Architect Of The DMCA Admits It Hasn't Worked Out; Suggests New Approach Needed

from the not-much-of-an-apology-though dept

Mon, Mar 26th 2007 12:32am — Mike Masnick

Michael Geist notes the surprising news that Bruce Lehman, an original architect of what became the DMCA, is basically admitting that the law has been a failure and hasn't worked out at all as planned. Lehman made his comments at a panel discussion (from about minute 11 to about minute 31). He describes the basis for what he, and others, were trying to do with the DMCA. That is, he earnestly believed that such a law was needed to create the framework for economic benefit from an information economy -- and like plenty of others, he felt that the need to do so was to create artificial scarcity to create the right incentives. However, it's turned out that he wasn't just wrong -- but disastrously so. Of course, he doesn't blame himself for being wrong. He blames the recording industry execs (who certainly do seem to deserve some of the blame). He notes that they never understood the digital world, and had no idea about new distribution technologies. He believes that if they had embraced going digital much earlier, then the DMCA wouldn't be such a disaster. However, as some folks have pointed out, it should be no surprise that the record labels didn't innovate. After all, the DMCA gave them the extra protections they needed to prop up their business model for a few extra years, rather than innovating. As economist David Levine notes, "You give the big guys more monopoly power and they innovate less. Who'd have thunk it?"

Lehman also doesn't bother to acknowledge that there were plenty of people who told him very early on that his proposal for the DMCA was incredibly dangerous -- and Lehman's response to those people wasn't exactly gentlemanly. James Boyle loudly critiqued Lehman's plans in 1996, and Lehman allegedly threatened to have Boyle denied tenure at the university where he was teaching and (this was the nice one) saying that he would "rip Boyle's throat out." One would think that, having admitted a decade later that the law hasn't worked, Lehman at least owes Boyle an apology.

Lehman goes on to suggest that we're entering a "post-copyright era," which many people agree on. Lehman, however, having lived his entire life focused so much on using copyright law as a lever seems to believe this will mean less music -- but there's very little to indicate that's the case. He recognizes that other business models will have to come into play, and many of them sound like the business models that are already starting to show up. He points out that plenty of other industries need music, and will pay for its creation -- suggesting, for example, that companies like XM and Sirius might "commission" songs. He notes that even the record labels are realizing that the money isn't coming from the music directly, but from merchandise and concerts and are negotiating new contracts to make sure they're included in the profits from those non-music sales. This is exactly what should happen. However, where it's likely that Lehman is wrong is in the idea that this somehow marginalizes the value of musicians. Rather, thanks to new technologies, the musicians have unprecedented ability to have much more power and say in what happens to their careers. It was the record labels themselves that marginalized the musicians, telling them what they could do and how they can do it. These days, the musicians themselves can create the music, make better deals for themselves, and figure out how to embrace these new technologies, without ever having to bother working with the traditional record labels who only know how to squeeze them, not help them. If that's what the "post-copyright era" is about, it's going to make for a lot happier musicians, rather than a lot fewer.

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Nonsense, 26 Mar 2007 @ 2:50am

MP3 players need mp3s!
The music player is called an MP3 player, it plays a format called MP3. Not a single major record company sells MP3s. If I bought music from any major record company online, it would most likely not play on my MP3 player.

So they've excluded themselves from the marketplace and now seem puzzled as to why they are not selling?
DUH!

LET THEM DIE. When the market was records, they sold records. When the market was tapes, they sold tapes, when the market was CDs they sold CDs. The market is now MP3, they switch of they die.

So just die already.

It's not a choice between copyright+drm or no copyright. It's a choice between being in the market, or not.

So enter the market already and quit all this 'post copyright era' nonsense.
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|333173|3|_||3, 26 Mar 2007 @ 4:52am

Re: MP3 players need mp3s!
I agree, but non't forget AAC-encoded M4As, and OGG vorbis, both of which are superior to MP3s except for backwards compatability.

