Copyfutures

The Future of Copyright

Many of the themes explored in the seminar that produced Copyfutures are examined in The Future of Copyright, available for download on SSRN. Here is the abstract:

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony "substantial noninfringing use" defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act.6 Napster begat Napster. We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures8 shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away. In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights. Neil Netanel, William Fisher, and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time. Mark Lemley is debunking ex post justifications for intellectual property. No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the "Induce Act," targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content. No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred's failed challenge to the CTEA's retroactive twenty-year extension of copyright terms - effectively a twenty-year moratorium on new works entering the public domain. In Free Culture, Lessig has remade himself as a "norm entrepreneur" - a public figure with the towering ambition of reshaping "copynorms" - the fundamental set of social norms that shape perceptions of the morality of filesharing and the legitimacy of legislation that shrinks the public domain. This essay examines the ideas in Free Culture in the context of current controversies over the future of copyright.

Some Leftover Thoughts re: Open Source

    I surprise myself this morning by working on something that will yield no credit for this course.  But that ties in directly to the contents of this post.  One topic of discussion was why people produce open source works and why their employers "allow" this from an economic perspective.  Simply put, where's the gain?  This was discussed in a scholarly article posted on this blog (if class were still in session, I would link to it, as I originally intended, but after searching for 3 minutes, I've given up.).

    My theory is that people engage in creating open source works because they like to, it provides some form of personal utility.  Employers "allow" it simply because the employees are still getting their job done.  A simple example is Prof. Solum's fine blog.  From what I've read, law professors receive little credit for blogging.  Again, I would provide links if this were for credit, but from regularly reading Instapundit, the Volokh Conspiracy, it seems law school administrators care little, if at all, about their professor's blogging.  I could be wrong, but my impression is that a professor's job is to publish articles in prestigious journals and do it often.  In raising their own "stock," they raise the "stock" of the institution they're affiliated with.  So what explains the choice of certain professors to invest what sometimes is a substantial amount of time into activities that have nothing to do with their job?  And why do administrators put up with it?

Volokh states:

Some blogs ask their readers for money to help operate the blog. That's quite understandable, but we fortunately don't need that -- the real cost of running the blog is time, and that's generously subsidized by various universities and state taxpayers.

We're in it for the eyeballs. (Yumm, eyeballs.) So if you like the blog, just let your friends know about it -- perhaps take a blog post you really like, pass it along (together with its URL) to people who you think would enjoy it, and tell them that there's a lot more where that came from. Or not: We're happy with just your eyeballs, too.

    I suspect that the same rationale explains the activities of Prof. Solum.  The belief in the power of ideas and the belief that the dissemination of ones ideas is worthwhile is probably what motivates folks like Solum and Volokh into academia in the first place - and in so doing, foregoing the much larger financial rewards that would be theirs in the private sector.  Both have impeccable credentials, but their salary is probably commensurate to that of a 2nd year associate w/ similar credentials.

    So why do their schools put up with this?  Why aren't they forcing them to spend the time they spend on blogging on writing more LR articles?  Probably because they still publish.  Goodness knows that Volokh is prolific, Posner-esque even.  Well, I lie.  The amount that Posner publishes is unreal.  And he also has a blog! 

    I wouldn't call myself an economist, but from the little I've read, it appears that behavioral economics is gaining greater credibility, and in some ways, diminishing the iron grip that rationalist economics has had over the past few decades.  For example, either Prof.'s Solum or Volokh could spend an extra 5 hours a week consulting instead of blogging.  Why don't they?  It would give them a few thousand dollars extra a month which they could use towards whatever they enjoy.  My guess is that they enjoy blogging!  What a crazy notion!  Same for the open source folks and their employers.

one for the road

While I'm hoping this weblog will continue past this semester's demise, here's one last parting shot just in case.

BitTorrent mega-site Suprnova.org has been shut down.

The website creators got a little scared at the MPAA's recent gustappo tactics and decided that closing down the website was probably the safest plan of action.  And who can blame them?  Finnish (yes...Finland) police raided a website that purported to have torrent files for over 10,000 illegal movies, music, and software.   

So now we've got an international policing of America's copyrights.  Anyone else just a bit scared of the possibilities of this?   Global copyright protection is the next wave of the copyright battle.  America and the few big businesses in it that own a lion's share of the creative works are trying to put pressure on foreign countries through the WTO and other trade related organizations to comply with our increasingly stringent copyright laws.   So now we have instances like the Finnish police goin SWAT style on website owners, and legitimate sites like Project Gutenberg Australia being forced to take down publicy allowed works from their website.  I guess now you can rob a bank and move to mexico to escape jurisdiction, but you cant escape the long arm of copyright owners... 

searching for the pot of gold

You know, somewhere over the rainbow theres an answer to the copyright mess of today.  Sure it might take some magical red slippers, a whole lotta faith, and a couple of little people (justice scalia, you dont count) to get there, but at some point our society will adapt.  But one thing's for sure- the only thing that I KNOW is for sure after this seminar- we're definitely not in Kansas anymore.

Kansas of course would be the antiquated ideals of copyright- the vision promulgated by the founding fathers and placed into America's constitution.  Granting a limited right to promote the progress of the useful arts seemed like a good idea at the time, but more and more I'm thinking blasphemous thoughts:  maybe the founding fathers got it wrong.

My good friend Peter Hsu, a great contributor to this weblog and class, asked me at the start of the semester what I thought the future of copyright should be.   I answered with a simple "none."   Peter of course thought that was ludicrous.  "None?!  But there has to be copyright."  I backed of my statement at the time, and more and more during the semester, I thought of that initial conversation.  And I think Peter really was right- there has to be copyright.   At least in our society, for the near future.  I look at copyright the way Thomas Paine looked at government- its an evil...but a necessary one.   Just as Paine dreamed that the natural state of man would someday be realized- that as Thoreau argued, we would eventually become human enough to restrict our vices naturally- I dream that someday copyright will be an unnecessary aspect of our society.  That creation will be incentive enough to create.  That the government provides protection only to an "identity of authorship."  The personality of a creator is embodied in his/her work, and I think -this is what you get for having a musician in the class- that any artist would tell you it is far more incentive for their work to be recognized as their own than securing an economic monopoly for 100 some odd years (for more on my discussion of "identity of authorship" incentives, see this previous post). 

But I, like Paine, am describing a dream state, one that does not and cannot exist right now.  Big business has spent too long investing and profiting from the commericialization of art created by our Constitution.  Copyright wasnt even a debatable issue twenty-five years ago, and I think that might be the most crucial aspect of all of this- getting the word out about copyright: what it is, what it effects, and who profits and loses from its current incarnation. 

So step one of my future for copyright is education.  And i'm not talking the "piracy and p2p sharing is bad" flicks the RIAA circulates to public schools.  If copyright's objective is to benefit society by promoting the arts, then society should know what its getting in the balance. 

Step two is bifurcated.  Either put some real teeth into lawsuits, or stop suing at all.  The middle ground is not an effective way (as Tommy O'Reardon demonstrates) to curb piracy.  And while I dont believe that congressmen, arbiters, and the general public want more suits aimed at more file-sharers, if you bring enough of them-against the right people-, you'll eventually get a positive reaction.  On the flip-side, stop the suits all together.  All its doing now is giving bad press to legitimate copyright interests, and further skewing the copynorms of today by making piracy even more cool, hip, down, whatever.

