Copyright law, as we know, is influenced by those in the position of power and wealth. The existing system is reveled and protected by those who reap financial benefits from the system who often justify their position by advancing arguments such as providing incentive to create, providing fair compensation to the owners, preventing theft, and so on. Of course, copyrights differ in their ability to generate and maintain a revenue stream and hence some copyrights are more valuable to their owners than others. And of course, value can be defined in many different ways within many different perspectives. But ultimate goal is to protect the existing revenue stream or potential revenue stream that flows from the copyright by exclusion of others to the rights of the work. Sometimes monetary compensation can provide access to the work, other times the work may simply be inaccessible if the owner chooses to keep the work exclusive.
We often see the owners of copyrighted works make money from copyrighted works by selling the work (giving up exclusivity) in exchange for monetary compensation. In other words, those individuals willing to pay for the copyrighted work do so in exchange for being able to legally possess a copy of a protected book, CD, movie, (Fill in the blank). We also assume the above transaction is economically-efficient (the seller is willing to sell at a price which the buyer is willing to pay) and that market forces will prohibit the transaction from materializing if under the totality of the circumstances, the transaction becomes unreasonable. For a long time, we know this as the market norm in a capitalistic society.
So why don’t we see the other possibility: works being held exclusive? There are many possible explanations. Major reasons we don’t see this happen is that the owner will market the work when there is a market for the work and nobody will benefit if the work is kept exclusive. The owner does not generate any revenue and the consumer does not get access to the work. Again, market forces dictate that this is not economically-efficient outcome.
The reason we have a copyright impasse is that technological advancements allow the production and distribution of near-perfect copies of protected works with minimal efforts. Works fixed onto paper can easily be scanned and digitized instead of tediously rewritten. Sound recordings and motion pictures can easily be digitized without a truckload of elaborate equipment interconnected with patch cables. In summary, emerging technology that makes it easier to copy and distribute content threatens the revenue stream flowing to the industry. In response, the industry used technological measures, public awareness campaigns and even lawsuits to suppress the use of the technological advances to make and distribute content, often in the face of legitimate uses of the protected work. In other words, the foreseeable future of copyright law is escalating into an “arms race” where emerging technology that threatens the revenue stream is countered by some technological measure to address the threat and/or criminalization of the activity, which in turn, is countered with a clever hack or circumvention scheme. Repeat this process over and over again and you have the skeletal model of copyright law as it exists today.
If there is anything we learned from the nuclear arms race and disarmament, we’ve learned that amassing and stockpiling weapons aimed at each other with sufficient firepower to destroy the world many times over worked as a deterrent but didn’t eliminate the threat that the world as we know may be destroyed. It was only the realization that negotiation, diplomacy, further negotiation, and compromise that lead to disarmament and alleviating the threat of powerful missiles aimed at each other where the only useful purpose is to destroy each other.
Likewise in copyright law, technological measures and their counter efforts only deter copyright infringement. It does not eliminate it altogether. The technological measures that allow CDs to be ripped into digital files and easily distributed make it economically-efficient (but morally wrong) to download music instead of going to the retail store and purchasing the CD. It is the efficiency and convenience that attracts consumer to the biggest threat to the revenue stream enjoyed by the industry: P2P file-sharing.
Instead of engaging in a copyright “arms race,” all the relevant players should take note that trying to defeat each others’ efforts will not lead to copyright laws that is at least agreeable amongst the relevant players. Continuing to outwit and outsmart each other will only be wasteful at best for the parties engaging each other but ultimately harms the consumer, the very same people that the industry needs to market their content to in order to provide the much-coveted revenue stream.
Like the United States and the former U.S.S.R., the relevant players should employ negotiation, diplomacy, and compromise to design and implement a copyright model that is at least agreeable to the industry, the consumers, the CEA, the artists, the copyright holders, etc. rather than just advocate and vehemently defend a model that only serves one’s own personal interest at the expense of other important players.
Some have begun to realize they can remain profitable and simultaneously embrace and capitalize the technology that once threatened their revenue stream. Instead of fighting P2P, they have acknowledge the consumers’ demand for convenience and instant gratification and responded constructively with a wide selection of digital content for online purchase at a reasonable price point. In my opinion, these are the players that will take the lead and ultimately shape the future of copyright law.
In summary, Copyright law as it exists today is at an impasse. Any proposed legislation that fundamentally alters the law in favor of one group gets powerful opposition from those the legislation harms. Human nature and economic forces indicate that nobody wants to be worse off that the existing status quo but everybody wants to be better off (even at another group’s expense). Because this impasse is significant to the point where it stalls a lot of copyright legislation, I honestly don’t see progress until proposed legislation simultaneously addresses consumer interests, industry interests, CEA interests, etc. which of course, will never happen if the atmosphere of suppression continues. However, when and if the impasse is overcome, I envision the future of copyright to be legitimate P2P distribution of reasonably-priced content such that there is disincentive for consumers to resort to illegitimate file-sharing and run the risk of prosecution.