Not surprisingly, the mix of 25 or so law students that spent the past semester contemplating the present and future state of copyright was unable to reach any sort of consensus or develop any coherent vision for the future. Furthermore, there appeared to be little deviation of opinions amongst individuals as the class progressed, myself included. Given this backdrop, how realistic is it to think that away from the cozy, intellectually liberating, confines of academia, businessmen with vested interests, politicians requiring war chests full of ducats in order to be re-elected, and a wide variety of divergent opinions on the part of artists and individuals, can ever converge to yield a future vision that satisfies all?
The Status Quo
What would happen if things continued as they now stand? What would be the result if nothing was to change with respect to legislation or business models encompassing digital file trading possibilities? Would the entertainment industry be decimated? The past year apparently was a pretty decent one for the recording industry, though they’ve definitely taken some hits in recent years, for a variety of reasons, including P2P sharing and other factors. Currently, the RIAA, MPAA and a large number of foreign counterparts, are targeting file traders (mostly uploaders), supernodes, bit torrent servers, and P2P networks themselves. Under the current regime, there isn’t going to be any one death blow struck against free file trading, though the content industry can and will use a variety of means to make it more difficult to use these networks to trade copyrighted files. Some P2P networks will be shut down, new ones will start up, this fact, bi-monthly rounds of lawsuits will be launched against users, all of which will tend to keep less savvy, less motivated users away from illicit file trading. The average user, who only a few years ago was shouting in caps on their parents’ AOL account, is going to be increasingly drawn towards commercial, LEGAL models, such as iTunes, Rhapsody, Napster Jr., and future ones, such as Snocap: less hassle, less risk, less thinking.
Barring structural changes, there would certainly need to changes in the business models of content providers, particularly the music industry, but should this not be happening anyway? Technology has always affected companies. Polaroid and Kodak for example, are probably less than thrilled with the advent of digital photography. Blockbuster Video is struggling to stay afloat amidst competition from Netflix and other companies with new business models, and is now making concessions with regards to late fees in an attempt to slow the hemorrhaging. With the advent of far cheaper distribution and media, the industry might increase the use of legal online distribution models if there are appropriate adjustments to their economics.
As predicted by the class, the Supremes gave cert to Grokster. This should ultimately put some much-needed teeth and consistency into secondary liability law. Companies should not be able to hide from the law by pretending they don’t know what their products are being used for. The holding and dicta of the Court’s decision will undoubtedly be analyzed to death. Will it discuss fair use? Will it add to the contours of the law set out years ago in Sony? An enlightened Court could mollify all sides with a well-crafted decision. I won’t be holding my breath though…
Future legislation is inevitable as well. Though the almost childishly drafted Induce Act didn’t make it through Congress last term, it may well rise again in some incarnation. If it doesn't, something comparable will. Industry lobby groups are not going away, so sooner or later, an excessively broad law is probably going to pass. If it is even close to being as badly written as the Induce Act though, it will probably ultimately fail to have the desired results in terms of quenching file trading. Like broad, panic-driven rules put into place in the very early days of the recombinant DNA revolution, as the fear of new strains of E.coli reigned, drastically unreasonable rules are rarely followed and generally die off one way or another, either through constitutional challenges or newer, improved legislation.
Content and Terms
Culture is currently disappearing at a rapid rate. Simply put, works that now have little chance of being financially beneficial to copyright owners are being buried… owned but no longer disseminated. The solution to this is one of the most straightforward aspects to the whole copyright dilemma: formalities must be restored to copyright. There is no justification for the current effortless, default renewal of copyrights. If a copyright owner can’t be bothered to fill out a bit of paperwork and pay a nominal fee, then it reflects the fact that the copyright poses no value to them. The utilitarian view is to put any such copyright into the public domain, where it at least has some possibility of finding new use. From a practical standpoint, the re-establishment of formalities could be used as a tradeoff in any future concessions to the industry. Such a move would show faith to the Constitution’s IP clause. The foundation of US patent and copyright protection emanates from a strong utilitarian background, a system that provides incentives that lead to the development of new works or products. One of the key problems with this idea however, is that relaxed formalities emerged out of the international copyright standards of the Berne Convention, thus adding players to the negotiating mix.
Artists are not going to stop making music. Today's successful screenwriters and directors are not going to be flooding restaurants in search of good waitering gigs. Record stores will still be around in 10 years, but you won’t walk into a store with racks full of CDs. If CDs are still around, you’ll probably be able to listen to selections off of some master hard drive, and then burn a CD in-store for purchase. Less floor space, less inventory = lower operating costs. No more Virgin Megastores.
Every consumer’s best friend Microsoft, is going to move into the content industry when they find some juicy, under-valued record company that they think can enhance their big picture. Nobody is sitting on more cash than MS and they are running out of things to do with it. The “dismal” financial scene in the recording industry won’t scare off MS. They’ll find it financially worthwhile because they will already positioned themselves through their typical maneuvers. For example, MS’ DRM, and audio and video formats that had previously fought to have accepted as “standards” by industry bodies (HD-DVD, Blu-Ray, mpeg group etc…), will be subverted by MS, taken in a new direction as soon as they are widely accepted, ensuring that their use all but requires the use of additional MS products. I shudder to say it, but maybe they will be able to bring together a better future for the industry and the consumer.
Technology will ultimately be the strongest factor in coming years. If efforts are made to offer the best quality recordings at a decent price using the best formats, value will trump illegal trading. Highspeed broadband is now the norm. In 10 years, today's DSL and cable speeds will seem like 14.4 modem access by comparison. If the industry is wise, this should equate to a massive opportunity, not a threat!