This article is a discussion regarding the effectiveness of the DCMA and its limits and effects on other legislation.
http://www.techliberation.com/archives/027979.phpHe does, however, have an interesting point about the section that codifies the Betamax rule:
New Subsection (5) fares no better, and indeed if anything it looks worse. As written, it says that manufacturing or distributing a hardware or software product—what other kinds are there?—capable of a noninfringing use it is not a violation of the copyright. The only exception is in cases of direct infringement, which is of course not what manufacturers and distributors do anyhow.
If the section only means to say that actions for contributory infringement cannot be brought for devices capable of noninfringing uses, then it is just a statutory codification of the Betamax rule. Thus read, I would oppose it, because there is enough unhappiness with the rule that we should allow for some case law that contracts its scope in some future case.
But in fact it looks as though this provision may have more bite, although one cannot be sure. Grokster was of course capable of noninfringing uses, and yet it was shut down on the purposive inducement theory. New Subsection (5) purports to say that it is no violation of the Copyright Act period to distribute hardware or software that has that power.
This does seem like a serious concern. I sometimes cite the Grokster as a better model for dealing with infringing technologies: that the courts should focus on business decisions and behaviors, not technologies as such. It does appear that Boucher’s bill might preclude this line of reasoning.
I think they may find more public support for their legal endeavours if the law was more transparent and not so pro business, this unfortunately occurs when democracies allow "gifts" or "donations" to elected officials or their families.
