As I said before, I don’t doubt Brad Hutching’s point that the iTunes-iPod tie has some offsetting social welfare benefits. iTunes prices could be lower and it could have motivated them to invest in the biz in the first place. In this case, I would argue that that does little to offset the benefits we could derive from a non-DMCA world: more vigorous competition from current parties not having to compete essentially in both markets at once; more vigorous competition from more players in general; innovation and competition not dictated by incumbent players; lower prices from more competition; network effects from the elimination of format fragmentation; and more.
But that in some sense is beside the point (one Ernest made, too), which is that the law would typically deal with this issue in a much more complex, nuanced, and balanced fashion. We have anti-trust and misuse. We have patents, copyrights, trade secrets, contract. And yet the blunt instrument of the DMCA is presumptively so clearly right? Why?