How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties

Conclusion: Beyond Copying, Beyond Copyright?

1 Leave a comment on paragraph 1 0 I have written this book secure in the knowledge that it will soon be obsolete. It’s not just because the laws, policies and technologies I discuss change so rapidly that today’s breaking news is tomorrow’s ancient history – although this is certainly the case. Far more important is the fact that we are likely approaching a sociotechnological “event horizon” of sorts – a point beyond which the origins of intellectual property law become so remote and obscure that there will be little purpose in debating its enforcement or amending its architecture. To put it plainly, we are on the verge of an era in which the concept of “copying” has no meaning, and therefore in which “copyright” exists only as an instrument of political hegemony.

2 Leave a comment on paragraph 2 0 This change has been a long time in the making. As a great many scholars have observed, and as I have reiterated throughout this book, copyright law has its origins in a bygone age at the dawn of industrial capitalism and the modern concept of the individual. As the printing press has been supplanted (or augmented) by electronic and digital media, and as commerce and culture have widened to encompass a global scale, the notion of a single sovereignty granting a single publisher the exclusive right to distribute a single work by a single author has come into ever greater conflict with the reality of our daily lives as communicants, audiences, producers and consumers.

3 Leave a comment on paragraph 3 0 Copyright law has evolved and expanded over the centuries, to include new methods of storage and transmission, and to accommodate new modes of commercial exploitation, but it has always remained rooted in the basic metaphor of a publisher distributing a discrete work printed on paper for sale to a reader. Even today, the letter of the law limits protection to “original works of authorship fixed in any tangible medium of expression.”[1] While it’s a stretch to say that certain forms of expression (say, a live musical performance transmitted by satellite radio) are “fixed” or “tangible,” we have managed to account for this disjuncture by abridging and interpreting both the letter and the spirit of the law with increasing flexibility.

4 Leave a comment on paragraph 4 0 Seen from this vantage point, we can understand the piracy crusade of the past 15 years as merely the latest iteration of this trend. Digital media further dematerialized the process of producing, distributing and consuming information, so copyright laws have been revised with an even broader interpretation of what “authorship,” “fixed” and “tangible” mean in this context, and with stronger policing and steeper penalties to prevent both businesses and individuals from crossing the increasingly porous boundary between “use” and “theft.”

5 Leave a comment on paragraph 5 0 The problem is, the metaphorical flexibility of copyright is now strained to breaking point, on two fronts. First, new technological advances threaten to eradicate completely the distinction between author and audience,[2] fixed and fluid, and tangible and intangible. Second, “maximalist” copyright laws such as those promoted by the antipiracy agenda can only be strengthened so much before they amount to total control over the flow of all information between all individuals.

6 Leave a comment on paragraph 6 0 On the first front, let’s take as an example the current darling of the geeky DIY set: 3D printing. This technology enables anyone with a printer to create a physical object, on any scale and from a variety of possible materials, based on a digital model of that object. Over the past few years, the price of 3D printers has begun to descend from industrial to hobbyist levels, further spurring creative tinkerers to expand the range of conceivable uses for the technology. In 2012, it seems to be poised on the brink of (early) mainstream adoption. At this point, it is easy to imagine a near future in which people will routinely print anything from replacement machine parts to furniture to items of clothing using inexpensive and ubiquitous home devices.

7 Leave a comment on paragraph 7 0 The question is, what role would intellectual property play in such a world? Today, copyright doesn’t cover industrial or conceptual design, such as food recipes and fashion (and these industries have arguably thrived as a result[3]). Would the law be widened further to “protect” the interests of those who seek to privatize and monopolize the library of virtual 3D models, thus placing an entire new universe of creative expression into private (and most likely corporate) hands, and removing it from the public domain? If not, how would the law treat a virtual model of a copyrighted vinyl album or a sculpture? Would transmitting or printing such a model amount to a violation of copyright? More importantly, would it be possible to differentiate between protected and unprotected models any more easily than it is to distinguish the legal and illegal 1s and 0s currently transmitted via the Internet? And what kind of surveillance and censorship would be justified in pursuing such an end?

