How Copyright Has Gone Copywrong

Yep, that’s right – I’m talking about copyright again. Specifically, I’m following up on my previous post, Copyright & Fan Creations.

In that post, I talked about how all fan art is copyright infringement – whether you sell it or not is irrelevant; as soon as you draw it, it infringes on copyright. Now it’s just a matter of how much damages you are liable for.

In ye olden times, copyright infringement was strictly a civil matter, up to the copyright holder to decide to sue – just like it is up to individuals in, say, a contract dispute to decide whether or not to sue. The state doesn’t typically get involved in civil matters (that’s why it’s called civil).

But now it does. Copyright infringement, though still nominally a civil matter, is being treated, prosecuted, and sentenced like a felony – right up there with robbing a bank or murder.

This is insane.

On top of that, copyright is extremely broad, and the only “exceptions” to the law (fair use) are actually just defenses, not actual exceptions – meaning they only come into play once you end up in court (and they are by no means guaranteed).

This is so heavily skewed that it’s a miracle anyone can produce anything new anymore without someone making a claim that it infringes (often just by resembling) another intellectual “property.” (In point of fact, this actually does happen quite a lot.)

This partly explains the resurgence of old, nostalgia-driven media lately – old comics made and re-made into movies, old franchises re-made, or even board games made into movies – because the copyright on these things are already well established, and companies don’t have to go through the potential trouble of investing in new properties, only to find out at the end that someone else has a copyright on something similar.

Keep in mind that I make my living from copyright & intellectual propery – so I’m not advocating for the total abolishing of copyright. What I’m calling for is some restraint, some sanity in copyright law.

For something that was intended to foster and encourage creative works & reward creators for doing so, it is now much too heavily skewed towards protecting existing creations.

Eventually, this is going to come back around and start biting the hands of those who advocated for stronger copyright laws.

Copyright is painted with such a broad brush, and it lasts for such a long time, that it is now having the opposite effect than what was intended – or what is necessary.

Creativity still happens, of course, but the rewards & incentives copyright was intended to give simply no longer exist (or are outweighed by the risks of infringement). Copyright is stuck 100 years ago, even while copyright enforcement is using cutting edge technology.

This is terrible, and it needs to change.

Copyright is important, don’t get me wrong, but we need to stop treating it as though it is some fundamental, inalienable right which must be protected at all costs. Copyright law needs to strike a reasonable balance between protection and re-use, one that encourages and rewards creation, without discouraging new creation for fear of potential infringement. And perhaps most importantly, it needs to set some clear guidelines on what is and is not permissible vis-a-vi re-use and fair use, instead of just saying “well, we’ll know it when we see it… in court.”

These sorts of changes will go a long way towards bringing copyright into the 21st century, helping it make sense again, and put a stop to the utter madness that is the state of copyright law and enforcement today.

Copyright & Fan Creations

This is a topic near & dear to my heart (I’ll let you guess why).

If you’re a frequent reader of my blog (or follower of me on Twitter), you probably already know that I have some… let’s just say strong feelings about copyright law. You might also know that I enjoy viewing & reading fan works (and may have even created some shameful ones of my own in the distant past – which will remain hidden FOREVER.)

One side effect of this is that over the years I’ve become very familiar with copyright law itself, which is a useful skill to have these days. So, I figured I’d write up a quick guide to help people out a little bit, because let’s face it… copyright law is weird, non-intuitive, and complicated.

(Oh, and just so we can get the annoying stuff out of the way first: I am not a lawyer, and this isn’t “legal advice,” it is just a layman’s opinion/summary. So don’t go out and get yourself in trouble based solely on what I say, and then come around and sue me, OK?)

If you need a quick refresher on this whole copyright process, I highly recommend you go watch C.G.P. Grey’s video on the subject. In fact, I might just embed the whole thing right here!

