A Copyfighter’s Musings

I’m pretty confused by Declan McCullagh’s newest column.  Here’s the jist (emphasis added):

“[W]hat’s happening right now is lobbyists from the entertainment industry are seeking to regulate computer technology in hopes of limiting copying, and academics and left-leaning groups are seeking to regulate digital rights management technology in hopes of mandating ‘fair use.’ Both sides hope to enlist Congress–raising the very real possibility of interminable political battles that could shape the future of digital media more than the technology itself. Both sides are wrong. It was a mistake for the movie studios and the record labels to start this political tussle in the mid-1990s, and it’s a mistake to follow their lead.”

Here’s the thing though: Declan doesn’t mention ANY legislation that would “mandate” fair use.  All he talks about are the Wyden and Boucher proposals to label copy-protected materials and devices that enable DRM.  That’s not mandating fair use. 

So, what exactly is Declan referring to?  Proposals floated in academia for legalizing non-commercial file sharing?  Those proposals aren’t really on Congress’ radar.  Declan is looking at two bills and calling that a rush from the consumer side to start regulating.  I think he’s overreacting just a tad.

Sure, Declan’s got a point.  If the market can sort it out, that’s all well and good – that goes for fair use and labelling.  Yes, politicians often do more harm than good by intervening in the economy and, Declan, you can cite a litany of economists who will argue that convincingly. 

But it’s wrong to stop there.   I bet you can also find economists who discuss how lack of information can hinder the market.  That’s the idea behind labelling – some market failure would occur if consumers did not know or were mislead about what they were buying.  Every economics textbook I have ever read and every economics class I’ve ever been in has noted this.  Maybe I haven’t read enough.  But, I’d like to believe that there’s some merit to labelling, given that we have these sorts of regulations with false advertising; we have health warnings on various products.  Is Declan saying we should throw all that out, too?  Or, is he arguing that labelling consumer electronics and media devices is somehow different?  If he is arguing that, he doesn’t do it here.

Moreover, I dislike how Declan completely dismisses any feeling that a no-DMCA+free-market strategy won’t be good enough.  There’s reason to believe, given the problems both consumers and content creators are having, that a more radical solution might be necessary. This is not a problem that started yesterday – it’s been going on for awhile, and I think it’s reasonable for people to start getting nervous.

And, the thing that gets me, is that even the free marketeers and the libertarians get this.  Declan cites Adam Thierer of Cato saying, “We should only resort to government solutions as a last resort, when we absolutely have to.”  So, if that’s the case, it’s not an issue of whether government should regulate or not.  The question is when.   I would be happier with Declan’s logic if he noted what WOULD be an appropriate time to regulate.  What does “last resort” mean to him?  If he’s just going to say “regulation is always bad”, frankly, I think that’s a bit simplistic.

Filed by Derek Slater at 11:03 am under General news
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