Copyfutures

Some Leftover Thoughts re: Open Source

    I surprise myself this morning by working on something that will yield no credit for this course.  But that ties in directly to the contents of this post.  One topic of discussion was why people produce open source works and why their employers "allow" this from an economic perspective.  Simply put, where's the gain?  This was discussed in a scholarly article posted on this blog (if class were still in session, I would link to it, as I originally intended, but after searching for 3 minutes, I've given up.).

    My theory is that people engage in creating open source works because they like to, it provides some form of personal utility.  Employers "allow" it simply because the employees are still getting their job done.  A simple example is Prof. Solum's fine blog.  From what I've read, law professors receive little credit for blogging.  Again, I would provide links if this were for credit, but from regularly reading Instapundit, the Volokh Conspiracy, it seems law school administrators care little, if at all, about their professor's blogging.  I could be wrong, but my impression is that a professor's job is to publish articles in prestigious journals and do it often.  In raising their own "stock," they raise the "stock" of the institution they're affiliated with.  So what explains the choice of certain professors to invest what sometimes is a substantial amount of time into activities that have nothing to do with their job?  And why do administrators put up with it?

Volokh states:

Some blogs ask their readers for money to help operate the blog. That's quite understandable, but we fortunately don't need that -- the real cost of running the blog is time, and that's generously subsidized by various universities and state taxpayers.

We're in it for the eyeballs. (Yumm, eyeballs.) So if you like the blog, just let your friends know about it -- perhaps take a blog post you really like, pass it along (together with its URL) to people who you think would enjoy it, and tell them that there's a lot more where that came from. Or not: We're happy with just your eyeballs, too.

    I suspect that the same rationale explains the activities of Prof. Solum.  The belief in the power of ideas and the belief that the dissemination of ones ideas is worthwhile is probably what motivates folks like Solum and Volokh into academia in the first place - and in so doing, foregoing the much larger financial rewards that would be theirs in the private sector.  Both have impeccable credentials, but their salary is probably commensurate to that of a 2nd year associate w/ similar credentials.

    So why do their schools put up with this?  Why aren't they forcing them to spend the time they spend on blogging on writing more LR articles?  Probably because they still publish.  Goodness knows that Volokh is prolific, Posner-esque even.  Well, I lie.  The amount that Posner publishes is unreal.  And he also has a blog! 

    I wouldn't call myself an economist, but from the little I've read, it appears that behavioral economics is gaining greater credibility, and in some ways, diminishing the iron grip that rationalist economics has had over the past few decades.  For example, either Prof.'s Solum or Volokh could spend an extra 5 hours a week consulting instead of blogging.  Why don't they?  It would give them a few thousand dollars extra a month which they could use towards whatever they enjoy.  My guess is that they enjoy blogging!  What a crazy notion!  Same for the open source folks and their employers.

THE FUTURE (as I see it)

I. Peer-to-Peer File Sharing

The big topic, of course, is what will happen to peer-to-peer file sharing. The Supreme Court granted certiorari to the Grokster case, which was expected. We will know what the Court thinks soon enough. But in the meantime…First there was Napster. Then Aimster, Grokster, KaZaA, etc. What does this tell us about the fate of file sharing? It will continue, no matter what the outcome of the Grokster case. Smart people will always find ways to circumvent the law.

The efforts of the MPAA and the RIAA to take the uploaders/downloaders to court will have a negligible impact on the amount of file sharing. Unless the MPAA and the RIAA want to take millions of people to court for file sharing, any law aimed at preventing file sharing will also fail. So what would be a possible solution for the MPAA and RIAA?

The solution is not a legal solution, but a technical solution. Advances in technology occur at a much faster rate than any changes in law. For example, a copyrighted work could contain some kind of program that would cause it to completely degrade upon transfer over the internet. Of course, the people that want to transfer the files will find a way around this, but it is better than clogging up the courts with a bunch of cases. If people want to protect their works from being illegally downloaded, then let them do it themselves.

Personally, I do not think there is anything wrong with file sharing. It helps promote “Progress of Science….” As a matter of fact, I was at a Tower Records store the other day and saw a Wilco CD at the listening station. Wilco is the band mentioned in the Grokster case that has benefited from file sharing. Now that they have hit it big, the sale of their CDs will lead to increased revenue. This in turn will lead to more Wilco musical creations – promoting “Progress of Science and useful Arts…”

II. Copyright Term Is Too Long

The current copyright term of life of the author plus seventy years is too long. I realize that this is done so that the author/creator can enjoy any later acquired appreciation in value of the work. If the work does not appreciate within the lifetime of the author, what is the probability of it appreciating seventy years after the author is dead? Is it really necessary to be so long?