Everything is Copyrighted

Every original work, no matter how small or insignificant, is protected by copyright (at least in the US) the instant it is created. Everything from that crayon drawing you made when you were 3 to the amazing novel just finished yesterday. EVERYTHING.

The definition of what is covered by copyright is insanely broad – although it originally started out for things like books and paintings, it has evolved to cover pretty much everything you can “create.”

Who is the “Owner” of Copyright?

The basic rule here is, if you created it, you have copyright over it.

Things get complicated if it was a joint project – in general, to be safe, you should assume that everyone who worked on creating it shares the copyright equally (even if nothing was ever written down or formally agreed upon).

If you created the work “for hire,” that is, if you were paid to create it as part of your job, or if you were commissioned specifically to create it, then you DON’T own the copyright – your employer or the person who commissioned the work does.

Any Unauthorized Use is Copyright Infringement

With only a very few exceptions, if you don’t own the copyright to something, then you cannot use it in any way – and if you do, you are violating the copyright of the owner.

Important distinction: when an unauthorized person uses a copyrighted work, that is not “stealing,” it is a violation of the owner’s “copy right,” sort of like censorship is a violation of a person’s “free speech right.”

There are, of course, some exceptions (again, these are taken from US law and may not be applicable where you are). You might have heard of them – they’re called “fair use.”

Fair use, like most legal terms, doesn’t mean what it seems to mean on its face – that if the use is “fair,” then it’s OK to use a copyrighted work without the owner’s permission. Instead, it means that if the use falls within certain defined uses, then it’s OK.

Fair use is unfortunately one of those things that isn’t (and can’t) be narrowly defined – it’s one of those “you’ll know it when you see it” things, which means people end up in court arguing about it a lot of the time. Sadly, that’s just the way it is.

For a full treatment of what fair use is and means, check out Wikipedia’s article on the subject.

It Doesn’t Matter if You Make Money or Not

Well, that’s not entirely 100% accurate – whether you make money from what you are doing is a factor that is considered in determining whether your use falls under “fair use.”

Not earning money from something does not automatically make it “OK’ for you to use a copyrighted work – but in many cases it will affect whether the owner of the copyright decides to spend the time, money, and effort in suing you to stop your unauthorized work.

Some copyright owners will sue everyone who uses their works, no matter what – and unfortunately under the law it is their right to do so.

Others, however, will only go after those people who are profiting from their work or who are doing things that directly (and negatively) affect their own ability to profit from their work.

Hey, I never said this copyright thing was going to make sense.

You Can’t Disclaim It

That is to say, you can’t disclaim copyright infringement – if you are using a copyrighted work without the authorization of the owner, and your use does not fall under “fair use,” then it doesn’t matter what you say – you are still infringing the owner’s copyright, and they can seek legal recourse against you.

For example, I can’t post an entire episode of a TV show online and just say “this isn’t owned by me, I don’t have copyright, it belongs to Such-and-such, Inc.” I’ve still violated their copyright; my disclaimer is technically and legally meaningless.

Let me say that again: there is NO disclaimer you can add to the unauthorized use of copyrighted material that will make it OK.

As an aside: if you think your use falls under “fair use,” but you’re worried that the copyright owner might disagree, a disclaimer might help sway their decision whether or not to sue you, especially if you spell out your reasoning at least a little bit. But it’s not guaranteed, and if it goes to court, it will have absolutely no bearing on anything.

You CAN transform it

I started this article in the context of “fan creations,” and if you’re not quite sure what that means, well… I’m not sure I can help you with that. If you’ve been on the Internet for any length of time, chances are you’ve run across “fan creations.”

The thing is, most “fan creations” fall into another legal category when it comes to copyright, one that not a lot of people talk about. Specifically, I’m talking about transformative works.

This is another one of those areas of law that doesn’t have a narrow definition – another one of those “you’ll know it when you see it” things. But in general, if your work “transforms” the original work into something else, something which is original and not merely a copy, then it’s OK, and your work would not be considered copyright infringement.

