On October 1 I attended a panel discussion on the use of technology to restrict the illegal transfer of copyright-protected content online. The panel talked about a new French law requiring ISPs to block users who had "three strikes" against them for illegal transfers, recent developments in watermarking and fingerprinting, and the future of fair use.
It has been a couple years since I followed these matters full time. At a political level, one key recent development is the addition of a new set of players to the debate. Quite literally players... for various unions and guilds, illegal traffic in copyrighted content online has become a jobs issues--and the irrepressible litigator and former musician Chris Castle reports this is driving recent legislation in France and the UK. (a certain former fellow TLF blogger has occasionally maligned Chris, a distinctly unwise policy; not only can a great deal be learned from Chris, but he has a mind like a steel trap).
At a business level, little fundamentally has changed. The bottom line--surprise surprise, now that boundaries are well nigh impossible to enforce, no one has really figured out how to monetize anything yet. Watermarking and fingerprinting methods offer some promise, in the words of technology guru Bill Rosenblatt; they work "most of the time," though better with music than with video. I was relieved to hear Michael O'Leary of the MPAA express the view that legislation mandating technologies is not a solution. A great deal of energy might be expended on that approach, and it is unlikely to be of any use to anyone.
But few options other than cooperation with the network or online service providers are open to content producers. And so long as the online services are insulated from legal responsibility--as suggested by the recent case involving Veo, they have no incentive to come to the bargaining table. The evolving case law in the United States on OSPs is thus worth watching closely. Jon Baumgarten of Proskauer Rose supplied a good-humored report.
Peter Jaszi, who has always impressed me as a kind fellow, raised concerns about fair use, seconded by Bill Rosenblatt. It does puzzle me as to how one is to know what shape the exceptions to copyright will ultimately take (fair use, and others) when there are so many other unknowns--the nature of consumer demand, and how to monetize the business overall. Business and legal fundamentals generally get worked out well before exceptions get addressed, and it is hard to see how it is possible to do it otherwise--unless one draws entirely from the experience with old media and old business models--in which case one is bound to come into thorny conflicts with the new reality.
It seems, therefore, that the two "sides"--the fair use side and the content side--are talking past one another. Peter expressed confidence that a business model would be found, but curiously seemed to express no interest in the question of how that would be done in an environment where--again--the legal basics for making deals, both property and contract, cannot be enforced.
(This discussion would move further, faster, if everyone would be more clear as to what he means by "fair use." There seem to be three distinct types of copyright gaps being called "Fair use." 1) "Fair use," in the technical legal sense, is a set of exceptions to copyright law worked out in case law over the years. This is a narrow meaning of the term. "Fair use" in this sense is mostly makes sense when licensing is too difficult or prevented by conflicts of interest (in the case of parody, for example). Most of the problems here can be addressed by evolution in licensing and concern about this should not be holding us up. 2) But the term "fair use" also seems to be used to refer to the fact that copyright does not cover everything--ideas, facts, and so on--here one can have a much more interesting discussion of how much coverage from copyright would begin to block creativity in a significant way. And then 3) finally "fair use" also seems to used to refer to the fact that copyright law is uncertain and not perfectly enforced--and here again one can have interesting discussions about the role this plays in creativity. . . BUT switching continuously between these three types of "fair use" is causing problems. Last but not least one gets the sense that many academics haven't a nodding acquaintance with the creative process... they think it is ALL mash-ups. Perhaps they are confusing it with law itself, which is built on precedents and other people's footnotes. I urge them to take up ceramic sculpture).
Luckily both Bill and Peter seemed to agree (certainly Bill did, I'm less clear about Peter) that concerns about fair use at this stage can be addressed by procedural safeguards--little mini-appeals built into whatever OSP-supported filtering goes on. Interestingly, some such mechanisms are available on sites like YouTube, but consumers reportedly very rarely use them. This supports Michael's point that the problem they are addressing at this stage is emphatically not people making mash-ups, but just plain unauthorized copying. (It might, however, also point to a problem with the appeals process; my own experience with eBay's VERO process is that appeals are hopeless... one is referred back to the complainant, and generally the person to whom one is appealing is so low-level that he or she does not know a parody defense to a trademark claim from a hole in the ground. If the appeals process is not sufficiently fair, that no one uses it is not testament to anything. But I have no evidence that experience with the YouTube appeals is unfair; certainly it is getting much more sophisticated than earlier systems).
And what of the "three strikes" law passed in France, and still (so far as I know) bouncing around their constitutional court? One panelist remarked that he thought the penalty problematic, and that an economic penalty would be better. This seems right: I return to the research on deterrence theory, steadfastly ignored by everyone else, particularly legislators. When the probability of getting caught is above a certain threshold, even a light penalty suffices to deter. When the probability of getting caught is too low, even a heavy penalty will not deter. If whatever bureau the French have invented to keep abreast of network traffic can actually flag people such that one has a real expectation of hearing from them at some point, cutting folks off from the Internet should not be necessary. Embarrassment and being required to pay ought to do it. (I also note that ideally as much of the expense of this as possible should be borne privately; and there must be an effective appeals process).
All this, that our entertainments may continue at the level to which we have become accustomed. Bread and circuses. But especially circuses.
My sketch shows Chris, Michael, and Jon. Bill and Peter have more challenging facial terrain.