Archives for January 2003

In a much-acclaimed blog posting, Doc Searls writes that the limited-copyright folks are losing the rhetorical battle to the copyright expansionists.

I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court.

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Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.

I would go further and say that focusing on the role of the public domain is bad rhetorical strategy. It’s not that the public domain is unimportant. It’s just that public-domain arguments end up sounding like, “We want to use your stuff.” By making a public-domain argument, you’re inviting the accusation that you’re a freeloader trying to make money off the creativity of others. You’re saying, in effect, that certain ideas are the property of the public, and so you’re buying in, indirectly, to the concept of ideas as property.

A better rhetorical strategy is to focus on the entangling effects of copyright on everyday life, including ordinary creative work. The argument is simply that copyright has become a wide-ranging regulatory scheme that goes far beyond its proper role of protecting the legitimate rights of authors. A great example of this is the section of Lessig’s The Future of Ideas about the documentary filmmaker. The filmmaker isn’t trying to copy other people’s work. But because so many everyday objects are the subject of intellectual property claims, filming everyday life becomes problematic, with too many rights to be “cleared”. Expansionist IP claims entangle ordinary creativity, even when nobody is trying to copy anything.

Even the record companies complain about the difficulty of “clearing” rights to recorded music so that they can sell it online. When the big copyright owners find the system too onerous and complicated, that’s a rhetorical opportunity.

This strategy also exploits the ever-growing stock of copyright horror stories. When the Girl Scouts are worried about what they can sing around the campfire, or when the DMCA is being used to regulate garage door openers, you’re seeing the tentacles of copyright reaching into places where it doesn’t belong.

“Free the mouse” is a catchy slogan, but we would do better by talking more about our own freedom and less about Mickey’s.

A Reuters story quotes RIAA head Hilary Rosen as saying that ISPs should be held responsible for their users’ file sharing:

“We will hold ISPs more accountable,” said Hillary Rosen, chairman and CEO the Recording Industry Association of America (RIAA), in her keynote speech at the Midem music conference on the French Riviera.

“Let’s face it. They know there’s a lot of demand for broadband simply because of the availability (of file-sharing),” Rosen said.

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Rosen suggested one possible scenario for recouping lost sales from online piracy would be to impose a type of fee on ISPs that could be passed on to their customers who frequent these file-swapping services.

Perhaps she is suggesting a compulsory license (users pay a flat fee, then get free access to copyrighted music), as others have suggested before. If the RIAA were supporting a compulsory license, that would be big news.

More likely, her plan is a lopsided one in which users pay a fee but don’t get free access to music, or anything else, in return. If so, the plan would probably only increase the number of users of file sharing systems. Many users already find ways to rationalize their use of file sharing. Imagine the user who, unlike many of his peers, has resisted the temptation to use file sharing; and then he learns that he is being forced to pay the RIAA anyway on the assumption that he is a file sharer. What are the odds that he’ll start using file sharing, since he’s paying for it whether he uses it or not? Pretty good, I’d say.

The RIAA’s biggest problem is the public’s fading respect for the legal limits on file sharing. A step that erodes that respect even further is exactly what the RIAA doesn’t need.