Free Culture by Lawrence Lessig (ereader iphone .TXT) 📖

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 question 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 asbestos. 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