To take my example from before, while I can’t post an entire episode of a TV show online without violating copyright, if I take that episode, chop it up and re-arrange parts of it (and leave out other parts), and replace the entire soundtrack (voice and effects) with my own recordings, maybe even mix in some original video of my own, and post that online… then this would probably be considered transformative, and not infringement.

Trademark Law makes everything 20% more confusing

One thing to watch out for is that sometimes trademark law gets mixed in, and that just makes everything more confusing.

For example, you might make a transformative work, remixing a TV show with your own dialog, or making your own works featuring original characters (but based on something that is copyrighted), and you could still run afoul of the law (and have your work taken down from whatever site is hosting it) because the owner has registered a trademark on a character’s name or likeness, or on the name of the world, or on some other aspect of the work.

This is particularly likely if there is any sort of “merchandising” involved – which, if it’s popular, there almost certainly is.

Trademark law is a bit more narrowly defined than copyright law, but it’s also more vigorously defended – because you can lose your trademark if you don’t make an effort to stop people from using it inappropriately, for example.

What about this crazy “Creative Commons” thing?

I’m glad you asked – creative commons is a great way to get around all this legal hullabalu, but it has to be done by the owner, not you (the person making the fan work). You can still release your own works under a creative commons license, though.

I’ll be talking about Creative Commons in more detail in a future article, so stay tuned for that.

The Bottom Line (or, tl;dr)

Copyright law (and its close sibling, trademark law) is a complicated subject, but one that anyone who does fan works of any kind should at least have a basic understanding of. It’s extraordinarily easy to violate copyright (even unintentionally), but at the same time, you don’t actually get in trouble for it unless the owner chooses to pursue you in court. This is because copyright law, unlike say murder or theft, is a civil, not criminal matter. (Well, at least it WAS… until the DMCA came along and changed that for some cases.)

If you’re creating almost any kind of fan work, you’re probably skirting the boundaries of copyright infringement, depending on how close your work mirrors the original work – and it doesn’t matter how many disclaimers you paste all over it. If it violates copyright, it violates copyright, no matter what your disclaimers say. This is – for better or for worse – the state of copyright law (at least in the US and any other countries with similar laws).

The rule of thumb I guess would be to try to be inspired by the works you are a fan of, rather than just copy them outright. Use that inspiration to create your own works. And if you must do stuff that straddles the border between violating copyright and not, then for goodness sakes don’t try to make money off of it… because that’s just an incentive for the copyright owner to try to stop you (sue you).

Finally, I don’t want this to discourage anyone from creating fan stuff – frankly, the world needs MORE creative works, not less, and I’m not trying to scare people with legal talk. Honestly, I personally think copyright law needs a bit of an overhaul. But until then, we’re stuck with the laws we do have, and being ignorant of them is no good either, so I hope this at least sheds a little light on the issue for everyone who reads it.

Why SOPA Must Die

[It's taken me a while to get my thoughts in order regarding this issue, especially since so many others have already spoken about it more eloquently than I ever could. But this is such an important topic, and it has been weighing on my mind so heavily as of late, that I just couldn't wait any longer - I had to put my thoughts down in words.]

SOPA (the Stop Online Piracy Act; H.R. 3261) is a bill before the United States House of Representatives. In brief, it allows both the Department of Justice and copyright holders to request court orders against websites that are allegedly distributing copyrighted material without permission, or are just enabling others to do so. These court orders can require payment processors (e.g., PayPal, Visa, MasterCard, etc.) to freeze accounts, force search engines to de-list the accused website, and require ISPs to block the site’s DNS records.

(Strangely enough, the act also contains some other similar provisions for websites selling discount prescription drugs and surplus military hardware, of all things.)

The freezing of accounts is bad enough, but the blocking of DNS records is perhaps the most frightening aspect of this bill, as this amounts to no less than outright censorship of the Internet, similar to that seen in places like China and Iran.

