Part One: Can Copyright Be Fixed?

Q. Boyer

If there’s one thing that just about everybody agrees upon with respect to the current state of copyright laws and intellectual property rights-enforcement, it’s that the system is broken.

Whether you are a rightsholder who has grown weary of the ceaseless game of whack-a-mole that issuing DMCA take-down notices represents, or an advocate for the outright abolishment of copyright, you see the need for copyright to be reformed. Can it be done? Can copyright be fixed? Perhaps more to the point, can copyright learn to live in harmony with the very technologies that have made intellectual property rights so hard to enforce in an online context?

The good news is that there’s hope for a systemic reform of both copyright law and digital media distribution protocols ...

I believe that the answer to each of these questions is “yes,” but I also believe the crucial first step is to quit bickering about the root causes of the current copyright quagmire, and instead focus on the desired outcome of the effort to reform copyright.

Too often, discussions about copyright become mired in blame assessment, with extremists from either end of the copyright reform spectrum dominating the conversation. We hear accusations of corporate greed, we hear about “copyright troll” attorneys and allegations of their ethical abuses, we hear about “freetards” and a growing sense of entitlement among young consumers, but we never get to the important part. We never address the question: What can be done about this mess?

By directing our attention first to crafting a vision of what a post-reform copyright system might look like, and how it would function, hopefully we can abandon the generally useless debate concerning who’s to blame for the current state of affairs, and get to work on building a system that all of us can live with.

To me, any such discussion has to start with a recitation of a basic market fact that has been foisted upon the world by the forward march of communications and entertainment technology: As a producer and/or rights-holder, the days of dictating exactly how, when and where people consume the works you create are over, dead, kaput — and they are NOT coming back.

Looking for ways to stuff that particular genie back in the bottle, or seeking to impose a ‘scheduled broadcast’ model onto a unruly beast like the Internet is like trying to force the rain falling on your roof to go upward, instead; it’s an exercise in futility, and an entirely senseless one, at that. So, if your goal as a content producer is to exercise total control over your creations post-publication, you can forget about that idea, right here and now.

The answer is clearly not to curse, bemoan and/or attempt to “work around” the existence of the technologies used to illegally distribute your intellectual property, either; if that approach worked, Hollywood would have nothing to worry about with respect to piracy. The answer is to concoct a way to put those same technologies to use for you — and no, I’m not talking about simply seeding files out there and hoping for some sort of difficult-to-measure branding benefit; I’m talking about making money, directly off of consumption of free content, even if that content is displayed on a thirdparty’s website, consumed via some manner of peer-to-peer protocol, or any other modern mechanism for digital content distribution. Exactly how that can be accomplished will be addressed in a future installment of this series; for now, I’d like to get back to picturing the end state and goal for our collective copyright “fix.”

To me, the post-fix world would be one in which rights-holders no longer feel compelled to constantly police the Web in order to enforce their IP rights, including the compulsion to sue consumers for downloading illicit copies of their works. Ideally, there would be no such thing as a “copyright troll,” because no rights-holder would feel the need to target end-users for downloading their works.

It would be an environment in which monetization of online content distribution is accomplished in an automated way, essentially running on “autopilot.”

From a consumer perspective, a post-fix world would include an expansion (or at least a clarification) of their fair use rights in the context of increasingly common online activities. For example, consumers would be able to send a friend a link to their favorite movies without having to fret about whether a demand letter from attorneys representing the studios that created those movies would someday land in their mailbox.

This all might sound like a pipe dream, and perhaps it is. Given the current situation, however, in which some of the world’s most prolific digital pirates largely operate with impunity, end-users who do far less damage than the prolific pirates find themselves facing lawsuits over their indulgence in ill-gotten media files, and rights-holders watch helplessly as their annual revenues plummet in the face of rampant online copyright infringement, doesn’t it behoove all involved to at least try to come up with a workable system for ensuring that everyone gets a fair shake?

The good news is that there’s hope for a systemic reform of both copyright law and digital media distribution protocols, and that hope stems from the very same technologies that many rights-holders have come to resent due to their central role in facilitating (intentionally or otherwise) widespread piracy of digital goods.

The second installment of this series will lay out one approach to such reform that I believe has serious promise — and reveal that it isn’t a new idea, at all, just one that was substantially ahead of its time when first conceived … in the 1980s.

Stay tuned.