Tim is making quite the splash lately: his Cato Policy Analysis on the DMCA came out today. As Tim writes at TLF,
A lot of DMCA critics have focused on how DRM undermines fair use by narrowing the ways in which users can consume the content they have legally acquired. That’s certainly a valid argument, but I tried to focus on the implications of another type of fair use: the fair use right to use reverse engineering to build a competing product. Prior to the enactment of the DMCA, the courts had consistently turned back efforts by incumbents to use copyright law as a way to exclude competitors from their technology platforms. Most famously, IBM was not able to prevent the creation of IBM clones, because a company called Phoenix used “clean room” reverse engineering techniques to develop a compatible BIOS without directly copying any of IBM’s copyrighted software.The DMCA throws that principle out the window, because it makes it a crime to “circumvent” a DRM scheme—that is, access the content without first getting the permission of the DRM creator. As a result, it’s effectively illegal to build third-party software that interoperates with software like iTunes or Real’s video streaming software.
It’s an excellent, thought-provoking perspective, and sure to raise the blood pressure of anyone who cares about technology and fair competition.
(Of course, my link is just a drop in the bucket. Slashdot, BoingBoing, Instapundit, and Hit & Run are already on it.)