I have a number of concerns with this bill, but I will just stick to the top few, the ones I think are the most egregious.

Lack of Due Process

Perhaps the most offensive aspect of this bill is its removal of the protection of due process for the accused. The 5th Amendment to the U.S. Constitution guarantees the right to due process, but this bill almost completely denies that right to those accused under its terms.

The right to due process is one of those really important rights for any free society – right up there with freedom of speech, freedom of religion, and the right to a trial by jury.

SOPA circumvents due process by making it so that the government (on the say-so of a copyright holder) has the right to take away something of yours (your website, and/or your money) without giving you a chance to challenge this. The takedown actions authorized under SOPA are effective immediately, and there is little to no burden of proof on those asking for the takedown, and even less chance of retribution on those asking for the takedown should their claims later be proven false.

Immediate action can be understandable in some circumstances (child kidnapping, serial killers, etc.), but for something as mundane as copyright infringement, it seems a bit excessive.

Which brings me to my next point…

Excessively Broad

The text of SOPA is purposefully very, very, very broadly written. This, I think, stems from a desire to sort of “cover your bases,” by trying to be as broad as possible so there are no loopholes.

Unfortunately, in this case the broad language simply serves to make this bill applicable to almost everything, in the same way that a law that said “any type of death threat, no matter what counts as attempted murder” is applicable to almost anything. If our actual criminal statues were worded this broadly, every single one of us would be in jail by now, because there is not a one of us who hasn’t at some point in our lives done something that could be construed as a death threat – from angry words during an argument to giving a rude gesture while driving.

This sort of broad, sweeping language doesn’t work for criminal law, and it doesn’t work for SOPA either.

SOPA claims to be aimed at stopping large-scale for-profit copyright infringement, but the actual text means the law would apply to any type of copyright infringement, no matter how small or insignificant.

Stupidly Unenforceable

The Internet is a global network. But the people who wrote SOPA seem to think that the only part of the Internet that counts is the part that’s in the United States.

This is so stupidly untrue as to not require further elaboration.

SOPA would allow blocking of websites for copyright infringement… but it claims to be aimed at “foreign” websites. And the only blocking it authorizes is to block those sites from being seen by… Americans. So, it doesn’t actually “block” the sites, it just blocks them from being seen in America. Anyone in the rest of the world can keep on visiting the site, and download unauthorized copyrighted material to their hearts content.

Your guess as to how, exactly, this is supposed to “stop online piracy” is as good as mine.

Ultimately Ineffective

The website blocking authorized by SOPA is done at the DNS level – meaning that it simply stops DNS servers (only in the U.S., as I mentioned above) from resolving the site’s domain name to its numerical IP address.

Which means that if the site www.example.com was blocked, but you knew it’s IP address (e.g., 192.168.55.34), you could just type in the numerical address instead, and it would work just fine.

This is the most obvious example as to why SOPA would be ultimately ineffective at its stated purpose – that is, stopping “online piracy.”

This is a bit like covering your eyes while witnessing a crime, and saying  “I can’t see it, so it’s not happening.”

Some of the other aspects of the act – for example, forcing payment gateways (such as PayPal or Visa or MasterCard, etc.), to freeze the accounts of the website’s owners – might be somewhat effective, but again, remember that this only affects payment gateways within the United States. If a “foreign” website is distributing unauthorized copyrighted material for profit, chances are they are going to use a “foreign” payment gateway as well. So, once again, SOPA achieves nothing towards its stated goal.

It Is Censorship

Obviously, SOPA was not designed as censorship per se, but due to the way it is structured, it would effectively be censorship.

Remember, SOPA allows someone to claim you are violating their copyright, and have your site completely blocked.

This is true even if it turns out that you were not violating their copyright, or that your use of copyrighted material falls under “fair use.”

Now, imagine that you are a big website (like, say, YouTube, Facebook, Flickr, or Twitter) – are you going to want to run the risk of having your site suddenly blocked because one of your users uploaded something that is copyrighted (even if it is ultimately found to be fair use)? Of course not!

