Copyright Spin: Digital Media Anti-Consumers' Rights Act

The copyright spin is on again. Last week the MPAA said that the broadcast flag decision would hurt consumers. This week a coalition of major copyrightholders is claiming that the US Digital Media Consumers' Rights Act (DMCRA) "is decidedly anti-consumer." In letters sent to lawmakers this week the Copyright Assembly apparently claims that:

"If enacted, it would promote 'hacking' and the proliferation of 'hacker tools,' undermine the incentives for both copyright owners and the people who create those copyrighted works to create and distribute the highest-quality products to American consumers," [...] "In the end, HR 1201 will leave individuals with fewer choices, less flexibility and inferior quality digital entertainment." [...] "We urge you to seriously consider the adverse effects of this proposal and opt to protect consumer choice in the marketplace by rejecting HR 1201."

What the DMCRA would actually allow is "to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work" (Section 5(b)(1) DMCRA). Such a noninfringing use would be a fair use, which I would not consider "decidedly anti-consumer". One can argue about the scope of this fair use, but provided there is such a thing, legislation to enforce it can't hardly be called hacking. I'd consider hacking the illegal or unauthorized gaining of access to (protected) content. Living to the letter of the DMCRA, if enforced, one cannot even speak of hacking, since it would be legal. Or is the fear that those who already circumvent DRMs will be stimulated to do some extra real "hacking" just because "fair use hacking" would be "legalized".

Maybe that's just a little wordplay, but it's right up the letter's alley. Copyrightholders have genuine interests in the protection of their works, and may put forward some arguments against the DMCRA. But their "legalize hacking" mantra is just the familiar spin. As is the claim that the DMCRA would result in "inferior digital entertainment", which was also put forward as an argument to implement the broadcast flag.

Interestingly the letter makes a distinction between "copyright owners" and "people who create those copyrighted works". Presumably not intended to highlight, this distinction may be considered one of the problems under today's state of copyright: those who actually create may not be the ones who actually hold the rights to their works and exploit them. Not the individual creator, but the corporate "copyright intermediair" calls the shots on exploitation and enforcement. And, not in the last place, on the lobbying in the US and European political arena to codify that copyright, which serves their (existing) business models. In that light the DMCRA is neither anti-consumer, nor anti-creative, nor anti-copyright, for that matter. Maybe just pro-consumer, if you look beyond the spin.

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For an analysis of the DMCRA's provisions and specifically its 2004 Congressional hearings I point to an older article I wrote: Restriking the Balance: From DMCA to DMCRA.
Related MGM's Concession and the DMCRA