[Commons-Law] Rasmus Fleischer essay for the Cato Institute's "The Future of Copyright" series

[Pranesh Prakash]

Dear All,
In an extremely interesting piece (first in a series on "The Future of
Copyright") on the Cato Institute's Cato Unbound, Rasmus Fleischer, a
co-founder of Piratbyrån (The Piracy Bureau, a Swedish anti-copyright
organization), makes a striking argument that copyright laws will
necessarily have to change to cope with changing technology, instead of
trying to seek more control as a reaction.

There is a good (but slightly less interesting) response paper by Timothy B.
Lee at <
http://www.cato-unbound.org/2008/06/11/tim-lee/two-paths-for-copyright-law/>.
Two more response papers will be published this month: one by Doug Lichtman
and one by Tom W. Bell.

[h/t: Techdirt: http://www.techdirt.com/articles/20080609/1950311357.shtml]

------------
Quotes:
"We already have access to more film, music, text and images than we can
possibly incorporate into our lives. Retreating from this paradigm of
abundance to the old paradigm of scarcity is simply not an alternative.
Adding more "content" will strictly speaking produce no value — whether
culturally or economically. What's valuable is supplying a context where
people can come together to create meaning out of abundance."

"It's characteristic of the dishonesty found in copyright law that the ACTA
has been promoted as a treaty aimed to save people from dangerous fake
medicine, which has very little to do with issues like "ISP responsibility."
While patents, trademarks, and copyright are significantly different in many
respects, copyright industry lobbyists prefer to present their draconian
enforcement strategies as a matter of "intellectual property" in general."

"The real dispute, once again, is not between proponents and opponents of
copyright as a whole. It is between believers and non-believers. Believers
in copyright keep dreaming about building a digital simulation of a
20th-century copyright economy, based on scarcity and with distinct limits
between broadcasting and unit sales. I don't believe such a stabilization
will ever occur, but I fear that this vision of copyright utopia is
triggering an escalation of technology regulations running out of control
and ruining civil liberties. Accepting a laissez-faire attitude regarding
software development and communication infrastructure can prevent such an
escalation."

"Creative practices, with some exceptions, thrive in economies where digital
abundance is connected to scarce qualities in space and time. But there can
never be a question of finding one universal business model for a world
without copyright. The more urgent question regards what price we will have
to pay for upholding the phantasm of universal copyright."
------------

There is a bit in the essay about Mark Getty's "Intellectual property is the
oil of the 21st century."  That quote gives rise to
http://www.oil21.org/and their associated projects
http://0xdb.org/ and http://pad.ma (the latter being put together by
oil21.org, Alternative Law Forum <http://altlawforum.org/>,
Majlis<http://majlisbombay.org/>,
Point of View <http://www.pointofview.org/> and
Chitrakarkhana<http://chitrakarkhana.net/>
/CAMP <http://camputer.org/>.)

-------------
To quote the editors of Cato Unbound:
The Future of Copyright

Does copyright have a future in the digital age? Or are new technologies
steadily making it obsolete? As the copying of digital texts, audio, and
video grows cheaper, the restrictions needed to enforce copyright grow more
expensive and invasive. What are the implications of easy digital copying
and storage for public policy? How can copyright be preserved in the digital
age, and is it even worth preserving?

To discuss these issues, we've brought in *Rasmus Fleischer*, one of the
co-founders of Piratbyrån, or "The Piracy Bureau." Piratbyrån is a Swedish
advocacy group opposed to invasive digital copyright laws. Although
Piratbyrån does not engage in illegal activities, some of its members did
help found The Pirate Bay, a BitTorrent tracker for downloading copyrighted
material online. As such, both organizations have gained considerable
notoriety.

In his lead essay, Fleischer discusses the proliferation of digital copying
online – and the widening circle of laws designed to stop it. He questions
whether these laws are enforceable without destroying the Internet's
openness and innovation, and whether technological fixes to impose
traditional copyright will not end up destroying civil liberties. To comment
on his essay, we've invited *Timothy B. Lee*, a Cato Institute adjunct
scholar specializing in technology issues and civil liberties and a frequent
contributor to *Techdirt, *and *Ars Technica, *as well as the *Wall Street
Journal* and the* **Los Angeles Times.* We've also invited Professor *Doug
Lichtman*, who teaches on law and technology at the University of
California, Los Angeles, and who is co-author of *Telecommunications Law and
Policy*, a textbook on the federal regulation of broadcast television, cable
television, radio, telephony, and the Internet. Finally, we will also be
hearing from *Tom W. Bell*, a law professor at Chapman University and author
of the forthcoming book *Intellectual Privilege: Copyright, Common Law, and
the Common Good*.

