July 11, 2014

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Lawprofs Predict Future of Copyright Law

Tim Wu, guest-blogging over at Larry Lessig’s site, reports:

So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):

1. Primarily a criminal regime (remember when copyright was considered civil law?)
2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
4. Made in WIPO or the FCC as often as the U.S. Congress;
5. Gone (not a good bet).

This list is interesting in several ways. (1) There’s no mention of alternative compensation systems. I would have expected them to rank, at least, above the no-copyright outcome. (2) The first option, copyright as a criminal regime, seems implausible, given the limited prosecutorial resources available. How much of our public law-enforcement resources will we really be willing to spend to defend copyright? Will this become another drug war? (3) The presence of the second item, copyright as regulation of technology design, is disconcerting. As I have written at length before, such a policy would be a major drag on innovation, while failing to prevent infringement. The lawprofs are not endorsing this outcome but are merely predicting it; but the fact that they find it likely is troubling. (4) The fourth item, copyright law being made in the bodies like the FCC and WIPO rather than in Congress, may already be happening. And it’s bad news. Lately, pro-innovation forces have had reasonable success in influencing Congress, and less success with other bodies.

UPDATE (August 6): Tim Wu writes, in a comment below, that the lawprofs did in fact discuss alternative compensation systems.

Comments

  1. Tim Wu says:

    Actually, we did discuss the potential of alternative compensation systems emerging outside of the United States.

    Forgot to add it to the list.

    Tim

  2. Hal says:

    I don’t think we’ll see that much change, certainly not as much as we’ve seen in the past eight years. I suspect that we will see something of a truce in the copyright wars. Maybe stalemate would be a better term.

    The truce will be based on increased use of legal content distribution, protected by DRM which is almost invisible as long as you’re not trying to share with a few million of your closest friends. Prices will come down as the distributors try to lure people away from the pirate networks, and most people will respond. Legal content will be as available as illegal content is today, for a modest price, and that will be good enough for most users. It’s the “iTunes on steroids” model.

    We will see neither the dystopia of absurdly harsh DRM restrictions forecast by the fearmongers, nor the utopia of universal, free access to all information promised by leftist copyfighters. The system won’t be horrible and it won’t be wonderful, but it will be good enough.

  3. The Importance of... says:

    The Future of Copyright, the Future of Technology

    Timothy Wu, professor of law at the Univ. of Virginia’s School of Law and prolific guest blogger on Larry Lessig’s blog, discusses a simple question asked of a group of law professors: what will copyright look like in eight years?…

  4. tatere says:

    How much of our public law-enforcement resources will we really be willing to spend to defend copyright?

    Federal charges were filed against Adam McGaughey, creator of the popular SG1Archive.com website – a fan website devoted to the MGM-owned television show Stargate SG-1. The charges allege that the website engaged in Criminal Copyright Infringement and Trafficking in Counterfeit Services. The charges were the culmination of a three-year FBI investigation, set in motion by a complaint from the Motion Picture Association (MPAA) regarding the content of the SG1Archive.com website.” (Emphasis added)

    No comment on the merits of the particular case. But a three-year FBI investigation? (This has been getting coverage because the FBI invoked the “PATRIOT” Act, which is hardly surprising.)

  5. Copyfight says:

    TiVo’s Pyrrhic Victory

    Ernie Miller has a marvelously sarcastic — and marvelous because sarcastic — response to the news yesterday that the FCC approved 13 new technologies, including TiVo, as compliant with the broadcast flag: Oh, heavenly joy! Oh, fortunate day! Our wond…

  6. Alexander Wehr says:

    “The truce will be based on increased use of legal content distribution, protected by DRM which is almost invisible as long as you’re not trying to share with a few million of your closest friends.”

    This is a fallacious comment. Because DRM is always designed to restrict anything which content creators with limited imagination can think up, it will NEVER be invisible.

    Further, the very fact that DRM requires nonstandard and widely disliked formats such as microsoft monopolistic WMA and widely unsupported AAC means that DRM is already visible to most users.

    Yet more,, DRM prevents format shifting and is deliberately limited via the DMCA to a very limited number of devices, limiting consumer choice.

    Finally, and most insultingly to the consumer, DRM is an indirect assumption of “intent to steal” by companies, and for that reason is an offense to the consumer.

    This would be one of the major reasons why the majority of p2p users have refused to adopt these “download stores”, and the idea that any one person, or team of people, can think of every possible use for a sound file and accomodate it with a DRM system is like the idea that you can surf to the proverbial end of the internet.

  7. Displacement of Concepts says:

    Future of Copyright

    Over at Freedom to Tinker, Ed Felten waxes eloquent on the predictions of law professors at a recent conference on where copyright law will be in eight years (via Tim Wu blogging at Lessig’s blog). Here’s the list: 1. Primarily a criminal regime (remem…

  8. Displacement of Concepts says:

    Future of Copyright

    Over at Freedom to Tinker, Ed Felten waxes eloquent on the predictions of law professors at a recent conference on where copyright law will be in eight years (via Tim Wu blogging at Lessig’s blog). Here’s the list: 1. Primarily a criminal regime (remem…

  9. Fuzzy says:

    I think the PIRATE Act of 2004 is the first step on the road to criminalization. The fact that the government is going to initial civil cases against “any person who engages in conduct constituting an offense under section 506″ seems like Congress is trying to have it both ways – government enforcment of copyright laws and with a lower burden of proof (“a preponderance of the evidence”) than is required for criminal cases (“beyond a reasonable doubt”).