</para>
<para>
This point about the future is meant to suggest a perspective on the
-present: It is emphatically temporary. The "problem" with file
- sharing—to
-the extent there is a real problem—is a problem that will
- increasingly
-disappear as it becomes easier to connect to the Internet.
-And thus it is an extraordinary mistake for policy makers today to be
-"solving" this problem in light of a technology that will be gone
- tomorrow.
-The question should not be how to regulate the Internet to
-eliminate file sharing (the Net will evolve that problem away). The
-question instead should be how to assure that artists get paid, during
+present: It is emphatically temporary. The "problem" with file
+sharing—to the extent there is a real problem—is a problem
+that will increasingly disappear as it becomes easier to connect to
+the Internet. And thus it is an extraordinary mistake for policy
+makers today to be "solving" this problem in light of a technology
+that will be gone tomorrow. The question should not be how to
+regulate the Internet to eliminate file sharing (the Net will evolve
+that problem away). The question instead should be how to assure that
+artists get paid, during
<!-- PAGE BREAK 304 -->
this transition between twentieth-century models for doing business
and twenty-first-century technologies.
</para>
<para>
-The answer begins with recognizing that there are different
- "problems"
+The answer begins with recognizing that there are different "problems"
here to solve. Let's start with type D content—uncopyrighted
-content or copyrighted content that the artist wants shared. The
- "problem"
-with this content is to make sure that the technology that would
-enable this kind of sharing is not rendered illegal. You can think of it
-this way: Pay phones are used to deliver ransom demands, no doubt.
-But there are many who need to use pay phones who have nothing to
-do with ransoms. It would be wrong to ban pay phones in order to
-eliminate kidnapping.
+content or copyrighted content that the artist wants shared. The
+"problem" with this content is to make sure that the technology that
+would enable this kind of sharing is not rendered illegal. You can
+think of it this way: Pay phones are used to deliver ransom demands,
+no doubt. But there are many who need to use pay phones who have
+nothing to do with ransoms. It would be wrong to ban pay phones in
+order to eliminate kidnapping.
</para>
<para>
Type C content raises a different "problem." This is content that was,
-at one time, published and is no longer available. It may be unavailable
-because the artist is no longer valuable enough for the record label he
-signed with to carry his work. Or it may be unavailable because the work
-is forgotten. Either way, the aim of the law should be to facilitate the
- access
-to this content, ideally in a way that returns something to the artist.
+at one time, published and is no longer available. It may be
+unavailable because the artist is no longer valuable enough for the
+record label he signed with to carry his work. Or it may be
+unavailable because the work is forgotten. Either way, the aim of the
+law should be to facilitate the access to this content, ideally in a
+way that returns something to the artist.
</para>
<para>
-Again, the model here is the used book store. Once a book goes out
-of print, it may still be available in libraries and used book stores. But
-libraries and used book stores don't pay the copyright owner when
-someone reads or buys an out-of-print book. That makes total sense, of
-course, since any other system would be so burdensome as to eliminate
-the possibility of used book stores' existing. But from the author's
- perspective,
-this "sharing" of his content without his being compensated is
-less than ideal.
+Again, the model here is the used book store. Once a book goes out of
+print, it may still be available in libraries and used book
+stores. But libraries and used book stores don't pay the copyright
+owner when someone reads or buys an out-of-print book. That makes
+total sense, of course, since any other system would be so burdensome
+as to eliminate the possibility of used book stores' existing. But
+from the author's perspective, this "sharing" of his content without
+his being compensated is less than ideal.
</para>
<para>
The model of used book stores suggests that the law could simply
<para>
<!-- PAGE BREAK 305 -->
-Alternatively, the law could create a statutory license that would
- ensure
-that artists get something from the trade of their work. For
- example,
-if the law set a low statutory rate for the commercial sharing of
-content that was not offered for sale by a commercial publisher, and if
-that rate were automatically transferred to a trust for the benefit of the
-artist, then businesses could develop around the idea of trading this
-content, and artists would benefit from this trade.
+Alternatively, the law could create a statutory license that would
+ensure that artists get something from the trade of their work. For
+example, if the law set a low statutory rate for the commercial
+sharing of content that was not offered for sale by a commercial
+publisher, and if that rate were automatically transferred to a trust
+for the benefit of the artist, then businesses could develop around
+the idea of trading this content, and artists would benefit from this
+trade.
</para>
<para>
This system would also create an incentive for publishers to keep
works available commercially. Works that are available commercially
would not be subject to this license. Thus, publishers could protect
the right to charge whatever they want for content if they kept the
-work commercially available. But if they don't keep it available, and
- instead,
-the computer hard disks of fans around the world keep it alive,
-then any royalty owed for such copying should be much less than the
-amount owed a commercial publisher.
+work commercially available. But if they don't keep it available, and
+instead, the computer hard disks of fans around the world keep it
+alive, then any royalty owed for such copying should be much less than
+the amount owed a commercial publisher.
</para>
<para>
The hard case is content of types A and B, and again, this case is
hard only because the extent of the problem will change over time, as
-the technologies for gaining access to content change. The law's
- solution
-should be as flexible as the problem is, understanding that we are
-in the middle of a radical transformation in the technology for
- delivering
-and accessing content.
+the technologies for gaining access to content change. The law's
+solution should be as flexible as the problem is, understanding that
+we are in the middle of a radical transformation in the technology for
+delivering and accessing content.
