So how far have we come? Our once optimistic ideas about figuring out the possible future of copyright seem long gone. But there are a number of possible futures for copyright that all are as possible as the next. However, the most concerning aspect is that things don't seem to be moving anywhere right now. P2P, for the most part, is alive and well with the exception of some new RIAA lawsuits every so often. But these lawsuits focus on a tiny, and I mean tiny, fraction of P2P users out there. So what is the next step? Which battles do we fight? And what do we value the most? And it seems like we are being pulled in so many different directions all at once. Who are we most concerned with protecting: authors, musicians, consumers, electronics manufacturers, music and movie companies? They all deserve equal protection. However, the hardest question of all is how to properly protect these different interests. And right now, no one is happy. Music and movie companies find their content being traded by the consumer over the internet who only wants to listen to one or two songs on a CD that costs eighteen dollars. But whatever the solution, it must be very forward looking. Technology is changing faster than you can say copyright. And the latest DRM technology is being hacked almost as quickly as it is developed. What is it going to take? And what are our options? There are some advocates of the copyright registration system. Some believe that the best way to fight technology is with technology. Some would like to let the Department of Justice handle the problem. All of these systems have strengths and weaknesses. But I think focusing on just one is somehow missing out on the point: the bigger picture.
In order to see any real change in copyright in the United States, we will have to experience a near catastrophic event. And the Supreme Court’s decision to hear the Grokster case could be that event. Now, by catastrophic I do not mean a meteor hitting the Earth or nuclear war. A catastrophic event in the Copyright world would simply be something that changes the way the average person is affected by the copyright law. Although, I guess the Supreme Court is in a position where it can drop a bomb on the P2P industry. Here is the real problem. No single solution is going to have a major impact on Copyright. This decision may have a drastic impact on p2p as we know it today, but shutting down the major p2p companies will not be enough. Major changes in copyright law, not just the body of law itself but also the way it is enforced, require reforms in 1. copynorms, 2. the law itself, and 3. enforcement (civil or criminal).
This discussion must begin and end here. Many people have come to believe that trading music on the internet is fine (either they believe no one is harmed by it or they think that it is fine because they are confident that they will not get caught). And in some ways no one is harmed by it. (I will skip the discussion on rivalrousness and excludability). But some people are. And it is easy for the consumer to come with the argument that musicians and actors and record executives make enough money as it is and there is nothing wrong with setting their paychecks back a little bit. But when was the last time that someone took income away from you and you were ok with it because the person who took it from you makes less money than you? I can’t remember the last time I was ok with that either.
But of course, other considerations must be weighed in. When discussing copynorms, we are also discussing the use of art and music and literature. And would society as a whole benefit more or less if we use strict copyright laws to keep a leash on the amount of information that is distributed throughout society. Groups like Creative Commons and Free Culture have dedicated themselves to allow “creativity and innovation to thrive.” These organizations provide an important way for the average person to learn about copyright issues and see how these issues actually affect them. I stress the importance of these groups because if there is to be change in current copynorms, people must know what the issues are and why they are the way they are. If people are fighting for lessened copyright law not because they want to see creativity and innovation thrive, but solely because they want to be able to download free mp3s and movies then they are fighting to change laws that, in actuality, are doing exactly what they are designed to do.
P2P is the most publicized copyright problem today. And this problem needs to be resolved as soon as possible. Hopefully, the Supreme Court will take care of that one. But P2P aside, there are still other issues that need reforming. I do not think that the law should be providing extended protection to works that are going unused. I think that renewable, limited terms are the way to go, as well as a national copyright registry.
One possible solution would be to allow dormant works (ones that have not been used commercially for a certain amount of time) to go into the public domain but can then be taken back out of the public domain. For example, if a work has gone dormant for 10 years and the copyright is still held by the original owner, the work would go into the public domain for a limited amount of time. I say limited because other interested parties would be allowed to fight over the rights to commercially exploit the work. This would work almost like a contest. The first two years after a work has gone into the public domain, anyone who wants to could use the work as they please for commercial or non-commercial purposes. At the end of that two years, the Copyright office could take applications from those who want to secure the rights to the work and exclusive rights to the work could be given to the applicant who has used the work most efficiently. This would probably have to be based on revenue earned from the use of the work over the last two years. But this would mean that that person has used the work the most efficiently and promoted the work to the public most effectively. They could be granted a very limited copyright term. (ie. Five years). At the end of that time, they could renew their term if they have met certain standards put in place by the copyright office. Again, these standards would probably have to be based on revenue.