8 Leave a comment on paragraph 8 0 Let’s take the question a bit further. Two of the fields of scientific research that are currently considered to be among the most promising sources of future innovation and social transformation are nanotechnology (the construction of machines and functional objects using microscopic building blocks) and biotechnology (the construction of machines and functional objects using living organisms, DNA and/or the other rudimentary elements of life). If we extend the hypothetical questions surrounding 3D printing to each of these fields, we face similarly intractable problems, but on a far more sweeping and profound scale. There has already been significant controversy over whether, and under what circumstances, a DNA sequence can, or should, be patented or copyrighted.[4] Yet we have barely scratched the surface of these technologies’ potential power and range of social applications. If intellectual property maximalism is applied to the transmission and use of nanomachines and genetic sequences, will we be able to alter and adorn our own bodies, seek and receive medical treatment, or even eat and reproduce without committing some form of “piracy?”

9 Leave a comment on paragraph 9 0 These are not “academic” concerns or simply my clever attempt at the old rhetorician’s trick of reductio ad absurdum. To the contrary, the problem I have just outlined in broad brushstrokes is so significant that I am most likely erring on the side of understatement. The larger point is inescapable: Our degree of technological mastery over our physical surroundings and our neurological and biological functions seems likely to grow drastically in the coming decades, to the point where it will resemble the fluidity and dynamism we have already come to expect from information processing on our pocket-sized computing devices and via the internet. Not only will atoms increasingly be used like bits, to use Nicholas Negroponte’s[5] helpful, if reductionist, terminology; the distinction itself will become more and more functionally irrelevant, as ubiquitous digital networking transmits instructions for molecular and genetic sequencing between billions of peers around the globe, and as nano- and biocomputers increasingly supplant “traditional” silicon-based processors in our homes, businesses and bodies.

10 Leave a comment on paragraph 10 0 This leads us to the second front: copyright maximalism. We already live in world in which virtually everything that we “fix” in a “tangible medium” is automatically subject to copyright for a practical infinity.[6] Each day, in our normal course of actions, we casually (and largely unwittingly) commit both civil and criminal infringement that, according to legal scholar John Tehranian’s estimates, makes every one of us technically liable for billions of dollars in damages per year.[7] Before the age of the internet, this fact may have been of theoretical concern, but it had no practical importance; after all, no rights holder could possibly surveil the entire populace day in and day out, keeping track of every infringing behavior and exacting the appropriate fines in a legal setting. In fact, it may be argued that such casual “piracy” was always assumed to exist, and that the frameworks for copyright enforcement and punishment took this into account.

11 Leave a comment on paragraph 11 0 This dynamic began to change as computer networks became increasingly pervasive, and thus increasingly central to both our business and personal lives. As email and social media have replaced the postal service and the water cooler as the primary interpersonal communications platforms for hundreds of millions of people, not only has our rate of infringement climbed (retelling a Jay Leno gag at the water cooler is legal, but posting it to a Facebook page is not), but our actions have become far more surveilable, and we ourselves have become far more identifiable to the “injured” parties. During the same years, the piracy crusaders have developed a legal infrastructure that not only legitimizes such surveillance, but makes it easier for rights holders (and their representatives) to target casual infringement in mass lawsuits, and to “settle” with the defendants without ever having brought the cases to court. And, as I have discussed at great length in this book, these powers have already been exploited in the US and elsewhere around the world to stifle innovation and competition, censor political speech, and bully the general public.

12 Leave a comment on paragraph 12 0 As we approach the post-silicon era (for lack of a better term), these problems are likely to be compounded even further. As the tools for shaping our physical environments and biological destinies come to look increasingly like those we now use to create, alter, reproduce and transmit our text, photos, videos and music, what aspect of the human experience will not be, in some way, constituted by the act of “copying”? What region of our personal and public lives will not therefore be subject to copyright, or to some similar legal constraint, and to all the opportunity for exploitation that comes with such constraints? It sounds like the plot of some dystopian science fiction film, but it’s clearly the direction in which we’re headed.

13 Leave a comment on paragraph 13 0 Futurists like Ray Kurzweil[8] have charted the course to the “singularity” of man and machine in excruciating detail, and they look forward devoutly to the day when we can “transcend biology” with a fervor akin to the members of a messianic sect. I have spoken on several occasions to one of the Singularity movement’s chief proselytizers, and he has described for me his vision of the not-so-distant future, in which the human spirit, liberated from the bonds of mortality and corporeality, is free to explore the limitless possibilities of the known and unknown universe for all eternity.