I propose a return to the copyright term of the 1909 Copyright Act, where the terms were 28 years, followed by a 28 year renewal term. Twenty-eight years is sufficient time for a work to realize any value, and if it does not appreciate in the first 28 years, then the author can renew the copyright for another 28 years. Once the terms are up though, the work will go into the public domain where others can use it and promote “Progress of Science and useful Arts” by developing other works.

III. Intellectual Property Will Live On

The concept of intellectual property will continue to grow. This may be a cynical view of humankind, but man is driven by greed. Just look at the justification for the Constitution’s patent and copyright clause. The grant of a monopoly to the inventor or author is done as incentive for that person to create and/or invent more things. While I do not think there is anything wrong with this, it just underscores the fact that mankind is driven by greed.

However, there are still a number of people who create and/or invent for the sake of just creating and inventing. Those people are academics – the ones who pursue their subject/craft in order to better advance that specific science.

There are also just situations where there is a need to generate revenue. Having been a chemist in my past life, sometimes licensing fees associated with patented technology were what kept the research group afloat. The revenue generated could then be reinvested so that more discovery and/or creation could take place. This just goes back to the primary justification for the Constitution’s patent and copyright clause. The limited monopoly is just a necessary evil.

The Future will Require Consistency

Right now the biggest hurdle is all the inconsistent methods that are being used to try and solve copyright issues. Daily new technologies come out with different yet incompatible methods to try and solve it. Additionally, new methods of enforcement are being used just as often as well. The result: 1. most people are either confused on what is illegal/legal, 2. they do not understand the different technologies, or 3. they simply do not care since there is no clear cut guidelines.

 
The future will come down to companies finding a standard method of enforcement. Whether that method is through new technology or through legal methods. In my opinion, the solution will have to be one of legal methods for three reasons.

 
First, with all the new technological solutions, the losers are the consumers who must pay higher prices to pay for the research and development that is required to develop these new technologies. At some point consumers will figure it out and stop paying.

 
Second, hackers/piraters will always find a way to break new technology. It may slow down a few people, but in the end they always mange to find a way around the system eventually. Even if it is just for the pure challenge of beating the system.

 
Third, it is cumbersome and inconvenient. Many of these systems require the user to go beyond the normal steps to use their media and people will just grow tired of it. For instance, I recently installed a copy of Windows XP which required me to call Microsoft and read a very long number off the screen, then type a similarly long number back into the system. The whole process took about 20-30 min just to "activate windows" (which is Microsoft's method in Windows XP to counter piracy).

 
Therefore the only solution must be with some sort of legal enforcement which actually convinces people to stop. Maybe a harsh and strict rule, but a method that is consistent across the board is the most important factor. Most people then at least will pay attention resulting in comprehension of the rule and actually adhering to it instead of just ignoring it. Hopefully at that point breaking copyright laws will be as obvious as speeding.

So What Now...

The majority of my posts throughout this weblog have commented upon the music industry. More specifically the distinction between corporate and independent music labels in how they choose to deal with digital file sharing programs and the companies that own and operate them.

It is abundantly clear that mass populations of people utilize these services to illegally trade copyrighted recorded music. According to an article in USA Today, almost 7,000 law suits have been filed since 2003. Despite the risk of prosecution people continue to engage in illegal file swapping via these peer to peer internet services in large numbers. Within the music business there are two ways to approach this dilemma, embrace the new medium as a means of vast distribution, or fight it with everything you’ve got. Most independent labels have chosen the first option, most corporate labels chose the second. As I have commented on in several earlier posts in this weblog, independent labels and bands have been working closely together with these peer to peer services for years now in an attempt to distribute this lesser known music on grander scale than any independent label had previously thought possible.

The argument has been made that many people simply sample music by downloading it, and if they enjoy it, they will purchase the album. After all, the music market is rather saturated with new bands all claiming to be the next Beatles or Nirvana, and personally I would rather hear the album a few times before paying 16 dollars for something I may end up using as a coaster. However, there are also many users who simply use this service as a means of avoiding the cost of purchasing music altogether, supposedly costing the industry millions in lost revenue.