Step three is cut copyright terms in half.  No, more than half.  Three quarters.  This Life plus 120 years talk is absolutely ludicrous.  It takes so many amazing creations out of legitimate public use for much too long.  Libraries, archives, and their ilk have been around much longer than copyright, and their purposes are much more noble: to educate and preserve our society's history.  Copyright now is threatening to impair our ability to continue this (Aaron Hand, thanks for that enlightening piece).  A copyright term of 50 years is much more feasible, and still gives the economic incentives to create.  Many works are not profitable after their first few years of existence, and should they be, a system of paid re-registration might be a more adequate solution than a blanket protection of all creations for longer.  My only problem with such re-registration would be that it creates separate tiers of copyright terms, and most of the public would be hard-pressed to figure out when a work is protected or whether it has been extended.  But this could be partially rectified by publishing a list of protected works quarterly, and moving the burden of investigating whether a work is protected to the person seeking the public use.

Step four is the hardest one- patience.  We cant go looking for the quickest or easiest solution to copyright.  This is an issue that will stick around for a while, with newer and more advanced digital technology constantly changing our perceptions of what copyright is and what it should be.   The INDUCE act, the piracy act,  the BCA and DMCA , all these have their flaws- flaws we've pointed out in class.  Lets just take our time ith this, and create a statute that is flexible enough to handle the stress of new developments in copyright industries, while being forceful enough to disallow and punish rampant misuse of copyrighted materials.  And of course, patience to hope that one day, all this copyright nonsense will be unnecessary, and I can just get back to writing songs on the beach for the people I care about while sipping my pineapple juice.

Copyright is Here to Stay – The Real Future of Copyright

We spent this semester delving into the world of copyright with hopes of finding what the future would entail. Much of the semester and even in the conclusion it appeared that the future of copyright was not merely uncertain but bleak at best. I admit that I bought into this belief that copyright might indeed be dead since there were just too many obstacles for it to survive. P2P just wouldn’t let copyright survive. However, when I take a step back and look at the big picture, I just can’t accept the fact that copyright will fail. I can’t accept copyright failing for one simple reason – MONEY. There is just too much money at stake for the Music, Movie, Software and other copyright developing industries (hereinafter “copyright industries) for them to lay down and not put up a fight. There is so much money at stake that these industries will not only put up a fight, but they will put up a fight and win.

Now winning might be a relative term, but again what does winning entail? Making money. Currently, the copyright industries are still making enormous profits. It is unclear if P2P has really even put that much of a dent in sales. People are still going to the movies, still buying movies, still buying music, still going to concerts, still buying software and production companies are still making money. The obvious concern is not the present however, but what the future will entail. The concern is that P2P is just starting to grow and just starting to show an effect on the copyright industries. There are worries that soon everyone will just use P2P programs to get illegal versions of files and this will kill sales. While it is true that P2P has just began take off in the last couple years and there is no signs of stopping, I feel people often overlook one major factor on the side of the copyright industry – they are just now beginning to fight back.

The copyright industry is just now beginning to really try to curb illegal file swapping. For the most part the copyright industry sat on its hands and allowed the P2P industry to flourish, but when it has taken a stand, people really have listened. Don’t believe me? Well ask Napster, Grokster, Kazaa, and now even BitTorrent how much power the copyright industries have. And if you still question it, look at the profit margins for the copyright industry. The bottom line is they are still making money and lots of it at that.

So far I have come across as if there really isn’t a problem for the copyright industries at all. But obviously everyone can see that there is a potential problem for the copyright industries. If people really did just stop buying files and just downloaded them all for free then of course copyright would fail in its current state. However, my real point is that the problem is not a full fledged problem yet, it is still in the potential problem phase. And I feel it is fair to call it a potential problem still because the companies are still making money. P2P and illegal file-sharing only truly becomes a problem when the copyright industries are no longer making money and production is no longer profitable. The problem is not only in the potential phase but it is also in the very beatable phase. Now beating this potential problem won’t necessarily be easy, but nothing worthwhile usually is. And the biggest advantage is on the side of the copyright industries because they have the money, power, and resources to win.

Many will question the viability of defeating illegal file-sharing because there is no one clear cut way of stopping it. New technology alone won’t work, changing the laws alone won’t work, changing the infrastructure alone won’t work and even suing alone probably won’t work. The beauty of the copyright industries fight, however, is that each of these alone doesn’t have to defeat P2P. Not having one clear cut way to curb illegal file-sharing, isn’t a disadvantage, but really a major advantage. The copyright industry can attack illegal file-sharing from multiple fronts and force the illegal file-sharers to not just beat one obstacle but several. So even if one tactic is beat, there is still another obstacle for file-sharing to overcome. In the end this is really an arms race and the fact of the matter is the copyright industry not only has more arms, but they have more arms at stake as well.

I’ve now come up with this great conclusion that protecting copyright not only can be done, but will be done. However, the real question is not if it can be done, but how can it be done. I honestly think the answer is simply, the copyright industries just need to keep on doing what they are doing. Attack illegal file-sharing from every angle and make it so illegal file-sharing just isn’t worth it. So what are these angles? I think it comes down to about four major categories of attacking methods for the copyright industries: 1) Technological Advancement, 2) Cooperation, 3) Updating Laws and 4) Lawsuits. Each of these groups has several subcategories and a combination of each of these categories will allow copyright to not only survive, but to continue to flourish.

I’ll give a brief rundown of each category to show how powerful each can be alone and in the end how the combination of all of them will spell victory for the copyright industries.

Technological Advancement

The first line of defense for the copyright industry is to continue to develop new technology. And the technology doesn’t just have to be technology to fight copyright, but new technology in general. Now I know the first thing that pops into everyone’s head when I say this is – whatever you can make, I can hack better. While I agree that pretty much anything made will likely be hacked at some point, it is not really necessary to make unhackable files and media. You don’t have to win an arms race by making the unstoppable product, you just have to continue to make products that will slow the other side down enough to keep you ahead of them. And technology can definitely do this. We have to keep in mind that the use of encrypting files and protecting against hacking is a relatively new concept. Music CDs don’t even have any encryption. And sure DVDs have encryption and it has been hacked into, but even that was a first effort on the part of encryption designers. The fact is, there are endless design capabilities that may be extremely hard to hack and hard enough that will slow down illegal use.

So how will this work? New technology is the key. We likely can’t just start putting encryption on CDs since that would require a complete overhaul of the devices that play the media and there wouldn’t be much incentive for the user. But what can be done is creating a new type of media that users want and are willing to pay for. This has been done in music several times from vinyl to 8-tracks to CDs to mp3s. It has also been done with movies from reels to beta to VHS to DVDs. So changing media is not only a possibility, but a reality. There are several new products on the market from HDDVD, Blu-Ray media, and even relatively new forms of digital media such as Windows Media Audio (WMA) and Apple’s music media (AAC). There are endless possibilities for new types of media on the market and people will pay for them so they can get the newest and best files.

