Dominic Timms on the EUCD

Today’s Guardian has an article by Dominic Timms with what is, in my view, an incomplete analysis of the EUCD — the European Union Copyright Directive.

Timms portrays the EUCD and its similar U.S. counterpart, the DMCA, as turning ‘innocuous activities’ such as downloading music into crimes. Maybe it’s just me, but I thought downloading copyrighted music without authorization already was a crime, under existing copyright laws? It’s the functional equivalent of shop-lifting a CD from your local Virgin Records store, is it not? Timms appears to excuse this type of activity, provided that the copyrighted items are downloaded ’solely for your personal use’. I hope our loyal Ofcom Watch readers can spot the crude logical fallacy there: Isn’t all theft for someone’s personal use? That’s what makes it theft, right?

As Timms rightly points out, the issue may be one of persuasion (educating consumers… I mean… citizens through the moral tone of the law) rather than one of punishment. But, as noted above, Timms has his own learning to do.

It seems to me that critical policy watchers in this area need to be concerned about ‘change’. What elements of the EUCD change existing laws or expectations? What are the extent of those changes? And are they ‘good’ changes — do they in the aggregate provide more benefits to society than burdens? Dominic Timms’ piece does not explore the issue to this degree of depth, which is unfortunate, because this area of the law is one of great confusion. This issue is instead often portrayed as a battle between record & movie companies and end-users.

Another element of this issue that always seems to elude discussion is the simple issue of supply and demand. If a record company technically limits the CD I purchase so that it will only function in an audio player (and will not play on my PC), that technical impairment is mediated by the price I am willing to pay (provided that the limitation is disclosed to me — an important point). Simply asserting that CD purchasers should have a ‘right’ to play CDs on PCs misses this obvious point. The noted U.S. jurist Frank Easterbrook has said in this regard:

A buyer of a computer does not control the quality of the circuits; the seller arranges both product attributes and contract terms. Just as no one would think of saying that the buyer of a computer with a 500 MB disk really is “entitled” to a 750 MB disk, or a faster disk, on the ground that disk size and speed is a “contract of adhesion,” so it is foolish to complain about contract terms. These all are mediated by price. “Better” terms (as buyers see things) support higher prices, and sellers have as much reason to offer the terms consumers prefer (that is, the terms that consumers find cost-justified) as to offer any other ingredient of their products. It is essential to enforce these terms if markets are to work.

The truth is that the EUCD and the DMCA have their frailties. In some respects, these pieces of legislation regulate more conduct than is necessary and do narrow the field of ‘fair uses’ of copyrighted material. But’s it’s no black day for the internet, or civil rights relating to copyrighted works.