CATO Institute Releases Paper Criticizing DMCA

flanksteak writes "The CATO institute has published a paper criticizing the DMCA entitled 'The Perverse Consequences of the Digital Millennium Copyright Act.' From the article: 'The DMCA is anti-competitive. It gives copyright holders--and the technology companies that distribute their content--the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates.'" A report worth taking a look at that puts into words what most of us know already.

Comments

All aboard.

[killjoe]

I am glad the right wing is getting on board in the fight against DMCA. Organizations like Cato are very big players in the right wing movement and this will certainly have an impact on the republicans who control all branches of the govt and the supreme court.

Re:All aboard.

[bhirsch]

You do realize who signed the DMCA into law don't you? It was a very non-partisan law.

Re:All aboard.

[yurnotsoeviltwin]

Technically, Libertarian IS really right wing. The Republican party hasn't actually been acting all that right-wing lately, to be honest.

Re:All aboard.

[jcr]

Libertarianism has about as much credibility as Communism.

Among ACs on slashdot, perhaps. To the rest of the world, the tens of millions of people killed by the commies tends to put them quite a ways into the negative category.

Thanks for playing, pinkbot.

-jcr

Re:All aboard.

[jcr]

Technically, Libertarian IS really right wing

Nope. The right wing simply chooses a different group of our rights to violate than the left.

-jcr

Re:All aboard.

[chanceH]

The fact is that CATO always stands up for big business against the public.

except here, where they are againt the DMCA. So your "fact" is wrong. [here is the part where I really want to insult you but am resisting]

Unfortunately for all of us, libertarianism is another example of a one-size-fits-all ideology

Now thats funny! You criticize a position paper (or just the authoring organization, completely ignoring what they are actually saying) on one specific piece of legislation, which goes out of its way to stick to a practical/utilitarian analysis (avoiding any kind of principled/property rights analysis). And you criticize it with very general statements about libertarianism being too 'one-size-fits-all', making it clear that you are the one with the excess of ideological rigidity in tow.

I'm thinking you are actually a very clever libertarian, because to make the actual straw man argument that 'Libertarians are never right, they are too ideological' sound almost so reasonable and 'prgoressive' must have taken some work. If not please go [again more self censored insults removed].

Re:All aboard.

[RsG]

The basic principal libertarians tend to apply when it comes to people hurting each other is "my right to swing my fist ends where your face begins". Essentially, the assumption is that an ideal government would still have law and order (based on protection people's rights), but would be expected not to interfere in people's live beyond that.

Now, if you meant that a libertarian government wouldn't be able to control things like corporate misbehavior, or that small, low-tax government wouldn't be able to provide policing as well as it can now, then perhaps you're right. But if you seriously thing that mist libertarians want zero government at all, then you need to check your facts. Like the other posters said libertarian =! anarchist.

Re:All aboard.

[AJWM]

Technically, Libertarian IS really right wing.

Nope, not that either. Libertarians are fond of pointing out that the whole "left-right" thing is an artificial constriction to one axis what is better measured by at least two axes.

There are a number of ways of presenting this, but a common one is the amount of government control (or conversely, freedom) of personal issues on one axis and economic issues on the other. Democrats tend toward more personal freedom (except in some areas, eg gun ownership) and less economic freedom, whereas Republicans tend to less personal freedom (with that same exception) but more economic freedom (well, they used to, anyway). Libertarians tend to more of both personal and economic freedom.

Put another way, libertarians lean left on personal issues and right on economic issues.

And if anything, both parties seem to be tending toward more authoritarianism (ie less freedom) on both axes.

Re:All aboard.

[AJWM]

If more libertarians were honest with themselves, they'd recognize that corporations are a government construct that shouldn't ought to exist in a true libertarian state. It's the government-granted limitation on corporate liability that helps cause what you call predatory behaviour.

If shareholders were as liable for the company's actions as the partners in a partnership are, they'd be a bit more concientious about said company's behaviour. At least after a few stockholders or fund managers went to jail or had their life savings sued out from under them.

Libertarianism is about personal responsibility -- the opposite of what a limited liability corporation is about.

