We started the class in search for an answer to the problems that face and will face the copyright scheme in the next several years. And the answer is… we don’t know. The fact of the matter is that the problems are too complex and there are too many interests involved to have one “fix-all” solution (no surprise here). Thus, here is my take on what might be done and what I would like to see done.
File Sharing Generally
To reiterate earlier points from the semester, my take on file sharing can be boiled down to one statement – the technology isn’t bad, but the people who are using it, and the people trying to eliminate it for selfish reasons, are. File sharing programs have several legitimate, beneficial, and worthy uses. Using file swapping software to engage in the mass illegal uploading/downloading of copyrighted music is not one of these uses. However, since it is easy to do, and the risk of getting caught is so low, millions of otherwise “law-abiding citizens” have partaken in helping to render some copyrights essentially valueless.
I assume that most people know that it is not legal to engage in the unauthorized sharing of copyrighted materials – you don’t have to be in law school to figure that out. If given the opportunity, I think most people would rather pay a reasonable amount to buy their downloads rather than run the slim risk of getting caught and fined till the cows come home by the RIAA. Whether or not legitimate services like iTunes have cut down on the harm caused by illegal file sharing is yet to be determined. The fact of the matter is that illegal file sharing has become so prevalent in society, that most people think it is ok to share a few songs and it isn’t a big deal. Some people probably see copyright law as similar to the laws regulating speed on highways – violations are technically illegal, but everybody is doing it, and they can’t catch everybody, so I’ll speed too. The RIAA’s solution to file sharing if applied to the speeding context would be to shut down the highways – a non-sensical approach by most people’s standards.
So how do we control speeding? By putting more highway patrolmen on the road, making traffic fines more substantial, and educating the public about the negative affects caused by speeding. A similar approach is needed for illegal file-sharing. First, a division of the DOJ (anti-cybercrime division?) should allocate some people to seeking out the “mass infringers” of copyrights (or at least to developing better programs to do the job). Second, legislation needs to be passed that significantly increases the penalties for engaging in “mass infringement” of copyrighted material. This would make those few who are ruining it for the rest of us, really feel the hurt when the Copyright Cops come for them. Lastly, people (especially young kids) need to be educated about the fact that copyrights do exist and that the unauthorized sharing of copyrighted material is illegal. Parents need to take responsibility and inform their children about the risks of illegal file-sharing, as well as monitor what the child is doing on the Internet to make sure they aren’t creating liability for their parents. As far as the lawsuits go, although they are costly, I think they are a better approach by the RIAA rather than to trying to shut down file sharing outright. Once again, although lawsuits aren’t the answer, they are better than the alternatives, and they may end up being a strong deterrent if combined with other options.
As far as Congress is concerned, I think they will not be a factor in changing substantive copyright law too much - we all saw what happened when they tried to introduce the Induce Act. I think there are too many sides to take money from that the men and women in Congress can’t make up their minds on who to draft the legislation for. However, I do think that legislation will eventually be passed that changes the penalties for violating copyright law and the methods of enforcement. As for judicial remedies, now that the Supreme Court has granted cert in Grokster, the verdict on file sharing will soon be in. I don’t know how it will be done, but I think Grokster is going to end up on the wrong side of a good ole’ fashioned butt-whooping courtesy of the Supremes. Also, as stated in a previous post:
“I wouldn’t be surprised if the court added an additional requirement to vicarious liability that states that liability will be found if there is no showing of an attempt by the service/technology providers to implement reasonable precautions to prevent the unauthorized copying/distribution of copyrighted material, even if once the service/technology is out on the market there is no ability to supervise how the people use the service/technology.”
I still think this is a good possibility, although it might be mentioned in dicta rather than be a specific holding. Regardless, somehow I think the court will let the gavel fly and come down on Grokster for intentionally designing software that skirts secondary liability, while allowing users a convenient way to engage in copyright violation. Designing around the law is not bad in itself, but when the design around allows others to engage in mass infringement of copyrighted material – that is bad.