One of the main goals of having a system of legally protected intellectual property is to foster creativity by creating incentives for people to expend their time and resources in researching and developing things that could later be easily reproduced at a much lower price once conceived of and worked out. It takes a great deal of time and money for a band to write and rehearse all the songs they choose to record, and a great deal of money for the label to pay for all the studio time and engineers. Yet digital file sharing allows for near free distribution of such music, costing the label revenue from those who would have otherwise purchased the album.

So what is the industry to do about this copyright dilemma? These people are clearly violating the law, and many are now being charged with civil liability for their actions. Criminal prosecution has some potential for major deterrence, however social outcry may be too much for politicians to handle. "Musical socialism" seems like an attractive alternative at first, but what happens when all consumers become downloaders, how high will the taxes climb on playback devices? Water marking the CDs is another possibility, however, the analog hole and determined hackers could very well undermine this system. The Induce Act had potential to change things by holding these peer to peer services liable despite their lack of certain knowledge as to what end the users are utilizing their programs. This, however, never came to fruition. Things are looking rather dim for the preservation of a rule of law for intellectual property that can be digitized and instantly reproduced as well as distributed.

Looking back again at one of the main goals of copyright protection, to encourage new and innovative works, those who benefit the most from the current system are often not the authors of these great pieces of music. Rather, it is the labels. With the exception of the top selling acts, most musical groups make little to nothing from CD sales. The majority of this revenue is split between the record label, the publishing company, and any other middle men involved in the process. On average a band receives around 10 to 50 cents per album sold. More often than not bands never even see a dime of this money; they are indebted to the label for the cost of production and promotion of their album. This money will be paid back to label via revenues from album sales. Most bands earn a living by touring, playing live shows, and selling merchandise. There is no digital file sharing that can convey the energy and excitement of a live show. So for a majority of bands currently in existence and able to play, the incentive for creating new and innovative music still exists. For many bands who have never broken into the top 40 mainstream of radio and MTV this illegal distribution of their copyrighted music has given a major boost to their fan base. Individuals are now capable of downloading music by lesser known artists instantly and without paying much of a price. They now have access to melodies they would otherwise probably never have heard. These same individuals may become fans, leading them to purchase tickets to shows and/or merchandise from the band. A much larger portion of these revenues go directly to the band, giving them far more financial support. In this sense the dissolution of adherence to our current system of copyright protection has arguably aided in the success of many of these bands. Without such widespread, yet infringing, distribution of their music it is completely possible that these bands would not have as large and diverse of a fan base as they do.

Were we to adopt the idea of "musical socialism," perhaps a surcharge on top of the price of every concert ticket could be collected and added to the pool of revenues collected from the taxes on playback devices. This could help alleviate the heavy tax burden on such devices and ensure that dedicated music fans are paying more into this pool than the occasional listener. But of course implementing this system at all would require a revamping of our entire system as it currently stands, a daunting task.

Should a system of "musical socialism" prove to be simply unworkable, the fact still remains that many bands stand to benefit from the unlicensed distribution of their music through these peer to peer services. I spent the summer of 2004 interning at SideOneDummy Records, a rather successful and rapidly growing independent rock label. In a past post titled "More on An Independent Perspective," I discussed the issue with the head of P.R. and advertising for the label. He is also the lead singer for a band that had some large commercial success in the late nineties, Buck O’ Nine. He acknowledged the fact that these services have caused a bit of a drop in album sales, but they have done wonders for the dissemination of the music created by these bands. This in turn leads to more ticket sales.

The problem that remains here is the capital needed to record a professional album. This can be astoundingly expensive. As I mentioned earlier, this bill is initially paid by the label, they are then reimbursed through album sales. Without the revenue generated by album sales many bands would have no means of recording a fully produced studio album, and therefore no music to distribute digitally in order to build a fan base that would be willing to purchase concert tickets. Should we decide to adopt a system of "musical socialism" labels could be paid through the revenue pool made up of the taxes from playback devices and concert tickets. Or labels may resort to taking a large portion of the revenues from concert tickets in order to make up for all the lost profits due to a lack of CD sales. Again this would likely lead to a rise in the price of such tickets.

These ideas and comments are only applicable to the contemporary music community, where live performance is common and a large portion of the business. Labels would loose large revenues from all their old and retired artists who still sell thousands of albums a year yet are unable or desire not to perform publicly. This method would also be inapplicable to DVDs or any other copyrightable subject matter where live performance by a specific group is not a large part of the industry.