Re:All aboard.

[bnenning]

the Liberatarian only sees direct violence as worth stopping

They also recognize fraud as a violation of rights. So in Libertopia there would be no FDA, but you still couldn't falsely claim that the drug you're selling cures cancer, and if it had known negative side effects you would probably be liable if you didn't disclose them. This would likely give rise to one or more private certification agencies.

I'm only a small-l libertarian so I don't necessarily advocate going this far, but it's not implausible.

Re:All aboard.

[Brandybuck]

I am glad the right wing is getting on board in the fight against DMCA.

Now all we need is the left wing to get on board too!

Re:All aboard.

[utlemming]

That is the problem with modern politics. The poltical parties have blurred the lines between what a conservative and liberal is, requiring them to align with a political party. When in fact, the politcal parties fluctuate so much, move left and right, that depending on where your politcal ideology actually lies, you might be more in line with the democrats on presidental term and the republicans the next. With each election the politcal parties attempt to capture the magical middle of the political spectrum, while at the same time pushing forward their left or right wing agendas. However, since it is all politics, the pure ideology of being a conservative or a liberal is usually lost. In the case of the current administration, Pres. Bush has pushed the country more towards the right, while pursuing a course that a lot of conservatives disagree with (for example, conservatitves are for less government, less regulation, and less government in their lives). Pres. Bush has done more to put the government in people's lifes than what a true conservative would have done. So when all is said and done, a politiian may claim to be a conservative to capture that voting base, but then abuse them and actually pursue a course that runs counter that ideology. The same holds true for a liberals and the democrats. And what we think of being oxymoronic, you can actually be a conservative democrat. The conservative and liberal are all just titles of the ideology. While the political parties are the method and the means to implementing that ideology. American politics are somewhat of an enigma in the world. With a two party system, somehow we loose the fact that the vast majority of Americans do not fit neatly in two parties. However, since third parties have proven to be ineffective and are ignored by the two other parties, then most American's simply say Democrat, Republican or Independant.

My personal feeling is that the politcal landscaping is going to start changing soon so that the Democrats and Republicans are going to have to acknowledge the independants. They are going to have to change their platform to be flexiable. The difference between a Republican and Democrat is so minimial that the rest of the world largely laughs at America. In other countries you have poltical parties that run from Communist to straight out facsist. But in the US you have two groups that are so close to the middle that they actually fight over capturing the middle ground.

Another interesting thing is that many self-labeled conservates and liberals may not actually be such. For example a conservative may actually be an economic or neoliberal and be a social conservative. Or libertarians for the most part are economic and social liberals. Or what many democratic politicans tend to be, which is economic conservatives and social liberals. The problem with the parties is that they mix and blur what the issues really are and they don't have clear policy statements about their parties positions.

Re:All aboard.

[chudnall]

Its actually more of a libertarian group.

Translation: I like what they're saying, so I don't want to associate them with conservatism.

I've talked to a lot of libertarians, to try to figure out what really motivates them, and found that by and large each of them is enthusiastic about one particular piece of the libertarian platform, and willing to go along with the rest of it. Some want smaller government, some want more privacy, some want legalized drugs, etc. My conclusion is that libertarians are made up of: 1) conservatives who don't want to call themselves conservative, and 2) liberals who don't want to call themselves liberal, in about equal numbers.

Re:All aboard.

[arodland]

Whether they call themselves "libertarian" or just simply "corporatist" is irrelevant

To equate libertarianism with love for "corporations" is so blind as to be scary. You see, the only thing that makes a corporation is government power. A government edict says "Company XYZ, you have unaccountably come by some of the rights of a natural person, even though this makes no sense, and on top of that, you're covered by a sort of communist collective-responsibility arrangement that will protect those truly responsible if you ever do anything evil. Go forth as XYZ Incorporated and some money!" Because although the government is ashamed of people who do something useful to make money, unlike themselves, they recognize the necessity. So they delegate out the responsibility, and in return for allowing this group of people to be productive, the government merely demands that XYZ Inc be available for use as public whipping-boys, and that they pay regular tribute to their patrons and protectors.