--------------------
http://www.cato-unbound.org/wp-print.php?p=745

The Future of Copyright

By Rasmus Fleischer
June 9th, 2008
Lead Essay <http://www.cato-unbound.org/category/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. The most recent is the
proposed "Anti-Counterfeiting Trade Agreement" (ACTA) [1], to be tabled at
next month's G8 meeting in Tokyo, including a clause known as the "Pirate
Bay killer" that would force countries to criminalize services that may
facilitate copyright infringement, even if not for profit. This is just one
example of how copyright law is mutating into something qualitatively
different than what it has been in previous centuries.

A very condensed version of copyright history could look like this: texts
(1800), works (1900), tools (2000). Originally the law was designed to
regulate the use of one machine only: the printing press. It concerned the
reproduction of *texts*, printed matter, without interfering with their
subsequent uses. Roughly around 1900, however, copyright law was drastically
extended to cover *works*, independent of any specific medium. This opened
up the field for collective rights management organizations, which since
have been setting fixed prices on performance and broadcasting licenses.
Under their direction, very specific copyright customs developed for each
new medium: cinema, gramophone, radio, and so forth. This differentiation
was undermined by the emergence of the Internet, and since about the year
2000 copyright law has been pushed in a new direction, regulating access to
tools in a way much more arbitrary than anyone in the pre-digital age could
have imagined.

This change has taken place because previously distinct media are now
simulated within the singular medium of the Internet, and copyright law
simply seems unable to cope with it. Consider radio broadcasting and record
shops, which once were inherently different. Their online counterparts are
known respectively as "streaming" and "downloading," but the distinction is
ultimately artificial, since the same data transfer takes place in each. The
only essential difference lies in how the software is configured at the
receiving end. If the software saves the music as a file for later use, it's
called a "download." If the software immediately sends the music to the
loudspeakers, it's called "streaming."

However, the receiver can *always *choose to transform a stream to a digital
file. It's simple, legal, and not very different from home taping. What now
fills the record industry with fear is the possibility that users could
"automatically identify and separate individual tracks from digital
transmissions and store them for future playback in any order."[2] In other
words, they fear that the distinction between streaming and downloading will
be exposed as a big fake.

For example, Swedish company Chilirec provides a rapidly growing free online
service assisting users in ripping digital audio streams.[3] After choosing
among hundreds of radio stations, you will soon have access to thousands of
MP3 files in an online depository, neatly sorted and correctly tagged,
available for download. The interface and functionality could be easily
confused with a peer-to-peer application like Limewire. You connect, you get
MP3s for free, and no one pays a penny to any rights holder. But it is fully
legal, as all Chilirec does is automate a process that anyone could do
manually.

Cutting a recorded radio stream into individual tracks and entering each
correct song title is easy, but takes lots of time. The open source
community is continuously coming up with free tools for simplifying it, such
as a program called The Last Ripper that can turn the on-demand streaming
service Last.fm into a library of MP3 files.

Record industry lobbyists smell the danger, and now they are urging
governments to criminalize such practices. On their orders the so-called
PERFORM Act ("Platform Equality and Remedies for Rights Holders in Music
Act") was introduced in the U.S. Senate last year. [4] The proposed law
would force every Internet radio station to encrypt the transmission of file
information, such as the name of the song. Yet anything visible on the
screen can still be easily obtained by special software, encryption
notwithstanding, and such restrictions would therefore be ridiculously easy
to circumvent. Thus the PERFORM Act includes a follow-up clause banning the
distribution of this class of software.

People with some programming skills, however, won't need to do much more
than combining a few readily available and otherwise perfectly legal code
libraries to compile their own streamripping tool, one that would circumvent
the PERFORM Act. For regulations like these to be effective, it is necessary
also to censor the sharing of skills that potentially can be useful for
coding illegal software. The circle of prohibition grows still larger:
Acoustic fingerprinting technologies, which have nothing
copyright-infringing to them, but which can be used for the same feared
identification of individual tracks, must probably also be restricted.

This domino effect captures the essence of copyright maximalism: 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. This
development undermines the freedom of choice that Creative Commons licenses
are meant to realize. It will also have seriously chilling effects on
innovation, as the legal status of new technologies will always be uncertain
under ever more invasive rules.