Mend It, Don't End It

Despite all the possible alternatives to the current copyright system that we have discussed this semester, no one proposal stands out as holding promise for the future of copyright.  There is difficulty in finding an alternative system that allows authors to have their constitutionally guaranteed incentive and at the same time allow for the maximum public benefit.  With ever changing technology the enforcement of copyright law is becoming more and more difficult.  In addition, the mainstream view of most media downloaders is that they are not really doing anything wrong.  This makes it terribly unpopular for copyright holders to enforce their rights by using the courts and is why we have seen so few cases filed against illegal downloaders.  Without the ability for authors to enforce copyright protection the laws become useless and the incentive for creation ceases to exist.  So what is the best plan for the future of copyright?

I feel that the best chance for the future of copyright is to take the "mend it, don't end it" approach.  The current copyright system is the best available program we have and with the continuing adaptations to technological advances it can provide the incentives and public benefits which are so important.  There are three major steps to working with current copyright law in order to make it effective.  First, copyright holders must use the current laws to there full extent in order to protect their rights.  Next, copyright holders, and in particular their organizations, must work with technology manufacturers in order to incorporate copyright protection into the next generation of media equipment and software.  Finally, legislation must keep up with changing technology in order to protect the rights of authors. 

Copyright holders must use the current law to its full extent in order to create deterrence that will prevent people from infringing activities such as illegal music downloading.  Prosecuting as many violaters as is economically viable will send out a strong message of zero tolerance and will also be a springboard to new legislation.  By using the current law fully copyright holders will have legitimacy when they seek legislative change since they have exhausted their legal remedies.  The view that breaking copyright law is no big deal is pervasive and organizations like the RIAA and MPAA are only letting it continue by not prosecuting as many violators as possible.  To date only several thousand people have been sued by the RIAA and a handful of people by the MPAA.  They are sending out the message that it is acceptable to illegally download media as long as you are not one of the big offenders.  By suing as many people as possible the organizations would send the message that even one illegal download is wrong.  This would drive many of the illegal downloaders off the P2P networks and make them use a music download service which pays royalties.

The next step is for copyrightholders and their organizations to work with manufacturers in order to coordinate copyright protection.  We have seen this work already in several ways.  Many CD players do not work if the CD does not have the proper encryption and it is the same for most new DVD players.  In addition, companies are including protection in their software such as Microsoft and the  copyright protection to be built into its new operating software.  These are just examples of how working with manufacturers can make copyright protection much easier.  Soon all CD and DVD players will have some sort of protection system installed.  As new software and hardware comes out organizations like the RIAA need to work with companies to ensure protection.  This type of cooperation could also be made law by Congress if companies are not willing to comply.  So far it seems that such an extreme is not necessary since companies are voluntarily working with copyright holders.  With technology companies working with copyright law it will be less necessary for Congress to intervene and adjust the laws.

The final step in mending current law is for legislation to keep up with the changing technology and its effects on copyright.  We spent a lot of time talking about recent copyright laws like the DMCA and potential laws like the Induce Act.  These are two excellent examples of how legislation can try to keep up with the changes.  Even though the DMCA is not perfect it offered some new protections to copyright holders.  The Induce Act is greatly influenced by the copyright organizations and the potential drafts seem to favor their rights.  Congress is clear that it will pass laws that will protect the current system and does not seem to support a major overhaul.  As long as Congress continues its dedication to protect copyright holders they will be able to adjust the current copyright law to work with the changes.  This makes the system flexible and able to change if copyright law becomes too weak or too strong.

There are many things that are uncertain about the future of copyright, but one thing that is clear is that new innovations like P2P networks are here to stay.  Copyright law has to adjust to these new changes, or be buried by them.  Declining CD sales are one tangible way to show the effect of letting people get away with breaking the law.  If we want to enjoy the level of creativity that has lead to so many movies, songs and art we must be willing to give up the easy and free ways to violate copyright laws.  And if we are not willing, then copyright holders must force us too in order to protect our system which fosters creativity and public benefit.      

A Look Ahead - Copyright in 8 Years Revisited

I began this semester commenting on a list compiled by University of Virginia Law Professor Timothy Wu that explored several possibilities of where copyright may be headed in the future.  The list contained six theories, all of which have been better clarified through discussions and posts during the semester. 

