A Copyfighter’s Musings

Posted 2-5-03, here.

Protecting Fair Use By Reinventing Copyright (Part 2b in a Series)

Today I want to talk a little more about rhetoric in the context of P2P, and how that will be important to reinventing copyright.
There are now a couple of threads about how we should talk about copyright, particularly so that the public can understand their rights in copyright. Doc’s got the latest here and I made some comments earlier.
I want to get at a slightly different problem. I know Ernie said “forget file-sharing” and focus more on music industry malpractice. Still, I’m not sure we should “forget file-sharing.”
Often, the current copyfight debate revolves around eliminating the DMCA or government mandates. We focus on keeping the government out of technology development. When it comes to P2P, we say, “Well, content creators just need new business models that will make consumers want to pay for their music and move away from P2P, or they’ll come up with DRM that basically makes P2P impossible.” But we make no provisions for making sure “file-sharing” still exists in its current (or a similar) form.
I wonder: is P2P file-sharing something we need to protect? I don’t just mean P2P, I suppose. I mean the entire “rip, mix, and burn” culture of which P2P is a part. There are incredible social benefits to everyone being able to share what they like, share ideas, express themselves through the act of sharing. There are benefits to people being able to have access to information quickly, easily, and cheaply – P2P enables that (whereas a DRM model might not). And, even though artists could decide to release their music over P2P services, maybe we should make it easier and more viable (economically) for them to do so; that could spur untold creativity from artists who normally go unnoticed.
The cultural benefits of P2P are hard to define; I’m not quite sure how to do it yet. I’m certainly not sure how to do it in a way that would make good rhetoric. But I do know that I’d like more attention put on what sort of copyright regime we want, rather than simply what sort of regime we don’t want. If we’re going to do that, we can’t “forget file-sharing.” We need to decide if we want to capture all the benefits of P2P, or let new DRM-based models spring up that might not capture those benefits. If we do choose to protect P2P, we’re going to need to be able to express it in a way that doesn’t sound like “we want your stuff for free!” They can’t sound as broad and fluffy as my comments above, either.
Luckily, some people are already doing this. Professor Lessig does a some of the work in The Future of Ideas. Creative Commons is helping too.
Key to our rhetoric will be plans like Neil Netanel’s or Professor Fisher’s. They go beyond saying why P2P is important by presenting policy solutions for the public and consumers; furthermore, both plans, as Netanel puts it, stand between the shoals of “digital abandon” (basically doing away with copyright) and “digital lock-up” (copyright regime backed by strong DRM). Maybe you disagree with these particular policy solutions, but I still think it’s important that we have some sort of policy solution to go along with why we want to protect P2P.

Filed by Derek Slater at 3:33 pm under
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