Ten Years After Digital Millennium Copyright Act, Electronics Companies Regret Supporting Law

WASHINGTON, October 14 — Consumer electronics manufacturers and owners of intellectual property offered divergent views of the Digital Millennium Copyright Act, 10 years after its passage.

Speaking at the inaugural forum of the monthly “Broadband Breakfast Club” hosted by BroadbandCensus.com, Mitch Glazier, senior vice president for government relations for the Recording Industry Association of America, called the DMCA’s anti-circumvention provisions “very successful.”

Glazier, who worked on the DMCA while working as a legislative counsel to Rep. Howard Coble, R-N.C., chairman of the House Judiciary Subcommittee on Courts, the Internet and Intellectual property, said that the DMCA was in part responsible for the success of DVDs and Apple’s iPod and iTunes service.

But Michael Petricone, senior vice president for government affairs at the Consumer Electronics Association, offered a “mea culpa” for the DMCA on behalf of the electronics industry. “We took them at their word,” Petricone said of those who said the anti-circumvention provisions would be used only to tackle legitimate piracy.

Petricone said that the DMCA has hampered the development of new technology and harmed consumers.

Petricone compared the anti-circumvention measures to Congress enacting a law making jumping a neighbor’s fence illegal, even though existing tresspass law is sufficient to protect property.

The DMCA is “extremist” and “chills fair use,” he said, tipping the scales in favor of content owners and giving even the weakest DRM technology the “force of law.” But that law is being applied to behavior Congress did not anticipate, Petricone said.

The anti-circumvention measures in the DMCA foreclose innovation, said Berkman Center for Internet & Society fellow Wendy Seltzer. Instead, the law puts us in a position where we need permission to innovate, she said.

Seltzer, who founded ChillingEffects.org, a repository of DMCA takedown notices, said her site shows how the law is routinely misused. But “it’s hard to talk about what we can’t see” because people haven’t been able to get permission to innovate in advance, she said, suggesting that Congress could “tweak” the law to protect free speech.

Broadband wasn’t in the mind’s eye of Congress when the DMCA was crafted, said Emery Simon, counselorat the Business Software Alliance. Simon dismissed calls for reforming the law and said it was a “sideshow” compared to other problems. The content industry is still making the adjustment to a media environment in which they cannot control all aspects of digital distribution, Simon said. But he also insisted anti-circumvention protections are needed — “If people create something, they should be able to protect it,” he said. “Why shouldn’t there be rules?”

Those rules give incumbents incentive to exclude competition, Petricone countered. He said that the DMCA’s exemptions are “stingy and ludicrous,” and had created a “permission culture” that stifles innovation. Seltzer agreed, adding that anti-circumvention rules have hampered computer science research, and prevented investors and entrepreneurs from exploring new technologies.

Simon strongly disagreed, calling Petricone’s arguments “gobbledegook.” Critics should be more worried about highly invasive deep  packet inspection techniques undertaken by broadband providers. Such inspection could be used to enforce copyrights, he said.