Cohen: Brilliant Advocacy; Incomplete Analysis

The darknet assumptions, which are clearly right, establish the consequent inability of the content industries to eradicate unauthorized copying using TPMs and the DMCA.  Fred's paper is right on target to point this out, and his argument that Congress should therefore reconsider the wisdom of the DMCA is compelling. 

It doesn't follow, though, that there are no "speed bumps" impeding unauthorizing access, nor that the use of TPMs and the DMCA have been "largely a waste of time and resources" from the industry's perspective.  First, technical speed bumps do matter for lots of people.  Second and more important, as I've attempted to explain in my own draft paper, "Normal Discipline in the Age of Crisis", not all speed bumps are technological.  The shift to TPMs and the DMCA is part of a larger shift in the disciplinary mechanisms employed to control unauthorized access to and use of copyrighted content.  I'm no fan of this shift, but it's far from clear to me that it isn't working.  I think it's at least as likely that, over time, we will start to see greater changes in people's behavior.  Getting sued by the RIAA or the MPAA can produce "interconnected small-worlds networks," too, and that seems to be a large part of the point.  The best that can be said, today, is that the jury is still out on these questions.

If one looks at the problem from this angle, moreover, it's quite possible to conclude that, from the industry's perspective, the fact that the DMCA was put in place while the technologies were still in their infancy is a feature, not a bug.  I read the statute as intended in part (by its industry advocates, not by Congress) to establish a set of engineering incentives for new products and services, as to which consumers have no settled expectations, and to marginalize the open source movement (at least in the consumer market) by erecting insuperable obstacles to the development of interoperable entertainment platforms.  Again, I think it's way too early to opine confidently that the statute isn't working toward these ends.

(Note that Part I of the Normal Discipline paper is currently undergoing a major rewrite to get rid of the clunky "layers" model and recast the description of current enforcement efforts in terms of "strategies")

Comments

[Fred von Lohmann]

I agree completely with Julie's points. My point was intended as a much more modest one: namely, that in light of the rise of the Darknet, the DMCA's anti-circumvention provisions will never deliver the benefits originally claimed.

Julie is entirely correct, however, that the TPM regime in the DMCA does deliver other benefits to rightsholders. She is also plainly correct that rightsholders are developing and deploying mechanisms other than TPMs to respond to the digital dilemma. I assume we will explore those issues in future posts here.

So, I suppose I plead guilty to incompleteness. My point is simply that TPMs are not good for what we were told they were good for. Julie takes us to the next question, which is "then what are they good (and bad) for?"