Libertarianism argues for the radical reduction of government power. That implies no favor for big companies to buy, no "corporations" at all, no elevation of one group of people above the rest, and no deflection of responsibility from those responsible. Would it work? Well, maybe. Does it favor the "corporate" mentality? Hell no.

Re:All aboard.

[Lehk228]

it's not that corporations shouldn't exist, but rhater they MUST be regulated by the government because no corporation is guided by a sense of right and wrong greater than a balance sheet. an artificial construct should not automatically gain the same freedoms that a person has.

Re:All aboard.

[Doc Ruby]

Bush is responsible for most of that debt, as it's been introduced in the last 5 years. Most of the rest of that debt was produced by Reagan/Bush in 1981-1993. Only a tiny fraction was produced prior to Reagan. Clinton produced a net surplus in his 8 year administration. So it's pretty clear that this is a "Bush debt". You want to run the country, you own the results you create. You break it, you own it.

We are currently paying out that debt, including huge (and only growing) interest. We just raised the (sneakily minimized) debt ceiling to accomodate our wasteful spending. We need to spend $45TRILLION that we don't have in the foreseeable future, beyond what we do/will have, which is substantial.

I see no sign that anyone "with sense" will change the law. Clinton was able to do it with good management skills and extreme luck in getting a huge productivity jump with little competition to manage. Despite that, mismanagement of the debt has created a huge, complex system with hundreds of millions of stakeholders locking it into dysfunction. And huge financial industries and markets are now built on the structure of the US debt. With only the underrepresented American with interest in reducing it. Looks hopeless to me. Maybe the day will come when a president will tell a Congress that a war will last a few weeks and pay for itself, and Congress will impeach him rather than pay the bill for such a fantasy.

Re:All aboard.

[IgnoramusMaximus]

You mean, like a CEO getting a 400% higher wage than the poor slob who actually produces the wealth?

That is a clear indication of breakage in the supposedly capitalist system. Any de-coupling of an individual's "merit" to society and the rewards he receives is a failure of the free marketplace. Most Japanese companies' CEOs, for example, earn 10 times the median worker's salary. Not that the Japanese marketplace is by any means ideal, far from it, but it gives a clear indication that 10-fold increase in wealth is plenty enough of incentive for someone to manage successfully a very large company.

Wealth isn't produced by the rich; it's produced for the rich, usually by the poor. The rich don't create wealth, they aggregate it.

Actually it is much more complicated then that. The ways in which wealth is distributed are many and varied, and indeeed apparently easily subverted by some for their own benefit. The whole purpose of various economic schemes is to impede such subversion and to couple societal merit and wealth.

I was in a bar one night and there was a businessman (who was ironically calling for "family values"; what a hypocrite) stating that an employer doesn't owe his employees a living. "Nobody owes you a living, you have to earn a living." I'm thinking, "huh?" as well as "The worker is WORKING. He's producing YOUR wealth, asshole, a decent living is the LEAST you owe him."

Most of American business class has absolutely no clue what keeps it operating. Capitalism has become a form of religion for them instead of a useful, but imperfect and very limited in its scope economic tool. They use its theoretical ability to aid a meritocratic society as a "proof" that their own societal position is the result of their, and only their, "hard work". Everyone else is a "socialist freeloder bum" who should be grateful for the scraps from their tables. A sickening and ultimately self-destructive attitiude.

Re:All aboard.

[Doc Ruby]

I don't know what you're getting at with Social Security. SS is a working program that is working. It pays not only for itself, but funds a lot of our debt. If anything, SS needs to be fixed to accomodate profligate Baby Boomers by getting interest from the rest of the Federal debt it supports. But as a Federal pension program, which invests in the steady huge productivity growth of American labor, it is a sound success.

Now, if you want to talk about the returns on our $1T annual military/intelligence investments, I think we have a lot of pork we can eliminate from the $45T in committed debt. Otherwise, we're not going to washing dishes in mainland Chinese restaurants. We're just going to pay lots more for yuan and euros to prop up what's left of our society, while Eurasia takes America's place in the 21st Century, and America takes Brazil's.

CATO?