OTT, but were all the TD posters away for a few days? I had assumed that there was some wierd problem at my end (the proxy server at my end has been p adn down like a whore's drawers lately), but that apparently wsa not the case. It would have ben helful if TD had a post saying that htere would ne no new articles for a few days, since then we would have known when to check back.
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Vincent Clement, 26 Mar 2007 @ 5:36am

Re: Re: MP3 players need mp3s!
Backwards compatibility is more important than superior quality in this case. Beta was better than VHS in terms of video and audio quality but guess which format won out? The one that let you tape 4 hours (initially) of TV shows - that would be VHS in case you didn't know.

As to the lack of posts - TechDirt does not typically post articles on weekends.
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Anonymous Coward, 26 Mar 2007 @ 6:32am

Re: Re: MP3 players need mp3s!
Mike & Co don't post to this blog on the weekends.

They haven't for as long as I have been reading it.
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Sanguine Dream, 26 Mar 2007 @ 6:40am

Re: Re: Re: MP3 players need mp3s!
Backwards compatibility plays a major role in this. Mp3s are a very versatile format due to the fact that there literally thousands of mp3 players out on the market with varying shapes, sizes, capacities, and so one. Unlike the cassette and cd player there is no physical media to hold onto therefore the mp3 player is more mobile than traditional walkmans and that mobility is a major selling point for people.

20 years ago people with portable cassette players had to face the advent of the cd, a new physical media. 10 years people with portable cd players had to face the advent of the digital file, which has no physical form to keep track of.

Now back on topic. My point is digital distribution will be around for a very, very, very long time. And if the current industry wants to stay in the game they will have to embrace that fact.
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Mr Textbooks, 26 Mar 2007 @ 6:44am

Will They Repeal it? No.
What sucks the most is even utter failures of laws like this rarely just get repealed and sent to the dustbin of history. Saying "it hasn't worked out" is quite an understatement.
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comboman, 26 Mar 2007 @ 7:29am

Re: Re: MP3 players need mp3s!
I agree, but non't forget AAC-encoded M4As, and OGG vorbis, both of which are superior to MP3s except for backwards compatability.
This is an unfortunately common misconception (based on the MP3s created by poorly writen early encoders). When using a quality encoder like LAME, byte-for-byte MP3, AAC, OGG and WMA all have virtually indistinguishable audio quality. Check out the test results on this page.
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Dewy, 26 Mar 2007 @ 7:41am

Experts
Experts need to be held accountable for their testimony, not glorified and allowed to spew any nonsense they like in the name of their expertise.
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Casper, 26 Mar 2007 @ 7:48am

...
Duh! I think that sums it up.
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Extreme Centrist, 26 Mar 2007 @ 8:12am

Why DMCA won't die
"These days, the musicians themselves can create the music, make better deals for themselves, and figure out how to embrace these new technologies, without ever having to bother working with the traditional record labels who only know how to squeeze them, not help them."

Let the musicians break away and lose their profits? Never! Recording companies are just distributors, and they know it. Now that physical distribution isn't necessary, they'll have to find new ways to stay relevant. Political leverage and bad laws seem like a good avenue for them, and they have so much power, the market will take a long time to expel them.
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Joe Smith, 26 Mar 2007 @ 8:30am

Re: Experts
Right.

The guy should not be spouting off about how the real world betrayed him by not conforming to his prejudices, political dogma, fantasies or what have you - he should have simply announced that he had now realized that he had been wrong all along and accordingly was apologizing and withdrawing from any further discussion on the issue.
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Nasty Old Geezer, 26 Mar 2007 @ 2:31pm

Musing, maybe off topic but...
Since the record companies marginalized the musicians creativity -- this may explain all the "one-hit wonders" that have appeared with a fresh sound and then turned into crap for their second effort.

Boston, Katrina and the Waves, The Clash, Stray Cats - all vanished pretty quickly after an initial monster hit. You can probably name other peformers in other genres.

With direct access to fans via the Internet, will the next generation of musicians maintain creative control? Is THAT what really scares the record execs -- they become irrelevant?
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good
In reverse match ups is additional important as compared with superior quality in this case. Beta has been superior to VHS in terms of video and audio quality but guess which often formatting won out there? One which let you tape 4 a long time (initially) of TV shows - that could end up being VHS just in case you don't know.
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