DMCA Architect Acknowledges Need For A New Approach

McGill University hosted an interesting conference today on music and copyright reform.  The conference consisted of two panels plus an afternoon of open dialogue and featured an interesting collection of speakers including Bruce Lehman, the architect of the WIPO Internet Treaties and the DMCA, Ann Chaitovitz of the USPTO, Terry Fisher of Harvard Law School, NDP Heritage critic Charlie Angus, famed music producer Sandy Pearlman, and myself.  A video of the event has been posted in Windows format.

My participation focused on making the case against anti-circumvention legislation in Canada (it starts at about 54:30).  I emphasized the dramatic difference between the Internet of 1997 and today, the harmful effects of the DMCA, the growing movement away from DRM, and the fact that the Canadian market has supported a range of online music services with faster digital music sales growth than either the U.S. or Europe but without anti-circumvention legislation.

The most interesting – and surprising – presentation came from Bruce Lehman, who now heads the International Intellectual Property Institute.  Lehman explained the U.S. perspective in the early 1990s that led to the DMCA (ie. greater control though TPMs), yet when reflecting on the success of the DMCA acknowledged that "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful" (presentation starts around 11:00).  

Moreover, Lehman says that we are entering the "post-copyright" era for music, suggesting that a new form of patronage will emerge with support coming from industries that require music (webcasters, satellite radio) and government funding.  While he says that teens have lost respect for copyright, he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s.

In a later afternoon discussion, Lehman went further, urging Canada to think outside the box on future copyright reform.  While emphasizing the need to adhere to international copyright law (ie. Berne), he suggested that Canada was well placed to experiment with new approaches.  He was not impressed with Bill C-60, seemingly because he does not believe that it went far enough in reshaping digital copyright issues.  Given ongoing pressure from the U.S., I'm skeptical about Canada's ability to chart a new course on copyright, yet if the architect of the DMCA is willing to admit that change is needed, then surely our elected officials should take notice.

Update: BoingBoing notes that there is now a more accessible Google Video version of the video


  1. mis
    It’s people of all ages, not just “teens” who’ve lost respect not fpr copyright but for the corrupt laws and the corrupt people who produce them. No one is fooled by unethical business practices consumers simply will not be cheated perpetually. It’s too bad so many have so much they never earned, now it looks like we all must pay the price, eh?

  2. Joseph Grace says:

    More Lehmann Doublespeak
    If this is the same Lehmann who ran the USPTO under Clinton, then IMO Lehmann is nothing more than a pure politician who seems to work for the legal industry to create new business (i.e., “legal” taxation benefitting lawyers). New business in your case turns out to be DMCA. I believe he’s the same lawyer who institutionalized Software Patents which were patently absurd in the 90’s. That’s a huge legal business which is incredibly damaging to innovation, business, and public interest (despite all lip service otherwise). IOW, if he’s truly “architect” caliber (your word) then he knows what he was and is doing. Lawyers _are_ supposed to be smart at their job, aren’t they?

    IMO, he creates taxes on industries which benefit the legal industry, and hurt the public. He has done so for decades. IMO, he does so despite how blatant the policy violations are. And now he’s feigning innocence? I do not buy it.

    IMO, Lehmann is a pure politician. He claims to have his cake and eat it too. Now he’s passing the buck. Nice try, Mr. Lehmann.

    I recommend taking anything Lehmann says, does, or institutes with a huge grain of salt, even his apologies.

  3. Morgaine Dinova says:

    Products and public culture
    The whole topic of copyright controls on items of media today is rather moot, and not just in law, owing to a fundamental conceptual disconnect.

    The corporate producers seem to think that they produce something special and that the public are dumb sheep whose only role is to consume and to pay. In contrast, that same public considers items of media as nothing more than cultural objects, and their culture belongs to them, not to any corporate producer. While this disconnect exists, there can be no meeting of minds, ever, and future laws will “fail” just as badly as the DMCA.

    An item of media represents a net loss from production costs without the benefit of cultural takeup, yet the producers seem to think that the feeding frenzy that leads to huge profits is entirely a product of their brilliant marketting. This is part of that same disconnect, a conceit that discounts the contribution of anyone besides the producer to the success of any media item.