Anti-piracy agencies are today fiercely attacking different kinds of search
engines, solely because they provide links to files which may be
copyrighted. This includes the bizarre case against Swedish BitTorrent
tracker The Pirate Bay, as well as recent lawsuits against Yahoo! China and
Baidu. Only Google remains largely uncontested, although they operate in the
same gray zone of copyright. For example, the business model of Google Books
is to display millions of pages of copyrighted and uncopyrighted books as
part of a business plan drawing its revenue from advertising.

Gray zones like these are omnipresent in 21st century copyright law. One
reason for this development is the uncertain status of the very idea of
"copying" today. Contrast today's world with the golden age of copyright,
roughly speaking between 1800 and 1950. Back then, enforcement was easy. The
act of reading a book was far removed from the act of printing one. Record
presses and gramophones were safely distinct machines. Since then, things
have changed.

When American troops liberated the city of Luxembourg in 1944, they made a
strange capture: a machine capable of recording sound on magnetic tapes.
Shortly after the war, this German military invention made its appearance in
private homes. Tape recorders integrated listening and reproduction in one
device, but as separate functions. That's no longer the case with digital
technology. Today, to use digital information *is* to copy it.

Computers operate by copying. They couldn't care less whether the physical
distance between original and copy is measured in micrometers or in miles;
both work equally well for them. Copyright law, on the other hand, must
somehow draw a line between use and distribution. That means putting an
imaginary grid over the chaotic myriad of network nodes, delineating
clusters of devices that can be attributed to individuals or households.

Whatever happens inside such a cluster is defined as private use, while any
trespassing of these borders is potentially criminal. But what can this
strict division between private and public mean to someone with 400
"friends" on Facebook?
Another important consideration is that the digital is larger than the
online. According to one recent study 95 percent of British youth engage in
file sharing via burned CDs, instant messaging clients, mobile phones, USB
sticks, e-mail, and portable hard drives. [5]

Such practices constitute the "darknet," a term popularized by four
Microsoft-affiliated researchers in a brilliant 2002 paper.[6] Their thesis
is simply that people who have information and want to exchange it with each
other will do just that, forming spontaneous networks which may be large or
small, online or offline. By being interconnected they can always keep the
most popular material available. Attempts to curb open file-sharing
infrastructure may only drive activity towards smaller and darker networks.

One early darknet has been termed the "sneakernet": walking by foot to your
friend carrying video cassettes or floppy discs. Nor is the sneakernet
purely a technology of the past. The capacity of portable storage devices is
increasing exponentially, much faster than Internet bandwidth, according to
a principle known as "Kryder's Law." [7] The information in our pockets
yesterday was measured in megabytes, today in gigabytes, tomorrow in
terabytes and in a few years probably in petabytes (an incredible amount of
data). Within 10-15 years a cheap pocket-size media player will probably be
able to store all recorded music that has ever been released — ready for
direct copying to another person's device.

In other words: The sneakernet will come back if needed. "I believe this is
a 'wild card' that most people in the music industry are not seeing at all,"
writes Swedish filesharing researcher Daniel Johansson. "When music fans can
say, 'I have all the music from 1950-2010, do you want a copy?' — what kind
of business models will be viable in such a reality?" [8]

We already have access to more film, music, text and images than we can
possibly incorporate into our lives. Retreating from this paradigm of
abundance to the old paradigm of scarcity is simply not an alternative.
Adding more "content" will strictly speaking produce no value — whether
culturally or economically. What's valuable is supplying a context where
people can come together to create meaning out of abundance.

The digital world poses questions whose answers can't remain within the
digital sphere. A key challenge is to relate the digital to that which is
not digital: time, space, human relationships, and so forth. Kevin Kelly,
the founding executive editor of *Wired *magazine, has recently captured it
well: When copies are superabundant, they become worthless, while things
which can't be copied become scarce and valuable. What counts in the end are
"uncopyable values," qualities which are "better than free." [9]

The file-sharing explosion beginning around the year 2000 marked not only
the start of a falling trend in sales of recorded music, but also of a
drastic rise in spending on live music experiences. Only ten years ago, live
music was widely conceived of as merely a way to market recordings. Today
that strange equation seems to have been turned on its head.

Music is far from unique in demonstrating how the pendulum has swung. Kelly
mentions how writers increasingly make their money from appearing in person,
promoted by their books, which may well be available for free. The computer
game industry has understood how to make big money not by selling software,
but by selling access to online worlds.

Businesses that adopted the copyright industry's old formula of selling
"content without context" are meeting harder times. "Intellectual property
is the oil of the 21st century," was once the motto of Mark Getty, the
businessman who used his family's oil fortune to invest in one of the
world's largest copyright portfolios, controlling more than 60 million
images." Getty Images saw its stock price fall steadily since its peak in
2004, before the company earlier this year was sold out to private equity.

