EFF’s Fred von Lohmann posted recently on the iTunes-iPod tie, as I did two weeks back. Hopefully you didn’t miss this exchange between Ernest and a commentor at Copyfight. This post isn’t so much about the particulars of Ernest’s and Brad’s argument, as it is a way of tying together what I see going on there with the bigger picture and a few other posts that sprung to my mind. Queue a somewhat mystified, somewhat angry post:
Why is a world with the DMCA now presumptively right, with all alternatives shouldering the burden of proof? This is the is-ought fallacy at its worst. The world has a DMCA, therefore it ought to have a DMCA.
Even more disturbing, is-ought’s simplistic seduction trumps all other sensibilities that people would typically look to in these arguments. Right or wrong, many people will latch on to “free market” and “competition” as the defense against so many policies. At the very least, people will immediately and seriously consider these powerful concepts. But here, not so much. In what other case would people so easily defend government graced control instead of unfettered competition? As Lessig writes in Free Culture, if copyright’s harm to artists is a “crunchy-lefty story” of “free culture,” then you’re probably the type that should be turned on by a story of “free markets.” But with the DMCA, even those stories don’t always catch on.
To fit with other sensibilities about how the market works, the story of free markets is twisted into a story about theft. The DMCA may be “paracopyright,” but it’s led to more of the piracy-talk that copyright already produced. Now it’s theft and “freeloading” just to create a compatible player for iTunes music.
As I said before, I don’t doubt Brad Hutching’s point that the iTunes-iPod tie has some offsetting social welfare benefits. iTunes prices could be lower and it could have motivated them to invest in the biz in the first place. In this case, I would argue that that does little to offset the benefits we could derive from a non-DMCA world: more vigorous competition from current parties not having to compete essentially in both markets at once; more vigorous competition from more players in general; innovation and competition not dictated by incumbent players; lower prices from more competition; network effects from the elimination of format fragmentation; and more.
But that in some sense is beside the point (one Ernest made, too), which is that the law would typically deal with this issue in a much more complex, nuanced, and balanced fashion. We have anti-trust and misuse. We have patents, copyrights, trade secrets, contract. And yet the blunt instrument of the DMCA is presumptively so clearly right? Why?
That the answer is essentially “because” implies another cost of the DMCA (which makes me think of some of Frank’s writings). By altering people’s expectations of how things ought to be, it sets the stage for a very different, very dire digital media environment to come. By extending the piracy rhetoric, it simplifies the issue. Buying legally means buying DRM means buying the DMCA means buying into whatever the piracy rhetoric demands.
We don’t have to buy into that. To quote Lessig quoting the Supreme Court, we need “common sense to revolt.”