Congressional leaders at CES this weekend spoke out on a number of tech issues, including the RIAA's lawsuits against American file-sharers.
There were some nice strong statements here and there, but I found these comments by Sen. John Sununu (R-NH) the most interesting:
"The fundamental problem with the approach of the RIAA took is that it was based on legislation that created special property rights," Sununu said. "Suddenly, you had a private entity that's able to issue subpoenas, which is unprecedented."
"That's not what the DMCA was intended to do," he said. "We can't be writing legislation that gives holders of certain types of intellectual property special rights...We can't carve out special legislation to give special powers to certain types of content."
As a long-time liberal, I've always recoiled at the Republican use of "special rights" to critique civil rights for disadvantaged groups. But here, it comes into play nicely. In the legislative history of the DMCA, there wasn't any actual evidence that copyright owners are somehow disadvantaged compared to other rights holders when enforcing their rights on the Internet. Sure, there was speculation that fast action was necessary. And there was speculation that without the DMCA, massive piracy would ensue. But there weren't any actual studies or ubiquitous examples to prove that the threat to copyright was real, or at least more real than threats to other business interests.
Today, one could argue that file-sharing is such a threat. But is the DMCA a solution to that threat? Not really. The DMCA has not proven an effective tool for the content industries to shut down file-sharing, especially now after last month's Verizon decision. Instead, the industries have fallen back upon good ol' standard copyright infringement law. In fact, I suspect you would be hard pressed to point to any company or industry that has been able to effectively use the DMCA to stop Internet or digital piracy. Thus, as Sununu says, there's no reason to give copyright holders special rights when they haven't proven that they need them or that they will help solve their problems.
Man, I can't believe I'm agreeing with Sununu!
But I will point out this contrast: The right-wing critique of civil rights as special rights breaks down under this analysis. In the case of Affirmative Action, whatever you feel about its ethical and policy merits, it has proven effective in achieving its goals. More women and people of color have gained ground in society via AA programs. And few, even to this day, dispute that there was a definite need for these groups to gain that ground. The main dispute was always about how to do it, not whether to do it.
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