Copyfutures

Can I Call This a "Solution" if I Don't Think There's a Problem?

    It seems as if no one in our class likes the current copyright regime.  What I find most interesting, however, is what we identify as its problem.  Some think the problem is that the regime is too restrictive, and concentrates too much power to a few large corporations.  Others think the problem is that the current regime is so easily, and repeatedly infringed upon, with little consequence that it's viability is in question.  I tend to agree more with the latter than the former. I will focus exclusively on the relationship between digital media copyrights (specifically music and movies) and P2P, the area we spent the most time on and also the most interesting.  I may post more, but this post will serve as my "final post" wherein I identify the problems I see with the current regime (including their tactics), and offer a practical solution on how to remedy them.

    The biggest problem I see with the current copyright regime is that it is so easily and repeatedly violated that I fear the content providers will seek to regulate emerging technologies in some way.  And succeed.   We may  feel smug in our "knowledge" that the "horse is out of the barn," but  content providers don't appear to uniformly hold this view.  Also, history shows the content industry isn't shy when it comes to prosecuting and regulating enabling technologies (Betamax, Napster, Grokster, INDUCE, etc.). 

My solution for content providers is three-pronged:

1. Selectively sue infringers
2. Tell your story more effectively
3. Cut prices

I. Selectively Sue Infringers

    Even at this late date, many people do not think of downloading content for personal use as "stealing."  This doesn't much matter so long as they know it's illegal and will be punished for it.  A recent Harris Poll  of 2,306 adults revealed some disturbing results:

Fully three in four adult Americans (75%) agree that "downloading and then selling the music is piracy and should be prohibited, downloading for personal use is an innocent act and should not be prohibited."

This is consistent with a Harris Interactive survey of teens released in October 2003 which showed that roughly three in four teens feel that downloading music files without paying (74%) and letting others download files from them (78%) should be legal.

Nearly two of three adult Americans (64%) agree that musicians and recording companies should get the full financial benefit of their work. (all emph. added)

    Certainly I can't be the only one who finds it strange that 75% of respondents would simultaneously believe that "downloading for personal use is an innocent act and should not be prohibited" and, that "musicians and recording companies should get the full financial benefit of their work."  If we're to assume - correctly, I might add - that the extent of the financial benefit musicians and record companies receive is almost exclusively a function of the legal rights afforded them, then this these two beliefs are contradictory.  Musicians and record labels   I suspect that most people don't view copyright law this way. 
   
    The majority also agreed w/ the first part of the statement that, "downloading and then selling the music is piracy and should be prohibited."  I think most people feel that if someone were to do this, they would receive the financial benefits that rightfully belong to the musician and record labels, thus depriving the rightful parties of that financial benefit.  I think  those same people feel that when they are "downloading for personal use[,]" they are committing an innocent act because they are not receiving any financial benefit.

    Content providers should file lawsuits against the largest individual infringers on the sharing (supply) side.  Fellow classmate, Tommy O'Reardon, has a similar proposal.  He seems to have been met with more skepticism, resulting in a post titled, "Why won't anybody listen to me?"  (I'm listening Tommy!).  Lawsuits would serve two purposes: (1) Reduce the number of large file-sharers, thus, reducing the number of copyrighted files on the network and (2) Educate the public that downloading or uploading  copyrighted content, even for personal use, is a crime.

    In, "Reducing Digital Copyright Infringement Without Restricting Innovation," author Mark Lemley states:

While the number of users of p2p networks such as Morpheus and (before the injunction) Napster is massive, the overwhelming majority of those users engage only in downloading. Indeed, by one estimate, 3% of the users of a p2p network upload 97% of the files on that network. These high-volume uploaders also seem to be the users most likely engaged in uploading illegal content, rather than providing access to legal files. They are easy to identify, both because they will repeatedly appear in content searches and because many run so-called "supernodes" that facilitate fast downloads.  (emph. added)

     While the exact effect is unknown, a likely drop in file sharing would occur.  The only question is how substantial that drop would be.  The content providers need not sue every infringer - a "solution" that many have rightfully criticized as impractical - to substantially reduce infringement.  The secondary effect would be to scare current uploaders to stop, as individuals benefit little from uploading.

    George Mason University Economist, Tyler Cowens, argues that, the lawsuits aren't done to scare off downloaders (a point I disagree with, if not in intent, at least in effect), but rather they are:

about spreading the idea that downloading is wrong and illegal... think of the lawsuits as one way to buy space in the newspaper, but without paying advertising rates.

    In a later post on his blog, Marginal Revolution,  Cowens gives us the bottom line:

I see the music companies as trying to hold back a new commercial norm. Specifically, the music companies are trying to maintain the old norm that you should always pay for music.

Two years ago most [American] downloaders did not know that their activities were illegal. Few uploaders felt guilty about making large numbers of songs available for free on the Internet. It was viewed as akin to lending your CDs out to your friends, except that the "friends" here were both anonymous and large in number. "Art should be free," right?
...
The music industry knows that the long run will bring a network of free music. It knows that free music may have illegal status, a "grey" status, white status (recorded from the radio), or perhaps be pirate (from abroad) but not illegal in the actionable sense. But there will be two networks, a pay network and a free network.
...
The music companies - present and future suppliers of the pay network - do not wish to face a ten year period where everyone is used to getting music for free. They do not want an entire generation to grow up thinking of music as a free commodity. They do not want hackers and illegal downloaders to become established as folk heroes.

