<nettime> 'Liberate the Music?Again' by Lawrence Lessig

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Liberate the Music
http://free-culture.org/get-it

The battle that got this whole war going was about music, so it wouldn?t
be fair to end this book without addressing the issue that is, to most
people, most pressing?music. There is no other policy issue that better
teaches the lessons of this book than the battles around the sharing
of music.
The appeal of file-sharing music was the crack cocaine of the Internet?s
growth. It drove demand for access to the Internet more powerfully
than any other single application. It was the Internet?s killer
app?possibly in two senses of that word. It no doubt was the application
that drove demand for bandwidth. It may well be the application
that drives demand for regulations that in the end kill innovation on
the network.
The aim of copyright, with respect to content in general and music
in particular, is to create the incentives for music to be composed,
performed,
and, most importantly, spread. The law does this by giving
an exclusive right to a composer to control public performances of his
work, and to a performing artist to control copies of her performance.
File-sharing networks complicate this model by enabling the
spread of content for which the performer has not been paid. But of
course, that?s not all the file-sharing networks do. As I described in
chapter 5, they enable four different kinds of sharing:
A. There are some who are using sharing networks as substitutes
for purchasing CDs.
B. There are also some who are using sharing networks to sample,
on the way to purchasing CDs.
C. There are many who are using file-sharing networks to get access
to content that is no longer sold but is still under copyright
or that would have been too cumbersome to buy off the Net.
D. There are many who are using file-sharing networks to get access
to content that is not copyrighted or to get access that the
copyright owner plainly endorses.
Any reform of the law needs to keep these different uses in focus. It
must avoid burdening type D even if it aims to eliminate type A. The
eagerness with which the law aims to eliminate type A, moreover,
should depend upon the magnitude of type B. As with VCRs, if the net
effect of sharing is actually not very harmful, the need for regulation is
significantly weakened.
As I said in chapter 5, the actual harm caused by sharing is controversial.
For the purposes of this chapter, however, I assume the harm is
real. I assume, in other words, that type A sharing is significantly
greater than type B, and is the dominant use of sharing networks.
Nonetheless, there is a crucial fact about the current technological
context that we must keep in mind if we are to understand how the law
should respond.
Today, file sharing is addictive. In ten years, it won?t be. It is addictive
today because it is the easiest way to gain access to a broad range of
content.
It won?t be the easiest way to get access to a broad range of content
in ten years.Today, access to the Internet is cumbersome and slow?we
in the United States are lucky to have broadband service at 1.5 MBs, and
very rarely do we get service at that speed both up and down. Although
wireless access is growing, most of us still get access across wires. Most
only gain access through a machine with a keyboard. The idea of the always
on, always connected Internet is mainly just an idea.
But it will become a reality, and that means the way we get access to
the Internet today is a technology in transition. Policy makers should
not make policy on the basis of technology in transition. They should
make policy on the basis of where the technology is going. The ques-
AFTERWORD 297
tion should not be, how should the law regulate sharing in this world?
The question should be, what law will we require when the network
becomes the network it is clearly becoming? That network is one in
which every machine with electricity is essentially on the Net; where
everywhere you are?except maybe the desert or the Rockies?you can
instantaneously be connected to the Internet. Imagine the Internet as
ubiquitous as the best cell-phone service, where with the flip of a device,
you are connected.
In that world, it will be extremely easy to connect to services that
give you access to content on the fly?such as Internet radio, content
that is streamed to the user when the user demands. Here, then, is the
critical point:When it is extremely easy to connect to services that give
access to content, it will be easier to connect to services that give you
access to content than it will be to download and store content on the
many devices you will have for playing content. It will be easier, in other
words, to subscribe than it will be to be a database manager, as everyone
in the download-sharing world of Napster-like technologies essentially
is. Content services will compete with content sharing, even if
the services charge money for the content they give access to. Already
cell-phone services in Japan offer music (for a fee) streamed over cell
phones (enhanced with plugs for headphones). The Japanese are paying
for this content even though ?free? content is available in the form
of MP3s across the Web.8
This point about the future is meant to suggest a perspective on the
present: It is emphatically temporary. The ?problem? with file sharing
?to the extent there is a real problem?is a problem that will increasingly
disappear as it becomes easier to connect to the Internet.