First, Professor Wu wonders if copyright will be primarily a criminal regime; it seems as if criminal punishment is thus far the only effective means of dealing with copyright infringement, and even then it lacks a "fear factor" that is necessary to enforce - and put a stop to - copyright violations.  There is no real threat of being punished! Unless you are the one in a thousand net user who is hording millions of MP3 files on your personal computer, the chance of being caught for having downloaded a couple of your favorite songs is slim to none.  Earlier this year, I noted that the time and money of our law enforcement agents and taxpayers is not best spent fighting to protect copyright law, and I still stand by that statement.  However, a "criminal regime" might be the only effective way to end copyright infringement in the future, provided an improved method of identifying and prosecuting infringers becomes the norm.

This incorporates the next item on Wu's list: a focus on control of the hardware and software to prevent infringement.  Rather than relying on the government to locate infringers and prosecute them (and finding each and every infringer, considering the broad definition now applied to the term, is impossible), it would be a much simpler and more efficient means of law enforcement to incorporate the anti-infringement technology into the copyrighted item itself.   I commented that this proposition seemed impossible considering the rate and which hackers can always find ways to "crack the code" and frustrate copyright law.  However, if copyright technology can always stay one step ahead, and continually improve itself, it can actually frustrate the hackers, rather than the other way around. 

The idea of protecting the revenue streams of DVD's, CD's, software CD's and video game CD's and nothing else is completely unrealistic.  This is not the direction copyright is headed.  If nothing else, this semester has taught me that technology is constantly improving, and what was the latest and most modern item today is obsolete tomorrow.  Copyright cannot focus on protecting technology of the past - it must focus on creating technology of the future.  A backwards looking future will only result in copyright falling out of step with all the possible means of infringement.  This falls in line with my beliefs from the start of the semester - it seems inevitable that something bigger and better will be on the market in 2012 making all of the above items nothing but a memory.  And those items are what copyright law should be looking to protect. 

Alternative compensation systems outside of the United States is an idea that is hard to side with, one way or the other.  It certainly does not seem a realistic future for copyright, however.  Compensation is the ultimate reason we are so strongly opposed to copyright infringers - people who steal music, movies and video games off their computers while leaving the creators of such mediums without their expected profit.  While this is a problem and will most likely continue to be so in 8 years, several artists have come to terms with file sharing and have embraced it, rather than fought fervently to prevent it.   This might actually be the most effective means to curb copyright infringement.  If artists and producers approach the problem with an attitude of "how can we fix this so both sides will benefit?" rather than the current attitude of shutting down all file sharing systems (and turning fans off to their music, movies, etc), copyright laws will be less of a hassle to enforce. 

Earlier in the year, I summed up by saying that to be effective, copyright laws need to be updated constantly to keep up with technology if there is to be any chance at curbing copyright infringement.  This still holds true - technology is a fluid industry, always improving on itself.  Copyright laws need to follow suit.  However, meshing the two together into infringement-free technology is a proposition that seems mutually beneficial. 

Copyright violations expand much further than just file sharing; they touch almost every aspect of modern life.  There are so many potential violations that trying to individually enforce each and every one is pointless.  The future of copyright must take this in stride, and have a forward looking attitude with regards to its infringement prosecution.   No one can really say where copyright will be in 8 years, but this semester has opened my eyes to the multitude of possibilities in store for the future, both good and bad.  Rather than worrying about how to stop infringers, thus hindering the development of copyright, we should better our technology and copyright laws, and then concern ourselves with potential violations.

Nowhere Fast?

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).   

Copynorms

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. 

The Law

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. 

Enforcement

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. 

Copynorms Revisited

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. 

Conclusion

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.

Don't Cry For Me, Copyright

Not surprisingly, the mix of 25 or so law students that spent the past semester contemplating the present and future state of copyright was unable to reach any sort of consensus or develop any coherent vision for the future. Furthermore, there appeared to be little deviation of opinions amongst individuals as the class progressed, myself included. Given this backdrop, how realistic is it to think that away from the cozy, intellectually liberating, confines of academia, businessmen with vested interests, politicians requiring war chests full of ducats in order to be re-elected, and a wide variety of divergent opinions on the part of artists and individuals, can ever converge to yield a future vision that satisfies all?

