Downhill Battle recently released their Fort Culture site. It gives me an opportunity to talk out some things I’ve been thinking about lately in regards to what the Commoners’/Free Culture common platform should be - that is, what planks, from the array of diverse interests involved in the copyfight, can we synthesize into one common cause. Talking this out in this post will partly take the form of criticizing Fort Culture and Downhill Battle, but I really don’t mean to pick on them in particular. I don’t like to criticize them, because I have respect and appreciation for much of what they do. 3 Notes and Runnin’ was a brilliant way of bringing attention to sampling issues, and both it and the Grey Tuesday campaign took real courage. The tools they create are an important, practical way of actually effecting change. In particular, I look forward to the release of their desktop video player and “broadcast machine.”
Fort Culture, to some extent, also has a great deal of value. It is useful to synthesize the different related issues. Not only is it helpful to introduce others to these issues, but also it’s also useful to bring related groups together in the fight for free culture
However, I am deeply uncomfortable with their excusing and encouraging widespread, infringing P2P file-sharing, and I particularly disagree with their doing so as a means to destroy the major record labels. I think that association with this stance poses the greatest danger to succeeding in the copyfight.
We can argue that lawsuits against file-sharers will not reduce infringing file-sharing and, in turn, help provide sufficient compensation for artists (and rights holders). In that light, we can argue that the lawsuits are bad on the whole and that a VCL would be an optimal resolution. We should care about ensuring sufficient compensation, and we can do so without saying that we want to do whatever it takes to ensure it no matter the costs. We can recognize that not all file-sharing is harmful and that there is not firm evidence that it has already done significant harm.
But we can say all that without supporting widespread infringement on P2P and, indeed, by actually saying, don’t infringe. Not to say it without any nuance, but still to say in general, as Lessig is willing to do, “I have no patience for people who download music contrary to the wish of the original copyright owner. ”
In fact, we should take seriously what the merits would be if widespread infringing file-sharing withered away - the benefits of a scenario in which, contrary to what may be our projections, the direct infringement lawsuits effectively reduce widespread infringement. We should take seriously the legitimate, long-run economic argument that widespread infringement will do harm. If we are interested in getting artists compensated, we cannot reject these arguments out of hand. And if we’re going to defend certain types of file-sharing, we should be clear about the types we don’t condone.
Perhaps you feel that file-sharing, of any kind, shouldn’t actually be against the law. Simply legalizing all file-sharing seems like a terribly rash course to take - is that really the position we want to defend? The VCL is still predicated on a continued right to control copying and distribution, and I think part of its draw for many is that it’s still a market-oriented approach that does not involve the government or completely remove compensation for distribution of copies.
Furthermore, when we rationalize infringement as a means to our legitimate ends, or when we condone potentially infringing activity uncritically, we weaken our pursuit of those ends. We may make pursuit of free culture look like a cover for getting music for free.
We might worry, for instance, about the end of file-sharing leading to the rise of more DRMed systems, but let’s argue about how we should treat the DMCA and DRM. If DRM is the worry, we should be addressing it head on, without using activity we’d otherwise consider improper as a means to our desired end.
I also do not see how widespread infringing file-sharing is a legitimate means to changing the music industry. So many times I hear people throw around ideas like “civil disobedience” to justify this practice, and I worry that many take on such justifications recklessly. If you don’t like the majors, if their business model is really so bad, then don’t buy their music and help compete with it - promote alternative channels of marketing and distribution, fight for their protection, build those tools, and empower artists and consumers to use them. Deeming it an illegitimate business model by itself doesn’t provide a sufficient rationale for infringement. If it’s really a “cartel”, we have legitimate, legal means to deal with it (and maybe we need better ones). You may prefer a VCL, but those ends don’t justify the means either.
There certainly is room for important nuance and gray area in considering these issues. For instance, I still share music with my brother - I’ll give him CDs of MP3s, and he’ll do the same. Could we say that activity is indistinguishable from most infringing file-sharing? I suppose. Still, at a very basic level, I can’t find much reason to get upset at myself or others for such activities. This is a conversation we should have (one Ernest has long urged), but it feels like a different conversation, built around different goals and ideas, than talking about widespread infringing P2P file-sharing in general.
Some say that Downhill Battle helps make other groups like EFF or PK seem more moderate by contrast. I worry that, instead, other groups who do not share these views get lumped in with Downhill Battle. I worry that, for instance, the EFF’s Let the Music Play campaign gets interpreted as expousing similar views, and that, when the EFF supports building a tool like Tor, it’s interpreted as merely a means to shield unlawful online activities.
We have worked hard to distance ourselves from extremes, the alls and the nones, as Lessig likes to call them. This cavalier stance on file-sharing seems to pull us back toward those who want no IP at all. I recognize some, like Downhill Battle, will still want to pursue it. Regardless, it seems like an infirm basis to create a shared platform for all commoners and to define collectively “what’s at stake in the fight for digital rights.”
Filed by Derek Slater at 2:44 pm under General news
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