It’s conceivable that a few people in the blogosphere who are interested in IP policy and digital technology haven’t already visited Randy Picker’s excellent mobblog discussion of Fred von Lohmann’s paper about the Darknet. So there’s a link. Going forward, I’ll be thinking about a pair of questions, one left by Fred himself, following a comment by Jessica Litman, and one left by Wendy Gordon:
To pull this all together: What we’ve been calling the “retail” level is really the level of the lawful user. As several posters have pointed out, the DMCA doesn’t stop unlawful copying by those people– they’d obey the law anyway. For them, what the DMCA does is stop fair uses, and impose extra costs (and contracts) on the use of material that might otherwise be lawfully and freely available. So the DMCA can be seen as a law that hurts the lawful users, to stop the unlawful ones.
In turn, that reminds us of why the question Fred raises is so important: for what purported benefit does the DMCA sacrifice the lawful use of information?
In a Darknet reality, what effective regulatory levers remain?
Fred reviews a litany of levers, virtually all of them trying to massage markets in one way or another. Could Jessica’s question (which was: “Fred, if legislators chose to ‘regulate the wrong thing’ in enacting section 1201, what would have been the ‘right thing’ to regulate to advance the putative goals of the DMCA?”) be taken in yet a different way, by raising the question of regulating objects themselves? This, I think, is one way to think about the Lexmark/Chamberlain/Storagetek cases: there are certain things that courts will countenance, and certain things that courts will not, when it comes to producers’ massaging what we recognize, legally and socially, as valid objects. Julie Cohen’s comment characterizes this possibility in critical terms; I think that it might be recharacterized in positive terms. Use design mandates for objects themselves in order to preserve/protect user/consumer/re-user interests.
One drawback of this method is that it doesn’t answer the “right thing” query, at least not comprehensively. There are other drawbacks, which I won’t bother with here. A benefit, however, is that it gives us another lever, and therefore relieves some of risks that come with looking at a given market solution as “the” answer. It relieves some of the risk that bilateral contracting (i.e., formalistic clickwrap/browsewrap equivalents) might be used to bypass a market “solution.” And it encourages policymakers and scholars to think critically about solving a problem — which is that content producers simply build restrictions into their products — at the foundational level (I hesitate to say “layer”), rather than accepting the fact that those restricted products will simply appear, and then trying to solve the problem of regulating markets for them.