It comes as no surprise that the blogging community critical of the
DMCA assumed the major copyright industries used their
muscle to get the Department of Justice to propose a bill to
strengthen its ability to investigate and prosecute IP crimes. In fact, posts at DefectiveByDesign regurgitate common
misunderstandings about the DMCA and the political process in an effort
to get movie goers to wear a $5 "DRM Elimination Suit" to the Pirates
of the Caribbean opening in order to send a message to Hollywood. This
type of post just drives me crazy because the posters either do not
have the ability to apply critical analysis to the issue or are
intentionally ignoring the facts in order to promote themselves as
important to the debate.
Seriously, think about what would have to happen for the copyright
industries to individually and collectively agree that it would be in
their best interest to ask the DOJ to propose a bill
that would reopen the DMCA for the sake of updated criminal copyright
statutes.
It took years of intense lobbying, debate, and compromise to enact the
DMCA. And the DMCA is the foundation upon which copyright owners rely,
to the extent they wish to use it, to build their digital business
models.
But,since the DMCA was enacted its critics have grown in number and
political influence. Several of these groups have begun to
effectively organize grassroots movements and develop
relationships with Members of Congress who are sympathetic to their
positions. Also, there are a growing number of Members and Senators
who are introducing legislation to weaken the DMCA or voicing concerns
over its impact on fair use.
So, given this backdrop, let’s do a quick cost/benefit analysis. Copyright owners would get stronger criminal copyright laws. The percieved benefit
is that an increase in prosecutions with stiff penalties will deter
others from engaging in massive piracy. Great. So at what cost? What
are the risks?
First, the copyright industries know there is risk in just requesting stronger criminal copyright laws. Automatically the
anti-copyright forces assume copyright owners are once again
on the prowl to eliminate their "rights". So, there is the bad press
for content owners and DOJ. Government agencies don’t always make the best decisions, but there is no way that a Republican administration is going to willingly take on bad press for liberal Hollywood.
Next, things move to Congress, where it is likely that the respective
Judiciary and Commerce Committees will consider the bill. Now, the
DMCA critics have probably organized- usually over at EFF- and are
sending mass emails to Congressional offices. The influence of these
email campaigns is increasing.
The Committees will hold hearings with witnesses critical of the proposed bill and copyright owners- usually well known
academics. And, as stated before, there are a growing number of
Members who believe that the DMCA may have "gone too far." A
quick whip count shows that copyright owners are not assured a victory
in the Commerce Committees. Yes, the Judiciary Committees, which would
have primary jurisdiction, are still safe. But, those familiar with
the process know that Congressional leadership does not like to choose
between Committee Chairmen- so they command the Committees to work it
out.
What does work it out mean? Well, simply put, everyone
is giving up something. And even though the bill amends the DMCA in only one provision, that little amendment opens up the entire DMCA for other more
dangerous amendments, like the Boucher bill which copyright
owners are staunchly opposed to.
At the end of the day, what you really have is an agency interested in
updating and improving the criminal copyright statutes. Did they
consult with the copyright industries? Sure. And do copyright owners
like the proposed bill? Sure. Successful criminal copyright
prosecutions are good for both parties.
However, the very real risks involved in asking for and lobbying for a
bill that provides opponents of the DMCA with the opportunity to weaken
its protections far outweigh the benefits the bill provides. Think
about it!