Last Friday I flew to Washington, DC for what I hoped would be an exercise in civil discourse between a government and a citizen. The topic for this discourse was a possible exception to the rule that prohibits bypassing digital rights management mechanisms. What I found was surreal.
In the hearing I testified in the lawyer representing the joint commenters (the AAP, the MPAA and Time Warner) simultaneously argued that:
a) platform restrictions on streaming video should not be bypassed because doing so would mean less video streaming services and everything would be leaked to P2P networks which implies that the platform restrictions are an intentional access control enforced by the content creators and
b) platform restrictions are just a matter of technological incompatibility, not an access control
So platform restrictions are an access control when the content creators want you to only stream video on the devices they choose, but they're not when I'm requesting an exemption for them.
I guess when you start with ridiculous rules, it's only natural that you would end up with ridiculous logic in ridiculous hearings. It felt a little like I was having tea in the garden with the queen.
I wasn't as clear as I would have liked about the difference between technological incompatibility, the inability of a particular platform to stream video, and an access control, a software program preventing access to a video stream by requiring a specific platform.
The panel seemed to consider anything to do with platform restrictions a mere inconvenience. I should have asked what is the cost threshold for a mere inconvenience. How much should we expect consumers to pay extra to watch their programs on the devices they choose? Perhaps next year I should request an exception to the rule for all people under a certain level of income, if that really is the standard.
Even when it was crystal clear that an access control was in place - as is the case with cellphones locked to a particular network - the conversations quickly descend into discussing what should be irrelevant minutiae. Like whether a ring tone publisher has the right to expect the DRM on a cellphone to protect their product, or whether they should be putting additional DRM in place, or whether the value of a ring tone is enough to justify not allowing a consumer to choose which network a device they purchased should be used on.
Please.
The coup that content creators won when the anti-circumvention clause of the DMCA was passed was this - a debate that should be happening in the public arena about the extent to which content creators can control their works is instead pushed into a forum that few citizens can understand and even fewer citizens participate in.
Companies and public interest groups are left staring at the unsatisfying, watery gruel that the process prescribed by the DMCA has granted them, and every three years they line up in the front of the Library of Congress and ask "Please, sir, may I have some more?"
In today's intellectual property law, common sense has no place. Unlike healthcare, the solutions are clear. It isn't fixed because our leaders lack the political will. If the true measure of a government is what it does when it thinks its citizens aren't looking, then our government is sorely failing in this arena. Even President Obama, hailed as refreshing change from the previous administration, has been busy appointing the same lawyers that have made copyright law into the mess it is today to key positions in his administration.
Einstein's third rule of work is "In the middle of difficulty lies opportunity." There's a good opportunity here for President Obama, or any other political leader to do something good. And I'll keep reminding them that they should take it.