Once a new media is made then new encryption can be implemented. And again, the encryption may be eventually beaten, but this ok. Hopefully it will at least take some time for the encryption to be cracked and when it is cracked it won’t be that simple. Even now it isn’t the easiest process to hack a DVD with its limited encryption. You first have to find the software to rip the media, then you have to learn how to use it, then you have to take the time to hack it, then you have burn it to a DVD. This is way too much of hassle for the average user. There is a way to cut down on the steps – downloading the movie through a P2P service. DVD’s might be a hard example right now as downloading a 4.5 GB file still takes a long time even with high speed internet connection, but eventually bandwidth will increase (I actually just received an email today from SBC that they will be increasing my upload speeds to 384kbs. This obviously doesn’t increase the speed of downloads, but does help download speeds indirectly by ensuring there is enough bandwidth so downloads can reach their maximum speeds). However, even with smaller song files putting enough encryption on the songs will make it a pain and hassle to rip an entire album or multiple files. Surely it can and will be done by those who really want to, but the encryption really just needs to deter the average user since those are the people buying the products in the first place.

Further, technology can be used to identify each file and allow the files to be tracked to further hinder the spread of illegal copies. Once a file is identified as copyrighted or protected it will be much easier to implement programs that help prevent these types of files from being shared. This idea leads into the next idea of cooperation which is could employ a system of “tagging” files.

Cooperation

Protecting copyrights will not be solved by just one group fighting on there own. There are a lot of file-sharers out there and thus it will take an even larger and more powerful group to come in and stop them. This is where cooperation comes into play. The bottom line is that all the power is in the hands of large groups. The individual user doesn’t get anything unless the large corporations and groups allow the individual to get it. So allowing the user to only get and transfer what the copyright owner’s want simply means teaming up with those groups who have the power to control such transfers. I see this cooperation happening at three different levels.

Small

This group consists of the smaller and more localized groups that have control. Prime example are colleges and universities. College campuses are notorious for illegal file-sharing because there is substantial bandwidth available and people with a lot of free time to use it. This problem can be easily stopped however by giving the colleges the power to prevent copyrighted files from being shared. I blogged earlier about efforts made by UCLA and

Florida

to prevent illegal file-sharing. The campuses employed programs that were as simple as preventing copyrighted material from being transferred to as drastic as preventing all P2P programs from being used. Both methods have substantially cut down on file-sharing on the campus and are praised by the colleges since they cut down on bandwidth usage and costs substantially in the process. I think the complete halt of P2P programs might be a bit harsh, but then again if you are going to prevent all copyrighted material from being transferred, you have cut off the major purpose of P2P programs for college students so eliminating P2P altogether isn’t that much more of a step. Though there are legitimate uses for P2P which should be allowed and explored and thus a less stringent means is probably better.

Businesses and local internet sources such as libraries could also employ a copyright checking system. They appear to be relatively easy to use and I believe are being offered for free. There is still the problem with the average home user, but they are tackled on the next level of cooperation.

Another smaller level is through advertisement. People buy into ads, that’s why we have them. The idea of using legal file-sharing really needs to be sold and illegal file-sharing needs to be discouraged. I know we all think the lame ads before the movies discouraging people from sharing are worthless, but honestly the more publicity there is against it, the better chance of the Copynorms being changed. That is what a lot of this boils down to – changing the Copynorms. And one major way to change it is to really make people think that file-sharing is wrong and to make people aware of the potential problems. And if others losing money doesn’t work then start scaring them. Warn them of the potential legal ramifications involved and an even more realistic problem of viruses. These might be small steps but they are very important in the big scheme of things.

Intermediate

This level of cooperation involves the idea of vertical integration or at least more widespread cooperation on a larger level than just schools and businesses. This level will help curb illegal file-sharer with the common at home user. Right now the average home user can get high speed internet which provides quick and easy downloading of almost any type of media in a system which is relatively unmonitored and unrestricted. This I believe posses the largest threat to copyrighted material and thus the most effort is required to curb this use. While this might pose a huge problem, there is also a very doable solution.

Fortunately for the copyright industries all of the files sent by P2P users must go through ISP regardless of what type of file-sharing method is being employed. This means that the ISP can monitor everything that is going through its system and also means that it can stop anything that it doesn’t want sent. The hard part is obviously making the ISPs to not want certain things to be sent on their networks. Right now there is little advantage for ISPs to prevent users from sharing anything on P2P networks since those are the people paying the ISPs’ bills. However, if the ISPs can be given an incentive to stop the copyrighted material from being shared, then the copyright industries are in business.

One major incentive could come through vertical integration. I won’t get into the ends and outs of this idea as it has been discussed at length before, but the general idea is that the copyright industries will buy the ISPs or vice a versa and thus create an incentive to stop copyrighted materials from being sent. If the copyright industries own the ISPs they will obviously not want their networks to be used to transfer illegal files and thus lose profits from their copyrighted material and thus they will monitor transfers and prevent illegal file-sharing. Alternatively, the companies may not mind file-sharing as much since it will increase the number of people who buy their ISP service and thus the copyright industries will make up lost profits on the ISP end. The idea is a little more complex but the general idea and premise is simple – if you own both the means and the media then you will have an incentive to maximize profits from each. I think this is a brilliant idea and will likely be the real winner in preventing most of illegal copyright uses.

The real hurdle here will not giving the copyright industries the incentive or money to make this happen, but given them the actual power to do so. This will create an enormous monopoly on the markets and may be deemed unfavorable to many groups. We’ll see how it plays out, but I think if the copyright industries really made a push for it, they could get it. What it really boils down to is Microsoft being able to take over the world since they love to own anything and everything. I wouldn’t be surprised if they start incorporating ISPs into their repertoire in the very near future.

Global

The final level of cooperation is indeed the biggest and likely the most difficult. Even if the copyright industry can stop illegal sharing in the

US

, what does it matter if the other 5 billion people in the world can illegal share the files? This is where global cooperation comes into play. This is obviously going to be a major dilemma since it is hard enough to get countries to be at peace and to stop killing each other, let alone encourage them to put time and money into preventing illegal file-sharing. However, it can be done. Once major resource is WIPO which has been implemented to make international intellectual property rules and regulations. Enforcement of these rules will obviously be difficult, but enough support from the copyright industries could really push this matter.

I really believe we can get other countries involved in preventing copyright abuse and if for no other reason, we control most of the media. The

U.S.

produces a ton of products and if people don’t want to follow our rules then we can just stop shipping to those controls. We are kind of like the ISP’s of the world – almost everything has to come through us one way or another. This might be a large exaggeration but we do have a strong pull and similar incentives to other large copyright producing countries and thus combining forces with those countries could really put a stranglehold on any illegal file-sharing.

Update the laws

A third way to prevent illegal file-sharing is to continually update the laws. We have the DMCA in place right now and there have been numerous bills on the table such as the Induce Act and the Piracy Act all of which could curb many file-sharing problems. We have seen that these measures are a bit extreme and not supported in their current form, but other smaller steps can surely be taken. And actually if the copyright industries push hard enough I really think even large measure similar to the Induce Act could even be passed.