And thus it is an extraordinary mistake for policy makers today to be
?solving? this problem in light of a technology that will be gone tomorrow.
The question should not be how to regulate the Internet to
eliminate file sharing (the Net will evolve that problem away). The
question instead should be how to assure that artists get paid, during
this transition between twentieth-century models for doing business
and twenty-first-century technologies.
The answer begins with recognizing that there are different ?problems?
here to solve. Let?s start with type D content?uncopyrighted
content or copyrighted content that the artist wants shared. The ?problem?
with this content is to make sure that the technology that would
enable this kind of sharing is not rendered illegal. You can think of it
this way: Pay phones are used to deliver ransom demands, no doubt.
But there are many who need to use pay phones who have nothing to
do with ransoms. It would be wrong to ban pay phones in order to
eliminate kidnapping.
Type C content raises a different ?problem.? This is content that was,
at one time, published and is no longer available. It may be unavailable
because the artist is no longer valuable enough for the record label he
signed with to carry his work. Or it may be unavailable because the work
is forgotten. Either way, the aim of the law should be to facilitate the
access
to this content, ideally in a way that returns something to the artist.
Again, the model here is the used book store. Once a book goes out
of print, it may still be available in libraries and used book stores. But
libraries and used book stores don?t pay the copyright owner when
someone reads or buys an out-of-print book. That makes total sense, of
course, since any other system would be so burdensome as to eliminate
the possibility of used book stores? existing. But from the author?s
perspective,
this ?sharing? of his content without his being compensated is
less than ideal.
The model of used book stores suggests that the law could simply
deem out-of-print music fair game. If the publisher does not make
copies of the music available for sale, then commercial and noncommercial
providers would be free, under this rule, to ?share? that content,
even though the sharing involved making a copy. The copy here would
be incidental to the trade; in a context where commercial publishing
has ended, trading music should be as free as trading books.
Alternatively, the law could create a statutory license that would ensure
that artists get something from the trade of their work. For example,
if the law set a low statutory rate for the commercial sharing of
content that was not offered for sale by a commercial publisher, and if
that rate were automatically transferred to a trust for the benefit of the
artist, then businesses could develop around the idea of trading this
content, and artists would benefit from this trade.
This system would also create an incentive for publishers to keep
works available commercially. Works that are available commercially
would not be subject to this license. Thus, publishers could protect
the right to charge whatever they want for content if they kept the
work commercially available. But if they don?t keep it available, and
instead,
the computer hard disks of fans around the world keep it alive,
then any royalty owed for such copying should be much less than the
amount owed a commercial publisher.
The hard case is content of types A and B, and again, this case is
hard only because the extent of the problem will change over time, as
the technologies for gaining access to content change. The law?s solution
should be as flexible as the problem is, understanding that we are
in the middle of a radical transformation in the technology for delivering
and accessing content.
So here?s a solution that will at first seem very strange to both sides
in this war, but which upon reflection, I suggest, should make some sense.
Stripped of the rhetoric about the sanctity of property, the basic
claim of the content industry is this: A new technology (the Internet)
has harmed a set of rights that secure copyright. If those rights are to
be protected, then the content industry should be compensated for that
harm. Just as the technology of tobacco harmed the health of millions
of Americans, or the technology of asbestos caused grave illness to
thousands of miners, so, too, has the technology of digital networks
harmed the interests of the content industry.
I love the Internet, and so I don?t like likening it to tobacco or as-
bestos. But the analogy is a fair one from the perspective of the law.
And it suggests a fair response: Rather than seeking to destroy the
Internet,
or the p2p technologies that are currently harming content
providers on the Internet, we should find a relatively simple way to
compensate those who are harmed.
The idea would be a modification of a proposal that has been
floated by Harvard law professor William Fisher.9 Fisher suggests a
very clever way around the current impasse of the Internet. Under his
plan, all content capable of digital transmission would (1) be marked
with a digital watermark (don?t worry about how easy it is to evade
these marks; as you?ll see, there?s no incentive to evade them). Once the
content is marked, then entrepreneurs would develop (2) systems to
monitor how many items of each content were distributed. On the basis
of those numbers, then (3) artists would be compensated. The compensation
would be paid for by (4) an appropriate tax.
