Many of the themes explored in the seminar that produced Copyfutures are examined in The Future of Copyright, available for download on SSRN. Here is the abstract:

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony "substantial noninfringing use" defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act.6 Napster begat Napster. We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures8 shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away. In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights. Neil Netanel, William Fisher, and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time. Mark Lemley is debunking ex post justifications for intellectual property. No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the "Induce Act," targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content. No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred's failed challenge to the CTEA's retroactive twenty-year extension of copyright terms - effectively a twenty-year moratorium on new works entering the public domain. In Free Culture, Lessig has remade himself as a "norm entrepreneur" - a public figure with the towering ambition of reshaping "copynorms" - the fundamental set of social norms that shape perceptions of the morality of filesharing and the legitimacy of legislation that shrinks the public domain. This essay examines the ideas in Free Culture in the context of current controversies over the future of copyright.

    I surprise myself this morning by working on something that will yield no credit for this course.  But that ties in directly to the contents of this post.  One topic of discussion was why people produce open source works and why their employers "allow" this from an economic perspective.  Simply put, where's the gain?  This was discussed in a scholarly article posted on this blog (if class were still in session, I would link to it, as I originally intended, but after searching for 3 minutes, I've given up.).

    My theory is that people engage in creating open source works because they like to, it provides some form of personal utility.  Employers "allow" it simply because the employees are still getting their job done.  A simple example is Prof. Solum's fine blog.  From what I've read, law professors receive little credit for blogging.  Again, I would provide links if this were for credit, but from regularly reading Instapundit, the Volokh Conspiracy, it seems law school administrators care little, if at all, about their professor's blogging.  I could be wrong, but my impression is that a professor's job is to publish articles in prestigious journals and do it often.  In raising their own "stock," they raise the "stock" of the institution they're affiliated with.  So what explains the choice of certain professors to invest what sometimes is a substantial amount of time into activities that have nothing to do with their job?  And why do administrators put up with it?

Volokh states:

Some blogs ask their readers for money to help operate the blog. That's quite understandable, but we fortunately don't need that -- the real cost of running the blog is time, and that's generously subsidized by various universities and state taxpayers.

We're in it for the eyeballs. (Yumm, eyeballs.) So if you like the blog, just let your friends know about it -- perhaps take a blog post you really like, pass it along (together with its URL) to people who you think would enjoy it, and tell them that there's a lot more where that came from. Or not: We're happy with just your eyeballs, too.

    I suspect that the same rationale explains the activities of Prof. Solum.  The belief in the power of ideas and the belief that the dissemination of ones ideas is worthwhile is probably what motivates folks like Solum and Volokh into academia in the first place - and in so doing, foregoing the much larger financial rewards that would be theirs in the private sector.  Both have impeccable credentials, but their salary is probably commensurate to that of a 2nd year associate w/ similar credentials.

    So why do their schools put up with this?  Why aren't they forcing them to spend the time they spend on blogging on writing more LR articles?  Probably because they still publish.  Goodness knows that Volokh is prolific, Posner-esque even.  Well, I lie.  The amount that Posner publishes is unreal.  And he also has a blog! 

    I wouldn't call myself an economist, but from the little I've read, it appears that behavioral economics is gaining greater credibility, and in some ways, diminishing the iron grip that rationalist economics has had over the past few decades.  For example, either Prof.'s Solum or Volokh could spend an extra 5 hours a week consulting instead of blogging.  Why don't they?  It would give them a few thousand dollars extra a month which they could use towards whatever they enjoy.  My guess is that they enjoy blogging!  What a crazy notion!  Same for the open source folks and their employers.

While I'm hoping this weblog will continue past this semester's demise, here's one last parting shot just in case.

BitTorrent mega-site Suprnova.org has been shut down.

The website creators got a little scared at the MPAA's recent gustappo tactics and decided that closing down the website was probably the safest plan of action.  And who can blame them?  Finnish (yes...Finland) police raided a website that purported to have torrent files for over 10,000 illegal movies, music, and software.   

So now we've got an international policing of America's copyrights.  Anyone else just a bit scared of the possibilities of this?   Global copyright protection is the next wave of the copyright battle.  America and the few big businesses in it that own a lion's share of the creative works are trying to put pressure on foreign countries through the WTO and other trade related organizations to comply with our increasingly stringent copyright laws.   So now we have instances like the Finnish police goin SWAT style on website owners, and legitimate sites like Project Gutenberg Australia being forced to take down publicy allowed works from their website.  I guess now you can rob a bank and move to mexico to escape jurisdiction, but you cant escape the long arm of copyright owners... 

