Copyright and Digital Media in a Post-Napster World

The Berkman Center for Internet & Society just came out with their yearly update to their report on digital media, which started in 2003.

LINK: Copyright and Digital Media in a Post-Napster World: 2005 Update

Direct link to the PDF: Copyright and Digital Media in a Post-Napster World: 2005 Update (420k)

I must say it's the most comprehensive outline I've seen online, and I pretty much read it cover to cover with the exception of some of the legal cases. Perhaps I'm a tremendous geek, but I found it absolutely riveting, and I can not thank those involved enough for putting it online. The following excerpt from the overview page best explains what the report is about.

The objective of this White Paper, initially released in August 2003 and updated in January 2005, is to provide a foundation for evaluating key questions facing the different stakeholders in the contentious debate over the future of digital media. It explores issues surrounding the current digital media ecosystem, including:

• The legal and regulatory developments regarding copyright and related intellectual property issues.
  
• Business models upset or enabled by digital media distribution.
  
• Technological developments driving change across the value chain.
  
• Shifts in consumer attitudes and behavior.

There was a particular area of the document that is at the heart of the matter for me. We need thinkers and creators and their works of creativity, vision, scenarios, in writing, and in the arts in order to bridge this gap between the entrenched parties. It would appear that the war between the incumbent media and the insurgent media may have climaxed in 2004 with the RIAA and MPAA lawsuits, but then again we may be in for worse offenses on both sides and even worse entrenchment.

The issues of digital media will not be solved in courtrooms or with new laws. Such things will only exasperate the problem. We need innovation not only in business, business models and technology but in the arts. This is not a simple problem of technology. It poses questions about what shapes our world, and I don't think anyone has even begun to solve the problem yet, not even Steve Jobs with his iPod and the Apple Music Store. The problem won't be solved until the music, ideas and knowledge flow like water. When I can walk into a public place and share music as easily as I could share water from a public fountain, or buy it online in a hi-fidelity multi-track format, or buy it in a grocery store like I might buy a bottle of water, or enjoy it in a private club like I might enjoy a bottle of wine in a restaurant.

What I'm talking about is packaging and distribution. It's how information flows. Music like all IP should be everywhere. Ideas and knowledge should be as ubiquitously shared as the distribution of the water we drink. On some level it will be free to all, because like water it must be free to all for the sake of opportunity and equality, but simultaneously there will be far more ways to experience this IP in quantity as well as diversity. Just as the printing press did not kill monastic centers of learning by putting knowledge in a book and books in the hands of everyone. Just as the printing press did in fact spawn huge growth and widespread development of institutions of learning, so too will the internet spawn a revolution and a renaissance in all things involving the intellect, for that is what it is, a tool for the sharing of minds.

I am convinced that with this diversity of IP will develop an infinitely richer and more diverse industry supporting IP. An industry that in it's combined wealth dwarfs the current music, entertainment and IP industry to a magnitude that is unimaginable. In fact this growth is already happening at the edges of the marketplace and in the long end of the tail.

IP is not dead and it's not dying. The future is IP. As Eric Flint of Baen Free books put it, the demand is ever increasing and unless computers can somehow miraculously grow minds and produce great works of art and fiction then there will always be a need for thinkers and creators. The only issue is how they get paid. However, I think his words are much better than mine. After all he's the professional writer and I am but a blogger.

The only issue, therefore, is simply the means by which authors get paid for their work.

That's a different kettle of fish entirely from a "threat" to the livelihood of authors. Some writers out there, imitating Chicken Little, seem to think they are on the verge of suffering the fate of buggy whip makers. But that analogy is ridiculous. Buggy whip makers went out of business because someone else invented something which eliminated the demand for buggy whips — not because Henry Ford figured out a way to steal the payroll of the buggy whip factory.

Is anyone eliminating the demand for fiction? Nope.

Has anyone invented a gadget which can write fiction? Nope.

All that is happening, as the technological conditions under which commercial fiction writing takes place continue to change, is that everyone is wrestling with the impact that might have on the way in which writers get paid. That's it. So why all the panic? Especially, why the hysterical calls for draconian regulation of new technology — which, leaving aside the damage to society itself, is far more likely to hurt writers than to help them?

The future can't be foretold. But, whatever happens, so long as writers are essential to the process of producing fiction — along with editors, publishers, proofreaders (if you think a computer can proofread, you're nuts) and all the other people whose work is needed for it — they will get paid. Because they have, as a class if not as individuals, a monopoly on the product. Far easier to figure out new ways of generating income — as we hope to do with the Baen Free Library — than to tie ourselves and society as a whole into knots. Which are likely to be Gordian Knots, to boot.

What we're talking about is a paradigm shift. It's a shift in the very way in which we view intellectual property and the world. Advances in technology have caused us to face these issues head on. Laws, business practices, and indeed most importantly the public mind needs to evolve, and they are, quite rapidly now, but we have a long way to go.

I found the following scenarios from page 55 of the Berkman white paper quite interesting, but they are very incomplete. We need more debate specifically in this area. We need thinkers, writers and artists of all kinds to express their vision of the future. This issue is one that's larger than business, law and politics. I believe it rightfully falls to the very artists that copyright laws seek to protect to take up this debate and set new precedents, NOT the MPAA, the RIAA and NOT the businesses they represent, NOR the politicians in Washington. The Creative Class needs to rightfully take it's place in helping to lead this country wether it is merely a classic generational gap, a technologically induced intellectual rift, or something new altogether.

• The No-Change Scenario assumes that confusion remains about doctrines like "fair use" and "first sale" as the DMCA and copyright law continue to guide digital media distribution.
  
  
• The Speedbumps Scenario predicts that technological restrictions like encryption will create small barriers to users' access and control of digital content.
  
  
• The Technology Lockdown Scenario projects that restrictive digital rights management (DRM) schemes will unilaterally determine users' experience of the content they purchase.
  
  
• The Alternative Compensation System Scenario imagines that users access digital content through a state-run system that taxes consumers according to use and rewards creators according to the popularity of their work.
  
  
• The Entertainment Co-op Scenario envisions that voluntary associations emerge within the existing copyright structure to allow distribution of digital content between subscribers and creators.

We have analyzed ? and will further discuss ? these scenarios in a series of publications as potential models for distribution of digital content. All research papers and other materials are available at the Berkman Center?s Digital Media Project Website. Selected reports are also available on the Gartner?G2 site on the ?Digital Media Transition? page.