Closing Thoughts

Tim and Tom both read my most recent post in a way I did not intend it. I was responding to Rasmus’s several posts where he was picking winners and losers among copyright industries. I thought that was off the mark. Whether Rasmus thinks movies are a good or bad form of creative expression is in my view irrelevant. My point to him was that copyright should try not to choose.

Tim and Tom go on to talk about how copyright policies will have implications for the development of technology markets. That’s certainly right, and I don’t think any of us disagree on that score. My view on YouTube, for instance, is that Google ought to be obligated to implement some filtering technologies, but that YouTube should not be required to implement perfect filtering because that would require the site to shut down. Similarly, my view on the old Grokster fight was that copyright should impose liability, but do so in ways tailored to fight piracy without much interfering with Grokster’s legitimate uses. So I agree with Tim and Tom that copyright has implications for technology, and indeed that’s a big part of what I think about when taking positions about what copyright should and should not ask of technology providers.

The real puzzle before us, then, is whether copyright can influence technology in ways that would help keep copyright intact while still leaving technology markets sufficiently profitable and unfettered so that they promote rapid innovation. On that, I am optimistic. For instance, in a previous post I linked to the UGC filtering guidelines that were promulgated by Yahoo, Viacom, Microsoft, and many others. A solution like that seems to hit the balance nicely. A site like YouTube would be required to undertake reasonable efforts at filtering, adjusting as technology in that area improves. In return, however, the site would be immune from cash liability for the infringement that cannot at reasonable cost be excised. True, YouTube would maybe prefer a world where it not only had no cash liability but also had no filtering obligation. But that is just the balance at work. We want innovation in both copyright and technology, after all, and so trading a bit between them is not upsetting.

Taken from another perspective, the real question here is how to divide the value created by the combination of the copyright system and technological innovation, all the while accounting for three important facts: we want both, copyright provides input that makes many of the relevant technologies more valuable, and technological advancement typically makes copyrighted work more valuable too. I don’t think there is a simple answer to that question, and I don’t think Tim or Tom or I want to see any of the extremes.

Left for discussions like this, then, are questions about how best to craft middle-ground rules. Should we limit cash damages to only those situations where the technologist worked in bad faith? If there are a large number of plausible intermediaries who could help enforce copyright, how best do we choose between them or spread any minor burdens among them? Under what situations should some form of compulsory licensing kick in, thereby obviating the need to tweak the relevant technology at all? (Is that maybe the solution in instances where DarkNet scenarios turn out to be right, and law cannot effectively regulate behavior?) These are the types of questions that seem central to me and in need of continued thoughtful conversation like the one we’ve worked on here.

And yes, I am optimistic that through those conversations — and with careful attention to the concerns that Tim and Tom and Rasmus rightly raise — copyright can continue to do the good work it has long done and at the same time give a hand to the exciting new technologies about which Rasmus wrote so warmly a few days ago.

Also from this issue

Lead Essay

  • “How relevant is it to declare oneself to be ‘for’ or ‘against’ copyright? Neither the stabilization nor the abolition of the copyright system seems within reach. All we see is a seemingly endless assembly line of new extensions to the law being proposed and enacted,” writes Rasmus Fleischer in this month’s Cato Unbound lead essay. Meanwhile, digital copying technologies continue to grow exponentially in storage capacity, to the point where a handheld device may soon be able to carry all music ever recorded and released. This threatens to make a mockery of copyright law, and those who support the extensions of current regime are fighting back. “Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses,” writes Fleischer, who predicts “seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.”

Response Essays

  • It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true… The copyright policies of the last decade have been based on the idea that copyright is about controlling unauthorized copying. An alternative is to treat copyright as a limitation on commercial exploitation of creative works. Under this option, individuals could make any non-commercial use they liked of copyrighted works, including sharing them with strangers on the Internet, without fear of legal consequences. Copyright law would focus on commercial entities, who are both easier to regulate and better equipped to deal with copyright law’s complexities.

  • Copyright law and copyright policy are both in the midst of enormous change. That doesn’t mean copyright is dying. The technologies available to facilitate the creation and distribution of creative work have themselves undergone enormous change. Copyright law is of course following suit, but as it does, we must make certain that those in the creative professions can still survive.

  • Tom W. Bell raises a question: Copyright enforcement always has costs. How high are we willing to allow those costs to rise? How harsh, in other words, will we allow copyright law to become, as a counterweight to the ease with which people now can copy digital media? It is conceivable, he argues, that these costs might become too great, and that we will be forced to allow copyright to end, rather than bearing them.