The Status Quo
What would happen if things continued as they now stand? What would be the result if nothing was to change with respect to legislation or business models encompassing digital file trading possibilities? Would the entertainment industry be decimated? The past year apparently was a pretty decent one for the recording industry, though they’ve definitely taken some hits in recent years, for a variety of reasons, including P2P sharing and other factors. Currently, the RIAA, MPAA and a large number of foreign counterparts, are targeting file traders (mostly uploaders), supernodes, bit torrent servers, and P2P networks themselves. Under the current regime, there isn’t going to be any one death blow struck against free file trading, though the content industry can and will use a variety of means to make it more difficult to use these networks to trade copyrighted files. Some P2P networks will be shut down, new ones will start up, this fact, bi-monthly rounds of lawsuits will be launched against users, all of which will tend to keep less savvy, less motivated users away from illicit file trading. The average user, who only a few years ago was shouting in caps on their parents’ AOL account, is going to be increasingly drawn towards commercial, LEGAL models, such as iTunes, Rhapsody, Napster Jr., and future ones, such as Snocap: less hassle, less risk, less thinking.

Barring structural changes, there would certainly need to changes in the business models of content providers, particularly the music industry, but should this not be happening anyway? Technology has always affected companies. Polaroid and Kodak for example, are probably less than thrilled with the advent of digital photography. Blockbuster Video is struggling to stay afloat amidst competition from Netflix and other companies with new business models, and is now making concessions with regards to late fees in an attempt to slow the hemorrhaging. With the advent of far cheaper distribution and media, the industry might increase the use of legal online distribution models if there are appropriate adjustments to their economics.

The Law
As predicted by the class, the Supremes gave cert to Grokster. This should ultimately put some much-needed teeth and consistency into secondary liability law. Companies should not be able to hide from the law by pretending they don’t know what their products are being used for. The holding and dicta of the Court’s decision will undoubtedly be analyzed to death. Will it discuss fair use? Will it add to the contours of the law set out years ago in Sony? An enlightened Court could mollify all sides with a well-crafted decision. I won’t be holding my breath though…

Future legislation is inevitable as well. Though the almost childishly drafted Induce Act didn’t make it through Congress last term, it may well rise again in some incarnation. If it doesn't, something comparable will. Industry lobby groups are not going away, so sooner or later, an excessively broad law is probably going to pass. If it is even close to being as badly written as the Induce Act though, it will probably ultimately fail to have the desired results in terms of quenching file trading. Like broad, panic-driven rules put into place in the very early days of the recombinant DNA revolution, as the fear of new strains of E.coli reigned, drastically unreasonable rules are rarely followed and generally die off one way or another, either through constitutional challenges or newer, improved legislation. 

Content and Terms
Culture is currently disappearing at a rapid rate. Simply put, works that now have little chance of being financially beneficial to copyright owners are being buried… owned but no longer disseminated. The solution to this is one of the most straightforward aspects to the whole copyright dilemma: formalities must be restored to copyright. There is no justification for the current effortless, default renewal of copyrights. If a copyright owner can’t be bothered to fill out a bit of paperwork and pay a nominal fee, then it reflects the fact that the copyright poses no value to them. The utilitarian view is to put any such copyright into the public domain, where it at least has some possibility of finding new use. From a practical standpoint, the re-establishment of formalities could be used as a tradeoff in any future concessions to the industry. Such a move would show faith to the Constitution’s IP clause. The foundation of US patent and copyright protection emanates from a strong utilitarian background,  a system that provides incentives that lead to the development of new works or products. One of the key problems with this idea however, is that relaxed formalities emerged out of the international copyright standards of the Berne Convention, thus adding players to the negotiating mix.

Random Futurama
Artists are not going to stop making music. Today's successful screenwriters and directors are not going to be flooding restaurants in search of good waitering gigs. Record stores will still be around in 10 years, but you won’t walk into a store with racks full of CDs. If CDs are still around, you’ll probably be able to listen to selections off of some master hard drive, and then burn a CD in-store for purchase. Less floor space, less inventory = lower operating costs. No more Virgin Megastores.

Every consumer’s best friend Microsoft, is going to move into the content industry when they find some juicy, under-valued record company that they think can enhance their big picture. Nobody is sitting on more cash than MS and they are running out of things to do with it. The “dismal” financial scene in the recording industry won’t scare off MS. They’ll find it financially worthwhile because they will already positioned themselves through their typical maneuvers. For example, MS’ DRM, and audio and video formats that had previously fought to have accepted as “standards” by industry bodies (HD-DVD, Blu-Ray, mpeg group etc…), will be subverted by MS, taken in a new direction as soon as they are widely accepted, ensuring that their use all but requires the use of additional MS products. I shudder to say it, but maybe they will be able to bring together a better future for the industry and the consumer.