You know, somewhere over the rainbow theres an answer to the copyright mess of today.  Sure it might take some magical red slippers, a whole lotta faith, and a couple of little people (justice scalia, you dont count) to get there, but at some point our society will adapt.  But one thing's for sure- the only thing that I KNOW is for sure after this seminar- we're definitely not in Kansas anymore.

Kansas of course would be the antiquated ideals of copyright- the vision promulgated by the founding fathers and placed into America's constitution.  Granting a limited right to promote the progress of the useful arts seemed like a good idea at the time, but more and more I'm thinking blasphemous thoughts:  maybe the founding fathers got it wrong.

My good friend Peter Hsu, a great contributor to this weblog and class, asked me at the start of the semester what I thought the future of copyright should be.   I answered with a simple "none."   Peter of course thought that was ludicrous.  "None?!  But there has to be copyright."  I backed of my statement at the time, and more and more during the semester, I thought of that initial conversation.  And I think Peter really was right- there has to be copyright.   At least in our society, for the near future.  I look at copyright the way Thomas Paine looked at government- its an evil...but a necessary one.   Just as Paine dreamed that the natural state of man would someday be realized- that as Thoreau argued, we would eventually become human enough to restrict our vices naturally- I dream that someday copyright will be an unnecessary aspect of our society.  That creation will be incentive enough to create.  That the government provides protection only to an "identity of authorship."  The personality of a creator is embodied in his/her work, and I think -this is what you get for having a musician in the class- that any artist would tell you it is far more incentive for their work to be recognized as their own than securing an economic monopoly for 100 some odd years (for more on my discussion of "identity of authorship" incentives, see this previous post). 

But I, like Paine, am describing a dream state, one that does not and cannot exist right now.  Big business has spent too long investing and profiting from the commericialization of art created by our Constitution.  Copyright wasnt even a debatable issue twenty-five years ago, and I think that might be the most crucial aspect of all of this- getting the word out about copyright: what it is, what it effects, and who profits and loses from its current incarnation. 

So step one of my future for copyright is education.  And i'm not talking the "piracy and p2p sharing is bad" flicks the RIAA circulates to public schools.  If copyright's objective is to benefit society by promoting the arts, then society should know what its getting in the balance. 

Step two is bifurcated.  Either put some real teeth into lawsuits, or stop suing at all.  The middle ground is not an effective way (as Tommy O'Reardon demonstrates) to curb piracy.  And while I dont believe that congressmen, arbiters, and the general public want more suits aimed at more file-sharers, if you bring enough of them-against the right people-, you'll eventually get a positive reaction.  On the flip-side, stop the suits all together.  All its doing now is giving bad press to legitimate copyright interests, and further skewing the copynorms of today by making piracy even more cool, hip, down, whatever.

Step three is cut copyright terms in half.  No, more than half.  Three quarters.  This Life plus 120 years talk is absolutely ludicrous.  It takes so many amazing creations out of legitimate public use for much too long.  Libraries, archives, and their ilk have been around much longer than copyright, and their purposes are much more noble: to educate and preserve our society's history.  Copyright now is threatening to impair our ability to continue this (Aaron Hand, thanks for that enlightening piece).  A copyright term of 50 years is much more feasible, and still gives the economic incentives to create.  Many works are not profitable after their first few years of existence, and should they be, a system of paid re-registration might be a more adequate solution than a blanket protection of all creations for longer.  My only problem with such re-registration would be that it creates separate tiers of copyright terms, and most of the public would be hard-pressed to figure out when a work is protected or whether it has been extended.  But this could be partially rectified by publishing a list of protected works quarterly, and moving the burden of investigating whether a work is protected to the person seeking the public use.

Step four is the hardest one- patience.  We cant go looking for the quickest or easiest solution to copyright.  This is an issue that will stick around for a while, with newer and more advanced digital technology constantly changing our perceptions of what copyright is and what it should be.   The INDUCE act, the piracy act,  the BCA and DMCA , all these have their flaws- flaws we've pointed out in class.  Lets just take our time ith this, and create a statute that is flexible enough to handle the stress of new developments in copyright industries, while being forceful enough to disallow and punish rampant misuse of copyrighted materials.  And of course, patience to hope that one day, all this copyright nonsense will be unnecessary, and I can just get back to writing songs on the beach for the people I care about while sipping my pineapple juice.

