Copyright law 2.0: Judges Rule
p2pnet.net News View:- The most prevailing business model in intellectual property is PPC, meaning Pay Per Copy. This century is slowly reversing this concept to what it was before economics took over copyright; sharing for exposure. Now, how should the copyright law anticipate?
To change the law isn’t that difficult. But changing minds is.
PPC vs Sharing
Let’s first look at the concept of PPC. There’s a variety of models out there such as paying for a book, painting, cd or a license. In short, the owner of that copy is either bound by the physical copy itself and/or the licensing agreement.
Hybrid versions of those licensing models are abundant, ranging from the simple ‘going to the cinema or watching TV’ to the complex, eg Lpar licensing of ERP software on servers with dual-core processors.
Nevertheless, what you pay for is a non-exclusive license to use a copy (generally a physical entity such as a CD) of an intellectual property for limited use. Thus, copyright law simply handles the tangible stuff needed for the transfer to the minds based on the economics surrounding those objects. However, when courts have previously encountered the non-physical – eg electricity or frequency ? they;ve sided with economics.
Well, that needs to change because Net technology hasn’t so far gelled with economics.
Exposure
Open Source and file-sharing have emerged because the only thing of value on the Net is Exposure. Exposure up, until now, has been the only commodity worth trading online. And just as Yahoo and Google can attest to this last fact, they’ll also acknowledge that getting people to PPC for something else hasn’t yet worked for neither.
So, except for software vendors and some music services as the obvious examples, making people PPC is getting harder with every technological advance. And in the future, it will get even harder.
As Rueters says about the Warner Music IPO: “When the vast majority of your sales are physical CD sales and the market is moving away from physical sales, your revenue model and how you alter your cost structure to adapt to that new revenue model are unknown.”
Why?
Because the transfers of intellectual property is becoming more intangible and diverse at a level almost similar to the way in which the human mind works.
Sharing
To illustrate this:
Say I record the latest episode of ‘Lost’ onto an VHS tape for time-shifting purposes. I then copy it onto my computer’s HD to transfer it to my T-Mobile MDA Compact phone, still for time-shifting purposes. While at a family gathering, I beam the episode from my MDA with Bluetooth to my cousin’s Nokia phone. He then copies it back to his PC and makes a torrent of the file so he can share it with his sister, who lives in another region where it’s not usually shown. Well, take it from there.
The point is: up until the VHS tape, the law still has a grip on my copying. The Betamax rule and copyright levy on the tape have that part covered. Fair use tries to extend it to my PC and MDA. I say ‘tries’ because fair use depends heavily on where you live. In Australia it would be considered a violation of copyrights.
But, the ‘beaming’ is where the real gray area starts. In the ‘Grouper exception‘ I talked about the ‘make available’ right in a ‘closed circle’ of friends and family. And yet, when the law was written, it meant playing music at a party and not beaming it onto other devices.
One might argue between the difference in ‘broadcasting’ and ‘reproduction’. Still, the wording of the law applies equally well in both instances, in my opinion.
Taking this to another level, is there a legal difference between the Bluetooth and Bittorrent distribution? Because I don’t see any Bluetooth manufacturers being sued.
The Upgrade
Now, they can try and levy all this hardware the file passes through. The Netherlands, Germany and Canada are all well on their way with extended levying.
Or let the machine beat the machine as in Snocap and DTCP-IP.
Laws such as the DMCA and other copyright law amendments exist all over the world.
Or there are lawsuits aka extorting every file-sharer out on the Net.
These might work. But I very much doubt it.
In my view, there are two ways to upgrade; the Jessica Litman model of freeing up all non-commercial uses, or the Baby Steps model.
Business models will slowly adapt to this upgrade to focus more on exposure then getting PPC.
I choose the ‘TV’ example purposely because broadcast networks would be the first to be susceptible for adaptation.
Here?s a pretty good explanation on how and why this would work: “Piracy Is Good? [pdf] ABC Radio RealPlayer and Windows Media audio streams; and transcript.
Baby Steps model
However, this model will leave the fate of copyright law in the hands of the least corruptible and most independent institution known in a democratic society.
Judges.
There are some obvious drawbacks. For example, only those with adequate financial resources will have access. And judges work in an arcane system with almost no technical expertise and with limited powers beyond their constitutional borders.
But, the financial aspect to one side, those apparent drawbacks in fact make it perfect.
Yes, the courts often get it wrong. But the damage is much more easily reversible then it would be through partisan legislative errors.
Judges can be trusted with the task of guiding the law into this century, as long as they understand that ruling on copyright issues anywhere will have a global effect.
So in my opinion, only the courts can bring about the change at a acceptable pace and within acceptable margins.
Bottom-line: the copyright upgrade is more a state of mind then the wording of a law. If courts take over this process of upgrading the law they should be aware of the global impact of their decisions.
Even if the court resides in South Pacific island nation of Vanuatu.
Raymond Blijd – fk2w
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May 14th, 2005 at 5:06 pm
We already know what happens when vague law where the lawmakers could never have anticipated the future is interpreted only by judges. This is how patent law, an exclusive rights granted to an inventor on the way to create something tangible like a machine, widget or drug, was expanded to pure intangibles like software, business models, or the practical uses of DNA sequences (including those that reproduce on their own). The changes to patent law, while less understood than the changes to copyright, have been far more harmful than the DMCA.
In none of these cases did a legislature decide that having these exclusive rights would be good for the industry involved (most practitioners in the area of software oppose software patents), or good for society. The judges were bombarded by an extreme special economic interest group, in this case patent lawyers, and the law was changed to favor the interests of those extremists. Asking a patent lawyer whether patent law should be expanded to include more subject matter is like asking a used car salesman whether more people should buy used cars.
I realize our elected representatives are uninformed on these areas of policy, and we fear the type of wrong-headed changes they are making. One of the main reasons they have been going wrong is that they have been hearing volumes from the old-media business associations, but haven’t been hearing as much from the rest of us. Change that, and get governments to enact policy that benefits citizens rather than special economic interest groups.
Ways to help make positive change:
Join and donate money to groups like EFF.org in the USA (and your country-specific versions).
Canadians should sign our Petition for Users’ Rights, and get involved in the Digital Copyright Canada forum and our various initiatives.
Write letters to your members of parliament, and get all your friends to do so. In Canada it only costs some paper, an envelope and some time to do this: postage to the House of Commons office of your MP is free.
Write letters to the editor and articles for mainstream and independent media. We have a huge education campaign ahead of us to educate all citizens as to the effects of this area of policy on their life. We need to use the “and they told two friends, and so on” method to get this into peoples minds, and then to have them join us in the fight against special interests. At the very least they can “do nothing”, and not participate with the old-media companies and their attacks on our rights and freedoms.
Information/Mental Process Patents BLOG
http://www.digital-copyright.ca/taxonomy/page/or/360