    A media item is not a “product”, it’s the seed for a cultural event. You seed and you ride the cultural event if you’re clever, and hopefully make a profit from the interest, but you try to stop your seed from germinating only if you’re as deaf and dumb as the RIAA.

    It’s sad that things are as they are. It could be so much better, with just a little more insight about the relationship between cultural products and society.

  4. Locked down video
    How ironic that they decide to post this video in a proprietary format that can be viewed (or more accurately, can be *heard*) only on Windows machines (Win2K and up). Doesn\’t speak well for McGill\’s AV department.

  5. Maupassant7201 says:

    Please pirate this video
    I can find no video at all. Then again I’m not a Windows (TM) user. Well excuuuuuuse me. I did my graduate work at McGill, so the kicker is I could probably get it by asking for it if I were on-site.

    Is it just me, or has this whole ‘intellectual property’ business morphed into an extended Python sketch?

  6. Age is no excuse.
    I’m well beyond teen-age, and I have tremendous respect for copyright and creators (being an archivist and creator myself, too). What I don’t respect is corporate shackles and monopolies; the attitude that “On our terms. We are your choice. Submit.”

    Sorry, I don’t need TV. I don’t like your music. I don’t watch all your movies. It’s a big-small world out there, and I’m quite capable of making my own fun, and finding fun on this wide web that my opinion decides is worth paying for.

  7. It certainly is an interesting perspective – this idea of a new patronage system in the digital age. It’s not as unreasonable either: the digital age has completely altered the way we handle content. Copying music, such that it can now be simultaneously on the computer /and/ the iPod is standard practice. We have a bunch of kids out there using copyrighted music to make their own home videos, which is currently illegal to present publicly.

    It’s not that things have slowly evolved to where they are now, it’s that the digital age has completely redefined what it means to “copy.” It’s one thing to have more exceptions, but it’s another to take a completely different look at the matter.

  8. Trying to control tool much
    I believe part of the problem is that certain copyright holders are trying to control things to much. Like a power hungry dictator alienating his populous because of paranoid approach to control, these copyright holders are doing the same to the buying public. Sometimes you have to relinquish some control to better have respect from your audience and in the long run gain much more success.

    The truth is, when something has no ties to a physical medium you aren’t going to have the same control on what happens to the content. This needs to be understood and accepted. Instead of trying to punish people for acquiring music without return, a positive incentive needs to be produced. It should also be understood that with certain intellectual property being marketed as throw-away ‘culture’, it is not everyone who will be able to afford it.

    Another points, is if someone purchases a product, they don’t expect to jump through hoops to use. The more hoops someone has to jump through, the less likely they are going to want to buy the product in that same form. This is something that DRM fails on.

  9. WRong Avenue of Approach
    It seems a case of, \”We has to destroy copyright in order to save it.\” With the Entertainment industries urging, our US Lawmakers added fearsome teeth to the once mostly benign protections patent and copyright afforded the creative. They mandated protective technologies- and criminalized things that looked like they might in any way undermine them- at the consumer\’s expense. They greatly increased the scope of both enforcement and what fell under those protections. They granted extensions of protection to those that really didn\’t need them. They narrowed exceptions and made no clear ones. They twisted patent and copyright laws from something that was meant to encourage the free spread of concepts and ideas by protecting the creators from those very industries into something that corporate lawyers could sally forth and strike down anyone that tried to upset the status quo or reduce the profitability of doing things, \”just like they\’ve always been done\”.

    The irony is that the Lawmaker did it trying to maintain those protections against what they saw as an attack. Instead, they gave a powerful hammer to those industries to bash things into the shape that they thought things should be, undermining natural market forces to their benefit and providing them with unexpected new avenues of income and windfall profits. The laws turned the honest consumer into a potential criminal in the eyes of the Industries and let them treat their customers as such, while the true pirates laughed at their antics.

    What they\’ve wound up with are a series of regulations and laws that have undermined the concepts and original intent of patent and copyright and thereby brought them into disregard by much of the population. It\’s not the flawed DMCA and its ilk that people curse; it\’s \”copyright is bad and should be done away with,\” which is a sad state of affairs.