Once commercial norms become established, they are difficult to dislodge. We are all used to breathing air for free. Imagine the response if suddenly we had to pay for air as we now pay for ice cream cones. Maybe the air would have a better quality and the price would be very low. Still I predict there would be a public outcry....  They cannot live with a norm that music should be free.  (emph. added)

    This ties back in to that other horse, still in the barn.  This is the single most important tactic that content providers must implement.  The MPAA is has announced that it plans to sue infringers, a decision partly based on what they saw the music industry go through.  The MPAA believes that the RIAA acted too slowly in filing civil actions against infringers, resulting in unnecessary losses.  They also believe that the the music industry's recent uptick is in some part due to the RIAA's renewed vigor in pressing ahead with lawsuits.
   
    Almost every foreseeable consequence from filing suits favors the content providers.  There is very little downside to this tactic because in reality, consumers have little else to choose from.

II. Tell Your Story More Effectively

    America's media companies are the richest, most influential, and most effective in the world.  To gaze across the global expanse is to witness American cultural hegemony, in large part shaped by these media companies.  Which is why I am always surprised at how inept and ineffective their anti-piracy advertising campaigns always turn out.  Content providers should leverage their natural institutional skillset, emphasizing storytelling.
    Show real individuals - no millionaire rap stars, please -  that were really harmed in some way and tie that back to downloaders.  At the same time, dramatize a real life lawsuit that will be prosecuted without mercy to show what can happen to violators.  Make an example out of a particularly egregious violator and explain that anyone could be next.  And then prove it by dramatizing a real court case against an "average Joe" or "average Jane."

III. Cut Your Prices

    Content providers will have to accept the fact that they can not completely stop P2P infringement.  In turn, they can no longer depend on their traditional distribution channels to provide the revenue streams they once did.  This does not mean, however, that content industries are headed towards inevitable decline, but it does mean that they will have to compete with P2P in the short term until they can innovate new channels and/or mediums.  The DVD is a great example of this innovation.  The new format / medium enabled content providers to generate nearly pure profit via the reissuing of hit films from their catalog; films that were producing little or no revenue prior.  The same Harris Poll cited above also shows:

[A]lmost... 70% say, "If the price of CDs was a lot lower, there would be a lot less downloading of music off the Internet."

    The hope is that lawsuits, coupled with a "good cop / bad cop" media blitz should make illegal file sharing much less attractive.  However, most of the hesitation towards file sharing  should be as a result of fear of punishment rather than some moral epiphany from the ad blitz.  I have no delusions that the 75% of the population who think that "downloading for personal use is an innocent act and should not be prohibited" will now view their actions as culpable of deserving of prohibition.  When consumers have only two choices, as they do here, the attractiveness of either option is a function of the other.  If content provider, for example, were to implement a five fold increase in prices (e.g. $55 movie, $90 CD) at the same time, file downloading would appear much more attractive, especially to the large segment of the population that was effectively shut out from the legal market.   

    For the short-term (1-4 years), content providers should cut their prices 15-30% across the board.  This will have several effects:

1. Welcome Back!  Lower prices would soften the financial blow to those consumers that are being (re)-incorporated back into the legal market - helping to ease them (back) into the habit of paying for content.
2. It makes P2P less appealing, legal content more appealing: See above
3. It serves as a gesture of goodwill.  We punish those who cross us, reward those that are loyal.
4. Keeps "grudge factor" down.  There is a small segment of the population that possesses the technical skill and resources necessary to create very good P2P software.  Let's say one of these people were to develop an alternate program that closed all the loopholes that content providers had been currently using to identify infringers.  This would be an expensive setback until alternate means could be found.  In the meantime, content providers would have to fight the spread of this technology, losing money all the while.  The hope is to reduce the number of people who would do this - out of spite, or a sense of being wronged - from the subset of people that are capable of doing this.  Equally important, it serves as a hedge against wide adoption from the consumer base, so that even if a new P2P technology were to come out, the hope is that they will be used to paying what they believe is a fair price for their content.

After that, well, there should be some other innovation that makes these technology specific problems moot.

 

 

 

 

 

 

 

 

There was more than one horse in the barn!

        We've heard repeatedly that "the horse is out of the barn."  This phrase is used to refer to the proposition that because P2P and Internet technologies have such a large adoption rate, and are so easy to vary, any technology-based attempt to prevent infringement are futile.  This should not be taken as fact though, it would be possible to regulate at least domestic infringement if Congress were to adopt some extreme policies.  One easy way would be to impose a duty on every ISP to ensure that no copyrighted materials travel on their network except via a specifically authorized port requiring prior notice to the ISP.  From a realistic perspective, this is unlikely to happen, we can throw the phrase around w/o consequence.

    However, that's only one of the horses.  If our end goal is the prevention/reduction of copyright infringement, we can extend the metaphor a bit further.  The horse that hasn't quite made it out of the barn is the social norm of paying for music.  P2P has only been around for 6 years, and it's high popularity has probably been the case for only the last 4 years.  I was 11 years old when I made my first music purchase (Gun's n' Roses, Appetite for Destruction - laugh away!).  Using Kaus's Theorem (I'm not unique, many people must be like me!), we'll assume that people generally start buying music around 9-13.  People who illegally download music today have most likely been doing so for only 4 years or less. 

    Music consumption, at least prolific music consumption (not necessarily purchase), typically occurs during the adolescence and early adulthood.  Record companies are under pressure because they recognize that it's not too late to re-socialize current P2P infringers to the norm of paying for music.  My concern is that the passage of time, coupled with a weak response from record companies during this time, will cause a generation of potential customers to believe that music should be free.  They will never, or only rarely, experience the act of paying for music, and in turn, will come to think of music as a free commodity rather than a valued good.

    This is the horse that really matters.  Perhaps you can accuse me of 20/20 hindsight, but I never thought that the solution was going to be purely technology-based.  More realistic would have been a government mandated technology standard, but fortunately, the CEA has successfully kept that "solution" at bay.  Software (P2P technology) is essentially information, and when coupled with the Internet, the result is a viral technology that is near impossible to stop.  We haven't been able to stop the distribution of strong encryption programs, a tool undoubtedly used for terrorist communications.  Likewise, we were unable to stop the dissemination of our nuclear secrets, which is arguably more important than copyright infringement.

