The Rights of Consumers

We have condemned in this space the poor balance between benefit and harm struck by the grandiosely named and poorly conceived Digital Millennium Copyright Act of 1998. As we observed at the end of last year, the acts broad anti-circumvention clause—Section 1201—has become a multiedged tool that corporations are invoking to kill competition.

We therefore applaud the move in Congress to shift the balance back toward the well-established conception of fair use of copyrighted material, as embodied in HR 107, the Digital Media Consumers Rights Act of 2003—now in the Subcommittee on Commerce, Trade and Consumer Protection.

The DMCRAs opening gun is a prohibition on the sale of “a prerecorded digital music disc product which is mislabeled or falsely or deceptively advertised or invoiced.” The mislabeling or deception in question is failing to disclose intrusive copy-protection measures that might interfere with playback on computers.

A few paragraphs later, though, are what we consider the much more important provisions of the law, stating that Section 1201 of the DMCA is amended to say that “it is not a violation of this section to circumvent a technological measure in connection with access to, or the use of, a work if such circumvention does not result in an infringement of the copyright in the work”; also, that “it shall not be a violation of this title to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work.” Bravo—and about time, too.

Without this long-overdue correction, Section 1201 makes as much sense as prohibiting the sale of hammers merely because they can be used to break windows. That conceptual flaw lurks on the periphery of almost every legislative attempt to regulate specific digital technologies, precisely because those technologies are so versatile and so accurate in their capture and manipulation of every form of data.

Its a fools errand to try to limit the use of digital tools by passing nit-picking laws aimed at individual technologies. We see that flawed approach in the Inducing Infringement of Copyrights Act of 2004, introduced late last month, which assigns to the operators of peer-to-peer networks an overly broad responsibility for the ways those networks are used.

The IICA approach reminds us of the hopes of medieval astronomers that the universe would make sense with just one more layer of Ptolemaic epicycles. Things made much more sense when the center of the solar system was identified as the Sun, not Earth. In the same way, the center of the system of content protection must be the consumer of content, not the content producers and their obsolete business model.

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