The failure of Getty Images can't be blamed on piracy, but rather has to do
with the spread of digital cameras. Editors increasingly tend to prefer
on-the-spot pictures, regardless of image quality. Sitting on a large
database of archived pictures becomes less relevant when newspapers want
photography to produce a feeling of real-time presence — an uncopyable
quality.

Faced with these new realities, copyright industries may instead go on the
offensive. First out on the battlefield were the record industry's
watchdogs, the Recording Industry Association of America and its
international counterpart, the International Federation of the Phonographic
Industry. Together, the RIAA and IFPI have set the industry's lobbying
agenda. Topping their wishlist is legislation requiring "carriers of digital
content" to intervene in the use of communications services, or what they
call "ISP responsibility." [10] The ACTA might soon deliver them such
legislation, which basically encompasses measures of two kinds.

One is simply net censorship. In several European countries, the IFPI is
already taking ISPs to court to make them block access to search engines
like The Pirate Bay. The question arises: Which site would be next? That
infringement hotbed called YouTube? Probably not, but such implicit threats
are increasingly being used by copyright industries in their hunt for
profitable but one-sided licensing deals.

Yet more alarming, the very existence of an Internet blacklist will
constantly tempt politicians to expand that list's uses to all kinds of
morally or politically inconvenient sites. Franco Frattini, the EU Justice
Commissioner, is already pushing to censor online information about
bombmaking. [11] Censorship, however, can be circumvented, as demonstrated
in Denmark, where more people started using The Pirate Bay after a
court-ordered block was implemented.

As a second measure, the anti-piracy lobby demands authorization to order
ISPs to disconnect users and to force ISPs to give out subscribers'
identities on request. Unfortunately, criticisms of such policies have
hitherto been limited to concerns about the violation of privacy. While
privacy is a valid concern, there are other reasons to mistrust this
measure.

Consider first that the Internet is not a network of people; it is a network
of computers. Any node in a network is not necessarily an endpoint, but a
potential opening to a sub-network. Firms and neighborhoods routinely
install one fiber connection and share it via a router. Only their local
network administrator can then trace online activities to an actual user. In
other words, anonymity will remain a possibility.

Yet in the name of ISP responsibility, virtually any Internet user might be
called to account by the recording industry. Here's why: In discussions
about so-called ISP responsibility, it is crucial to remember that big
telecom companies are far from the only existing "operators of electronic
communications networks and services." This is the actual definition of an
ISP, used within the European Union bureaucracy, but by this definition, you
may be one, too. The U.S. Digital Millennium Copyright Act is equally vague:
It defines a "service provider" as a "provider of online services or network
access, or the operator of facilities therefor," leading many to wonder
whether libraries, employers, or private individuals operating routers might
also qualify as ISPs.

Given such a broad definition, any company or person sharing connectivity,
as well as anyone hosting a blog or a web forum, could, in the name of "ISP
responsibility," be obligated to register the identities of users and to
deliver them to copyright enforcers on request. The range of possible abuses
is enormous. Attempts to save an already broken policy will mean an ever
more absurd sequence of follow-up regulations.

Meanwhile, darknets will proliferate and demand for new anonymization
techniques will remain high as a general side-effect of the hunt for
small-scale copyright infringers. The most eager to take advantage of that
situation will of course be the real criminals, including terrorists, while
the legitimate Internet may grow fragmented and lose its open, freewheeling
character.

Copyright enforcement weakens general law enforcement. And it's expensive.
The proposed ACTA treaty would create international legislation turning
border guards into copyright police, charged with checking laptops, iPods,
and other devices for possibly infringing content, and given the authority
to confiscate and destroy equipment without even requiring a complaint from
a rights-holder.

It's characteristic of the dishonesty found in copyright law that the ACTA
has been promoted as a treaty aimed to save people from dangerous fake
medicine, which has very little to do with issues like "ISP responsibility."
While patents, trademarks, and copyright are significantly different in many
respects, copyright industry lobbyists prefer to present their draconian
enforcement strategies as a matter of "intellectual property" in general.

The real dispute, once again, is not between proponents and opponents of
copyright as a whole. It is between believers and non-believers. Believers
in copyright keep dreaming about building a digital simulation of a
20th-century copyright economy, based on scarcity and with distinct limits
between broadcasting and unit sales. I don't believe such a stabilization
will ever occur, but I fear that this vision of copyright utopia is
triggering an escalation of technology regulations running out of control
and ruining civil liberties. Accepting a laissez-faire attitude regarding
software development and communication infrastructure can prevent such an
escalation.