Fisher?s proposal is careful and comprehensive. It raises a million
questions, most of which he answers well in his upcoming book,
Promises to Keep. The modification that I would make is relatively simple:
Fisher imagines his proposal replacing the existing copyright system.
I imagine it complementing the existing system. The aim of the
proposal would be to facilitate compensation to the extent that harm
could be shown. This compensation would be temporary, aimed at facilitating
a transition between regimes. And it would require renewal
after a period of years. If it continues to make sense to facilitate free
exchange
of content, supported through a taxation system, then it can be
continued. If this form of protection is no longer necessary, then the
system could lapse into the old system of controlling access.
Fisher would balk at the idea of allowing the system to lapse. His
aim is not just to ensure that artists are paid, but also to ensure that the
system supports the widest range of ?semiotic democracy? possible. But
the aims of semiotic democracy would be satisfied if the other changes
I described were accomplished?in particular, the limits on derivative
uses. A system that simply charges for access would not greatly burden
semiotic democracy if there were few limitations on what one was allowed
to do with the content itself.
No doubt it would be difficult to calculate the proper measure of
?harm? to an industry. But the difficulty of making that calculation
would be outweighed by the benefit of facilitating innovation. This
background system to compensate would also not need to interfere
with innovative proposals such as Apple?s MusicStore. As experts predicted
when Apple launched the MusicStore, it could beat ?free? by being
easier than free is. This has proven correct: Apple has sold millions
of songs at even the very high price of 99 cents a song. (At 99 cents, the
cost is the equivalent of a per-song CD price, though the labels have
none of the costs of a CD to pay.) Apple?s move was countered by Real
Networks, offering music at just 79 cents a song. And no doubt there
will be a great deal of competition to offer and sell music on-line.
This competition has already occurred against the background of
?free? music from p2p systems. As the sellers of cable television have
known for thirty years, and the sellers of bottled water for much more
than that, there is nothing impossible at all about ?competing with
free.? Indeed, if anything, the competition spurs the competitors to offer
new and better products. This is precisely what the competitive
market was to be about. Thus in Singapore, though piracy is rampant,
movie theaters are often luxurious?with ?first class? seats, and meals
served while you watch a movie?as they struggle and succeed in finding
ways to compete with ?free.?
This regime of competition, with a backstop to assure that artists
don?t lose, would facilitate a great deal of innovation in the delivery of
content. That competition would continue to shrink type A sharing. It
would inspire an extraordinary range of new innovators?ones who
would have a right to the content, and would no longer fear the uncertain
and barbarically severe punishments of the law.
In summary, then, my proposal is this:
The Internet is in transition.We should not be regulating a technology
in transition.We should instead be regulating to minimize the
harm to interests affected by this technological change, while enabling,
and encouraging, the most efficient technology we can create.
We can minimize that harm while maximizing the benefit to innovation
by
1. guaranteeing the right to engage in type D sharing;
2. permitting noncommercial type C sharing without liability,
and commercial type C sharing at a low and fixed rate set by
statute;
3. while in this transition, taxing and compensating for type A
sharing, to the extent actual harm is demonstrated.
But what if ?piracy? doesn?t disappear? What if there is a competitive
market providing content at a low cost, but a significant number of
consumers continue to ?take? content for nothing? Should the law do
something then?
Yes, it should. But, again, what it should do depends upon how the
facts develop. These changes may not eliminate type A sharing. But
the real issue is not whether it eliminates sharing in the abstract.
The real issue is its effect on the market. Is it better (a) to have a
technology
that is 95 percent secure and produces a market of size x, or
(b) to have a technology that is 50 percent secure but produces a market
of five times x? Less secure might produce more unauthorized
sharing, but it is likely to also produce a much bigger market in authorized
sharing. The most important thing is to assure artists? compensation
without breaking the Internet. Once that?s assured, then it
may well be appropriate to find ways to track down the petty pirates.
But we?re a long way away from whittling the problem down to this
subset of type A sharers. And our focus until we?re there should not be
on finding ways to break the Internet. Our focus until we?re there
should be on how to make sure the artists are paid, while protecting the
space for innovation and creativity that the Internet is.


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