Saturday, August 13, 2005

From copyfight to copytruce

flag of truce
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.

Consumers and secondary content producers have a right to Fair Use of published content, which technology vendors will implement in their DRM solutions.
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.

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
In return, industry would:
  • 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.
The goal would be to go from “copyfight” to “copytruce”.

A test of the dĂ©tente 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.


Anonymous said...

Why asking consumer to abandon a simple, timeless concept (I bought it, I can give it away or resell it if I want) simply because of Hollywood's paranoia? DRM could also ensure that "first sale" would indeed allow transfer vs. illegal copies.

Pierre de Vries said...

I'm willing to question First Sale because it's based on the characteristics of physical goods; if I sell you my oil painting, I no longer own it. Intangible digital goods are perfectly copiable, and thus I can give you a digital photograph that's as good as the one I have and still retain.

One thus has to ask the question, can DRM implement the case law that's grown up around First Sale? I haven't seen any existence proofs, but that may just be ignorance. I have been told that the case law is so complex that one specific legal/engineering team that attempted it was unable to come up with a solution; there was contradictory case law. The technical solution could implement one judge's finding, or another's, but not both.

kidgeezer said...

Ok, I'll bite. The sharing (not to mention,make a buck), at least with friends, impulse is well embedded in human nature and various cultural manifestations. The digital realm adds power and flexibility. I'm not a programmer, but I have to wonder how hard it would be to code a heirarchy of copying permissions into a file. Original ownership is worth x copies, medium unlimited. Person y has one of those copies and has either no copy capabilites or decreased capabilities and so on. I realize that this does not necessarily solve any immediate legal issues, but it starts to address the cultural issues behind.

My 2 cents