In the National Law Journal, Dan Brenner's piece, Apps decision: no big deal, provides a thoughtful debunking of the hype that surrounded this summer's decision by the Librarian of Congress to exempt the "jailbreaking" of iPhones from the anti-circumvention provisions of 17 U.S.C. § 1201(a). I tried to make similar points back when the ruling was first issued, but I think that Brenner has better explained the underlying issues.
At the time, I found the furor over this particular exemption baffling. Since then, I have realized that some were trying to believe that a 1201(a) exemption relating to the iPhone would fatally undermine the "walled garden" approach that Apple has pursued as to many of its products—an approach that has inspired delight and confidence among actual consumers, but fear and loathing in academics like Jonathan Zittrain. Brenner explains why this is not so.
I was also impressed that Brenner stressed a point that probably should be stressed more often during debates about technology policy: Antitrust and competition law exist to ensure that we do not need to do more harm than good by prospectively trying to identify and forbid every combination of property rights, new technologies, network effects, and circumstances that could lead to some Bad Thing happening.
This is an important point. Apart from the self-parodying sexist tirade in which William Patry denounced DRM as a Stalinist, Fascist chastity-belt-on-someone-else's wife, we really haven't seen much DRM doom-mongering lately. On the other hand, many former DRM-doom-mongers merely shifted to mongering other forms of allegedly impending Internet doom.
In almost every case, the hypothetical harms potentially threatened by the doom-of-the-week being prophesied would require multiple, sustained violations of antitrust laws—even those that were not being enforced too aggressively, as such laws often are. Nevertheless, properly enforced competition laws serve as a useful check against the need for the sorts of prophylactic restraints inevitably advocated by those hypothecating hypothetical horribles.
posted by Thomas Sydnor @ 11:35 AM |
Antitrust & Competition Policy
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