Bruce Lehman, architect of the DMCA: policy failed, and he fails to understand why.

Jesse Brown interviewed Bruce Lehman on the December 6 episode of Search Engine (Direct MP3 link).

Bruce Lehman is widely acknowledged as the architect of the 1996 WIPO Internet Treaties, and the Digital Millennium Copyright Act, when he was Assistant Secretary and Commissioner of Patents and Trademarks under the Clinton administration (See: Intellectual Property and the National Information Infrastructure).

In the interview Mr. Lehman acknowledges that his policies failed, as he has in the past (See: Bruce Lehman reflects on the DMCA's failures at a McGill University conference). When Jesse Brown asks what he would do differently if he had it all to do over again, he stated that he would make Internet Service Providers more liable for any copyright infringement of their customers, effectively obligating them to monitor and police the communications of their customers.

So lets see of I understand what Mr. Lehman said: The DMCA failed because it wasn't draconian and backward-thinking enough?

What did this policy give us:

a) A brand new exclusive right, unrelated to the way copyright worked in the past, that grants copyright holder the ability to impose specific brands of access tools on audiences of content. This is what legally protecting TPMs on content accomplishes, and should be understood as fundamentally anti-competitive and harmful to the economy.

b) A brand new protection for device manufacturers, even further away from anything related to copyright, who wish to lock down devices such that their owners are not allowed to control them. This should be understood as harmful to property rights. This attack on property rights is fundamentally incomparable with free market capitalism itself which is defined as an economic system where the means of production and distribution are privately owned and controlled, rather than centrally controlled. Whether this central control is in the hands of the private or public sector does not in fact make much of a difference as far as the harmful effect on the economy.

And what does Bruce Lehman want to add to this?

c) Internet Service Providers who would be legally obligated (and legally protected) in monitoring the activity of their customers, and filtering based on various policies. For those who are concerned about Net Neutrality, a comparison between violations of Net Neutrality and what Lehman is calling for would be like comparing a paper-cut to a gunshot wound.

Jesse also interviewed lawyer Mark Hayes. While I believe Mark has the best of intentions, he exhibited the problem I have observed where many lawyers and policy people are basing their understanding of technical measures on science fiction rather than science. He described the anti-circumvention debate as being about locks on content, when in fact most of the problems are a result of locks on devices. Without understanding these two locks separately (One anti-competitive, and the other contradicting basic ownership rights), it is nearly impossible to understand the reason and level of opposition to this legislation. Many people consider the lock on our devices to be a form of theft, and far more harmful to the legitimate rights of the device owner than any amount of copyright infringement can be to a copyright holder.