    We must remember that any government attempt to hinder the development and spread of "bad" technology while enabling the growth of "good" technology is likely to have unintended consequences.  This is because government only has blunt tools at it's disposal; the Betamax case should offer easy proof.  That is a slippery slope not worth traveling down. 

    Technology has transformed our lives, mostly for the better.  It has enabled us to do great and terrible things.  The 9-11 hijackers went to travelocity.com in order to pick flights that had a low number of passengers so that they could more easily control them.  Travelocity provides real time data on passenger loads.  Good for us when vacationing, but good for terrorists also, when planning an attack.  Yet no one blames travelocity, and rightfully so. 

    The Internet was originally created so that our defense networks could continue to communicate with each other in the event of a nuclear attack.  In its early incarnation, it was a four node network between four universities, and primarily used by academics to collaborate on projects.  No one foresaw the tremendous potential the Internet held, and that is to be expected.  We shouldn't hinder the development of certain technologies simply because of how some choose to use it.  We should punish the act, not the technology.  When someone is murdered in a shooting, we don't punish the gun. Oh, wait...

Towards a New Copyright Regime: A Modest Proposal

Note: This post represents my proposal for an ideal copyright regime, free of any political considerations with respect to feasability of adoption.  My later post will differ in that I will advocate the use of  certain tactics by content providers, who, on the whole, I tend to support more than those who oppose them.

    "Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." So begins this post by Prof. Cass Sunstein, quoting J. Holmes in INS v. AP. Although Sunstein’s post is on a different topic, he explains the quote:

“What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact.”
…

“Property rights, as we enjoy and live them, are a creation of law; they don't predate law.”

    Like Holmes, I take this as simply a matter of fact. It is the foundation for my proposal so if you disagree, you’ll have to play along for this post to make sense. Property rights, whether in real or intellectual property, are not “natural rights.”  Private property rights (aside from the Crown) is a relatively young idea and practice; the notion of property rights in IP even younger. This proposal is aimed at works that can be digitalized and easily and widely distributed; namely music and movies.

The 2 questions I’ll try to answer are:

1. What is the goal of copylaw?

2. What regime would best further that goal?

First Things:

    The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their writings. U.S. Const, Art I, sec. 8.

    Even though this proposal is an ideal one, free from political considerations, I’ve restricted myself from any solution that requires modifying the text of the Constitution. Since we’ve covered this in class, I’ll exclude any detailed discussion. Like real property rights, the goal of copylaw is essentially a public policy argument, “To promote… the useful Arts.” The usefulness, or utility, of a particular work varies depending on the person deriving utility. I find Milli Vanilli’s most recent album "useless" in this sense.  Perhaps you agree...

    In this light, my proposal serves a pure public policy goal, concerned only with maximizing overall utility.  While imperfect, I offer the free market system as the best mechanism to measure the utility, or value, of any particular piece of IP.  Simply put, the goal of copyright law is to make the most money possible for society as a whole.  Of course, we have to take into account fairness norms; we couldn't, for example, revoke someone's copyright simply because we thought they weren't maximizing the utility of a particular piece of IP.  In this sense, the proposal should greatly reflect the society's current notion of private property (and IP) as a natural right.

    We’re limited in our means: “securing for limited Time to Authors and Inventors the exclusive Right to their writings “

    Implicit in the text is the notion that a grant of exclusive right in a work – essentially,  the exclusive right to profit from ones labor – is an incentive that encourages the production of more “useful [a]rts” by society as a whole. This gain must be balanced against the lost potential gain the public bears for the duration of the copyright.  For example, George Clinton may have written a song back in the 70's that is no longer sold anywhere.  The Backstreet Boys may want to sample a riff from that song in order to create a new, hit song.  Clinton could refuse to sell the right to sample that riff, even if offered $1 million, and society overall would be poorer for it.  Following my proposal to an extreme conclusion, the governement would be authorized to rescind the right of exclusivity from Clinton and grant permission to the Backstreet Boys to use it.

    But this is an individual case, and even though we don't behave rationally in every instance, on the whole, the market behaves both rationally and efficiently.  Most people could be offered some price that they would agree to so the fact that there are some instances - and there always will be - where the market is not efficient does not show that the overall market system is inefficient.

    My argument is that an exclusive right to profit, for a limited time, from a piece of IP is the regime that would best serve the goal.  The time should be limited to 70 years from the time of creation (roughly one generation), however, this is not to be applied retroactively.  I support this long duration because certain works and brands possess great value and reflect a substantial investment on the part of the copyright holder.  Disney holds copyrights to their many characters and their movies, which they have invested a substantial amount in.  Protecting their ability to profit from this work is in society's best economic interest - unless you believe that society at large would be better able to generate revenue from Disney's copyrights.

    Registry: There should be a registry of all works copyrighted, more to serve notice to potential infringers than anything else.  However, the registry should be free, much like the "Do Not Call" registry.  This is to prevent an undue burden being placed on individuals who create IP.

IP Protection: A Thought Experiment

In order for IP to possess value, it needs to be made concrete in a physical medium.  I've categorized IP into two basic types, based partly on how the IP ultimately derives its value when it takes physical shape.  The two types are:

1. IP that has value, regardless of - w/ithin reason - how it takes physical expression.  If you purchase an mp3 tune, you can put it on your PC, laptop, iPod, car sterio, etc. and it will maintain it's utility for you (assuming you bought a song you liked).  This is what we've spent most of our class on; basically, anything that can be considered "content."  You can think of this like cash: stored value.  Trademarks belong here too.
2. IP that requires specific physical steps before deriving value.  Patents belong here.  You'll need, for example, to follow specific manufacturing steps in order to derive value from my newly patented cell phone design.  I know that you can simply resell the design - for a profit, possibly - but here we're talking about how the IP ultimately derives value; at some point someone will have to actullay make the damn thing in order to realize a gain. 

