As a busy year in the world of digital copyright comes to an end, we have one big question. Where to go from here? We have seen failed attempts at legislation (the Induce Act), renewed attempts to go after end users as criminals (the MPAA joining RIAA in lawsuits against downloaders), the decline of some older technologies (Kazaa), and the growth of others (eDonkey, BitTorrent).
[Oh wait, this just in… maybe BitTorrent is on the decline now too, at least for pirates. Perhaps with the strengthened name recognition gained from *gasp* pirates, BitTorrent will become more of a widespread tool for legitimate purposes. Maybe 2005 will be the year that people start to really see P2P as a legitimate non-infringing technology and not simply as having potential but with little actual non-infringing use. It’s sure to come in time, just like the once-pirate technologies of radio, recorded music, and the VCR ended up being accepted in the mainstream.]
One question that so many observers seem to think of as THE big one going into 2005 is the Supreme Court’s decision to hear the Grokster case. Such a high profile case going to the highest court in the land sure does seem like news, especially to those of us who concentrate on the interplay of law and technology. I thought the case was a big deal too. But I’ve been thinking some more, and the question that I keep coming back to is this -
Does the Supreme Court’s Grokster decision really matter very much at all?
If the Court rules for the content industry, it’s just the beginning of another cycle. Maybe we push P2P infringement further into the underground for a while, but sooner or later the general public will catch up to the new technology learning curve and we will have the same problems again with a newer technology. Perhaps widely used encrypted anonymous filesharing will be the hot button issue of 2006. And regardless of what our Court decides, 15 year old hacker kids in Scandinavia aren’t going to change their ways just because Uncle Sam says so. Even if the content industries win they’re just buying time until the next big threat, and the development cycle for threats to the content industries is awfully short these days.
Suppose the Supreme Court decision comes out the other way. OK, so what. The multi-billion dollar industries aren’t just going to admit defeat. They’ll pay off some politicians, pass some legislation, and be on their merry way.
The real question to me seems to be how to make P2P work as a business model. No one really wants P2P to be destroyed. The technology isn’t what the mega-corporations really hate. What they really hate is that that it has so much potential to make money and they don’t control it. After a bit of kicking and screaming about not getting their way, these companies will roll up their sleeves and get to work on innovating so that they can make some cash off this stuff. (Doesn't that sound like the internet in general? It started out more like a wild untamed frontier, and now it's becoming nothing but a pretty digital face for good old fashioned crass commercialism.)
First of all, in order to work, the P2P system has to be more appealing than the alternatives. Even if the alternatives are free, they aren’t necessarily better. A number of factors go into consumers’ decisions, including price, convenience, ease of use, marketing/image, and the law. There is no magic solution. Nobody is going to come up with the perfect law to prevent IP “theft”. The real battle is to get consumers to weigh all of the factors and decide that the most efficient decision also happens to be a legal one. Right now, the content industries haven’t innovated enough and the average consumer finds it fairly easy to use the illegal alternative. Bad combination. The industry has to combat that problem, and I see two keys that should work in tandem:
1. Ally with consumer electronics. People don’t mind migrating to new technologies – records to tapes to CDs, VHS to DVD, etc. New hardware can even be backwards compatible, so consumers can use their old discs (Sony’s Blu-ray standard seems to follow that ideal). Add DRM or copy protection to new hardware and compatible media. You can’t really protect what’s already out there, but the media companies already know that old stuff doesn’t make them their money anyway. Protecting the already-released Spider-Man 2 from piracy is now close to impossible, but that shouldn’t stop the rights holders from coming up with a new way to protect Spider-Man 3 and 4. You won’t be able to stop piracy altogether, so get rid of that thought. There will always be someone who just gets a kick out of defeating protection schemes. However, hardware can make it more difficult for the average users to infringe, if only for a while. While the average users are slowed down from rampant copying…
2. … shift priorities toward high quality electronic distribution. Make a really good system for acquiring content – easy to search, easy to use, affordable, fast. Perhaps use a two pronged sales approach – a la carte or subscription. Cheap, high quality, easy to use single downloads (iTunes model) for those who don’t want to sign up as a subscription. ALSO, a subscription model. Ally with ISPs and tech companies (Google, Microsoft, AOL Time Warner). Cable companies might be a good ally, because the cable industry is looking for an edge too. Comcast is losing subscribers to satellite, so it has to try a little harder at selling high speed internet service. What if that the cost of internet service was $50 a month, but the service came with unlimited downloads or streaming audio from the catalogs of the RIAA members? Perhaps $6 every month goes straight from the ISP to the recording industry. It’s a win-win situation. The ISPs have their “killer app” in free, legal digital content. The industry gets a nice revenue stream. The consumers get lots of content for a low price.
Don’t forget cell phone technology. One interesting aspect of this area is that the media companies are getting stung by the comparatively poor mobile service we have in America when compared to Europe and Asia. We are a couple generations behind on our wireless standards, at a time when advanced wireless could play a vital role in creating a new product that people really want to use. The ability to play the entire catalog of Sony Music on your cellphone sure would sound nice to a lot of people. Just plug in your headphones and you have an iPod without needing to download songs or rip music. Oh yeah, and this little device also lets you surf the internet. Oh, and it makes phone calls.
The players who stand to lost the most in the future might be the major music labels. After all, they are really just middlemen. Artists don’t need a label to create music, and distributing that music is becoming easier by the day. If a truly high-quality and high-profile digital distribution system is put into place (let’s say by Google), artists can deal directly with a distributor who can give them a better cut, rather than the artist exploitation that goes on with today’s outdated label system. If a band needs publicity, they can hire a marketing agency for a lot less than they have to give up to be on a big label today. What’s a label to do? I would propose that they try to do less selling to the end user and more selling to/partnering with other corporations. If the RIAA cartel gets together and makes a deal with Google, they might be set. Rather than try to make a fortune convincing one user at a time to buy a shiny disc, try to partner up with a bigshot tech company and make the best damn digital distribution service conceivable. How is some next-gen Kazaa really going to compete with the combined might of a Microsoft/MPAA/RIAA alliance? With a technology shift frustrating the casual would-be pirates along with the combined marketing power and ubiquitous software, most people simply wouldn’t bother with trying to infringe.
I suppose that’s where I stand now. I’m rejecting the idea that the courts or the legislature have any say in the solution to this problem. The people who have the ability to make the ultimate decision are the consumers. Content industry – make your option more attractive to the people who have that power. I’m not saying to give up on trying to use the courts or to stop creating DRM lock-out schemes. Those things have their place. But all those things are really doing is making piracy a little more frustrating for users. Eventually the public will overcome it, the content industries will counter, and the cycle will repeat. Make a good alternative to infringing and the cycle that repeats will become smaller and smaller every time because consumers will not think it’s worth trying to beat the system.