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.

Author: Keith Survell

A geek, programmer, amateur photographer, anime fan and crazy rabbit person.