Even though sites like Facebook and YouTube are probably big enough to get unblocked fairly quickly, the simple threat of being blocked at a moments notice is enough to force them – out of simple self-preservation – to severely censor their users. They just can’t take the risk – the potential harm to them (having their site blocked) is too great to even risk letting users upload anything that might, possibly, maybe, be considered copyright infringement.

Out of Proportion

We’ve seen how SOPA is carrying a pretty big stick when it comes to enforcement. But let’s think for a moment about what it is meant to be stopping, exactly:

Copyright Infringement.

Not “piracy,” not “theft of intellectual property,” but simple infringement of copyright.

Copyright, remember, is not a “fundamental” or “universal” right. It is a (time-limited) government granted monopoly on things you create, to encourage people to create things, knowing that others can’t just take what you’ve done for free and make money from it. It’s an incentive to create – nothing more, and nothing less.

Now consider that SOPA would make copyright infringement a felony.

Think about that for a moment – this law would make illegally copying someone’s work be on the same criminal level as murder and kidnapping.

The other aspects of SOPA – blocking websites and freezing accounts – are also wildly out of proportion with the actual harm done.

Imagine if other laws worked the same way – for example, if a particular neighborhood was known to have a lot of shoplifters stealing, say, packs of gum. The whole neighborhood could find itself suddenly and without warning shut down – no power, no electricity, all roads blocked off and the whole neighborhood under martial law. And all this would happen on the say-so of the gum manufacturer who complained about their products being stolen frequently.

If that seems a bit excessive, consider that this is exactly what SOPA would do, except for copyright violation instead of petty shoplifting.

Online piracy – which is just shorthand for “copyright infringement on the Internet” – is not equivalent to physical theft, despite what some people would like you to believe. If anything, it is a lesser crime than physical theft, which is why SOPA is such a terrible idea – it is wildly out of proportion with the crime it is trying to prevent.

Unfairly Biased

If you have any doubt that the movie and music industries are the major reason why this bill exists, consider this: there is a clause in the act which specifically makes streaming copyrighted content a felony.

Remember that any type of content you can create is automatically covered by copyright. Your kindergartener’s crayon drawing? Covered by copyright. Your vacation photos and home movies? Covered by copyright. That sculpture you made back in art class in college? Covered by copyright. Even the words you’re reading right now are covered by copyright.

But what sorts of content can be “streamed?” Well, you can’t very well stream a drawing, or a photo, or a sculpture. But you can stream music and movies – which are the things that are specifically made into a felony by SOPA.

If that doesn’t convince you that this act was primarily written by and for the movie and music industries, I don’t know what will.

SOPA Must Die

There are so many things wrong with SOPA that I couldn’t hope to cover them all – but I’d like to think I’ve at least covered the big ones. On top of that, it doesn’t help that the people writing and debating this bill admit that they don’t understand the issues involved.

I’ve spent a lot of time trying to think of ways that SOPA could be revised to make it less awful, but there simply is too much wrong with it to be worth salvaging – which is why SOPA must die. It simply is not salvageable as a piece of legislation, and trying to revise it just risks having some of its harmful provisions slip through. It should just be thrown away, and some other more specific and less broad legislation could be drafted instead.

Now, let’s be clear – I’m not saying that online copyright infringement isn’t a problem; far from it. But SOPA is not the answer. We already have the DMCA, which is not perfect (far from it, in fact), but it at least does not have the same problems I’ve outlined here (in particular, the DMCA at least does provide for due process, and it is a much more “surgical” tool for combating copyright infringement, unlike SOPA, which is more like a tactical nuclear bomb in comparison).

Unfortunately, right now the only voices Congress is hearing in regards to these issues come from the movie and music industries, which as I’ve said before, are the ones for whom SOPA (and its Senate cousin, the PROTECT IP Act) was written.