  10. Very Spirited!
    I’m watching the entire 3h deliberation. For those having compatibility issues – download the WMV file itself instead of streaming it, and play it through something like VLC. Just follow the source!

    In any case, I found watching the spirited discussions taking place at 1h56 extremely entertaining. The background music just seals the deal.

  11. How do I download it, or at least watch
    The audio cut out on me an hour and five minutes into it. When I restarted it and tried to move to that point, the audio kept cutting out every time I switched the position of the track being played.

    Basically, the audio cut out on me once and I can’t get there again without cutting out the audio. How do I download this!? I have VLC.

  12. ?
    Your website looks like a retarded child designed it. What is all this crap in these columns to the left and the right. Don’t you know what you write is supposed to take precedence? Not this stupid bullshit you have on the sides.

  13. !
    Above poster is a lonely person. He needs a friend, can anyone introduce him to another individual with Down’syndrome ?

  14. time for a pay cut
    Any reform to any laws or any pressure the music industry puts on the government to “protect” their interests (profits) is irrelevant. The individual is the one who chooses to pirate what ever it is they feel they need, and do not feel the need to pay for. Or do they? 20 years ago when I was a teen, I paid for all my music of course. Without the internet, what was I to do? But just about every album I bought, I felt like I had bought something of value. Today, I am charged 17.99, 18.99 and more for and album. Back in the day, it was 9.99 for an album on a cassette tape on release day. And it is easier and cheaper to mass produce CDs today. So why am I charged so much more? Is the music better? Are the artists better? Am I getting more music? No….. Artists and they industry they represent are greedy. I’m not going to pay 18 plus dollars for a CD with 2 or 3 songs I like. On the backend, I’m still getting charged 6 bucks for a CD single. That’s why the 99 cent download has done so well. People are getting ripped off and they know it. I pay 99 cents a song. That is a good value. But 18 dollars and more for a CD? The music industry is either going to have to make a better product or take a pay cut. I don’t see that happening any time soon. They’ve already shown they don’t want to evolve with the consumer. With a consumer body this discontented with an industry, making new and scary laws and frivolous law suits won’t scare them. They’ve proven that as the file sharing continues…

  15. Jane Q. Public says:

    The original concepts of copyright and fair use (that is, as they were in the 70s and 80s), were fine. Music and movie companies made money hand over fist and people did not feel screwed over. The DMCA and other similar legislation was railroaded through by yet another wave of corporate paranoia (read: attempt to control the market), because the aging management of the media industry could not keep up with technology, so they wanted to guarantee themselves a profit based on the old (defunct) business model. Which, of course, does not work in the long run. Nor should it.

    The problem is not and has not been the original, GOOD model of copyright we once had. The problem has been how it has been corrupted for the purposes of corporate welfare.

    The people behind DMCA and DRM should be shorn of all their wealth, and made to actually work for a living like the artists they have ripped off. And the members of Metallica should be made to sweep up after them.

    By the way: your little anti-robot image, supposedly of text, was pretty much unreadable by this human. Let\’s see if my guess works.

  16. Nelson Cruz says:

    Teens and copyright
    Teens have not “lost respect for copyright”. They never had any! Ever since there was home recording equipment, they have been using it in defiance of copyright. The difference today is one of ease of access and scale.

    10 or 15 years ago there was little need for teens to know copyright even existed. It was purely market regulation, addressing commercial transactions only. Today we can do very little with content, online or offline, without it being subjected to copyright law!

    And of course teens see that it is ill adjusted to the times, senseless, unfair, and increasingly unbalanced against them. That doesn’t induce respect, quite the opposite.

  17. seo
    Your website looks like a retarded child designed it. What is all this crap in these columns to the left and the right. Don’t you know what you write is supposed to take precedence? Not this stupid bullshit you have on the sides.

  18. Julian Mehnle says:

    Google version of McGill “Digital Dystopia” conference now on YouTube
    Someone please delete the spam comments above.

    Since the Google Video site stopped hosting videos, the Google version of the 2007 “Digital Dystopia” conference at McGill University is now available on YouTube: