Fred is right on target in diagnosing the DMCA's failure to do what its advocates predicted. What Fred doesn't say, though, is that this failure should have been utterly predictable -- it should have been obvious when the DMCA was grinding through Congress that things would end up like this.
Let's look at the three assumptions that underlie the darknet argument [quoting Fred]:
- Any widely distributed object will be available to some fraction of users in a form that permits copying.
- Users will copy objects if it is possible and interesting to do so.
- Users are connected by high-bandwidth channels.
When the DMCA passed in 1998, #1 was obviously true, and #3 was about to become true. #2 was the least certain; but if #2 turned out to be false then no DMCA-like law would be necessary anyway. So why didn't people see this failure coming in advance?
The answer is that many people did, but Congress ignored them. The failure scenario Fred describes was already conventional wisdom among independent computer security experts by 1998. Within the community, conversations about the DMCA were not about whether it would work -- everybody knew it wouldn't -- but about why Washington couldn't see what seemed obvious to us.
When the Darknet paper was published in 2001, people in the community cheered. Not because the paper had much to say to the security community -- the paper's main argument had long been conventional wisdom -- but because the paper made the argument in a clear and accessible way, and because, most of all, the authors worked for a big IT company.
For quite a while, employees of big IT companies had privately denigrated DRM and the DMCA, but had been unwilling to say so in public. Put a microphone in front of them and they would dodge questions, change the subject, or say what their employer's official policy was. But catch them in the hotel bar afterward and they would tell a different story. Everybody knew that dissenting from the corporate line was a bad career move; and nobody wanted to be the first to do it.
And so the Darknet paper caused quite a stir outside the security community, catalyzing a valuable conversation, to which Fred's paper is a valuable contribution. It's an interesting intellectual exercise to weigh the consequences of the DMCA in an alternate universe where it actually prevents online infringement; but if we restrict ourselves to the facts on the ground, Fred has a very strong argument.
The DMCA has failed to prevent online infringement; and that failure should have been predictable. To me, the most interesting question is how our policymakers can avoid making this kind of mistake again.
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