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

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

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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.