December 1, 2005

An Astonishingly Poor “Report” on HR 1201

The Property Rights Alliance recently issued this astonishingly poor “policy brief” on HR 1201, the Digital Media Consumers Rights Act, which came to my attention via a post by Tim Lee at the Technology Liberation Front blog.

It is astonishingly poor not because it comes to the conclusion that HR 1201 is bad policy; I think the bill is good policy, but other reasonable, informed people disagree.

Neither is it astonishingly poor because it is so badly written that one wonders how its authors got (or keep) jobs drafting documents for public release. See, for example, references to doing something “[u]nder the semblance of fairness,” assertions that fair use is “inherently perverse to” intellectual property owners, warnings that a given course of action will end up “causing dire consequences on domestic economic growth,” the prediction that the bill “will send a wrong message to the international community,” and the conclusion that “[t]he repercussions of the bill are dangerous to protecting IP rights.” (That all of these solecisms appeared in a single three-page document is remarkable in itself.)

Nor even because it continually refers to copyrights and patents interchangeably.

The policy brief is astonishingly poor because it is entirely conclusory, making extraordinary (and false) claims without providing argument or support. To wit:

  • The policy brief asserts that H.R. 1201 “will not improve the rights of consumers, but rather increase prices on all content protection technologies, such as iTunes, Napster, and other legal downloading providers.” The idea that allowing consumers to do something that is now illegal will not “improve” their rights strains credulity. Further, the brief provides no support for its assertion that protected content will become more expensive. One can imagine an argument that legalizing traffic in circumvention devices will cause an expensive “arms race,” raising the cost of DRM and thus the cost of DRM’d content, but the brief makes no such argument.
  • It asserts that HR 1201 will cause such dire economic harm to copyright holders that “many” of the supposed 8% of workers whose jobs depend on copyrights “are likely to lose their jobs as an effect of lost revenue in the industry.” But only a very, very small slice of copyright holders protect their copyrights using DRM. Further, the economic harm to those copyright holders’ legitimate interests caused by fair use circumvention would be minimal, since the fair use analysis itself requires minimal economic harm to the copyright holder.
  • The brief says that “if protections are not maintained,” copyright holders “will cease to continue research and development.” But most research and development results in potentially patentable devices and methods, not in potentially copyrightable creative works. Perhaps they really do think HR 1201 has something to do with patents.
  • The brief concludes that “[f]air use sets a dangerous precedent” and “[f]air use is unfair to . . . the individual consumers who expect to buy quality products.” But we aren’t arguing about fair use; we’re arguing about the circumvention of DRM in the service of fair use. Fair use isn’t on the table. And it’s hard to imagine how allowing the circumvention of DRM for purposes of consumer fair use would lower the quality of products consumers buy. Unless, of course, you thought HR 1201 had something to do with patents.

As Tim Lee said, “the RIAA and MPAA should ask for their money back.”

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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