One idea that I really like is shorter terms on copyrights. If companies aren’t really making money on a product after 3-5 years then why try to stop those files from being shared? Put a 5 or even 10 year cap on copyrights and move on. The owners will make there profits and then there is one less thing for the detection systems mentioned above to have to worry about. The new and fresh media is what really needs to be protected so why not just focus on that. Sure some items will be hot for longer than 5-10 years and thus the copyrights should be able to be renewed, but everything else should be left to the public since its not like any money is being lost anyhow and honestly that’s what the copyright industries are concerned with.

Regardless of what is eventually passed, changing the laws is always a means to deter illegal activity. The real problem isn’t creating the laws, but enforcing them. This is where the final idea comes into play.

When all else fails – Sue the Heck out of them

Really if nothing else works and if none of the above methods were ever employed copyright owners can always fall back to lawsuits. The fact is if you have a copyright then giving away an illegal copy is just that – illegal and thus a person can be sued for this. Copyright owners always have a means of protecting their product through lawsuits and it can actually be a great deterrence. Napster was the first big lawsuit which completely shut down that system. Sure file-sharing has found a way around this problem, but it sure put a huge dent in the file-sharing armor for a bit. Now we have the new breed of file-sharing programs such as Grokster/Kazaa and BitTorrent. All of which are being sued right now.

If Grokster and Kazaa lose then we will see a major hit to the file-sharing application industry. Sure the programs will still be available, but they will not be updated and will not allow for the most efficient and newest resources to be used. If the programs can’t be updated then it would seem you could create a file that couldn’t be transferred through those networks. Obviously you have the problem of individuals making programs not for profit which can still be used without possibility of the main source being sued, but these programs are much harder to distribute and market since you can’t get the worldwide popularity without advertisement and easy distribution means. Making these programs illegal or at least liable for prosecution will likely prevent them from distributing the product on major sites such as download.com and others since the product has to be registered on those sites and would thus allow its maker to be tracked and sued. This will make the programs have less users and make it much more difficult to find media. There will then be less incentive to use such programs as it will take too much time and effort for minimal gains and thus if people really want the product they will just go buy. This sounds a lot cleaner and easier than it is, but I think the general premise is true. If you make it harder to distribute the products then there will be less users and with less users it will be harder to get files and the harder it is to get the files the less incentive there is to get the files illegally.

There is also BitTorrent which is a different breed of file-sharing program but seems like it will be facing similar problems. Many of the major BitTorrent sites shut down this weekend because of threatened suits. It is easy to track these sites because they are actual centralized websites which are necessary to find what files are available. This is similar to Napster in that regard and thus makes it much easier to target sources. While there will likely be BitTorrent sites they will not likely grow as large as such super giants like suprnova.org due to fear of lawsuits. People really don’t like getting sued, especially when the ramifications can be so harsh.

Even if we stop these programs we still have the individual users to worry about. Most of the programs will still work even if not updated or readily distributed. The bottom line really comes down to changing the attitude of users towards illegal file-sharing. One way is to change the Copynorms as mentioned above. Make people not want to break the law. Another ways as mentioned above is to scare them. Threaten lawsuits (or actually bring them) and warn them of potential viruses and other problems. Another way is to continue to put bogus files on the networks which will frustrate the users from using the programs because it is just too much of a hassle. These may be some deceptive means but really this is a survival of the fittest and is nothing worse than what people who are stealing products are doing and actually these means are legal and mostly righteous. It is definitely possible to discourage most users. If file-sharing isn’t easy and hassle free, then people just won’t use it. So the copyright industries just need to employ means of discouragement and the users will fall.

Conclusion

The world of copyright is not over by any stretch of the imagination. There is just too much money in copyright for it to be over and the copyright industries just have too much power and control to allow it to happen. Illegal file-sharers won’t go down without a fight and they will probably never die, but the bottom line is copyrights will continue to exist and the copyright industries will continue to flourish. The copyright industries really do have the power here, now they just have to use it.

Can I Call This a "Solution" if I Don't Think There's a Problem?

    It seems as if no one in our class likes the current copyright regime.  What I find most interesting, however, is what we identify as its problem.  Some think the problem is that the regime is too restrictive, and concentrates too much power to a few large corporations.  Others think the problem is that the current regime is so easily, and repeatedly infringed upon, with little consequence that it's viability is in question.  I tend to agree more with the latter than the former. I will focus exclusively on the relationship between digital media copyrights (specifically music and movies) and P2P, the area we spent the most time on and also the most interesting.  I may post more, but this post will serve as my "final post" wherein I identify the problems I see with the current regime (including their tactics), and offer a practical solution on how to remedy them.

    The biggest problem I see with the current copyright regime is that it is so easily and repeatedly violated that I fear the content providers will seek to regulate emerging technologies in some way.  And succeed.   We may  feel smug in our "knowledge" that the "horse is out of the barn," but  content providers don't appear to uniformly hold this view.  Also, history shows the content industry isn't shy when it comes to prosecuting and regulating enabling technologies (Betamax, Napster, Grokster, INDUCE, etc.). 

My solution for content providers is three-pronged:

1. Selectively sue infringers
2. Tell your story more effectively
3. Cut prices

I. Selectively Sue Infringers

    Even at this late date, many people do not think of downloading content for personal use as "stealing."  This doesn't much matter so long as they know it's illegal and will be punished for it.  A recent Harris Poll  of 2,306 adults revealed some disturbing results:

Fully three in four adult Americans (75%) agree that "downloading and then selling the music is piracy and should be prohibited, downloading for personal use is an innocent act and should not be prohibited."

This is consistent with a Harris Interactive survey of teens released in October 2003 which showed that roughly three in four teens feel that downloading music files without paying (74%) and letting others download files from them (78%) should be legal.

Nearly two of three adult Americans (64%) agree that musicians and recording companies should get the full financial benefit of their work. (all emph. added)

    Certainly I can't be the only one who finds it strange that 75% of respondents would simultaneously believe that "downloading for personal use is an innocent act and should not be prohibited" and, that "musicians and recording companies should get the full financial benefit of their work."  If we're to assume - correctly, I might add - that the extent of the financial benefit musicians and record companies receive is almost exclusively a function of the legal rights afforded them, then this these two beliefs are contradictory.  Musicians and record labels   I suspect that most people don't view copyright law this way. 
   
    The majority also agreed w/ the first part of the statement that, "downloading and then selling the music is piracy and should be prohibited."  I think most people feel that if someone were to do this, they would receive the financial benefits that rightfully belong to the musician and record labels, thus depriving the rightful parties of that financial benefit.  I think  those same people feel that when they are "downloading for personal use[,]" they are committing an innocent act because they are not receiving any financial benefit.

    Content providers should file lawsuits against the largest individual infringers on the sharing (supply) side.  Fellow classmate, Tommy O'Reardon, has a similar proposal.  He seems to have been met with more skepticism, resulting in a post titled, "Why won't anybody listen to me?"  (I'm listening Tommy!).  Lawsuits would serve two purposes: (1) Reduce the number of large file-sharers, thus, reducing the number of copyrighted files on the network and (2) Educate the public that downloading or uploading  copyrighted content, even for personal use, is a crime.