SOPA must be stopped, and it is up to us to remind Congress of this simple and inarguable fact.

If you haven’t done so already, call or email your representative and let them know what you think. Hearing the voices of the people is the only way a democracy can work – so speak now, or forever hold your [CENSORED FOR COPYRIGHT INFRINGEMENT].

Treating our Legal Code like Computer Code

I’ve posted before about the idea of treating our legal system (legal code) like a computer system (computer code):

Our legal code is almost entirely like an entire operating system written in undocumented Perl.

  1. There are no hints as to what any part of it is supposed to do and it is written in a language that to most people looks like line noise.
  2. Every significant patch is applied by adding an additional Perl module that overrides an existing method in an existing module, replacing all of the code in that method with a complete new copy of the method that is almost identical to the old one but adds or removes a backslash in a single regular expression.
  3. The entire core logic was written in a crunch session by a bunch of geeks locked in a room together and forced to design it by committee.
  4. The application was a rewrite of another application that never really worked well in the first place.
  5. Every function name is chosen explicitly to provoke an emotional response in the developer, e.g. thisFunctionSucks() or callMeNow().

Although that was somewhat tongue-in-cheek, there was a certain grain of truth to it.

It seems that I’m not the only one to think this – and indeed, someone has taken the idea even further by applying systems design principles to the new health care reform legislation that the US Congress is working on at the moment.

Bruce F. Webster writes:

On the occasions where I have reviewed the actual text of major legislation, I have been struck by the parallels between legislation and software, particularly in terms of the pitfalls and issues with architecture, design, implementation, testing, and deployment. Some of the tradeoffs are even the same, such as trading off the risk of “analysis paralysis” (never moving beyond the research and analysis phase) and the risks of unintended consequences from rushing ill-formed software into production. Yet another similarity is that both software and legislation tend to leverage off of, interact with, call upon, extend, and/or replace existing software and legislation.  Finally, the more complex a given system or piece of legislation is, the less likely that it will achieve the original intent.

He then goes on to talk about some “design flaws” in HR 3200 – otherwise known as the “America’s Affordable Health Choices Act of 2009.” (Brings to mind point #5 from the “Legal System as a Perl OS” quote from above, doesn’t it?)

Bruce then goes on make a point which is basically the same as point #2 in the “Legal System as a Perl OS” quote above:

Much of HR 3200 makes piecemeal modifications to existing legislation, often with little explanation as to intent and consequences.

Or to put it another way, entire sections of HR 3200 do nothing other than override some existing legislation in some incredibly small way, which will (presumably?) have huge (and in all likelihood, unintended and unforeseen) effects – much like how adding or removing a single backslash from a regular expression can have huge (and often unintended and unforeseen) effects on its pattern-matching behavior.

Bruce’s entire article (it’s the first of a 3-part series – as I write this, only parts 1 and 2 are done) is well worth reading – and in fact I highly recommend it, even for non-programmers.

Of course, if you ask me, I really think all legislators should be required to take a programming course or two – because, as I’ve said before (in my “A Programmer’s Perspective on Politics” article), laws are effectively the “operating system” of our society… and right now, the people writing our society’s “operating system” don’t seem to be particularly good programmers!!

Applying Old Laws to New Technology

You’ve probably heard of the RIAA and the MPAA (the Recording Industry Association of America and the Motion Picture Association of America, respectively) before. They’ve been in the news a lot lately – suing old people who don’t have a computer for sharing mp3 files on the Internet and so forth.

A recent Slashdot story tells the tale of just how twisted this story has become.

The basic problem here is one of scale.

Before the Internet and P2P, the average person simply did not have the means to undertake large-scale copyright violation. Sure, you could copy a tape, or even a VHS casette, but you still had to:

  1. Pay for the tapes
  2. Pay to distribute them (postage, gas for driving to your friends house, etc.)
  3. Take the time to make each copy individually

So by and large, individual copyright violations remained decidedly small scale. The effects of such violations were not statistically significant1 to the copyright holders (as far as their profit was concerned), so they were not pursued.

