Cato paper slams DMCA

The most basic precept of criminal law is that crimes require both an act (actus reus) and intent (mens rea). That is, a fatal shooting may be murder (if the shooter had malicious intent), voluntary manslaughter (if the shooter was acting in the heat of passion), involuntary manslaughter (if the shooter was acting with criminal negligence), or no crime at all (if he was acting in self-defense.)

But as this Ars Technica report on a new paper from the Cato Foundation (PDF) points out, the Digital Millenium Copyright Act breaks this basic law. Under DMCA, an act alone, without any consideration of intent, is sufficient for criminal prosecution. Ars Technica notes:

DMCA's anti-circumvention clause does not take into account anything but a person's actions. If you break the encryption on a DVD, you have committed a crime. It doesn't matter if you are exercising your fair use rights to backup the disc, it does not matter if you are trying to make a disc from Britain plan your machine, and it does not matter if you simply want to remove the non-skippable commercials. If you crack the CSS encryption, a crime has been committed. As Lee puts it in the report's conclusion, "The DMCA errs because it focuses on a technological means--circumvention--rather than a criminal end--piracy."

A reform measure, the Digital Media Consumers' Rights Act, would add this language: "And it is not a violation of this section to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work." But chances of passage are slim (as long as Hollywood is making campaign contributions to Congressional races.)

The paper concludes that the courts are perfectly able to handle copyright disputes under the pre-DMCA regime and that repeal of the DMCA would only make things better.

"Fortunately, repeal of the DMCA would not lead to intellectual property anarchy. Prior to the DMCA's enactment, the courts had already been developing a body of law that strikes a sensible balance between innovation and the protection of intellectual property. That body of law protected competition, consumer choice, and the important principle of fair use without sacrificing the rights of copyright holders. And because it focused on the actions of people rather than on the design of technologies, it gave the courts the flexibility they needed to adapt to rapid technological change."