Technology will ultimately be the strongest factor in coming years.  If efforts are made to offer the best quality recordings at a decent price using the best formats, value will trump illegal trading.  Highspeed broadband is now the norm. In 10 years, today's DSL and cable speeds will seem like 14.4 modem access by comparison.  If the industry is wise, this should equate to a massive opportunity, not a threat!

Impressions on Copyright

Here is a list of some of what I have gleaned from this course; it is by no means comprehensive.  Here are some of the issues about which I feel strongly:

Structure:

People have a right to make money most any way they like; and while ours is not a system of hyper-capitalism that much is, and should be, allowed.  Exit compulsory licensing and music socialism, neither of which could work anyway.  If you taxed products like blank CDs, etc, a compulsory licensing type system might work; but such a system would be ideologically flawed.  You would have legitimate users paying for illegally file sharing, at least in part.  Uses may no longer be “illegal”, but only because the system was changed to make them permissible.  To do so would essentially allow illegality as long as someone paid for it; to do so would violate fundamental principles of personal accountability implicit in our system.

As far as encouraging artists to create:

To assume that people may still play music despite the lack of IP protection is probably fair.  To assume that the breadth of music available to us would still be available if artists could not get rich selling their music is to live in fairly land.  And not only the breadth, but the “quality” for lack of a better word, would not be near so extensive.  Musicians would lack access to fancy recording studios, and the accompanying fancy sound devices.  The inability to make money selling music might mean that experienced music producers would become an endangered species, and the pool of people who can effectively edit, mix, or even recognize quality would be limited to the freakishly talented.  Sure some people may make a living promoting and organizing live shows, but the skill set for such a career seems to emphasize crowd control and promotion, not editing and recognizing sound quality.  Resources necessary for creating a quality product would only be available to musicians who made their fortune by means other than the sale of music…so we could all listen to “The Strokes”, but the list would not extend much farther.

Regarding Copyright Terms:

I believe that IP rights afford too much protection as firmly as I believe that IP rights should prevent things like illegal downloading.  IP should be limited not in the scope of rights it provides its holders, but instead in the scope of people to whom the rights are available, and the duration of the rights so extended.  I do not mean to imply that everyone is not entitled to copyright protection; I only mean that people who decide, or otherwise fail to renew such protection should not remain protected: maybe somebody else can do “it” better, let’s give them a chance. 

Clearly copyright terms are overextended.  IP rights should cease at some point BEFORE what might as well be referred to as “hell freezing over”.  While shortening them would help, and may be necessary, the length of the term may not be so much of a problem if the renewal of copyright was not compulsory.  The law could allow the first renewal whenever requested and as many thereafter if the copyright remained profitable as determined in reference to some percentage of the investment or $X, whichever is higher.  This way, even if there is no definite copyright term, the Constitution is not violated; terms are still “limited”, even if duration may in theory be capable of extending indefinitely (I am pretty sure this could never actually happen).  Charging some nominal fee for subsequent renewals is not a bad idea; the funds could be used to maintain online registries or copyright offices (as noted in a previous Copyfutures discussion). 

People could renew, if their copyright remained profitable, and could thus continue to make a living off of their one moment of inspiration.  Big studios might not renew; the pipeline of new and better will siphon off the need for the old and hardly profitable…and we will all be reminded that one man’s trash is another’s treasure.  The swelling of the public domain will provide people the inspiration of protected works and prevent a sort of IP “theft” that is as significant as robbing people of their ability to make a living selling music.

The future:

“What technology taketh away, technology giveth back”.  New wireless devices will make the need to own a hard copy of songs obsolete and in so doing usher in the rise of the subscription service.  Sure, in the short term, personal servers seem like an answer that would allow people to access all that they could want; but in the long term people are going to want access to more, and more diverse, information.  There will be no need to store a copy of every bit of information, when nominal subscription fees can grant you the same access.  Eventually, personal servers will only contain the confidential.

Legislation and Legal Remedies:

While technology will eventually get the music/movie industry to stop complaining, I believe that those industries should be able to enforce their rights now, through litigation.

