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.