Unauthorized sharing of files will prevail in darknets, online and offline.
On the other hand, certain non-digital activities, like book publishing,
continue to work relatively well under the terms of classical copyright law
designed for printing presses. Still other fields, like software and music,
are characterized by complex competition among different models, where some
make money on selling copyable units, while others profit by delivering
uncopyable services. A qualified guess is that we will have to live in this
landscape of gray zones for quite a while, for good and bad.

Creative practices, with some exceptions, thrive in economies where digital
abundance is connected to scarce qualities in space and time. But there can
never be a question of finding one universal business model for a world
without copyright. The more urgent question regards what price we will have
to pay for upholding the phantasm of universal copyright.

* Notes *

[1] [1] IP Justice: Anti-Counterfeiting Trade Agreement
(ACTA)<http://ipjustice.org/wp/campaigns/acta/>
.

[2] [2] IFPI: "Digital Music Report 2007″, p.
20<http://www.ifpi.org/content/library/digital-music-report-2007.pdf>
.

[3] [3] http://www.chilirec.com/

[4] [4] http://feinstein.senate.gov/06releases/r-dig-music.htm

[5] [5] Katie Allen: "Home copying - burnt into teenage psyche." *The
Guardian*, April 7,
2008<http://www.guardian.co.uk/technology/2008/apr/07/digitalmusic.drm>
.

[6] [6] Peter Biddle, Paul England, Marcus Peinado und Bryan Willman: "The
Darknet and the Future of Content
Distribution<http://msl1.mit.edu/ESD10/docs/darknet5.pdf>
."

[7] [7] Chip Walter, "Kryder's Law." *Scientific American*, July,
2005<http://www.sciam.com/article.cfm?id=kryders-law>
.

[8] [8] Daniel Johansson: "The Future of Private Copying." *Digital
Renaissance*, March 27th,
2008<http://www.digitalrenaissance.se/2008/03/27/the-future-of-private-copying/>
.

[9] [9] Kevin Kelly, "Better than
free<http://www.edge.org/3rd_culture/kelly08/kelly08_index.html>
."

[10] [10] IFPI: "Digital Music Report
2008<http://www.ifpi.org/content/library/DMR2008.pdf>
."

[11] [11] "Website bomb-making lessons to be outlawed across Europe" *Times
*online, July 4,
2007<http://www.timesonline.co.uk/tol/news/uk/crime/article2023030.ece>
.

—

*Rasmus Fleischer is a co-founder of Piratbyrån, a Swedish anti-copyright
organization. *
 ------------------------------

Article printed from Cato Unbound: *http://www.cato-unbound.org*

URL to article: *
http://www.cato-unbound.org/2008/06/09/rasmus-fleischer/the-future-of-copyright/
*

URLs in this post:
[1] IP Justice: Anti-Counterfeiting Trade Agreement (ACTA): *
http://ipjustice.org/wp/campaigns/acta/*
[2] IFPI: "Digital Music Report 2007″, p. 20: *
http://www.ifpi.org/content/library/digital-music-report-2007.pdf*
[3] http://www.chilirec.com/: *http://www.chilirec.com/*
[4] http://feinstein.senate.gov/06releases/r-dig-music.htm: *
http://feinstein.senate.gov/06releases/r-dig-music.htm*
[5] Katie Allen: "Home copying - burnt into teenage psyche." *The Guardian*,
April 7, 2008: *
http://www.guardian.co.uk/technology/2008/apr/07/digitalmusic.drm*
[6] Peter Biddle, Paul England, Marcus Peinado und Bryan Willman: "The
Darknet and the Future of Content Distribution: *
http://msl1.mit.edu/ESD10/docs/darknet5.pdf*
[7] Chip Walter, "Kryder's Law." *Scientific American*, July, 2005: *
http://www.sciam.com/article.cfm?id=kryders-law*
[8] Daniel Johansson: "The Future of Private Copying." *Digital Renaissance*,
March 27th, 2008: *
http://www.digitalrenaissance.se/2008/03/27/the-future-of-private-copying/*
[9] Kevin Kelly, "Better than free: *
http://www.edge.org/3rd_culture/kelly08/kelly08_index.html*
[10] IFPI: "Digital Music Report 2008: *
http://www.ifpi.org/content/library/DMR2008.pdf*
[11] "Website bomb-making lessons to be outlawed across Europe" *Times *online,
July 4, 2007: *
http://www.timesonline.co.uk/tol/news/uk/crime/article2023030.ece*
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