The Problem: Let's face it, the threat of rampant and unprecedented theft of digital media continues to grow. And as technology continues to grow, that threat and theft will grow simultaneously. The music industry has already faced, and continues to face, this threat, but has largely failed in defending musicians' intellectual property. With the advent and increasing popularity of high-speed Internet connections, Hollywood faces the same dilemma and is fighting back. As Time magazine writer Amanda Ripley recently noted, "Studio executives, no strangers to melodrama, have begun to talk about movie piracy the way FBI agents talk about terrorism: they watch the Web for "chatter," they embed films with hidden 'fingerprints,' and they speak without irony about 'changing hearts and minds.' They even use night-vision goggles. It's not going too far to say they are completely paranoid, which doesn't mean they are wrong." As the battle rages, is guerrilla warfare the best method to fight a "menace" that may represent the entertainment industry's greatest opportunity?
The Entertainment Industry's Modern Approach In the summer of 2003, the music industry commenced a widespread, yet selective offensive against individual dowloaders. The RIAA has since sued over 1900 users, with more than 400 users paying fines averaging $3000. In March 2004, the RIAA brought an additional 532 lawsuits against anonymous users, including eighty-nine individuals from universities. Additionnally, there has been an effort to educate potential infringers that downloading is an illegal activity. Unfortunately, ignorance is probably not the problem the entertainment industry is facing.
Alongside this aggressive strategy, there are also the well publicized lobbying efforts. Through these efforts, there has been a push for heavily increased penalties, including criminal sanctions, against illegal dowloaders. As Professor Samuelson noted in her presentation, the entertainment industry's goal is to enlist the Department of Justice as the "Hollywood Police." As we all know, many of these efforts have been stymied, or delayed, by groups such as the EFF( amongst others).
Perhaps the best effort thus far has been to join the fray. Online music stores like iTunes not only give consumers the option to download only the songs they desire without having to buy an entire album, they allow artists to release individual tracks without releasing a complete album. At the conclusion of 2004's first quarter, Apple reported that iTunes sold 50 million songs, with 2.5 million more songs downloaded every week. Following iTunes' success, new competitors, including Roxio's Napster and MusicMatch, have entered into the mix.
Copyright in the Digital Age: The purpose behind the Copyright Clause has been debated since the time of the Constitution. Four main theories have been proposed: "that copyright is to protect the author's rights; that copyright is to promote learning; that copyright is to provide order in the book trade as a government grant; and that copyright is to prevent harmful monopoly." I think it is safe to assume that the concept of Intellectual Property, to Professor Lemley's disdain, has turned protecting the author's rights into a full fledged property law regime for individuals and corporations alike. Moreover, protecting the author's right has expanded dramatically over the years with the amendments of 1976 and the enactment of the infamous DMCA of 1998.
We have looked at various alternatives in an attempt to protect copyright law in the digital arena. Musical Socialism came and went quickly. Really, though, did it ever have a chance in the capitalist world($$)? Broad taxation schemes, in my opinion, seemed like a viable option for time. Taxation and blanket licensing both discourage the development of copying technology. This social cost is probably greater for blanket licensing because licensing usually leaves less surplus to consumers. Consumer surplus from using the copying technology is an incentive to create it. Taxation and blanket licensing have a similar effect on the market for the shared work--sharing is permitted and the tax revenue received by the copyright owner rises as the number of people sharing rises. Compared to licensing, profit is generally lower under a tax scheme, even if the tax revenue is paid to the copyright owner. However, profit tends to be lower because sellers lose control over sharing; a single linear tax rate is chosen by the government. And thus, another strategy probably fails in light of varying private interest in the collection and division of shrinking profits.
Anti circumvention technologies, which help to control and define viewer use, seemed like another potential, and likely, option to aid in the protection of copyright. These types of technological protection systems, including Digital Rights Management (DRM) tools and encryption, were the recommendation of the former head of the MPAA, Jack Valenti. While this approach has some backing, I remain skeptical. Although its a simple rebuttal, DRM will fail because history has dictated that once something is encrypted, it is just as quickly decrypted. And aside from that simple, but effective rebuttal, getting the manufacturers of playback devices to universally drink the DRM coolaid could prove to be a daunting task. Furthermore, while DRM would create an interesting underground market for playback devices, the strategy would be hindered by current owners not wanting to go out and re-purchase another CD/DVD player with no added technologically beneficial features for themselves.
I think Professor Solum was dead on when commenting that the Horse was never really in the barn. Cyberspace is what it was created to be, a separate space and time that cannot be shut down. Regardless of any Copyright Reform, P2P networks will continue to exist and most likely thrive. Unless ISP's join content providers and decide to completely re-invent the architecture of the Internet, which is far beyond even highly unlikely in my humble opinion, the entertainment industry will have to deal with illegal file sharing in whatever way it sees fit. If that means hiring hundreds of thousands of attorneys to pursue the exponentially growing numbers of P2P end-users, so be it. At least we'll all have jobs!