There are dozens of interesting issues now afloat between the essays and responses. Let me here pick up on two that seem particularly central to the conversation.
First, I agree with the rest of the posters that, given modern technology, copyright law will only be effective if it changes emphasis away from simple first-person enforcement and toward more complicated interventions that, by design, influence the development of technology tools and services. So, yes, copyright law will likely need to pressure Internet Service Providers to lend a hand in discouraging the most egregious forms of online infringement; and, yes, a site like YouTube in my view should have an obligation to filter for obviously infringing work. Copyright will need to take these steps with due caution. If liability is poorly implemented, these sorts of rules could chill innovation and otherwise interfere with a great deal of legitimate activity. However, I have confidence that indirect liability of this sort can be intelligently crafted, and my sense is that the law is moving helpfully in that direction. The rhetoric about a “police state” therefore sounds misplaced to me. Copyright liability can be appropriately nuanced, careful, and effective.
Second, implicit in the debate thus far is a fundamental disagreement about what copyright’s role should be. I think copyright law should do what it can to accommodate as many business models as plausible. So if new technology can lead to a rebirth of local live performances, copyright law should try to support those efforts. And if Paramount thinks that there is still room for the major motion picture even now, copyright law should again endeavor to leave that door open. The idea overall should be to let artists and entrepreneurs decide which approaches to champion, with the law doing everything it can to support those choices without itself picking winners.
This is even true as applied to Rasmus’ intentionally silly example about sea battles. Yes, copyright law should protect sea battle recreations in roughly the same way it protects Broadway musicals. That would allow the market to decide whether both or either of these creative outputs is worthwhile given the costs. This would not be copyright law subsidizing sea battles. After all, the copyright on the sea battle performance would be worth, at most, the value that consumers place on the joy of seeing the battle. I doubt that value is high today, and hence I suspect that even copyright could not and should not encourage the rebirth of this art form; but I would write the law with an eye toward allowing the relevant artists and entrepreneurs to take that risk for themselves. The elegance of copyright law is that we can do just that. Were copyright a cash grant from the government to the artist, we would have to pick winners carefully. But copyright is not cash. It is a limited right that allows the artist to capture for himself and his backers some substantial portion of the economic value created by his work. The virtue of that design is that copyright law itself does not need to vote in favor of one artist or approach at the expense of another. Instead, when it works, the law allows each artist/entrepreneur to reap what he has chosen to sow and play out the strategy he has chosen for his work and its distribution.