Most of our discussion has been focused on the first type.  Both are important, however, but I believe the second type will eventually stand out as the most impornt for us in the upcoming decades.  My thought experiment is of the second type:

Suppose I have recently discovered a method to cheaply manufacture Lipitor, a chelosterol lowering medication,and one of the best selling prescription drugs on the market today.  All the equipment and base compounds needed are readily available at any scientific supply shop.  The equipment will cost $100 initially and the base compounds will cost $10 the first month and very month thereafter.  Currently, Lipitor will cost you between $140 to $240 a bottle, even at a discount Canadian online pharmacy. I start with the same base chemicals, a different process, and end up with the identical active ingredient (which is patented, as well as their own process).  Also, the process is unbelievably simple!

Pleased with myself, I post detailed instructions on how to do duplicate this proess, along w/ links to sites where the necessary equipment can be found.  I only ask that they affix a sticker on their device that says, "Peter's Home Lipitor Kit!"  (Please ignore any other legal issues here, such as FDA regulations and the like; this experiment is meant only to to focus on IP issues.).  My kit is such a hit that virtully all Lipitor user switches over to "Peter's Home Lipitor Kit."  Lipitor brought in $2.36 billion for Pfizer, accounting for 19% of revenue in Q2 FY'04.  Due directly to my success, Q3 and Q4 of FY'04, saw Lipitor generate only $20 million in revenue.  Moreover, my success has inspired many amateur scientests to experiment on their own home drug making kits with other popular drugs.  So far, home manufacturing methods have been found for Viagra and Prozac, with similarly devastating losses.

Industry leaders focus all their efforts on combatting this new threat.  Some want to step up the effort and sue more sites that host directions while others, fearing that most P2P networks already have millions of copies available,  want to take a more aggressive tactic: lawsuits against individual manufacturers.  The best in Madison Ave. is enlisted to educate the public on how much home drug manufacturing hurts the industry.  Smart and well meaning Law Professors at top institutions write law review articles arguing that the solution is "Medical Socialism."  Scientific research institutions, private and public, protest that taxing things like beakers, flasks,  and pipettes - very common items for chemistry - unfairly burdens them.  The more conspiracy-minded suspect the HMO's are conducting the reserach behind the scenes and leaking the results.  All the while, middle-aged men with high chelostrol hold hands in solidarity, proclaiming, "Yu-shen-ko!  Yu-shen-ko!" "information wants to be free," and "Down w/ith big pharma and corporate greed!"  All are in agreement that "this is the future of medicine."

Most people would agree this type of home manufacturing, independent of safety concerns, should be illegal.  If not, at least you agree that not many of these Lipitor examples could happen in real life w/o big pharma going under and/or the FDA reducing testing standards to near nil.  I argue that this hypo is similar to illegal file sharing in the most important way: Someone is unfairly gaining without payment from the profit-driven efforts of another.  It doesn't matter that the good here is non-rivalrous - the "but for" reason the drug exists is the expectation of profit.  The average cost to take a drug to market is $800 million.  Seven out of ten don't recover their average cost.  If this Lipitor hypo hit the top 20 drugs on market, there would soon be nothing left to copy as R&D funding pipeline dries up.

The content industry and pharmaceutical companies are not identical, but in the hypo, I've removed the biggest difference; making your own Lipitor is only slightly harder than burning your own CD.  Here, all the same logic applies: I own all the equipment, I'm not dispossessing anyone of anything so there's no theft, it's non-rivalrous so no problem of wasting, plus, less people with high cholesterol.  But this ignores the tens of millions of dollars invested in human trials necessary for approval so that when someone (correctly) "pirates" an existing drug, they can take it knowing they won't simply drop dead.  They have essentially gained all the benefits of hundreds of millions of dollars invested in research and testing, as well as the institutional approval of the FDA for free. 

But maybe the big difference is that musicians will make music anyway, because they're artists and will derive personal utility while pharmaceutical companies lack something analogous.  While it's true that there will always be people who make music simply for personal utility, there will be, by definition, less musicians overall, and our access will likely be more limited.  For the most part, the CD's available at Tower Records and the songs available on iTunes primarily represent the effort of the record label.  This is because the majority of the value is derived from making potential buyers aware of the product and making it available for purchase.  Record labels must provide some value add, or bands wouldn't keep signing with them when they can start their own.  Three notable musicans: P. Diddy, Master P, and Jay-Z all started their own labels and have an average worth of about $300 million each.  Big pimpin' indeed.  But they are the exception, not the rule.  The ability to make music and the ability to make money from music are two different skills and the reward structure properly reflects this. 

One Man's Trek Through the Copyright Forest

With this class nearing its end, i'm tempted to try and grasp the big picture of copyright.  Not so suprisingly, I find that my vision of it is blurred.  And I think I know why, or at least, part of why this is so.  Like any picture, the finer the pixels you start with, the clearer the picture taken as a whole.  Thats why you've got so many people buying 4 megapixel cameras nowadays to take pictures of their dogs dressing up in little costumes.  That and blatant consumerism gone mad...

While i've absorbed a great deal of insight regarding the present and future of copyright, i'm not sure how to digest water wells and musical socialism.   And while INDUCE now has a most horrible connotation attached to it in my brain, Sony exemptions and CEA and BSA and DRM and...*trails off*... and DMCA and the Coase theorem- well, none of it really settles in yet.  I've got the pieces, i'm just not sure where to start putting them in.  I feel akin to a toddler trying to jam the blue triangle plastic piece into the red circle hole, certain that it will fit this time. 

