Disruptive change is unpredictable

Deven Desai (a law professor in San Diego) has posted a provocative article over on the Madisonian blog about the inherent policy tradeoffs of using copyright to protect IP-based business models.

His specific topic is the Digital Millennium Copyright Act (DMCA), a Clinton-era sop to Hollywood that (in one element) banned circumventing copy protection. The act has been controversial for (among other reasons) upsetting the prior status quo about “fair use” that was established in the Betamax case.

One response to DMCA was DeCSS, a successful software library by European hackers to circumvent DVD copy protection. The library became a cause célebrè of civil libertarians among academia and elsewhere.

Prof. Desai makes general points about whether or not DMCA is a good idea, and the tendency of IP holders to overstate their case for protection of their existing business models. However, in describing the dilemma of making an IP policy before a new technology comes along, the money quote sounds more like an economist than a lawyer:

One does not know what technology will or won’t be disruptive. Furthermore, because we don’t know we should allow for more open systems to see what happens. Nonetheless, at least with DVDs we may find that certain technologies will not be pursued without the law agreeing to protect an existing business model.

I first subscribed to Madisonian because of my friend Mike Madison, but I continue to read it because it has a low volume of high quality analysis of copyright and other IP issues that impact technology businesses.