LWB486 Week 6 - Emerging technologies and copyright tensions
To an extent copyright is a necessary vehicle which allows funding of creative and expressive works to be done
Evaluate whether the copyright is effective in creating the excludability to enable people to recover their costs
of expression and where it does so at a cost to society that we’re willing to pay.
Copyright and creativity
• Goal of copyright is to encourage the creation and dissemination of expressive information
• Computers and networks are changing the equation
• Creativity, expression, and dissemination are all getting cheaper
It is becoming cheaper to create and becoming cheaper to infringe – there are real questions about balancing the
rights of authors, with balancing the rights of society and balancing the incentives to create against the barriers
to we’re putting out to both read and further creation
Copyright is interesting here because copyright acts not only as an incentive to create but it also acts as a barrier
to creation because unless we accept a fairly romantic view of authorship its generally accepted that all
expression is built on expression which has come before it. If I’m writing a book I need to know, and access
and build upon the works of other people that have come before me so by increasing the barriers to creation,
yes we are increasing the revenue stream that an author is maintaining to appropriate, but we are also increasing
the barriers which occur up front to further future creation, so at some point that balance is not going to be
sustainable. At some point the balance works, and at some point the balance doesn’t work.
The alternative is whether it needs to be tweaked. Is the copyright term long enough, is to too long, is the scope
of the material covered by copyright broad enough, is it too broad, are the scope of exceptions broad enough,
are they too broad. Really a continuous balancing act which the courts and legislatures around the world are
grappling with in the face of new technologies.
Law is strangling creativity
• Peer to peer filesharing
• High speed digital networks allow for widespread distribution of high quality copies of copyright material
• Copyright owners fear significant harm to existing business models
• Studies vary. Some show no real effect on record sales: http://arstechnica.com/news.ars/post/20070212-
P2P - responses
• Law suits against P2P platforms
• Napster, Scour, Aimster, AudioGalaxy, Morpheus, Grokster, Kazaa, iMesh, LimeWire, ThePirateBay
Sued for providing the technology which allowed other people to infringe, the old Sony Betamax case said that
when you have an emerging technologies which could be used in an infringement manner but weren’t
necessarily limited to being used in infringing manner that some leeway had to be provided under copyright law
so that if there was significant fair uses that could be made out of a VCR it wasn’t right to immediately kill off
the technology at the start because we didn’t know how they would develop. As it turns out there was a really
good decision cause the VCR stimulated a whole new industry in selling tapes and movies. This is the same
argument people say we’re having again, but the courts haven’t reacted in the same way. The courts have
generally said, so far with the technology we’ve seen the people making the technology are responsible for the
infringements which happen on the network. Napster knew exactly what was going on with the network,
they’re weren’t like Sony who was providing a black box with no control over, Napster knew what people were
doing, and knew what people were downloading, and held a central repository of all songs on the network.
Napster had a higher degree of culpability then did Sony.
The same thing happened in the other cases, Grokster in the US and Kazaa in Australia. In Kazaa the Federal
Court said that because Sharman Networks was running around saying things like ‘join the revolution’ then they were morally culpable and were inducing people. The inducement test arrived in Grokster, a new type of
inducement test. The Kazaa court developed a similar type of test within the boundaries of authorisation in
Australia – they were saying because Sharman Networks were actively encouraging people to infringe
copyright material then they were liable for those infringements.
ThePriateBay case was the first were we have seen criminal prosecution against creators of software, and is still
running its way through the courts.
The problem with these suits is that they haven’t really been that effective. There has been no real drop off in
Effect of P2P suits
• Not very effective at curbing infringement
• Shut down the proprietary networks
• Users simply moved to the next filesharing platform
• Open source / open standard filesharing platforms have emerged
• Eg Bittorrent
• not tied to any given operator
• Much more difficult to shut down the splintered communities
Law suits against end-users
• RIAA has filed well over 20,000 suits – http://www.eff.org/IP/P2P/riaa_at_four.pdf.
• Experimented with 'settlement letters' rather than filing suits – asking for $3,000 - $11,000 not to file
• Sent through automated means
• Accuracy has been disputed
• Identification by IP address is not always accurate
• Automated programs cannot make value judgments
Effect of lawsuits
• Very angry consumers
• Fear is claimed to generate a 'tough love' educational response
• No real deterrent effect:
• “We find that, if measured accurately, P2P traffic has never declined; indeed we have never seen the
proportion of P2P traffic decrease over time in any of our data sources”
The effect of the lawsuits was basically to annoy the customers. The campaigns have never really affected P2P
• You wouldn't steal a car (AFACT)
• Unskipable DVD copyright notices
• What are you really burning? (IPAF)
• Suggested dinner party conversations
Not sure if they are working, but at least less aggressive then filing suit
Some other movement and options
• Stricter laws and harsher penalties
• Provide legal alternatives (iTunes)
• Subscription models
• Taxes on blank media or bandwidth
• Open licensing and value adding Discussion – What should the entertaining industry do about P2P filesharing?
There is no real answer at the moment as to what Australia or the world can do.
The artists are generally upset that people are stealing their music. Compare with Trent Resner from Nine Inch
Nails who came out to Australia and looked at the way Australian music industry was selling his CD’s, noticed
that they were being sold for $35 when pop albums were selling for $22, and asked his record label why that
was so. The record label said that his fans were more loyal, and more willing to pay the higher cost, and get
more money out of them. Said it was ridiculous that because his fans were more loyal they were being charged
more, and wanted it to be reduced. When they didn’t do it he came back and told the audience at some of his
performances to steal from HMV because he felt it was the wrong way to treat his fans.
All of these arguments about how artists make their money from performances, and using myspace to get the
word out there, and they’ve survived in the past, they’ll survive in the future is basically an argument made by
spoilt rich kids trying to feel better about the fact that they are ripping people off about piracy.
Are there any benefits (social) that P2P brings, or is it really just us justifying the leaching off record industry?
- increasing competition – the recording industry as its currently set up really favoured a small number of high
paid artists, the argument some people are starting to make is that by democratising the creativity and
distribution models we are able to flatten that curve a little bit and spread the money that is in the system
around over a much broader range of people, that would otherwise never have seen a profit from their music
It’s about control, to an extent, these debates are about control and how the media is produced. Lessig argued
that we should investigating other models that really prioritise the consumer level, grass roots creativity, while
the established interests are really worried about how that will affect their intellectual property.
How should the law react – should we enact stricter laws, should we take responsibility for our actions and
refrain from infringing online – how do you address these problems. Whichever way you look at it the current
system isn’t really working too well. If you think that we should be curbing rates of infringement online then
we need some change.
Tolerated use – the idea that most of us are infringing all day every day, when we save a document online,
when we print something out, every act now in our daily lives in dealing with copyright