There is middle ground between the competing principles that I highlighted in King Content vs. the Copyfighters: content owners’ right to sell bits, and consumers’ rights to Fair Use and First Sale. The "Digital Copyright Principles" are a basis for detente between the combatants:
Content owners have the right to monetize their property by selling it. While long admitted by many in the copyfight, this will be hard for some partisans to to concede.If there isn't an accomodation, the content industry will fight a long but doomed rear-guard action against a new system of intellectual property. For their part, copyfighters will rage against the machine for years, with little to show for it.
Consumers and secondary content producers have a right to Fair Use of published content, which technology vendors will implement in their DRM solutions.
I’m suggesting that Copyfighters:
- Give up the notion of First Sale as a consumer right, and recognize that licenses are an acceptable way to make money from digital goods
- Stop demonizing DRM
- Implement Fair Use in DRM. This will require a significant development effort. It will also be hard in legal terms, since Fair Use precendents may be contradictory.
- Address copyright terms – the current approach of “Don’t let Mickey Die!” is commercially reasonable in the short term, but destructive to itsability to defend the social contract around IPR in the long term.
A test of the détente will be whether the two sides can agree on a rewrite of the DMCA. Once that’s done, the two sides should rework the badly broken copyright regime. Some industry players have acknowledged flaws in the software patent regime by taking an “it’s necessary, but we know it’s broken, and here’s how to fix it” approach; the same is needed for copyright.
The lack of a counter-party on the copyfight side makes negotiations tricky; who does industry talk to? It will be up to figures in the community like Larry Lessig and Cory Doctorow to take a lead. Provocations will be inevitable; one can never stop freelancers from taking radical action to scuttle any deal they don’t like. However, the Brits pulled this off with the IRA in Northern Ireland over the last decade or so, so it’s doable.
Doable, but not easy. Intangibles are hard for humans to deal with. There is little precedent, and we may just not be wired with good intuitions about digital goods. Abstract concepts can also generate the worst kind of conflict - take all the bloodletting in the Reformation around such abstractions as predestination vs. justification through works.
The politics are not conducive to a legislative solution. In the US, the White House doesn't much care about the issue, and certainly doesn't care about the players. Let's check of the list: Copyfighters - Lefties; Hollywood - Lefties; Silicon Valley - Lefties. Citizens' access to content is perhaps a more active issue in Europe, but since entertainment regulation is a national prerogative, the Commission may opt not to intervene.
2007 looks like a pivotal year. There will be a new administration in the White House, and key ICT directives will be up for renewal in Europe. Let's lay the groundwork, in terms of legal theory, technology and personal relationships, in the next 18 months.