This system would certainly require a national copyright registry and would be very complicated, but if done correctly, it would leave most works in the public domain (because lets face it, there would not be a market for most works beyond their initial run) and if someone really wanted to gain the copyright to a certain work, they would have to earn the right to use it and continue to use it efficiently. This system would give people incentives to either put these works to good use or let them go into the public domain. Of course, even if a limited copyright term were granted to someone, the fair use doctrine must remain intact.
In a perfect world, law enforcement could properly enforce copyright violations. But this is not a perfect world. And as of now, it looks like civil remedies are the best we do. Criminal sanction would actually be the most effective means of getting the average file sharer to stop sharing copyrighted works. But it is just not realistic. One, law enforcement agencies just don’t have the resources. And two, if these cases ever did go to trial, what jury would actually convict a fifteen year old child for sharing music on his computer? (again, copynorms are to blame). So for now, the RIAA and MPAA just need to keep filing their civil suits and hope that as more people settle, more people will realize that the risks outweigh the benefits. Unless it becomes easier for the MPAA and RIAA to obtain the names of infringers from ISPs, things could probably go on like this forever. And unfortunately, law enforcement probably will never have the resources to go after a significant number of infringers criminally.
Again, in order to significantly change copynorms, something huge must happen. If Grokster is overturned and many of the major P2P networks are shutdown, maybe this would be a start. It would send a message to all P2P users that this is a big enough problem that the Supreme Court decided to take matters into its own hands. P2P will still exist, but for quite some time, on much smaller levels. This could be a perfect opportunity for the RIAA and the MPAA to bring suit against a much greater percentage of the infringers out there (because there will be so many less of them) and make a real difference. And if the law is going to change significantly, the consumer must get involved.
One Final Note
As I posted earlier, I really think that there is something significant to online music labels. One of major concerns with loosened copyright laws is that the amount of content will decrease. However, if online music labels are the future of the recording industry, there is no way that content will decrease. The exact opposite will happen. For example, right now major record labels must make a serious investment when they sign any new artist. They must pay for the recording of the music, the manufacture of CDs, promotion, shipping, etc. But selling music exclusively online gets rid of many of these costs. Therefore, it is less of a risk for record labels to sign new acts. And furthermore, almost anyone can start their own record label with the right recording equipment and a website. So many artists will be able to distribute their music that way. They will not be at the mercy of major record labels only signing acts that they believe to be commercially friendly. And when talking about music, there is no such thing as too much. It will obviously be difficult for some of these bands to survive strictly off of their online sales, especially if mass file sharing is alive and well in its current form. But that is a moot point, because most musicians out there would be making music whether they were getting rich off it or not. I play music every day. I haven’t seen a penny. But I continue to do it. Why? Because I love it.
I don’t think that Copyright is doomed. And I don’t think that someone necessarily has to lose in order for copyright law to be effective. But I think the biggest obstacle to the current copyright system is our current copynorms. And I’ll say it again. In order for our copynorms to change significantly, we will have to experience a near catastrophic event. It will be interesting to see how the Grokster decision comes out. If P2P is left alone by the Supreme Court, then it is back to the legislative process. And maybe with that, the average consumer will be forced to reevaluate the way that copyright law affects him or her or actually take notice of the fact hat is does affect them. And hopefully this will help persuade consumer groups to try to take part in the legislative process that as of right no is dominated by massive corporations who do not represent the interests of the average American. Things are not as bad as they seem. But whatever the case, Copyright law must be strict enough to protect the content providers, loose enough to promote creativity and innovation, and flexible enough to change with growing technology. The future is uncertain, but it is by no means hopeless. And even though it might seem like we are heading nowhere fast…it may just be for right now.