[Umbral Blot]

Exactlty how important is CATO in the scheme of things. Will this report reach the ears of politicians / mass media, or will it go largely unnoticed except by slashdot? I don't think we are going to see the DMCA revoked unless the public cares enough to put pressure on their representatives, and honestly the public isn't informed enough to care. So will this report help mobize people or are they just preaching to the choir?

Re:CATO?

[stlhawkeye]

Exactlty how important is CATO in the scheme of things. Will this report reach the ears of politicians / mass media, or will it go largely unnoticed except by slashdot? I don't think we are going to see the DMCA revoked unless the public cares enough to put pressure on their representatives, and honestly the public isn't informed enough to care. So will this report help mobize people or are they just preaching to the choir?

The CATO institute is a libertarian think-tank that is largely embraced by the American right wing-conservative movement. Although I doubt the likes of President Bush cares what CATO says, the true intellectuals of that branch give much credit and respect to the CATO institute, and will take them seriously. The CATO institute has very little credibility with the mainstream of the Democratic party, but honest left wing-liberals will also give this report due consideration because they give EVERYTHING due consideration no matter how meritless (or merited).

In other words, this does matter.

In the end, it won't make much difference

[tkrotchko]

In the end, this won't make a bit of difference in the U.S. until it costs corporations money.

Look at patents. People knowledgable about patents and software have almost universally criticized software & business method patents, but the only reason congress and the patent office is starting to look at it is because its costing big corporations money.

You see, the trouble is, when you have people like Alan Greespan saying more copyrights and patents are vital to the U.S.'s economic growth, when congress perceives the entertainment industry as being the growth engine for the U.S. economy, then its tough for congress to vote against these kinds of laws.

http://www.federalreserve.gov/BoardDocs/Speeches/2 003/20030404/default.htm
http://news-service.stanford.edu/news/2004/march3/ greenspan-33.html

Until these same companies feel a pinch from the DMCA, it doesn't matter what the real impact of the law is, it's the message that's carried by the press, by the fed chairman, by the heads of industry such as Bill Gates that will determine the fate of the DMCA.

Misleading

[SuperKendall]

Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates.

I take exception to the woring this phrase, for the use of "little to stop pirates" implies that there might actually exist some for of DRM that would in fact ever stop piracy, especially the real pirates and not just mislabled fourty-year old women.

Hurting Consumers in more ways than one

[Geekbot]

The DMCA hurts consumers in more than one way.

First, it hurts the end user or consumer by imposing government restrictions on how we use things that we "own". Or more to the point, we no longer own things that we buy.

It also hurts us that we don't see competition. This means higher prices, collusion, price gouging, and all the other nasties that come along with pseudo-monopolies.

We are further harmed by the lack of new jobs and opportunities. Real growth for our country is not in the 1000+ employee multinational corporations, but in the small companies employing 25 or less employees. The DMCA seriously harms innovation and prohibits companies that are more truly American companies from growing, making money, paying taxes, and employing more workers.

And we get the short end of the stick when these companies no longer need to innovate from the unnatural monopoly caused by the DMCA protects them from newer, more competent competitors. Not only do we not see the innovative, improved, products from fresher companies, we also see outdated technology from the companies that have lost the need to improve in a free market system.

Re:Hurting Consumers in more ways than one

[Harry Coin]

First, it hurts the end user or consumer by imposing government restrictions on how we use things that we "own". Or more to the point, we no longer own things that we buy.

The problem is not "government" restrictions, but government enforcement of private restrictions. The DMCA allows corporations to renegotiate the terms of a sale at their whim. There's a long and sound tradition of case law covering the purchase of goods. (doctrine of first sale, fair use, reverse engineering, etc..) This gets thrown out the window when a company employs even utterly ineffective cryptographic measures. In short, I believe that this allows companies to unilaterally alter long-held traditions concerning private property.

Re:hehe

[jcr]

They're still very much on the right wing side of many issues, but they are fairly libertarian on economic issues.

The way I would state that, is that the right wing is libertarian on some issues. Describing Cato as "right-wing" is just the way that the pinkos try to ignore them. The right-wingers try to ignore them by denouncing Cato's opposition to the drug war.

-jcr

Re:hehe

[stlhawkeye]

The CATO institute is a libertarian think tank. Libertarianism falls into the left wing of the traditional classification of politial thought in some ways and right wing in others.

The libertarians, on balance, have far more in common with the Republican part of the mid 1990's than any other major American political idealogy. The only major thinks they have in common with Democrats is they oppose having our military involved overseas and are generally pro-choice. And frankly the Democrats are only anti-Iraq because they're the opposition party and the opposition party traditionally opposes the leadership party's foreign policy. Foreign policies are almost necessarily interventionalist, even the most hands-off of foreign policies must sometimes be interventionalist (e.g., President Clinton), and such manuevers are easy targets for the opposition party. So you can take that one away and you're basically left with the pro-choice issue. Libertarians are also more likely to support gay marriage, but neither party wants to go anywhere near that one, uncharacteristically deferring it to state courts.

If you do a run-down on the issues you get a group of people who are intensely dedicated to private property and individual freedom issues, and other than gay marriage and abortion, Republicans overwhelming want the government out of people's lives and everyday decision making as much as possible. Well, in theory anyway. In practice they spend just as much money on pointless and worthless government programs that don't solve anything.

Re:"Left versus right."

[eris23007]

Mod Scurvy's post up. It's about time more people understood that "conservative" is not a swear word. I suspect a whole lot more of you slashdotters lean for more libertarian than you realize. That has been the case frequently over conversations I've had with a number of liberal friends, once they actually started listening to my arguments instead of blindly reacting against the conservative bogeyman.

Incidentally, Cato is far more pragmatic and realistic than the Libertarian party. I know a number of folks who are trying to make the LP more Cato-like in its platform (as opposed to anarcho-capitalist), and if they are successful, the LP could very well become an intriguing, influential 3rd party in this country. Keep an eye on this, as it may turn out to be a tremendous way to escape the current domination of the Democans and the Republicrats.

One such individual is the guy I voted for Congress in 2004 when I used to live in Silicon Valley. Interesting fellow, software engineer at Yahoo. Holds a set of viewpoints broadly compatible with my own, despite a few disagreements over specifics. This is the guy who bet voters $2 that they could read his website and still decide they didn't want to vote for him or somesuch. He's pretty active in the Libertarian Party of CA trying to get them to come up with a platform that's somewhat practical, as opposed to purely ideological and idealistic. His website (a great read): http://marketliberal.org/ - go check it out.

Re:"Left versus right."

[argoff]

This is intentional, a standard divide and conquer tactic. Instead of people choosing economic freedoms AND personal freedoms, all to often the enemies of freedom try to force one to fignt against the other.

But now we have the internet, and dividing culture that way is becomming a lot harder. That most likely means that the contention and divisions are going to be more international (like islam vs the west), and that there will be a major shakeup in the two party system.

I wouldn't be supprised if the Democratic party got killed, the libertarian democrats and the libertarian rebuplicans join into a new party, and the religious right stays Republican.

Read the 28 page report

[Tsunayoshi]

To all you people screaming about how stupid CATO is, what is their political intent, etc, I suggest you read through the entire 28 page report. A lot of facts and examples are presented where the DMCA has been the trump card preventing a number of legitimate fair uses of copyrighted/DRM'd stuff.

Hell, there are even 2 or 3 reference to things like building LEGAL software DVD players for linux, or how Alan Cox resigned from an association because he didn't want to face the possibility of being arrested if he ever visited the US for a conference, since his kernel work sometimes involves reverse engineering.

Regardless of who wrote it or what the hell the political bent of the authors are, it all but says the the DMCA is a stupid act that was not needed since there were already legal means and precedents in existence to cover what the DMCA blanketly prohibits.

DRM Technology?

[rnd()]

First off, I am a huge fan of Cato, and I subscribe to several of its publications.

But, the blurb is misleading. The DMCA isn't DRM technology it's simply regulation.

I do not like the DMCA, but I do like legitimate DRM technology. If someone engineers a product to make it difficult to copy, that is their business. If you copy it and violate copyright, that's their business, but we don't need an intermediate law saying it's illegal to even attempt to crack the DRM scheme.