The Copyright in General
I don’t see any major changes in the scope of a copyright from how it exists today – except that there will probably be another term extension somewhere along the line. Which brings me to another point – there should be a fixed duration on copyrights with some kind of renewal system implemented – not another gratuitous extension. Here’s a novel idea – give some substance back to the clause in the Constitution that talks about giving rights to authors for limited times. If patents have to be limited in duration, we should put similar limitations on copyrights.
In an earlier post I proposed a 50 year max limit, with renewals at year 30 and year 40. A fixed duration allows works to enter the public domain so that other creators out there can build upon them to produce greater works. I think renewals at years 30 and 40 would ensure that copyrights that have no substantial economic worth (at least more than the renewal fee - $100 or so?) will be added to the public domain earlier. A 50 year limit is a fair amount of time for a creator to be able to capitalize on their creation. If you can’t get all the money out of your copyright in 50 years, someone else should be allowed the opportunity to do it for you. The only people that are really pushing for the extensions are the few big companies who are trying to keep a few prime copyrights protected. However, since there is nobody stopping them, they can get away with it. Hopefully the next several years will see an increased dialogue about limiting copyright terms.
As far as the congestion effect that could occur if copyrights were allowed to enter public domain, I don’t think that is a problem. If all copyrights enter in the public domain after 50 years, other creators will have several creations to choose from to use in new creations – no one single formerly copyrighted material will be used so much that it will lose its value. Even if there was overuse, there are so many new consumers being born that in a few years time, a formerly copyrighted material may become popular again. As far as derivative works would be concerned, I think it should be up to the public to decide which version of the story or movie they like the best. If someone comes out with a new version of Star Wars where Luke doesn’t kill Darth Vader, but instead they team up to eradicate the Ewoks, and the movie successful, then more power to the creator. For those that don’t like the new ending, the original is still there and available to watch.
In order to have a renewal system however, there needs to be a registration system. Several people have commented on a registration system and its benefits, so I won’t make my post any longer by adding the same stuff in. But I will say that the creation of a registration system can be done at a cheap cost – if it can work for trademarks, then it can work for copyrights.
Digital Rights Management
The digitalization of content has opened up a giant can of worms for copyright enthusiasts. Digital copies of songs and movies are increasingly becoming better and better, and it is often hard to determine what is real and what is a copy nowadays. Although new technologies and methods have been used to prevent content from being “ripped, mixed, and burned”, the hackers seem to find a way to make these new protection measures obsolete in no time at all. Thus, while it can be useful, it is not the “fix-all” solution to preventing digital copyright theft. Meanwhile, as the analog hole is being plugged, the public’s fair use right to use copyrighted material is being destroyed. This is an unfortunate side effect of the war involving digital copyright, but there does not appear to be any voice crying loud enough (or paying enough money) for Congress to hear. Outcome – RIAA/MPAA will work out side deals with the tech companies to force them to add in the latest and greatest DRM technology in their products, making the consumer purchase more and more products to play the ever-changing new formats that will be developed to combat the relentless hackers. Result – good for tech companies, bad for consumers.
P2P has become an international phenomenon that cannot be stopped. It has helped to significantly change the social norms and traditional conceptions of the development, production, and distribution of music. For companies like the RIAA/MPAA, this change is not good. However, as these groups begin to embrace (find ways to capitalize off of) the P2P revolution, both sides will benefit tremendously. Meanwhile, Congress has been slow to enact legitimate copyright legislation to deal with the problems that P2P poses to copyright owners. The constant state of flux, and the varied interests that all demand a seat at the bargaining table, have indeed made legislating difficult. As some have suggested, making music a public good might be a solution, but this would require way too much effort, coordination, and organization on the part of the government, so it is a very unlikely alternative. As to how it will play out in the end – only time (the RIAA/MPAA, the courts, the tech/service providers, and Congress) will tell. As a final note, I would like to thank Professor Solum for taking us all on this journey through the muddy waters of copyright - it has been well worth it.