    In, "Reducing Digital Copyright Infringement Without Restricting Innovation," author Mark Lemley states:

While the number of users of p2p networks such as Morpheus and (before the injunction) Napster is massive, the overwhelming majority of those users engage only in downloading. Indeed, by one estimate, 3% of the users of a p2p network upload 97% of the files on that network. These high-volume uploaders also seem to be the users most likely engaged in uploading illegal content, rather than providing access to legal files. They are easy to identify, both because they will repeatedly appear in content searches and because many run so-called "supernodes" that facilitate fast downloads.  (emph. added)

     While the exact effect is unknown, a likely drop in file sharing would occur.  The only question is how substantial that drop would be.  The content providers need not sue every infringer - a "solution" that many have rightfully criticized as impractical - to substantially reduce infringement.  The secondary effect would be to scare current uploaders to stop, as individuals benefit little from uploading.

    George Mason University Economist, Tyler Cowens, argues that, the lawsuits aren't done to scare off downloaders (a point I disagree with, if not in intent, at least in effect), but rather they are:

about spreading the idea that downloading is wrong and illegal... think of the lawsuits as one way to buy space in the newspaper, but without paying advertising rates.

    In a later post on his blog, Marginal Revolution,  Cowens gives us the bottom line:

I see the music companies as trying to hold back a new commercial norm. Specifically, the music companies are trying to maintain the old norm that you should always pay for music.

Two years ago most [American] downloaders did not know that their activities were illegal. Few uploaders felt guilty about making large numbers of songs available for free on the Internet. It was viewed as akin to lending your CDs out to your friends, except that the "friends" here were both anonymous and large in number. "Art should be free," right?
...
The music industry knows that the long run will bring a network of free music. It knows that free music may have illegal status, a "grey" status, white status (recorded from the radio), or perhaps be pirate (from abroad) but not illegal in the actionable sense. But there will be two networks, a pay network and a free network.
...
The music companies - present and future suppliers of the pay network - do not wish to face a ten year period where everyone is used to getting music for free. They do not want an entire generation to grow up thinking of music as a free commodity. They do not want hackers and illegal downloaders to become established as folk heroes.

Once commercial norms become established, they are difficult to dislodge. We are all used to breathing air for free. Imagine the response if suddenly we had to pay for air as we now pay for ice cream cones. Maybe the air would have a better quality and the price would be very low. Still I predict there would be a public outcry....  They cannot live with a norm that music should be free.  (emph. added)

    This ties back in to that other horse, still in the barn.  This is the single most important tactic that content providers must implement.  The MPAA is has announced that it plans to sue infringers, a decision partly based on what they saw the music industry go through.  The MPAA believes that the RIAA acted too slowly in filing civil actions against infringers, resulting in unnecessary losses.  They also believe that the the music industry's recent uptick is in some part due to the RIAA's renewed vigor in pressing ahead with lawsuits.
   
    Almost every foreseeable consequence from filing suits favors the content providers.  There is very little downside to this tactic because in reality, consumers have little else to choose from.

II. Tell Your Story More Effectively

    America's media companies are the richest, most influential, and most effective in the world.  To gaze across the global expanse is to witness American cultural hegemony, in large part shaped by these media companies.  Which is why I am always surprised at how inept and ineffective their anti-piracy advertising campaigns always turn out.  Content providers should leverage their natural institutional skillset, emphasizing storytelling.
    Show real individuals - no millionaire rap stars, please -  that were really harmed in some way and tie that back to downloaders.  At the same time, dramatize a real life lawsuit that will be prosecuted without mercy to show what can happen to violators.  Make an example out of a particularly egregious violator and explain that anyone could be next.  And then prove it by dramatizing a real court case against an "average Joe" or "average Jane."

III. Cut Your Prices

    Content providers will have to accept the fact that they can not completely stop P2P infringement.  In turn, they can no longer depend on their traditional distribution channels to provide the revenue streams they once did.  This does not mean, however, that content industries are headed towards inevitable decline, but it does mean that they will have to compete with P2P in the short term until they can innovate new channels and/or mediums.  The DVD is a great example of this innovation.  The new format / medium enabled content providers to generate nearly pure profit via the reissuing of hit films from their catalog; films that were producing little or no revenue prior.  The same Harris Poll cited above also shows:

[A]lmost... 70% say, "If the price of CDs was a lot lower, there would be a lot less downloading of music off the Internet."

    The hope is that lawsuits, coupled with a "good cop / bad cop" media blitz should make illegal file sharing much less attractive.  However, most of the hesitation towards file sharing  should be as a result of fear of punishment rather than some moral epiphany from the ad blitz.  I have no delusions that the 75% of the population who think that "downloading for personal use is an innocent act and should not be prohibited" will now view their actions as culpable of deserving of prohibition.  When consumers have only two choices, as they do here, the attractiveness of either option is a function of the other.  If content provider, for example, were to implement a five fold increase in prices (e.g. $55 movie, $90 CD) at the same time, file downloading would appear much more attractive, especially to the large segment of the population that was effectively shut out from the legal market.   

    For the short-term (1-4 years), content providers should cut their prices 15-30% across the board.  This will have several effects:

1. Welcome Back!  Lower prices would soften the financial blow to those consumers that are being (re)-incorporated back into the legal market - helping to ease them (back) into the habit of paying for content.
2. It makes P2P less appealing, legal content more appealing: See above
3. It serves as a gesture of goodwill.  We punish those who cross us, reward those that are loyal.
4. Keeps "grudge factor" down.  There is a small segment of the population that possesses the technical skill and resources necessary to create very good P2P software.  Let's say one of these people were to develop an alternate program that closed all the loopholes that content providers had been currently using to identify infringers.  This would be an expensive setback until alternate means could be found.  In the meantime, content providers would have to fight the spread of this technology, losing money all the while.  The hope is to reduce the number of people who would do this - out of spite, or a sense of being wronged - from the subset of people that are capable of doing this.  Equally important, it serves as a hedge against wide adoption from the consumer base, so that even if a new P2P technology were to come out, the hope is that they will be used to paying what they believe is a fair price for their content.

After that, well, there should be some other innovation that makes these technology specific problems moot.

 

 

 

 

 

 

 

 

A Quickie for all the Classical Music Fans Out There

    My guess is that Prof. Solum is the only classical music fan in class, but most in the class should find this post interesting:

The DVD format is taking over the classical music world, especially opera:

Sales regularly hit 5,000 units, the standard break-even figure for classical CDs, and go as high as 40,000 worldwide, says Klaus Heymann, the Hong Kong-based head of Naxos International. Also, the hard-core classical community doesn't have to wait around for the video companies to finish issuing meaningless Luciano Pavarotti galas before going on to the real stuff.

Once a nightmare of regional formats, DVDs are increasingly universal (look for the "0" in the code box), though savvy consumers still need a specially doctored player to read all codes on discs available on European Web sites.  Disc prices, which range from $10 to $35, are still unstandardized. The Deutsche Oper's Die Meistersinger is $39, but the Australian Opera's better cast sells for as little as $25.

Whatever the reason, even the most expensive DVD operas cost less than sound-only, full-price CD sets[.]  (emph. in orig.) 

My guess is that reasons are: (1) the market is new, (2) the format is unstandardized, and  (3) DVD's must compete against established record labels.  New markets are not as stable or efficient as robust, established markets.  The newness of the market puts pressure on the sellers to reduce prices to pull other customers away from CD's and towards DVD's.  There's an economic term for this that I've forgotten, but essentially, few people are going to buy both the CD and the DVD so the DVD sellers have to offer an incentive enticing enough to convince classical music consumers to break from their traditional buying patterns.

Video: Professor Ed Felten on Technology, Politics, and the Fight to Control Digital Media

Ed Felten, of the Freedom to Tinker blog, is also a Professor of Computer Science professor at Princeton University.

You can watch his lecture (Real Player req.) titled, "Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media"

The video is entertaining and informative, and well worth watching.

UPDATE (12/21): This post has been heavily edited.  Prior to editing, I stated that Ed implicitly advocated the use of P2P technologies to infringe on copyrights.  Upon receiving comments from both Prof. Felten and Prof. Solum, I realize that my statement was unduly harsh and intellectually lazy.  I could, and should, have simply emailed Prof. Felten for his position on the matter instead of attributing any particular "implicit" view on his behalf.  My apologies to Prof. Felten for any offense I may have caused and my apologies to Prof. Solum for lowering the level of discourse on this blog.

THE FUTURE (as I see it)

I. Peer-to-Peer File Sharing

The big topic, of course, is what will happen to peer-to-peer file sharing. The Supreme Court granted certiorari to the Grokster case, which was expected. We will know what the Court thinks soon enough. But in the meantime…First there was Napster. Then Aimster, Grokster, KaZaA, etc. What does this tell us about the fate of file sharing? It will continue, no matter what the outcome of the Grokster case. Smart people will always find ways to circumvent the law.

The efforts of the MPAA and the RIAA to take the uploaders/downloaders to court will have a negligible impact on the amount of file sharing. Unless the MPAA and the RIAA want to take millions of people to court for file sharing, any law aimed at preventing file sharing will also fail. So what would be a possible solution for the MPAA and RIAA?

The solution is not a legal solution, but a technical solution. Advances in technology occur at a much faster rate than any changes in law. For example, a copyrighted work could contain some kind of program that would cause it to completely degrade upon transfer over the internet. Of course, the people that want to transfer the files will find a way around this, but it is better than clogging up the courts with a bunch of cases. If people want to protect their works from being illegally downloaded, then let them do it themselves.

Personally, I do not think there is anything wrong with file sharing. It helps promote “Progress of Science….” As a matter of fact, I was at a Tower Records store the other day and saw a Wilco CD at the listening station. Wilco is the band mentioned in the Grokster case that has benefited from file sharing. Now that they have hit it big, the sale of their CDs will lead to increased revenue. This in turn will lead to more Wilco musical creations – promoting “Progress of Science and useful Arts…”

II. Copyright Term Is Too Long

The current copyright term of life of the author plus seventy years is too long. I realize that this is done so that the author/creator can enjoy any later acquired appreciation in value of the work. If the work does not appreciate within the lifetime of the author, what is the probability of it appreciating seventy years after the author is dead? Is it really necessary to be so long?

I propose a return to the copyright term of the 1909 Copyright Act, where the terms were 28 years, followed by a 28 year renewal term. Twenty-eight years is sufficient time for a work to realize any value, and if it does not appreciate in the first 28 years, then the author can renew the copyright for another 28 years. Once the terms are up though, the work will go into the public domain where others can use it and promote “Progress of Science and useful Arts” by developing other works.

III. Intellectual Property Will Live On

The concept of intellectual property will continue to grow. This may be a cynical view of humankind, but man is driven by greed. Just look at the justification for the Constitution’s patent and copyright clause. The grant of a monopoly to the inventor or author is done as incentive for that person to create and/or invent more things. While I do not think there is anything wrong with this, it just underscores the fact that mankind is driven by greed.

However, there are still a number of people who create and/or invent for the sake of just creating and inventing. Those people are academics – the ones who pursue their subject/craft in order to better advance that specific science.

There are also just situations where there is a need to generate revenue. Having been a chemist in my past life, sometimes licensing fees associated with patented technology were what kept the research group afloat. The revenue generated could then be reinvested so that more discovery and/or creation could take place. This just goes back to the primary justification for the Constitution’s patent and copyright clause. The limited monopoly is just a necessary evil.

The Court isn't the answer, so what now?

As a busy year in the world of digital copyright comes to an end, we have one big question.  Where to go from here?  We have seen failed attempts at legislation (the Induce Act), renewed attempts to go after end users as criminals (the MPAA joining RIAA in lawsuits against downloaders), the decline of some older technologies (Kazaa), and the growth of others (eDonkey, BitTorrent). 

[Oh wait, this just in… maybe BitTorrent is on the decline now too, at least for pirates.  Perhaps with the strengthened name recognition gained from *gasp* pirates, BitTorrent will become more of a widespread tool for legitimate purposes.  Maybe 2005 will be the year that people start to really see P2P as a legitimate non-infringing technology and not simply as having potential but with little actual non-infringing use.  It’s sure to come in time, just like the once-pirate technologies of radio, recorded music, and the VCR ended up being accepted in the  mainstream.]

One question that so many observers seem to think of as THE big one going into 2005 is the Supreme Court’s decision to hear the Grokster case.  Such a high profile case going to the highest court in the land sure does seem like news, especially to those of us who concentrate on the interplay of law and technology.  I thought the case was a big deal too.  But I’ve been thinking some more, and the question that I keep coming back to is this - 

Does the Supreme Court’s Grokster decision really matter very much at all?

If the Court rules for the content industry, it’s just the beginning of another cycle.  Maybe we push P2P infringement further into the underground for a while, but sooner or later the general public will catch up to the new technology learning curve and we will have the same problems again with a newer technology.  Perhaps widely used encrypted anonymous filesharing will be the hot button issue of 2006.  And regardless of what our Court decides, 15 year old hacker kids in Scandinavia aren’t going to change their ways just because Uncle Sam says so.  Even if the content industries win they’re just buying time until the next big threat, and the development cycle for threats to the content industries is awfully short these days.

Suppose the Supreme Court decision comes out the other way.  OK, so what.  The multi-billion dollar industries aren’t just going to admit defeat.  They’ll pay off some politicians, pass some legislation, and be on their merry way. 

The real question to me seems to be how to make P2P work as a business model.  No one really wants P2P to be destroyed.  The technology isn’t what the mega-corporations really hate.  What they really hate is that that it has so much potential to make money and they don’t control it.  After a bit of kicking and screaming about not getting their way, these companies will roll up their sleeves and get to work on innovating so that they can make some cash off this stuff.  (Doesn't that sound like the internet in general?  It started out more like a wild untamed frontier, and now it's becoming nothing but a pretty digital face for good old fashioned crass commercialism.)

First of all, in order to work, the P2P system has to be more appealing than the alternatives.  Even if the alternatives are free, they aren’t necessarily better.  A number of factors go into consumers’ decisions, including price, convenience, ease of use, marketing/image, and the law.  There is no magic solution.  Nobody is going to come up with the perfect law to prevent IP “theft”.  The real battle is to get consumers to weigh all of the factors and decide that the most efficient decision also happens to be a legal one.  Right now, the content industries haven’t innovated enough and the average consumer finds it fairly easy to use the illegal alternative.  Bad combination.  The industry has to combat that problem, and I see two keys that should work in tandem:

1.  Ally with consumer electronics.  People don’t mind migrating to new technologies – records to tapes to CDs, VHS to DVD, etc.  New hardware can even be backwards compatible, so consumers can use their old discs (Sony’s Blu-ray standard seems to follow that ideal).  Add DRM or copy protection to new hardware and compatible media.  You can’t really protect what’s already out there, but the media companies already know that old stuff doesn’t make them their money anyway.  Protecting the already-released Spider-Man 2 from piracy is now close to impossible, but that shouldn’t stop the rights holders from coming up with a new way to protect Spider-Man 3 and 4.  You won’t be able to stop piracy altogether, so get rid of that thought.  There will always be someone who just gets a kick out of defeating protection schemes.  However, hardware can make it more difficult for the average users to infringe, if only for a while.  While the average users are slowed down from rampant copying…

2. … shift priorities toward high quality electronic distribution.  Make a really good system for acquiring content – easy to search, easy to use, affordable, fast.  Perhaps use a two pronged sales approach – a la carte or subscription.  Cheap, high quality, easy to use single downloads (iTunes model) for those who don’t want to sign up as a subscription.  ALSO, a subscription model.  Ally with ISPs and tech companies (Google, Microsoft, AOL Time Warner).  Cable companies might be a good ally, because the cable industry is looking for an edge too.  Comcast is losing subscribers to satellite, so it has to try a little harder at selling high speed internet service.  What if that the cost of internet service was $50 a month, but the service came with unlimited downloads or streaming audio from the catalogs of the RIAA members?   Perhaps $6 every month goes straight from the ISP to the recording industry.  It’s a win-win situation.  The ISPs have their “killer app” in free, legal digital content.  The industry gets a nice revenue stream.  The consumers get lots of content for a low price. 

Don’t forget cell phone technology.  One interesting aspect of this area is that the media companies are getting stung by the comparatively poor mobile service we have in America when compared to Europe and Asia.  We are a couple generations behind on our wireless standards, at a time when advanced wireless could play a vital role in creating a new product that people really want to use.  The ability to play the entire catalog of Sony Music on your cellphone sure would sound nice to a lot of people.  Just plug in your headphones and you have an iPod without needing to download songs or rip music.  Oh yeah, and this little device also lets you surf the internet.  Oh, and it makes phone calls. 

The players who stand to lost the most in the future might be the major music labels.  After all, they are really just middlemen.  Artists don’t need a label to create music, and distributing that music is becoming easier by the day.  If a truly high-quality and high-profile digital distribution system is put into place (let’s say by Google), artists can deal directly with a distributor who can give them a better cut, rather than the artist exploitation that goes on with today’s outdated label system.  If a band needs publicity, they can hire a marketing agency for a lot less than they have to give up to be on a big label today.  What’s a label to do?  I would propose that they try to do less selling to the end user and more selling to/partnering with other corporations.  If the RIAA cartel gets together and makes a deal with Google, they might be set.  Rather than try to make a fortune convincing one user at a time to buy a shiny disc, try to partner up with a bigshot tech company and make the best damn digital distribution service conceivable.  How is some next-gen Kazaa really going to compete with the combined might of a Microsoft/MPAA/RIAA alliance?  With a technology shift frustrating the casual would-be pirates along with the combined marketing power and ubiquitous software, most people simply wouldn’t bother with trying to infringe. 

I suppose that’s where I stand now.  I’m rejecting the idea that the courts or the legislature have any say in the solution to this problem.  The people who have the ability to make the ultimate decision are the consumers.  Content industry – make your option more attractive to the people who have that power.  I’m not saying to give up on trying to use the courts or to stop creating DRM lock-out schemes.  Those things have their place.  But all those things are really doing is making piracy a little more frustrating for users.  Eventually the public will overcome it, the content industries will counter, and the cycle will repeat.  Make a good alternative to infringing and the cycle that repeats will become smaller and smaller every time because consumers will not think it’s worth trying to beat the system. 

The Future will Require Consistency

Right now the biggest hurdle is all the inconsistent methods that are being used to try and solve copyright issues. Daily new technologies come out with different yet incompatible methods to try and solve it. Additionally, new methods of enforcement are being used just as often as well. The result: 1. most people are either confused on what is illegal/legal, 2. they do not understand the different technologies, or 3. they simply do not care since there is no clear cut guidelines.

 
The future will come down to companies finding a standard method of enforcement. Whether that method is through new technology or through legal methods. In my opinion, the solution will have to be one of legal methods for three reasons.

 
First, with all the new technological solutions, the losers are the consumers who must pay higher prices to pay for the research and development that is required to develop these new technologies. At some point consumers will figure it out and stop paying.

 
Second, hackers/piraters will always find a way to break new technology. It may slow down a few people, but in the end they always mange to find a way around the system eventually. Even if it is just for the pure challenge of beating the system.

 
Third, it is cumbersome and inconvenient. Many of these systems require the user to go beyond the normal steps to use their media and people will just grow tired of it. For instance, I recently installed a copy of Windows XP which required me to call Microsoft and read a very long number off the screen, then type a similarly long number back into the system. The whole process took about 20-30 min just to "activate windows" (which is Microsoft's method in Windows XP to counter piracy).

 
Therefore the only solution must be with some sort of legal enforcement which actually convinces people to stop. Maybe a harsh and strict rule, but a method that is consistent across the board is the most important factor. Most people then at least will pay attention resulting in comprehension of the rule and actually adhering to it instead of just ignoring it. Hopefully at that point breaking copyright laws will be as obvious as speeding.

There was more than one horse in the barn!

        We've heard repeatedly that "the horse is out of the barn."  This phrase is used to refer to the proposition that because P2P and Internet technologies have such a large adoption rate, and are so easy to vary, any technology-based attempt to prevent infringement are futile.  This should not be taken as fact though, it would be possible to regulate at least domestic infringement if Congress were to adopt some extreme policies.  One easy way would be to impose a duty on every ISP to ensure that no copyrighted materials travel on their network except via a specifically authorized port requiring prior notice to the ISP.  From a realistic perspective, this is unlikely to happen, we can throw the phrase around w/o consequence.

    However, that's only one of the horses.  If our end goal is the prevention/reduction of copyright infringement, we can extend the metaphor a bit further.  The horse that hasn't quite made it out of the barn is the social norm of paying for music.  P2P has only been around for 6 years, and it's high popularity has probably been the case for only the last 4 years.  I was 11 years old when I made my first music purchase (Gun's n' Roses, Appetite for Destruction - laugh away!).  Using Kaus's Theorem (I'm not unique, many people must be like me!), we'll assume that people generally start buying music around 9-13.  People who illegally download music today have most likely been doing so for only 4 years or less. 

    Music consumption, at least prolific music consumption (not necessarily purchase), typically occurs during the adolescence and early adulthood.  Record companies are under pressure because they recognize that it's not too late to re-socialize current P2P infringers to the norm of paying for music.  My concern is that the passage of time, coupled with a weak response from record companies during this time, will cause a generation of potential customers to believe that music should be free.  They will never, or only rarely, experience the act of paying for music, and in turn, will come to think of music as a free commodity rather than a valued good.

    This is the horse that really matters.  Perhaps you can accuse me of 20/20 hindsight, but I never thought that the solution was going to be purely technology-based.  More realistic would have been a government mandated technology standard, but fortunately, the CEA has successfully kept that "solution" at bay.  Software (P2P technology) is essentially information, and when coupled with the Internet, the result is a viral technology that is near impossible to stop.  We haven't been able to stop the distribution of strong encryption programs, a tool undoubtedly used for terrorist communications.  Likewise, we were unable to stop the dissemination of our nuclear secrets, which is arguably more important than copyright infringement.

    We must remember that any government attempt to hinder the development and spread of "bad" technology while enabling the growth of "good" technology is likely to have unintended consequences.  This is because government only has blunt tools at it's disposal; the Betamax case should offer easy proof.  That is a slippery slope not worth traveling down. 

    Technology has transformed our lives, mostly for the better.  It has enabled us to do great and terrible things.  The 9-11 hijackers went to travelocity.com in order to pick flights that had a low number of passengers so that they could more easily control them.  Travelocity provides real time data on passenger loads.  Good for us when vacationing, but good for terrorists also, when planning an attack.  Yet no one blames travelocity, and rightfully so. 

    The Internet was originally created so that our defense networks could continue to communicate with each other in the event of a nuclear attack.  In its early incarnation, it was a four node network between four universities, and primarily used by academics to collaborate on projects.  No one foresaw the tremendous potential the Internet held, and that is to be expected.  We shouldn't hinder the development of certain technologies simply because of how some choose to use it.  We should punish the act, not the technology.  When someone is murdered in a shooting, we don't punish the gun. Oh, wait...

The Roots... of Copyright

 Greenbag, self-described as "an entertaining journal of law," has an interesting article titled, "Constructing Copyright's Mythology" by Thomas Nachbar, Associate Professor of Law at the University of Virginia.  PDF file also here.

Nachbar provides some historical perspective on copyright law, including several interesting facts:

1. Noah Webster, of dictionary fame, was an very influential member of a small group of authors that went from state to state, seeking passage of state copyright laws.  Between  1782 and 1786, they succeeeded in getting 12 of the 13 states to adopt copyright laws.
2. The notion that the Copyright Term Extension Act of 1995, aslo known as the Sunny Bono Act, was somehow "a recent response to intense interest group pressure, which might have suppressed [Congress's] historical Constitutional good sense in the intellectual property context" is false.  Congress has extended copyriight terms repeatedly and consistently.

Nachbar's main argument refutes the proposition set forth in Eldred that copyright "must promote creative activity."  He disagrees w/ this quid pro quo notion of copyright by pointing out that Webster travelled from state to state, lobbying for copyright protection after his book was already published.  This hardly seems like a good argument since the the promotion of "creative activity" could apply to a subsequent work.  Webster could have been promoted to some future creative activity upon the realization that he would be granted a copyright in that work.

In any case, it's an interesting article worth reading. 

Towards a New Copyright Regime: A Modest Proposal

Note: This post represents my proposal for an ideal copyright regime, free of any political considerations with respect to feasability of adoption.  My later post will differ in that I will advocate the use of  certain tactics by content providers, who, on the whole, I tend to support more than those who oppose them.

    "Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." So begins this post by Prof. Cass Sunstein, quoting J. Holmes in INS v. AP. Although Sunstein’s post is on a different topic, he explains the quote:

“What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact.”
…

“Property rights, as we enjoy and live them, are a creation of law; they don't predate law.”

    Like Holmes, I take this as simply a matter of fact. It is the foundation for my proposal so if you disagree, you’ll have to play along for this post to make sense. Property rights, whether in real or intellectual property, are not “natural rights.”  Private property rights (aside from the Crown) is a relatively young idea and practice; the notion of property rights in IP even younger. This proposal is aimed at works that can be digitalized and easily and widely distributed; namely music and movies.

The 2 questions I’ll try to answer are:

1. What is the goal of copylaw?

2. What regime would best further that goal?

First Things:

    The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their writings. U.S. Const, Art I, sec. 8.

    Even though this proposal is an ideal one, free from political considerations, I’ve restricted myself from any solution that requires modifying the text of the Constitution. Since we’ve covered this in class, I’ll exclude any detailed discussion. Like real property rights, the goal of copylaw is essentially a public policy argument, “To promote… the useful Arts.” The usefulness, or utility, of a particular work varies depending on the person deriving utility. I find Milli Vanilli’s most recent album "useless" in this sense.  Perhaps you agree...

    In this light, my proposal serves a pure public policy goal, concerned only with maximizing overall utility.  While imperfect, I offer the free market system as the best mechanism to measure the utility, or value, of any particular piece of IP.  Simply put, the goal of copyright law is to make the most money possible for society as a whole.  Of course, we have to take into account fairness norms; we couldn't, for example, revoke someone's copyright simply because we thought they weren't maximizing the utility of a particular piece of IP.  In this sense, the proposal should greatly reflect the society's current notion of private property (and IP) as a natural right.

    We’re limited in our means: “securing for limited Time to Authors and Inventors the exclusive Right to their writings “

    Implicit in the text is the notion that a grant of exclusive right in a work – essentially,  the exclusive right to profit from ones labor – is an incentive that encourages the production of more “useful [a]rts” by society as a whole. This gain must be balanced against the lost potential gain the public bears for the duration of the copyright.  For example, George Clinton may have written a song back in the 70's that is no longer sold anywhere.  The Backstreet Boys may want to sample a riff from that song in order to create a new, hit song.  Clinton could refuse to sell the right to sample that riff, even if offered $1 million, and society overall would be poorer for it.  Following my proposal to an extreme conclusion, the governement would be authorized to rescind the right of exclusivity from Clinton and grant permission to the Backstreet Boys to use it.

    But this is an individual case, and even though we don't behave rationally in every instance, on the whole, the market behaves both rationally and efficiently.  Most people could be offered some price that they would agree to so the fact that there are some instances - and there always will be - where the market is not efficient does not show that the overall market system is inefficient.

    My argument is that an exclusive right to profit, for a limited time, from a piece of IP is the regime that would best serve the goal.  The time should be limited to 70 years from the time of creation (roughly one generation), however, this is not to be applied retroactively.  I support this long duration because certain works and brands possess great value and reflect a substantial investment on the part of the copyright holder.  Disney holds copyrights to their many characters and their movies, which they have invested a substantial amount in.  Protecting their ability to profit from this work is in society's best economic interest - unless you believe that society at large would be better able to generate revenue from Disney's copyrights.

    Registry: There should be a registry of all works copyrighted, more to serve notice to potential infringers than anything else.  However, the registry should be free, much like the "Do Not Call" registry.  This is to prevent an undue burden being placed on individuals who create IP.