In today’s Washington Post, Jeff Howe, a Wired contributing editor, offers the standard moral arguments against file-sharing. But then tucked away in his Outlook piece are some great arguments against the DMCA:
…so far, music lovers have missed the point. The real disgrace is that the RIAA was able to identify the Internet users it is now suing. To understand how, take a look at a terribly flawed law, the Digital Millennium Copyright Act (DMCA), passed in 1998. Under the DMCA, any third party that suspects copyright infringement can subpoena an Internet service provider for the names and addresses of suspected infringers. All that’s required is the signature of a court clerk. That strikes me as a violation of privacy and–because the subpoena does not require a judge’s approval–a violation of the right to due process.
But that’s not all the DMCA does. It allows the big media conglomerates unprecedented control over how we use our digital media, including music, movies and books. Within a few years, every CD we buy will be “copy protected.” You may only be able to copy each song once, but not play it on your MP3 player. Or, if the test-marketed versions are any indication, you won’t be able to make any copies at all of the music you rightfully own. DVDs have used copy protection for years, which explains why you can’t fast-forward through that FBI warning.
These technologies–and the law that makes them permissible–concern me far more than the recent lawsuits do. That’s because they take away our rights to “fair use,” a concept in copyright law that predates our Constitution and, until recently, was anything but controversial. Fair use allows a scholar writing a critique of popular history to excerpt a small portion of Stephen Ambrose’s “Undaunted Courage” without asking Simon & Schuster if it’s okay. Fair use gives you the right to copy a chapter from a library book for your personal use. It allows you to copy videos (the ones you’ve bought legally) to keep at your summer home, or to mix CDs so you can hear the music you own in whatever order you want.
When will Howard Dean and the other Democratic presidential candidates speak up in a meaningful way against the DMCA and call for its modfication or repeal? The DMCA from an e-book perspective is worse than the Homeland Security Act, folks, and the Democrats as a group can hardly claim purity. Bill Clinton, in fact, signed the DMCA into law. If the Dems care as much about the Constitution as they claim, then it’s high time for a DMCA fix to be high on campaign platforms. And if George Bush can respond likewise–well, so much the better.
Related: Where Nobody Knows You’re a Music Thief and the Music and the Internet section in the New York Times and EFF Reviews 5 Years Under the DMCA in Slashdot. Also see Down by the Law: When Movie Moguls Wage War to Protect Copyright, the First Amendment Ends Up on the Cutting Room Floor, a Village Voice piece by the Post article’s author.
The TeleRead take: Just a friendly reminder, folks. Music, books and other content-related industries are just a speck of a speck of our $10-trillion-plus economy–in fact, rather tiny compared even to the telecom biz alone. I agree with the writers of the Post and Times articles that creative people need to be paid. The challenge is to do it in a way that allows sharing for free when fair use is involved, and with provisions for payment when it is not. A national digital library model to a great extent could help by reducing the incentives for theft. Meanwhile I’ll await with interest the results of the Mercora experiment.
