DRM and the DMCA

Derek Slater has some interesting comments on DRM and DMCA. He reckons DRM critics (like me I guess) are misdirecting their criticism.

"So I don't mean this to be exhaustive - I'm more interested in framing the issue. First, again and again, people in this arena end up discussing banning DRM when the issue is the DMCA. Take the digital music interoperability hearing. Few are seriously suggesting that we ban certain DRM and mandate interoperability. Those who worry about the social welfare decreasing effects of the iPod-iTMS tie see the DMCA, rightly, as the culprit. The usefulness of the DMCA, not DRM, is what we should be questioning.

Second, along with the costs in terms of fair use, innovation, et. al resulting from DRM and the DMCA, we have to take seriously the benefits the DMCA might provide in terms of enabling certain business models and certain consumer choices. To do so, we have to focus more on whether structuring copyright around this "right of access" is really what we want - if we're, for instance, going to view fair use through the lens of market failure."

DRM will eventually become obsolete because people with get fed up with it but we should recognise the importance of interoperability and the potential for big players to distort and lock in market structures, which it will be difficult to dismantle once in place. On his question about building copyright on a "right of access" foundation, that is something I am opposed to. Why? Because people should not be allowed to stake an exclusive permanent property claim to an idea by constructing a digital fence around it. Thomas Jefferson puts it infinitely better than I ever could:

"It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation."