Why the DMCA will and must be repealed, revoked or reformed

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Thu, 18 Dec 2003 06:25:15 -0500
From: Barry Ritholtz <ritholtz () optonline net>
Subject: Why the DMCA will and must be repealed, revoked or reformed
To: Dave Farber <dave () farber net>

Hi Dave,

for IP -- Rethink Research put out a very interesting analysis, with a more 
historical slant, on the DMCA. They raise some very pertinent points. 
Normally, their work is for subscribers only, but (upon request) they were 
kind  enough to make this piece available.

Its rather long, but here are the most relevant parts.

Regards,

Barry L. Ritholtz
Market Strategist
Maxim Group
(212) 895-3614
~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Big Picture:  A blog of capital markets, geopolitics, with a dash of film!
<http://bigpicture.typepad.com/comments/>http://bigpicture.typepad.com/comments/ 





Why the DMCA will and must be repealed, revoked or reformed
<http://www.rethinkresearch.biz/free_page_view.asp?crypt=%B3%9C%C2%97%8B%80%86%AF%BC%C2%88%97kzn%8F>http://www.rethinkresearch.biz/free_page_view.asp?crypt=%B3%9C%C2%97%8B%80%86%AF%BC%C2%88%97kzn%8F 

Published: Monday 8 December, 2003


Whatever story we look at in this publication or anywhere along the digital 
media Faultline, we find people arguing about copyright.

The idea of copyright was enshrined in 1896 when the Berne Convention, ten 
years in the making, was finally signed in Paris. The convention has had 
various revisions, and a revision has to have unanimous voting from the 
member countries. The last was in 1971. We know of no planned revisions.

It establishes the concept of literary and artistic works being authored 
and a set of rights for the work and the author. Go to Google and put in 
Berne Convention and you are almost certain to find one of the first three 
entries will be a copy of the convention on Cornell Law School’s web site.

This is particularly interesting as the convention has never visited the 
USA’s shores, with all meetings and dealings being conducted in Europe. 
Essentially copyright is a European idea enthusiastically adopted by the 
US, with revisions and meetings held in Paris, Berlin, Berne, Rome, 
Brussels and Stockholm.

How strange then that almost every copyright issue, in and around, digital 
media, originates in the USA.

>snip<

The USA has also taken the initiative in copyright law. It’s Digital 
Millenium Copyright Act (DCMA) was designed to put the internet genie back 
in the bottle, and now it is faced with the same problem that was faced way 
back in 1896, that it’s no good having copyright laws for one country if 
people in other countries can ignore your laws.

In fact the Berne Convention is very different from the laws as they are 
practiced in ANY of its signatory’s countries. It is a guideline for making 
laws and in many places in the document there are references to such laws 
and statement such as “It shall be a matter for legislation in the 
countries of the Union to determine the protection to be granted…. etc” and 
“Protection in the country of origin is governed by domestic law.”

As such, it protects the works of “Authors,” but in some countries the 
author is established in law in different ways. An author may be determined 
by “prior use,” demonstrating that he used a particular set of words or 
musical notes first, or he may have to register his work somewhere to 
ensure that he can prove he is the first person to have written those words 
or notes . . .

The same must be said for music and the popular press is rife with stories 
about famous musicians that have received very little of the revenue from 
their huge, decade-spanning careers. In film the situation is different, 
but there are analogies. Companies often make films, creating a new company 
for the film, raising money to make it and pay the basics for everyone and 
yet when they come to the exploitation of the film, they run up against one 
of the big studios.

Studios are supposed to make films, but as we have pointed out time and 
again, of the 25 or so films a year that come out of established studios, 
only about 7 or 8 are funded and made by those studios. So what is it they 
do?

> snip <

Everyone made copies of their favorite music on tapes for the car or their 
portable music players, people have made VHS recordings of TV programs they 
want to watch later. In one or two countries this may have been reflected 
in law, but for the most part this type of activity was deemed to be 
impossible to police and by association, allowable. But it has not been 
universally sanctioned in law and it has never been placed back into the 
Berne Convention. It needs to be.

So far on this subject the law has not been an Ass. In each legal dispute 
where this was tested, the principle of “copying for gain or detriment of 
the author,” has been applied in a clear vision of jurisprudence, whichever 
country the judge has been in . . .  And in the case of the new Californian 
law, these are people panicking about copyright protection and creating 
half witted legislation, which they believe will help them preserve the 
businesses which are lobbying them.

This is why the Digital Millenium Copyright Act must be repealed or at 
least reformed, because it too, falls into this category.

It has been thrown together by people listening to vested interests that do 
not understand copyright or the principles that copyright was designed to 
uphold. It is focussed on the policing aspect of copyright abuse, not on 
the act of breaching copyright itself. Would any western country make it a 
crime to own a lockpick? No because there would be no locksmiths. They make 
it illegal to break and enter.

This is the law leading where technology should provide the answers, and 
what that technology should do is strengthen the principle that everyone 
wants embedded in the law, namely that “the author doesn’t suffer loss and 
the copying person doesn’t gain.” So far in the DMCA that principle is 
strangely missing.

When our copyright law was shaped no-one imagined global audiences, no-one 
pictured multi $billion corporate interests. But the biggest thing that 
nobody expected was a single content superpower to usurp the 100 year old 
principle of getting the convention to unanimously agree on a globally 
interoperable law.

First the USA has cornered the market in distribution of content. By 
association it has cornered the market in content, even that which it 
doesn’t create. Now it is trying to make its own laws, but those which have 
global reach, and yet which only protect US interests. Expect them to fail 
and for the DMCA to be shelved after the US based global content hegemony 
has, at least partially, subsided.
</blockquote></x-html>  

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