And by now youre probably asking "yeah but why do we care?"  I dont know- really this post is just me struggling with conflicting ideas.  But what really got me thinking again was this article-originally posted by Tommy O'Reardon.  Its main theme is plagiarism- which is copyright related, though not on-point as much with the direction our seminar is headed (and if you want the lowdown on the article's significance, Tommy has it covered).  Even so, plagiarism got me thinking about morality, and of course at the heart of copyright morality is what Professor Solum so cheerily refers to as copynorms.  Yes, I know we've discussed these in class, and even here on the blog.  However, when the topic came up, I grudgingly admit I was a bit dismissive of it.  Not in the "oh it doesnt matter" sense, but more in the ridiculous obviousness of the idea.  Except that maybe it isnt so obvious.  Taking the most extreme example,  killing someone is morally bad.  We know this (well, the Dahmers and Bundys of the world aside).  Stealing is also morally wrong.  Its in the Bible.  Its codified law in every imaginable country.  And in the world of copyright, it seems as if copynorms have been generalized to give the same stark contrast.  Is it morally wrong to copy someone elses work?  In the p2p context, its called "stealing."  In the literary world its plagiarism.  The funny thing to me is- why does plagiarism feel like the worse evil?  To put it a slightly different way, i'm much less offended by someone downloading copied songs online, than someone using a passage of a writing as their own.  In fact, p2p sharing doesnt bother me at all. 

Why is this?  Why such disparaging levels of moral culpability within the confines of copyright?  I think the problem is two-fold for me.  The first has to deal with the nebulous nature of morality and copyright.  As Malcolm Gladwell so astutely pointed out in Frozen:

"Intellectual-property doctrine isn’t a straightforward application of the ethical principle 'Thou shalt not steal.' At its core is the notion that there are certain situations where you can steal." 

By and by, this is a true statement.  Copyright protection is limited- copying itself is not illegal per se, but depends on what and how much.  I can sample a 4 second clip from a song and put it in another song (for the most part-though courts nowadays are a bit confused on how much sampling is legal), but I cannot sample the distinctive intro/main riff to the "Rocky" theme and call it my own- that would be "stealing."  A tangent of this "moral indistinctness" in copyright also surrounds the use of the word "steal."  In IP terms, a person really isnt stealing anything tangible- its not as if i am taking your couch and thus depriving you of sitting in it.  As Lawrence Lessig illuminated in Free Culture:

"The point instead is that in the ordinary case—indeed, in practically every case except for a narrow range of exceptions—ideas released to the world are free. I don’t take anything from you when I copy the way you dress—though I might seem weird if I do it every day. . . . Instead, as Thomas Jefferson said (and this is especially true when I copy the way someone dresses), “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

So, to return into the virtual world of p2p, my act of downloading a song does not take that song from its owner, nor does it deprive someone of its use.  And yes, we all know this.  The real deprivation, in particular in a p2p context, is fiscal.  An act of sharing is (at least the RIAA would like to argue) stealing the economic benefits that creators need for creative encouragement.  This confusion is all a product of the "propertization" of ideas that has transformed Intellectual Property law into, well, Intellectual PROPERTY law.  So not only do we have a body of law that one the one hand says its morally wrong to steal some things but not others, but we also have a different codification of the term "stealing."  Its not stealing in a traditional sense.  And that should affect our decisions on the morality of copyrights.

This ties in (albiet with a little circularity- sorry but my ideas on all this are just as tough to grasp and put in type as the topic itself) with my second problem.  It appears to me that the reasoning behind copyright protection- the incentive to promote creativity and invention- has a lot to do with morality and copynorms.  The ideal behind protection of creations can be looked at from two perspectives- an economic incentive and an "identity of authorship" incentive.  Copyright protection at once does two things.  One, it allows the creator to secure a limited monopoly financially in his/her creation.  But it also attributes an authorship identity to the piece- for instance, when I write a song and copyright it, not only do I secure a financial stake in the music, but a personal one as well.  My identity as the author of said piece is also protected to some degree- in the case of a novel, no one can copy a chapter of my book and put it in theirs, claiming it as their own.   

Which one of these protection incentives is really the basis of our moral decisions?  Are we more offended if someone copies a book digitally, reprints it and puts his name on it? Or someone who downloads a song, but doesnt claim it as his own?  In other words, as the artist/creator, wouldn't you be more offended if someone claimed your work as theirs, rather than someone copying your work to enjoy it themselves?  It appears to me, as a sometimes-aspiring oftimes-struggling artist myself, that identity of authorship is the protection that matters the most.  It wouldnt stop me from creating music if I found out someone else was illegally sharing my music, robbing me of the economic benefits of selling my cds.  However, if every time I created a piece, someone else took that and put their name on it and started selling it- well, that would definitely impinge upon my desire to create.  And maybe i'm too idealistic in this, but I think the true drive in creating music, movie or book isnt money-based as much as it is personal-based.  More vanity than greed I would say.  To know that a piece is identified with me is a much deeper satisfaction than the economic gains derived (though those would be satisfying as well). 