Fast-forward to the current day. Now we have the Internet, P2P software, and music is now digital. This is a huge difference – the cost of making copies is now basically $0 (it’s all just bits & bytes), and the cost of distributing it is basically $0 as well (or, rather, the cost started low and is approaching zero, as bandwidth gets cheaper and cheaper).

Now the average person has the means to distribute copyrighted material to a huge audience. Suddenly, this sort of copyright violation is most definitely statistically significant to the copyright holder. (Or, at least they would have you think so – I still maintain that while significant, it is still very, very small.)

And therein lies the problem. Copyright law (as currently written, and, more importantly, as traditionally enforced) does not scale well. It worked fine when there were only a (relatively) few major copyright violators. It doesn’t work well when everyone & their brother can share an entire music store’s worth of copyrighted materials (music, movies, etc.) to the entire world from their bedroom while they sleep!

So what to do?

One way to deal with this is the draconian, heavy-handed legal way. Strictly speaking, any copyright violation is illegal – no matter how large or small. You could crack down on all of it – sue everyone into oblivion. Pass laws to make the possession of devices used to violate copyright illegal. (This has already been done, by the way. Look up the DMCA.) No excuses!

Of course, it’s easy to see that if you did this, we’d end up back in the stone ages, since all sorts of modern technology can be used to violate copyright – this is nothing new. And the courts have already ruled on this, to a certain extent – back when VHS was new, there were lawsuits about it being used to copy movies at home. The courts ruled that this was covered under “fair use,” and that just because a device might be used to violate copyright does not mean that the device itself should be illegal (especially if the devices’ primary purpose is not copyright violation – devices that are specifically engineered to violate copyright fall into a more uncertain gray area, legally speaking).

Unfortunately, this is the method that the RIAA and MPAA have decided to use in enforcing their “rights.” They want to maintain the “status-quo.” They don’t care what new technology comes out – they want the ability of people to copy their stuff (i.e. music and movies) to remain just as difficult as it was before computers & the Internet. As a direct result of this line of thinking, we have things like DRM and rootkits that hijack our computers (without permission) on our music CDs.

The other way to handle this – the way that should be used (in my opinion), is to make an economic incentive for people not to indulge in wide-scale copyright infringement. After all, that’s what kept it under control in the first place!

To a small extent, this is already underway – though not spearheaded by the RIAA or MPAA, by any means. I’m talking, of course, about things like iTunes. Basically, if you make the music cheap enough, and trust to the general “goodness” in people, they will opt to buy music, rather than steal it. Especially if the purchased music includes “perks,” such as higher quality file formats, or maybe on-line access to additional content (movies, websites, interviews, stuff like that – like what you’d find on a DVD’s “extras” section).

At the same time, you have to remove the barriers to “fair use.” Don’t encode these purchased files so that they can only be played on one computer. People expect to be able to play “their” music on whatever device they choose – and they don’t like it when they can’t. And if they can’t, they’ll go get their music somewhere else – that is to say, from copyright violators on the Internet.

The trick, of course, is balance – something that corporate America is notoriously bad at. But if that balance can be struck, I truly do believe that copyright violations (in the form of normal-person file sharing, anyway) will go way down. It’s not “the status-quo,” and it’s certainly not “the way things used to be,” but hey, markets evolve, and companies (and laws) must evolve with them or perish.


1 In commonly heard arguments, you’ll hear people throw around qualifiers such as “large,” “measurable,” or “increasingly significant” in relation to how much of an effect file sharing (as a form of copyright violation) is having on their industries. This is just a trick of rhetoric – these qualifiers have no measurable or defined quantity. Just one person sharing a Britney Spears track with one other person is technically “measurable,” after all. I’ve used the more accurate statistically significant because statistics is math and can be quantified. I could even come up with the formula necessary to determine it, if I wasn’t lazy.