January 21, 2004

To Save Copyright We Must Reform It

Prof. Lawrence Solum has written once again on copynorms, commenting on a couple of articles and providing some anecdotal evidence of his own (Lawsuits and Copynorms). Solum questions whether the RIAA's lawsuit-centered tactics are truly affecting norms. Their impact on copybehavior is disputed, but the issue of their impact on copynorms is hardly addressed. Based on the students in his law classes, Solum sums up one developing copynorm thus:

It is socially unacceptable to take the position that unlawful P2P filesharing is morally wrong.

Frankly, I think that the development of such norms is part and parcel of the RIAA's tactics. The RIAA has taken the strategically foolish position that all filesharing is wrong. To few most people outside of the ABA's IP bar, such an uncompromising approach to all filesharing is clearly incorrect. Most people believe that some sharing (particularly with friends or family) is legitimate, but other sharing is not. To the extent that the RIAA is not willing to compromise its position on filesharing, people will increasingly reject the idea that any filesharing is wrong. This is not a healthy development for those who believe that copyright is worth saving. The only way to save copyright is to reform it.

Posted by Ernest at 9:25 AM
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I'm certain that the word "most" was intended in place of "few," in this sentence: "To few people outside of the ABA's IP bar, such an uncompromising approach to all filesharing is clearly incorrect."

Quadruple-negatives ... ain't they great? ;)

More to the point: the precience of Thomas Babington Macaulay's 163-year-old (minus one week) speech keeps on slamming 21st-century America in the forehead: "Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop."

Mere reform just might not cut it, anymore.

Posted by Matt Perkins on January 21, 2004 10:52 AM | Permalink to Comment
Three Interesting Posts on the RIAA's Lawsuits

Excerpt: Lawrence Solum , Ed Lee , and Ernest Miller have comments following the recent surveys by Pew and NPD.

Read the rest...

Trackback from A Copyfighter's Musings, Jan 21, 2004 11:31 AM

Didn't you mean to say that the RIAA is taking the "strategically foolish" position that "all UNLAWFUL file sharing is wrong"? I'm sure the RIAA is just fine with people using file sharing to exchange baby pictures or recipes.

It's interesting that you think that we've come to the point that advocating obeying the law is a foolish strategy. This is a premature conclusion. Generally, advocating obeying the law is a sound strategy because, given that opponents to the law lack the strength to get it overturned, that suggests that there is an underlying current of support for the law within society as a whole.

Posted by Cypherpunk on January 22, 2004 01:21 PM | Permalink to Comment

All file sharing is obviously not wrong. And despite Babington's admonition, this isn't the first or the last time the rule of law has been challenged. The nation will survive, even if the copyright norms are revised. It is possible to reach an acceptable compromise. We may not be able to prosecute all the users of pirated works. The truth is pirating has been steadily increasing since the introduction of Beta Max machines. The internet has simply made it easier and spread the practice. It now is as common as speeding on the highways. The law may simply have to settle on limited enforcements against the worst offenders. Providing a right of limited file sharing of copyrighted works would not necessarily be all that evil when looked at in this light. Perhaps this is not ideal from the point of view of those who produce original works, unfortunately law enforcement and ethical considerations may diverge because of practical considerations. The laws of copyright have been extended to unheard of lengths. If the large corporations had not used their powers to extend their monopolies on cultural artifacts to such great lengths, then the population may in fact be more sympathetic. But as it stands the law seems to be tilted in favor of the rich and powerful. The stunt man didn't pay for the commercial, that was financed by corporate fund. The booing may be more intense because of the hypocrisy of those who have extended these monopolies to what many believe to be unconscionable. But of course none of this is a justification for breaking the law. Instead it is simply meant to explain the booing. It this sense it is a call for reform. A return to more reasonable time limits on copyrights would be a useful first step. However, if the corporations insist upon locking up culture; then it is foreseeable that some will rebel against the oppressive nature of their actions. This of course leads to entrenchment of attitudes not conducive to governing.

Posted by Ron. Groeber on January 22, 2004 06:49 PM | Permalink to Comment

I'm actually starting to go the other way now... If I had a PC, I'd be sharing out the wazoo!!! I would be willing to donate to someone establishing a honeypot of tracks in a foreign jurisdiction... as a charity to the cultural enrichment of our World...

Posted by Joe on January 24, 2004 11:06 AM | Permalink to Comment

I'll take a byte at this...

Cypherpunk writes: Didn't you mean to say that the RIAA is taking the "strategically foolish" position that "all UNLAWFUL file sharing is wrong"? I'm sure the RIAA is just fine with people using file sharing to exchange baby pictures or recipes.

This is precisely the point of the main post, the RIAA in their press-releases and sound-bytes don't bother with this nuance. Similarly, their so-called educational campaigns and websites don't cover have any nuance in the copyright system either. I have never, not even once, seen RIAA deal with fair-use of materials. Every RIAA public communication, press release, educational brochure and website I’ve seen is based on the assumption that all copyrighted goods are owned by people (actually large publishers) who have reserved all rights -- thus “copying” is always bad, and “file-sharing” is always illegal.

I have not always been anti-RIAA, but I remember the first time I got a good example of just how extreme their viewpoints were. I was listening to a debate between a consumer advocate and the RIAA about an upcoming law in 1992 or so; and the consumer advocate went first. I thought they were pretty biased in the way they were attack the RIAA; the RIAA could not really be advocating what their opponents claimed. Much to my amazement, far from disputing the statements of the advocate, the RIAA spokesman basically claimed that they needed these extreme measures to preserve their profits and essentially proved what the advocate was saying about them.

The law they actually got (Digital Home Recording Act of 1992) was based on the assumption that normal people never produced their own audio (music, lectures, etc.). That is why (even to this day), digital audio recorders have a congressional mandated SCM; which basically assumes that any consumer recording is a copy of a commercial recording. If I make an audio recording of original material with a consumer minidisc player, congress has (at the urging of the RIAA) limited my ability to sell copies of my own material. This is still probably the clearest example of the RIAA using concerns about copyright piracy to get laws actually aimed elsewhere (in this case against independent artists producing and selling their own material outside of the established distribution channels).

At this point, even to the casual observer, it should be very clear that the RIAA is only going to do things that help large record companies (they have no civic minded virtues, and will shaft the public and the artists without any compunctions). The RIAA has always claimed to support fair-use, but the hitch is that their definition of fair-use is “nothing is fair-use!” I’ve seen several interviews where they asked RIAA spokesmen to come up with any action that is an example of fair-use, but I have never seen the RIAA respond with any example (I’d love to have someone prove me wrong – post a example).

Privately some of these people might agree with Cypherpunk’s exceptions, but they won’t publicly. These nuances water down “the message” too much, and this if for congress as well as ordinary people. I expect that at some point they are going to have to change, precisely because of the points made in the main post (unless the RIAA really decides to ride the death spiral).

Posted by seaan on January 25, 2004 11:40 PM | Permalink to Comment
Free Strategic Advice for the RIAA

Excerpt: Last week, I advocated that the RIAA go on the offensive against commercial filesharing networks, such as Sharman Networks, in innovative ways that don't include more lawsuits, such as reverse engineering Sharman's interface and networking protocols an...

Read the rest...

Trackback from Copyfight, May 4, 2004 1:09 AM
Study on Copynorms in First Monday

Excerpt: Doug Simpson links to and provides some good analysis about a recent First Monday article (Anonymity Inhibits Social Control in P2P Nets?). The article is Pirates, sharks and moral crusaders: Social control in peertopeer networks and deals with socia...

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Trackback from Copyfight, Jun 10, 2004 7:21 PM

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