What does all this mean?  Well, for me, it answers a tiny part of the question of why I have such a strong viewpoint on the moral wrongness of something like plagiarism, and yet see p2p sharing through rosy-colored glasses.  I believe that the reason music, movie and art should be subjected to some sort of copyright protection is to protect the creators personal identity within that piece.  Unfortunately, with the rise of art as a big commercial business, a lot of the copyright holders now (mostly big companies) dont see the same duck.  A record company will hold the copyright to a song, but will have no care for any identity of authorship concept- they're just concerned with makin the bennies.  p2p file sharing doesnt destroy my indentity in a piece- all it does is (maybe) affect my economic stake.  I believe that identity of authorship does more to encourage and promote invention in copyright related arts (music book movie art), while perhaps economic incentive might be better used in patent law- where the costs of creation can be so great. As such, p2p seems like a small evil to me- a necessity in the exchange of free ideas.  But of course the RIAA and MPAA think different.       
If youve gone this far with me, kudos.  My point in all this babbling was that I cant very well decide what legislation is best if I cant even decide whats wrong and right in the copyright world.  The initial conflict in morality within copyright is whats causing such a blurred final picture.  And I think thats part of why copyright law is in such a state of flux right now- p2p has got us looking at the individual pixels of copyright protection.  And we're still questioning these initial building blocks.

Is It in Fact Possible for Copynorms to Change Copyright Law?

Today’s copynorms are relatively positive towards P2P filesharing. Studies show that it is socially acceptable to violate copyright law by downloading music and movies from the Internet. It is less acceptable to upload music, but still not to the extent that it is generally unacceptable. Most people believe that it is OK to upload music to share with others to a certain extent, but that it at some point can become too much.

The question is, can copynorms in the population really result in a change in copyright legislation? If the public think filesharing is OK, and therefore does a lot of filesharing, which is almost impossible to strike down with lawsuits and criminal prosecution, will the legislators give in and make filesharing legal (or make lawsuits against filesharers more difficult)? Even though the population in general believes that there is nothing wrong with illegal downloading of MP3 files from the Internet, some very powerful interests are lobbying for keeping filesharing illegal - and possibly making punishments even more severe. These interests (the RIAA, the MPAA and the APA) will not easily let someone take away parts of their profits.

But what happens when the P2P-generation grows up? A Pew Internet Project Data Memo about filesharing shows, that 72% of young people between the age of 18-29 who are online say that they don’t care whether music they download is copyrighted or not. For full time students, the number is even higher - 4 out of 5 full time students say they are unconcerned about the copyrights of the files they download. These students will some day become legislators and judges - and copyright owners.

It is possible that those who become copyright owners themselves will change their own copynorms, and start to think that illegal filesharing is wrong. But they may also have a different perspective on filesharing that the copyright owners today, because they grew up with filesharing, and considers it normal, and be open to other possibilities than just suing people who share files over the Internet.

It is even more possible that the students of today, who become judges and legislators, will have a more positive view on filesharing. They may not believe that suing filesharers for hundreds of thousands of dollars is a reasonable way to go.

On the other hand, they may still be what most people are today - driven by the prospect of making more and more money. They may still be in the pocket of the music industry, who is also focused on making money.

However, it will be hard to ignore the general public opinion, as the P2P generation becomes older. If 99% of the population believes that there is nothing wrong with filesharing, the politicians will have to take this into account.

One can make the argument, that just because the majority population believes something illegal should be legal, does not automatically mean that the politicians will make it legal. Most of the population believes that there is nothing wrong with driving (a little) faster than the speed limit. But that doesn’t mean that the politicians will raise the speed limit. But speeding and filesharing is not the same thing - at all. Speeding can cause accidents, damage to property, and in the end peoples lives. Filesharing cannot. Plus, if the technology and design of cars change for the better, so that it is safer to drive faster, the speed limit actually will change. This has happened in the past.

I think it is likely that some changes will happen. The amount of money the filesharer can be sued for, might be lowered. Some of the lawsuits we see today seem ridiculously large. Or it might be possible download a certain amount of MP3 files legally, so that the individual can have for instance 3000 songs on his or her computer before it becomes illegal.

I do, however, not believe that copynorms can make filesharing become totally legal - at least not in my lifetime.

MPAA introduces new Chairman & CEO: Dan Glickman

Dan Glickman, former Secretary for the US Dept. of Agriculture under Clinton, has been named as Chairman and CEO of the MPAA.  C-SPAN - in my opinion, the best thing on TV, has video of his meeting with the National Press Club, discussing, "The Motion Picture Industry in the 21st Century - A New Golden Age?"  NOTE: If you're having trouble viewing the video, go here.

I'm unable to find a transcript of the meeting, so you'll have to go off my hand transcription.  This discussion provides some.  This NPC discussion provides tremendous insight into how the MPAA views copyrights, their violation, and their strategy to combat it. 

Some noteworthy segments:

9:02: "These same forces threaten to unlease a wave that will undermine the very foundation of moviemaking."

This is the scope of the threat as viewed by the MPAA.  Quite large, and rightly so.  Cites the difficulty the music industry is undergoing and says he wants to make sure the movie industry doesn't go through the same thing.

10:00: He cites the notion that because they create IP rather than something we can touch it feel, it confuses people into thinking it's OK to download it.

10:43: "Downloading a movie of the internet is just as serious as walking out of Blockbuster w/ a movie under your shirt."

A lot of his speech sounds like what we've gone over in class: Non-rivalrousness (though he doesn't use that word), the viral nature of the internet, high speed access as a cause, etc.

He also announces that the MPAA is going forth with lawsuits targeted at people who share movies online.  The approach for the MPAA appears to be two-pronged: educating the public, especially the youth, that piracy = theft and litigation against pirates.

He states that the average movie costs $103 million to produce and market and 4 out of 10 movies don't recoup that cost.  See Glitter.

In a related note: In an interview w/ USA Today, the following was asked:

Q: Can piracy be licked?