In other words, the technology should stand on its own.

Not really

[Gorimek]

Actually, Libertarians are less trusting of people than others, but in ways you may be unaccustomed to.

For example, we assume people are no more trustworthy because they've been elected or appointed to a government position. So having government officials overseeing some area to guard against crooked companies is not seen as a solution, since the officials are just as likely to be crooked - and if they are they can cause a lot more damage.

This perspective of deep distrust and cynicism is confusing to many, and can lead to the misunderstanding of the parent article, but once you get used to it, it can be quite productive and enlightening.

Re:Pirates

[NeutronCowboy]

You missed the point of the original poster. Too bad. Otherwise you'd understand that insisting on calling copyright infringement "copyright infringement" and not "piracy" is so that the RIAA/MPAA can't create the emotional response of "hang 'em high!" when they ask what should be done with P2P downloaders.

This is not some academic exercise in language purity. This is a fight to keep the debate about copyright infringement right where it belongs - in the realm of copyright law, not violent takeover of personal property.

Re:hehe

[WindBourne]

In theorey, the republicans and democrats have a great deal more in common than does the libertarians. Get past the lip service of what republicans say. Look at what they do.

The speak of balanced budgets. Well, the last republican to run a balance budget was Nixon. The last before that was Lincoln. Basically, they do not balance budgets. In fact, some 95% of the deficit is republican.

Republicans speak of competition. Yet, did you see any competition for servicing Iraq? How is hallibutron doing?

They speak of freedom for all, while denying to all else.

They speak of minimzing gov, yet W and reagan built up more gov, then any dem. has in my life time (born in 59).

They speak of staying out of other nations business, yet, nearly all republicans have started a war or invasion.

I always find it funny that republicans deliver so much lip service and it has NOTHING to do with what they do.

BTW, do not get me started with dems. They are just as bad.

Re:Highly Misleading

[Whoozit]

Oh wow. Ad Hominem, Straw Man, False analogy... all in a few short sentences! I'm wondering why I bother feeding the trolls, but here I go:

I almost didn't reply to this post because I try not to waste my time on petty pseudo-attorneys like yourself,

If ordinary citizen 'pseudo-attorneys' cannot have a meaningful discourse about points of law, why bother with a democratic system of government to make them? Why bother with juries, if ordinary people cannot understand any part of the law? If my interpretation is somehow false -- an interpretation I arrived at by parsing the English structure of the law, and by not finding any exception or clarification elsewhere -- please feel free to correct me. I find the fact that you have not made such an argument suggestive that you cannot make one.

Fact: you feel it's your right to steal movies. It's not. Stealing is against the law. Therefore, stealing is WRONG.

Since you are so enamoured with facts, I should point out that copyright infringement is not, in a legal sense, equivalent to stealing. It is a completely seperate offense. I concede the point that both stealing and copyright infringement are illegal, and many would contend immoral, but nowhere in my post did I say anything about my perceived rights vis-a-vis stealing or copyright infringement.

I did hint at the fact that I believe it was my right to space-shift legally obtained media onto the format of my choice. This, as far as I am aware, is in fact my right under something called 'fair use'.

As an aside, if I did believe I was entitled to free movies/music/latest awful TV show, I could very easily get such materials from Usenet, BitTorrent, etc. much more rapidly that somehow obtaining a physical DVD and spending the time to rip it with obscure and hard to use software like DeCSS. You may also note that the legal status of such an act of downloading (without making the media available for upload) is much more ambiguous than the clear-cut prohibition against 'circumvention'. When I download a ripped song from the Internet, I am not violating the DMCA. (IANAL, but I'm certainly open to correction if I am wrong on this).

And this really brings up the crux of the issue: laws like the DMCA allow corporations (as TFA points out) to impose further limits and control on cultural works and the technologies used to enjoy them, and bludgeon any potential innovative competitors into the ground. This is an incredible burden to bear, and the loudly proclaimed benefits -- increased protection against digital piracy -- have yet to materialize in the 8 years or so since the law was passed.