14 Leave a comment on paragraph 14 0 To me, this future sounds at best lonely and at worst totalitarian. If all of life is code, and code is law, and life, code and law are undying, how can we avoid reaching one of two chilling ends? Either the power to shape our destiny rests in our own (virtual) hands, and we each become singular gods in our own monotheistic universes, or there is some system of centralized authority that doles out such power, and we must spend eternity subject to its unfathomable whims and biases – in other words, with a machine as our god (and devil).

15 Leave a comment on paragraph 15 0 If there is a third way, I believe it looks a lot like Kopimism. Far better to function as a “noble peer,” sharing information in the form of “love, knowledge and feelings” with the other peers in the universe-network, than to go it alone, or to toil eternally under the yoke of some heartless algorithm.

16 Leave a comment on paragraph 16 0 In the meantime, there are more pressing concerns, and much work to be done. Long before we achieve anything close to singularity, the piracy crusade threatens to undermine our societies, to crash our markets, and to privatize completely the most personal form of public expression – our music. In the interest of both present and future, we need to rethink some of our basic assumptions about business, law and culture. How much of a threat is “piracy” in the form of online sharing, compared to the costs we’ve already seen to innovation, civil liberties, and public discourse in our failed efforts to stop it? Will stricter copyright, stronger enforcement and harsher penalties really aid creative expression and the industries that exploit it, or will it simply open the door to more abuse and plunge us deeper into cultural paralysis?

17 Leave a comment on paragraph 17 0 As I have argued throughout this book, the answers to these questions are clear if we’re willing to see them. The entire rationale for the piracy crusade is built on the flimsiest of foundations. The willful blindness that leads our governments to support the antipiracy agenda despite its obvious flaws and faults is evidence of a genuine dysfunction within both the private organizations that lobby for these policies and the state institutions that enact them.

18 Leave a comment on paragraph 18 0 Fortunately, there are many viable alternatives we can pursue if we have the political will. A good starting point would be to enact a binding “digital bill of rights” akin to the one promoted by Congressman Issa and Senator Wyden, and to develop laws, treaties and international policies that adhere to its principles. A more ambitious aim would be to reverse the pendulum’s swing, restricting the term of copyright and ceding a wider swath of cultural behaviors to fair use and the public domain. Most importantly, we need to abandon the ideology of the antipiracy agenda and to look with fresh eyes at the complex causal relationships between information sharing, commerce and society. To reduce all cultural activity to a stark permission/piracy binary is a form of discursive impoverishment that renders intelligent decision making practically impossible. And, given what’s at stake, we need to make intelligent decisions now more than ever. In short, we need to stop the piracy crusade as though our lives depend on it.

19 Leave a comment on paragraph 19 0 [1] no author (n.d.) Copyright law of the United States of America. Available at: http://www.copyright.gov/title17/92chap1.html

20 Leave a comment on paragraph 20 0 [2] This was one of the primary conclusions of my first book, Mashed Up.

21 Leave a comment on paragraph 21 0 [3] Sinnreich, A. & Gluck, M. (2006). Music and fashion: the balancing act between creativity and control. In D. Bollier and L. Racine (Eds.), Ready to Share: Fashion and the Ownership of Creativity. Los Angeles: Norman Lear Center Press; pp. 47-69; Raustiala, K. & Springman, C. (2012). The knockoff economy: How imitation sparks innovation. New York: Oxford University Press.

22 Leave a comment on paragraph 22 0 [4] Torrance, A. W. (2011). DNA copyright. Valparaiso University law review, (46)1: 1-41.

23 Leave a comment on paragraph 23 0 [5] Negroponte, N. (1995). Being digital. New York: Knopf.

24 Leave a comment on paragraph 24 0 [6] Prior to the Copyright Act of 1976, works had to be registered before they were protected. As Lessig and others have observed, this shift effectively privatized the vast majority of the public sphere, which had hitherto belonged to the public domain.

25 Leave a comment on paragraph 25 0 [7] Tehranian, J. (2007).  Infringement nation: Copyright reform and the law/norm gap. 2007 Utah Law Review, 537.

26 Leave a comment on paragraph 26 0 [8] Kurzweil, R. (2005). The singularity is near: When humans transcend biology. New York: Penguin.

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Source: http://mcpress.media-commons.org/piracycrusade/chapter-9-is-democracy-piracy/conclusion-beyond-copying-beyond-copyright/