How Soon Is Now?
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How Soon Is Now?
By Kevin Doran
P2P is but one of many file-transfer protocols that are enabled by digital networks and technologies.
File-sharing and file-transfer are descriptions of two different behaviors – one passive, the other active. This distinction is nuanced to the ears of some, but critically different all the same. It is, in fact, fundamental to the issue at hand, vis a vis the enumerated rights of both copyright holders and citizen-users and crucial to a pinpointing of who must pay for what (if anyone or anything) when files are accessed and transferred for commercial and non-commercial purposes.
Whether the accessibility of files stored on a networked device by anyone other than their owner constitutes ’sharing’ or ‘making available’ or ‘distribution’ – and whether such status is either illegal or proscribed – is the better part of a decade from its necessary and inevitable determination by the courts.
At the crux of any judgement will be whether or not culpability for potential infringement lies with the one who makes the unauthorized copy, or with the one from whom the copy is made – or both – and whether any social circumstances (non-commercial/fair use) temper that liability or obligation.
My own view is well documented on Pho and elsewhere: the one who makes the copy is the only one in any chain of associated entities (file host, ISP, software/hardware manufacturer etc.) who is engaged in any deliberate act and the only one who may – or may not – be held liable for compensation.
How that copy is made – whether via P2P or HTTP or FTP or E-Mail or VoIP or ADSL or CDMA or Wi-Fi or Infrared or Bluetooth or CDRW or USB – is wholly beside the point. No one protocol or technology should be demonized or unduly burdened for liability or obligation to compensation.
It is the user, not the tech – the singer not the song, if you will – who is responsible for his or her own actions and no other.
Society – Us and Them (choose your own hat) – may decide that it might be to the greatest benefit to the greatest number of us to share that burden as broadly and equitably as possible. It’s a necessary and worthy debate, but so far it is an internecine affair that serves only to fragment the larger group of hats into squabbling, disunified factions.
[FTR, my personal conviction is that compensation should be revenue-based - i.e. commercial users only - from any and everyone in the chain who profits from intellectual products and labors. I am deeply optimisitic that the Canadian Principle (a paid copy is a legal copy) and its Inevitable Corollary (if it's paid for, it doesn't matter where it came from) will become the solution template worldwide.]
But if the guys in the other hats aren’t interested in engaging the debate, no amount of unilateral dickering over details of any compensation alternative to the unit-price model will change their minds.
So, in all practical honesty, I have to ask why battle amongst ourselves for the privilege of carrying water for someone who isn’t thirsty enough to come to the well themselves? Whatever results from the latest round-robin won’t just be transformed beyond recognition by the rightsholders it is aimed at engaging – it will be ignored. And in the cacophonous intramural scrum to garner peer acclaim, we will only have inflicted damage on our allies and ourselves with no practical gains made.
Our focus should be on ending the abuses of the smaller group of hats against the larger and nothing else. It is the height of arrogance and folly to believe that we can – or should – put our energies and resources into convincing copyright maximalists that others can solve their problems better than they can when they clearly believe that such solutions – and those who advocate them – ARE the problem and not the fix.
It is good to have a viable alternative to the current impasse backpocketed to better blunt the charges of negativity and anarchy that have been the one side’s hysterical stock in trade to justify their slow suicide and its collateral social damage, but any such plan will do nothing to sway their determination nor change the course of events.
Copyright holders are as fated as they are determined to follow the DMCA/NETA framework through the courts until all the Ts are crossed and the Is dotted and the maximum/minimum circumstances for liability and compensation are vetted by the judiciary. Whether by greed or fiduciary obligation, this is what must first happen before any other options will be considered.
And this is where all of our energies should be focused. Every abusive point of law must be contested and the overreach of the DMCA and NETA must be unravelled from the whole cloth of which it was spun.
At best this will take another dozen or fifteen years, perhaps longer. Grokster can’t emerge from SCOTUS any sooner than ‘07. After that, there remain the issues that I indicated at the top of this page which will determine working definitions of fair use, privacy and trespass in the 21st century. Their resolution will require the adjudication of dozens of more suits, most still unfiled.
In the mean time, of course, people will continue to behave as they – indeed, as we all – have been genetically and culturally programmed: to communicate our thoughts, feelings and experiences with others using whatever parts of the world around us we can bend to that purpose. It is the very thing that makes us human.
It is exceedingly unlikely, however, that copyright holders will be able to keep themselves from the well – or peace talks, if you prefer – to the very bitter end. The one and only thing that will turn them from testing the maximal interpretation of each and every clause, phrase and preposition in the DMCA and NETA is an unbearable loss of profit.
If the courts are where the battle must be fought, the marketplace is where it will be won and a peace forged.
The transnational record-label era is passing, but whether private-equity/dedicated-purpose managers are any more or less efficient, stubborn or open-minded will take most of the coming decade to discover. And then, of course, there are the movie studios and the increasingly consolidated 20th century A/V delivery architecture (esp. TV and radio) to contend with.
At some point, the snowballing of losses will become so unbearable as to force the handful of mega-rights holders to reconsider their approach and entertain other revenue options.
But we are nowhere near that point yet, nor will we be for a very long time to come.
This is a generational thing.
The Boomers now in charge have devoted their lives to the proposition that mechanically reproduced entertainment products are not only inherently valuable, but – along with their jobs and companies – are worthy of exceptional protections not available to any other industry in any nation on earth.
Younger generations less emotionally bound to the counter-culture which those products gave voice and purpose to suffer no such illusions.
But they do believe fiercely in the same democratizing principle that drove the assembly-line manufactured ‘popular art’ of the 20th century to the Boomers’ sanctification of it. They just see it in a different place – in the tools that allow everyone to access, distribute and make those products without the interference of unnecessary restrictions or unwelcome authorities.
Sooner or later, they’re the ones who’ll be in charge.
Many, of course, will tell you they already are – and every day it gets harder to argue them otherwise.
And when the rightsholders agree, they’ll be ready to listen to what the next generation has to say.
March 9th, 2004 at 12:29 am
Well the new generation has the right idea. It’s all electronically available for free. That’s all there is to it.