DMCA: Some States Have Worse

We regularly document here the evils of the DMCA, the Digital Milliennium Copyright Act, whose greatest crime is to prevent consumers from legally making backup copies of their own DVDs or copy-protected CDs.

As bad as the federal DMCA is, some states have even worse laws, as Hanah Metchis of the Competitive Enterprise Institute relates:

if you live in one of the nine other states where “super-DMCA” bills are moving through the legislature, you might soon need to ask your phone or cable company for permission every time you buy a new piece of hardware – and in some cases, software too.

Despite the moniker, the super-DMCA bills are not much like the Digital Millennium Copyright Act (DMCA), which became federal law in 1998. They do deal with the same issue – the protection of copyright in an age when digital devices make piracy an easy task – but the state bills use much broader language. (The state bills differ in their details, but are all based on the same model legislation.) They outlaw any “communications device” used “without the express consent or express authorization of the communication service provider.” That means your phone company, cable company, and ISP get to decide what’s legal and what’s not. This is not a good idea for the future of tech competition.

Internet providers are probably not particularly interested in barring the installation of hardware that monitors the content of your kitchen. Their most likely immediate target is digital video recorders. Cable companies have brought lawsuits against manufacturers of TiVo-like devices, but now they offer their own proprietary products and services that do the same thing. Under a super-DMCA law, cable companies would have the power to declare all DVRs and even VCRs made by competing companies to be unauthorized devices. And the legislation is so broadly written that it could even let your cable company, phone company, or ISP decide what brand of computer you can have and what software you can run on it. This would give “communication service providers” unprecedented control over consumer choices and the fates of entire industries.

In addition, provisions in some versions of the super-DMCA laws forbid users to conceal certain types of online activity. This could turn users and manufacturers of ordinary security and networking software, such as firewalls and routers, into criminals. Any law this extraordinarily overbroad is certain to stifle innovation.

The problem of protecting copyrights is a real one, and it is difficult to solve. But the super-DMCA bills, in their attempt to counter vague threats with vague language, create more problems than they solve. Theft, fraud, and copyright violation are already illegal. Making every “communications device” suspect and every consumer a possible criminal is not the way to prevent piracy.