A: We can stay ahead of the game, and we can make life very difficult for people who want to break the law. Will we totally obliterate piracy? No. But we have to make it as difficult as possible.  [emph. added]

Listening For the Right Reasons

Wired News ran an article yesterday about Free Culture...no not the book but the group.  As can be read in their manifesto, the mission of Free Culture is "to build a bottom-up, participatory structure to society and culture, rather than a top-down, closed, proprietary structure."  Nelson Pavlosky, co-founder of Free Culture Swarthmore is hosting a free culture fest this week to promote his group, educate college students, and get people involved. 

Free Culture follows in the footsteps of groups like Creative Commons and the Electronic Frontier Foundation.  But Free Culture is aimed more at young people."The (Electronic Frontier Foundation) and Creative Commons are doing really good work, but people our age don't seem to know about it," he said. "If we could show (students) how this is relevant to their lives, they would be really excited and involved in the movement."   The group basically wants young people, college age students, to take notice of copyright issues and get involved.  This free culture fest involves various activities like Project Undead Art, which challenges students to remix the public domain work Night of the Living Dead, and various speakers. 

I genuinely think that groups like this are a great idea.  Anything that gets young people aware of issues that affect their daily lives can't be a bad thing.  I am just a little worried that the majority of students will be missing the big picture.  Pavlosky recognizes some of the misconceptions that people may have about this group.  "The danger we face is being labeled rich white kids who want free music," he said. And he is correct.  Someone threw up a rather negative post on the group's blog recently. It said this...

"Culture is everywhere… Not only is it free, but we can’t possibly avoid it. Some movie or song might be an aspect of culture, but it doesn’t equal culture. I’d recommend renaming your movement 'Free Stuff for Rich White Kids.'"

This is a harsh comment, but one that is probably a valid concern for many people.  The main reason is that with our current copynorms, many of us have become leeches.  Young people hear the word "free" and they come running without knowing what they are getting as long as they don't have to pay for it.  It is hard to imagine too many young people becoming involved with a movement like this who actually understand the copyright reforms that they are fighting for or how the current system actually affects their lives.  As expressed in the above comment, many people think of our generation as a bunch of bums who can afford to pay for music and movies but choose not to because we don't get caught.  Desirina at Free Culture did write a nice response to the previously mentioned post.  It read...

"That’s an interesting comment Chuck, but you clearly haven’t done much research on what FreeCulture.org stands for. We appreciate the work of artists at Magnatune and Creative Commons, artists who are dedicated to making their work available in order to build a rich digital commons. But part of the reason we appreciate their work is because we understand that we are all artists. We are dedicated to fostering the efforts of artists-in-training, so that we can produce work for this digital commons as well as enjoy what is already in it. “Free” doesn’t necessarily mean “Free Stuff". Culture may be everywhere, only when we all participate in creating it, will it actually be Free: “Free” as in “Open to All". "

I hope this helped straighten out that angry blogger.  He is missing the point.  But he is missing it in a way that I am sure many others are as well.  Because of all of the recent p2p publicity and people's misconception that sharing digital files is "stealing" in the classical sense of the word there are a lot of people that believe that our generation is filled with a bunch of thieves.  I guess on that same note, many members of our generation believe themselves to be thieves and just do not care because they have not been caught and as of yet the benefits outweigh the costs substantially.  So the only thing that concerns me about a movement like this is that many young people will not understand what they are actually taking part in.  Will people understand what Free Culture is actually fighting for, or will many college students see this group as the people who are trying to make it so that we never have to pay for music again?  Maybe I am not giving our generation enough credit.  After all, a lot of us did get out and vote because Puff Daddy told us to. 

On a final note, I do think what Free Culture is doing is great.  The more people know about these issues the better.  I just hope that college students around the country are actually listening to what they have to say...and listening for the right reasons. 

Jumping to "Solutions"...Paying for Piracy

Over at Joegratz.net, there’s a post entitled "Framing the ACS Issue". Last year Mr. Gratz proposed a refined version of the Alternative Compensation System (ACS). In short, his version of the ACS would create an “opt-in” pool whereby copyright owners, should they choose to participate would be compensated from the pool based in proportion to user hits/downloads (for his entire paper see, “BraveKingdom”)(Acrobat Required). The reason his paper has resurfaced on his blog is because of an idea he deems “novel” – that an ACS system is in reality “paying for piracy in advance.” I couldn’t help but think of our classwide condemnation of such systems when reading Anush Yegyazarin’s article entitled “Presumed Guilty: Paying for Piracy in Advance.”

Her article deals with an issue she considers blatantly unfair: royalty based subsidies on P2P enabling devices. In an effort to compensate artists for lost revenues because of piracy, whether we know it or not when we purchase music related products (blank CDs, audio recording devices) we are participants in the dreaded system of “musical socialism.” She stresses the fact that such royalties don’t discriminate between pirates and non-pirates:

Fees don't discriminate based on what people intend to do with media they get. That means someone who downloads only from legal music services and plays by the rules, burning to CD only what they're allowed, is penalized along with the person who copies every one of their neighbor's discs or downloads and burns hundreds of copyrighted songs illegally available from a peer-to-peer network. And, of course, it penalizes people who aren't burning music at all: for example, those who buy media to archive photos and files. Everyone is presumed guilty of music piracy; and everyone must pay the costs.

What I find particularly irksome about royalty fees is the apparent underlying assumption that the most important thing is to reimburse content owners for losses due to piracy, even if it means charging people who have not engaged in any such activities. Such reimbursement also comes at the further expense of fair-use rights: Fees don't prevent me from creating a compilation CD of music I own, or from transferring music I have purchased from one medium to another (both of which are arguably allowed under fair use); but to do either, I must pay extra. Fair use should not involve additional payment.

To his and others’ credit, Joe Gratz’s ACS proposal is in their opinion a best of all options proposal. That taken as a given that piracy is inescapable, he states that his ACS is “about bringing efficient enforcement to a market where effective enforcement is presently impossible.”  I do agree with Joe that unless it’s someday legalized, media piracy won’t ever completely go away, but Ms. Yegyazarin’s article left me with the feeling that even though piracy is here to stay, imposing fees on innocent users seems to be just a little backwards (please note the understatement).

In fact in terms of some specific products (CDs for example, not blank CDs) it is solely the legitimate user who is having to pay for the effects (perceived or actual) that those who pirate music have on the content owners. For the 12 of us still left who buy CDs from stores instead of ripping them from the web why aren’t we screaming for more prosecutions, more cease and desist letters, more John Ascroft condemnations, etc. I think largely it’s because even we have been duped into the social acceptability of P2P, buying into their tall tales of legalizing P2P in the guise of some notion of social betterment, and being forced to accept the notion that piracy is here to stay.

It’s ironic but it seems (disclaimer: I have zero data on this) that one of the large reasons piracy flourished to begin with, the obvious cost-benefit benefits of stealing music has been simply exacerbated by the ever-increasing number of pirates. That is, the people who stole music because it was simply too expensive not too, have now pushed off the price of their stolen music to those who won’t rip music regardless of the social acceptability of such behavior. There is simply no way that X Music Store can compete with “free” because the cost of “not free” cannot be reduced to attract sufficient demand.

In response to Ms. Yegyazarin’s article, Joe Gratz commented:

It’s a bit like saying that property taxes that go to fund public schools are unfair because they make all of us pay costs imposed by the bad apples who choose to send their kids to public school instead of “playing by the rules” and sending their kids to private school.

I’m not sure the analogy fits. Ms. Yegyazarin is not disturbed at being forced into paying for something, which benefits her and society as a whole. I believe she is dumbstruck (as am I) at the idea that she must subsidize the illegal activity of others. Now, before I am berated with emails, I know that as a taxpaying citizen my taxes go towards policing the streets and other programs which are the result of “a few bad apples.” But I also realize that my taxes go towards funding the legal system and my concern is that an ACS-type solution is a system which tragically and inexcusably overlooks an option which appears on its face to be a difficult task, but must be the first step taken towards curtailing illegal activity: a true attempt at legal enforcement of musical piracy.

Mr. Gratz implies in his blog that unfettered, legal access to P2P is desirable because it will benefit society. I somewhat buy into this argument that music available to the masses will increase the overall cultural acumen of society, but I don’t think for a minute that the masses are committing illegal acts because they truly believe music should be free and that through their rebellion they are somehow trying to make society better. People steal music because it makes $ense.

True, we are based on ideals of democracy where the voice of the people is what should in theory be heard, but our society is also a free market, which rewards the laborer with his fruits. Instead of speaking and making the decisions for content owners it seems that they should have a right to declare the way in which they wish to protect their products. Ask yourself: does the RIAA/MPAA want a system of musical socialism? Current law criminalizes musical piracy and until legal enforcement of piracy is truly proven ineffective, a jump to these proposed so called ‘solutions’ is a step that need not be taken. 

Free Download With Purchase of Whopper. Big Deal.

So until this Sunday, October 3rd, all those who purchase a Burger King Whopper receive a free music download. How does this work? Burger King has teamed up with America On-line Inc, to give away one free music download with every purchase of Burger King's Original Whopper sandwhich. If you happen to be really hungry and choose to enjoy the Original Double Whopper then you are the lucky recipient of two free music downloads. This offer is valid at any Burger King in the United States and is as simple as logging on to www.haveityourway.com and plugging in the alphanumeric code that appears on the wrapper of the popular sandwhich.

Are you interested yet? Well, here is a little more information. You can choose from up to 700,000 songs listed on AOL Music (through partnership with MusicNet) and yes, this includes new releases from popular artists of many different genres of music. For the more discerning music enthusiast there is also the option to log onto Sessions@AOL and hear AOL Music's weekly concert series featuring live performances by many different popular artists including Usher and Avril Lavigne among others. Some of the downsides are that once you have downloaded the particular song, you cannot transfer the file to another computer, and although you can burn it onto a cd, you are limited to doing so 5 times.

The idea behind this particlar marketing scheme is for Burger King to redeem itself with the many burger eating consumers who according to studies, fail to identify any particular marketing image with the second ranked fast-food chain. This campaign is throwing out a wide net as it has several different specific target consumer groups in mind. One television advertisement features "WHOPPERHEADS" who are young men, while yet another advertisement is aimed at African-Americans. Additional promotional commercials are in the works to target the Hispanic community. McDonald's was the first to implement this type of promotion when it teamed up with Sony in early June of this year to do the same.

It is also interesting to note that Burger King launched it's Have It Your Way free music download promotion at local colleges and universities throughout the country. They handed out blank cds labeled with their slogan in addition to "Mix It Your Way". This was an attempt to get young people interested in the idea of downloading free music through haveityourway.com and making mixed cds from downloaded music. Sounds like a good plan to me. Except....

Why would anyone care to shell out the 1.99$ (I'm guessing) for a hamburger to obtain a code to enter into a website to then download a free song when they can just do it for free? With the many P2P softwares already in existence and readily available to the novice computer user, why would anyone go through this process to get what they already can? Are the marketing experts hoping that we will get so caught up in their jazzy commercials that we will forget that we are already doing fine without them? There is no need to throw a burger into the mix when it comes to free music. If it ain't broke don't fix it is the old addage that comes to mind.... Although there are no statistics available as of yet with regards to the success of this particular promotional scheme, I am curious to see who exactly this appealed to. It also amuses me that colleges and universities is where Burger King felt it appropriate to launch this marketing scheme when it is widely known that young people are the most frequent users of P2P software.

If it works, good for them. If it doesn't, it makes you think that maybe Burger King should rethink their marketing firm choices...