</para>
<para>
So here's a solution that will at first seem very strange to both sides
<para>
<!-- PAGE BREAK 306 -->
I love the Internet, and so I don't like likening it to tobacco or
- asbestos.
-But the analogy is a fair one from the perspective of the law.
-And it suggests a fair response: Rather than seeking to destroy the
- Internet,
-or the p2p technologies that are currently harming content
-providers on the Internet, we should find a relatively simple way to
-compensate those who are harmed.
+asbestos. But the analogy is a fair one from the perspective of the
+law. And it suggests a fair response: Rather than seeking to destroy
+the Internet, or the p2p technologies that are currently harming
+content providers on the Internet, we should find a relatively simple
+way to compensate those who are harmed.
</para>
<para>
The idea would be a modification of a proposal that has been
Technology, Law, and the Future of Entertainment (forthcoming) (Stanford:
Stanford University Press, 2004), ch. 6, available at
<ulink url="http://free-culture.cc/notes/">link #78</ulink>. Professor
- Netanel
-has proposed a related idea that would exempt noncommercial
- sharing
-from the reach of copyright and would establish compensation to
-artists to balance any loss. See Neil Weinstock Netanel, "Impose a
- Noncommercial
-Use Levy to Allow Free P2P File Sharing," available at
+Netanel has proposed a related idea that would exempt noncommercial
+sharing from the reach of copyright and would establish compensation
+to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
+Noncommercial Use Levy to Allow Free P2P File Sharing," available at
<ulink url="http://free-culture.cc/notes/">link #79</ulink>. For other proposals, see Lawrence Lessig, "Who's Holding Back
Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
No doubt it would be difficult to calculate the proper measure of
"harm" to an industry. But the difficulty of making that calculation
would be outweighed by the benefit of facilitating innovation. This
-background system to compensate would also not need to interfere
-with innovative proposals such as Apple's MusicStore. As experts
- predicted
-when Apple launched the MusicStore, it could beat "free" by
- being
+background system to compensate would also not need to interfere with
+innovative proposals such as Apple's MusicStore. As experts predicted
+when Apple launched the MusicStore, it could beat "free" by being
easier than free is. This has proven correct: Apple has sold millions
-of songs at even the very high price of 99 cents a song. (At 99 cents, the
-cost is the equivalent of a per-song CD price, though the labels have
-none of the costs of a CD to pay.) Apple's move was countered by Real
-Networks, offering music at just 79 cents a song. And no doubt there
-will be a great deal of competition to offer and sell music on-line.
-</para>
-<para>
-This competition has already occurred against the background of
-"free" music from p2p systems. As the sellers of cable television have
-known for thirty years, and the sellers of bottled water for much more
-than that, there is nothing impossible at all about "competing with
-free." Indeed, if anything, the competition spurs the competitors to
- offer
-new and better products. This is precisely what the competitive
-market was to be about. Thus in Singapore, though piracy is rampant,
-movie theaters are often luxurious—with "first class" seats, and meals
-served while you watch a movie—as they struggle and succeed in
- finding
-ways to compete with "free."
+of songs at even the very high price of 99 cents a song. (At 99 cents,
+the cost is the equivalent of a per-song CD price, though the labels
+have none of the costs of a CD to pay.) Apple's move was countered by
+Real Networks, offering music at just 79 cents a song. And no doubt
+there will be a great deal of competition to offer and sell music
+on-line.
+</para>
+<para>
+This competition has already occurred against the background of "free"
+music from p2p systems. As the sellers of cable television have known
+for thirty years, and the sellers of bottled water for much more than
+that, there is nothing impossible at all about "competing with free."
+Indeed, if anything, the competition spurs the competitors to offer
+new and better products. This is precisely what the competitive market
+was to be about. Thus in Singapore, though piracy is rampant, movie
+theaters are often luxurious—with "first class" seats, and meals
+served while you watch a movie—as they struggle and succeed in
+finding ways to compete with "free."
</para>
<para>
This regime of competition, with a backstop to assure that artists
-don't lose, would facilitate a great deal of innovation in the delivery of
-content. That competition would continue to shrink type A sharing. It
-would inspire an extraordinary range of new innovators—ones who
-would have a right to the content, and would no longer fear the
- uncertain
-and barbarically severe punishments of the law.
+don't lose, would facilitate a great deal of innovation in the
+delivery of content. That competition would continue to shrink type A
+sharing. It would inspire an extraordinary range of new
+innovators—ones who would have a right to the content, and would
+no longer fear the uncertain and barbarically severe punishments of
+the law.
</para>
<para>
In summary, then, my proposal is this:
<para>
<!-- PAGE BREAK 308 -->
-The Internet is in transition. We should not be regulating a
- technology
-in transition. We should instead be regulating to minimize the
-harm to interests affected by this technological change, while enabling,
-and encouraging, the most efficient technology we can create.
+The Internet is in transition. We should not be regulating a
+technology in transition. We should instead be regulating to minimize
+the harm to interests affected by this technological change, while
+enabling, and encouraging, the most efficient technology we can
+create.
</para>
<para>
-We can minimize that harm while maximizing the benefit to
- innovation
+We can minimize that harm while maximizing the benefit to innovation
by
</para>
<orderedlist numeration="arabic">
projects / text-free-culture-lessig.git / commitdiff