I also believe that it is reprehensible to ruin the life of a 12 year old kid for the sake of “educating” the public-at-large (even if the ruin is created by a settlement).  The RIAA/MPAA is not endearing itself to anyone.  Anybody that knows about the lawsuits filed also knows that pirating music is wrong; bringing suit against culpable but generally decent people only fosters resentment and a desire to do the industry ill.  The suits probably encourage more pirating then they prevent.  If the RIAA/MPAA is going to prosecute, as is their right, they should make sure that the people they sue not only know that they are doing wrong, but make a living or profit (and NOT the saving-of-$50-worth-of-songs kind of profit) off of the material they plunder.  Public outcry should not be the only impediment to unabridged prosecution; parties using legal remedies need to exercise some sense of decency as should the lobbyists.  Money is to legislators what Snausages are to dogs; we all know they can not help themselves, but deep down we all also know that legislator focus should be squarely on things like unemployment, etc, etc; issues exponentially more pressing than whether, or how, we should punish some college kid for “inducing” his buddies to copy a track of “Crush” from his Dave Matthews collection.  The fact that the proposed legislation largely failed to pass does not change the fact that legislators should have not had their attention diverted in the first place.

Can't We All Just Get Along?

All our discussions, ideas, questions, and grumblings could be all moot by next year depending on what the Supreme Court decides in the Grokster case. It has been entertaining discussing and debating the future of copyrights and basically deciding that we do not know, nor does anyone else. All the theories like musical socialism and ways the entertainment industry and p2p can coexist have come up with some good points but also contained some major flaws. Is there an equitable solution? Perhaps the Supreme Court can find one that no one else has been able to find or they could add on to the problem or even worse, create a completely new set of problems. Only time will tell.

Who really is at fault for this copyrights battle? Is it file sharers? Napster? The record industry and artists? I can’t really say but I do feel as though the record industry opened up Pandora’s box when they shutdown Napster. Perhaps those old people in charge did not fully understand how the internet worked and were not familiar with this new technology. (I still don’t think they understand today) Obviously they did not realize how easy it could to create a file sharing program and mass distribute that so that everyone could use it. If a nineteen year old could create Napster, imagine experts creating a more sophisticated program and that are exactly what has happened. Napster was a gold mine for them to take control of and use it to their advantage. Napster had valuable information of millions of users that the record industry could have used and profited from. Now they are not only fighting one business or corporation but millions of small businesses because a personal computer can serve as a creation center and distributor.

So what now? What possibly can the entertainment industry do to stop copyright infringement? I have some ideas but it is going to take some time to develop. I do not think there is one quick way to resolve this issue even with when the Supreme Court decision comes out.

First of all, they are going to have to realize that they will not be able to stop p2p sharing. No matter what they do, some form of theft will occur. So they will have to work with p2p and finds ways to manipulate p2p instead of eradicating it.

A deal could be struck with ISPs and entertainment companies to have a monitoring system. Something similar to what goes on at universities. But this seems highly unlikely.

I know we talked about this in class, and it would take time, but it could work if they were willing to persevere. The entertainment industry could strike a deal with the hardware companies to install software that will recognize and only play music or videos that comply with copyright laws. This could take 5, 10, or more years but they failed to see the long-term effects of shutting down Napster. Copyrights is going to be a long drawn out battle. And studies have showed that the music industry has not lost that much revenue since p2p has been out. In fact there are other reasons why the decline in profits has happened such as rising cd costs. Then the argument is well what about pre-existing hardware that plays copyrighted material. Well, 20 years from now, eventually, people will need to get the new technology to play the present music or dvd or video. No one really has a tape recorder or going back even further, A-track tapes. Beta is long gone. So if people really want to protect copyrighted material, then they are going to have to change the technology even if it takes a long time.

Online music is gaining momentum and could foreseeably take control of most of the music sales. Record companies could abandon cds altogether and go strictly online. Then they can encrypt the music that goes out. They could also do something similar to what Apple and iPod does that if you download from iPod, you cannot transfer that but only can play that song on your iPod. Record companies could venture with hardware companies so that the hardware will have to comply with the software. This is similar to my suggestion above about changing the technology.

These are some of my suggestion. In all honestly, I have no clue what I am talking about. This is such a complicated issue with so many variables. You think you found an answer but then all these questions and problems start to pop up. I want artists to be paid but I also do not want p2p to go away. Can’t we all just get along?