve tried to highlight here in the past. von Lohmann notes that the DMCA is clearly a failure based on what it was originally supposed to do, and Felten responds by noting that it was easy to see how the DMCA would fail in its stated goals from the very beginning — and yet it became law anyway. Felten believes that Congress simply ignored the reasons why it would fail — as it wasn’t that hard to see them. This is, as you know, par for the course for politicians. They pass laws that make them look good in soundbites rather than which will actually solve complex problems. Sometimes, they do so knowing that the legislation doesn’t actually solve the problem, but saying the need to do “something.” One clear indication of this is that politicians never seem to pass laws that involve real metrics to measure the success or failure based on the stated purpose of the law — and they absolutely never have a “Plan B.” In business, when you come up with a strategy to change something, you have milestones and metrics — as well as having additional plans in place, should the first one fail. Ed Felten asks for ideas on: “how our policymakers can avoid making this kind of mistake again.” Unfortunately there isn’t a clear answer right now. In a world were politics is done by soundbite, context and details mean nothing.

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Comments on “Why The DMCA Was An Avoidable Failure (Or: How Politicians Work)”

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DV Henkel-Wallace says:

Err, was there ever another world?

In a world were politics is done by soundbite, context and details mean nothing

Are you contrasting earth with, say, some other planet?
Perhaps you are considering a pre-Roman (or at least pre-Ciceronian) world; one could consider “Carthagio dalenda est” as the first soundbite. Perecles might have been too wordy to qualify for “soundbite” else we could push the threshold further back. Perhaps I could even find other examples if I had only learned Akkadian, or some almost-preliteral classical Chinese example….

Adina Levin (profile) says:

motivation for politicians

The problem and solution are a little bit different.
Politicians are motivated not only by what makes them look good. They are motivated by passing bills. They are motivated by the ability to reach a “compromise” among the different “sides”. And most of all, they are motivated by political pressure.
During the negotiations over the DMCA, the technology/consumer electronics vendors were “carved out” by an exemption for manufacturers. The public interest groups in 1995 probably had a smaller constituency than they do today. So, to the politicians, a “compromise” meant carving out the manufacturers and doing what the content industry said they wanted. Therefore, the solution isn’t just doing a better job of explaining why the DMCA is tactically inefficient (although that doesn’t hurt). The solution is also to high-tech vendors from taking a carveout (since their market is diminished by the limitations in the use of their products), and to have a more active public interest / consumer lobbying voice.
When I did volunteer public interest lobbying against the so-called SDMCA in Texas — a state-level bill that made it a crime to modify your computer in an unauthorized manner — the tech groups agreed not to take a carveout, and the tech and public interest groups continued to work together throughout the process.
Adina Levin
ACLU-TX Cyberliberties Project

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