We spent this semester delving into the world of copyright with hopes of finding what the future would entail. Much of the semester and even in the conclusion it appeared that the future of copyright was not merely uncertain but bleak at best. I admit that I bought into this belief that copyright might indeed be dead since there were just too many obstacles for it to survive. P2P just wouldn’t let copyright survive. However, when I take a step back and look at the big picture, I just can’t accept the fact that copyright will fail. I can’t accept copyright failing for one simple reason – MONEY. There is just too much money at stake for the Music, Movie, Software and other copyright developing industries (hereinafter “copyright industries) for them to lay down and not put up a fight. There is so much money at stake that these industries will not only put up a fight, but they will put up a fight and win.

Now winning might be a relative term, but again what does winning entail? Making money. Currently, the copyright industries are still making enormous profits. It is unclear if P2P has really even put that much of a dent in sales. People are still going to the movies, still buying movies, still buying music, still going to concerts, still buying software and production companies are still making money. The obvious concern is not the present however, but what the future will entail. The concern is that P2P is just starting to grow and just starting to show an effect on the copyright industries. There are worries that soon everyone will just use P2P programs to get illegal versions of files and this will kill sales. While it is true that P2P has just began take off in the last couple years and there is no signs of stopping, I feel people often overlook one major factor on the side of the copyright industry – they are just now beginning to fight back.

The copyright industry is just now beginning to really try to curb illegal file swapping. For the most part the copyright industry sat on its hands and allowed the P2P industry to flourish, but when it has taken a stand, people really have listened. Don’t believe me? Well ask Napster, Grokster, Kazaa, and now even BitTorrent how much power the copyright industries have. And if you still question it, look at the profit margins for the copyright industry. The bottom line is they are still making money and lots of it at that.

So far I have come across as if there really isn’t a problem for the copyright industries at all. But obviously everyone can see that there is a potential problem for the copyright industries. If people really did just stop buying files and just downloaded them all for free then of course copyright would fail in its current state. However, my real point is that the problem is not a full fledged problem yet, it is still in the potential problem phase. And I feel it is fair to call it a potential problem still because the companies are still making money. P2P and illegal file-sharing only truly becomes a problem when the copyright industries are no longer making money and production is no longer profitable. The problem is not only in the potential phase but it is also in the very beatable phase. Now beating this potential problem won’t necessarily be easy, but nothing worthwhile usually is. And the biggest advantage is on the side of the copyright industries because they have the money, power, and resources to win.

Many will question the viability of defeating illegal file-sharing because there is no one clear cut way of stopping it. New technology alone won’t work, changing the laws alone won’t work, changing the infrastructure alone won’t work and even suing alone probably won’t work. The beauty of the copyright industries fight, however, is that each of these alone doesn’t have to defeat P2P. Not having one clear cut way to curb illegal file-sharing, isn’t a disadvantage, but really a major advantage. The copyright industry can attack illegal file-sharing from multiple fronts and force the illegal file-sharers to not just beat one obstacle but several. So even if one tactic is beat, there is still another obstacle for file-sharing to overcome. In the end this is really an arms race and the fact of the matter is the copyright industry not only has more arms, but they have more arms at stake as well.

I’ve now come up with this great conclusion that protecting copyright not only can be done, but will be done. However, the real question is not if it can be done, but how can it be done. I honestly think the answer is simply, the copyright industries just need to keep on doing what they are doing. Attack illegal file-sharing from every angle and make it so illegal file-sharing just isn’t worth it. So what are these angles? I think it comes down to about four major categories of attacking methods for the copyright industries: 1) Technological Advancement, 2) Cooperation, 3) Updating Laws and 4) Lawsuits. Each of these groups has several subcategories and a combination of each of these categories will allow copyright to not only survive, but to continue to flourish.

I’ll give a brief rundown of each category to show how powerful each can be alone and in the end how the combination of all of them will spell victory for the copyright industries.

Technological Advancement

The first line of defense for the copyright industry is to continue to develop new technology. And the technology doesn’t just have to be technology to fight copyright, but new technology in general. Now I know the first thing that pops into everyone’s head when I say this is – whatever you can make, I can hack better. While I agree that pretty much anything made will likely be hacked at some point, it is not really necessary to make unhackable files and media. You don’t have to win an arms race by making the unstoppable product, you just have to continue to make products that will slow the other side down enough to keep you ahead of them. And technology can definitely do this. We have to keep in mind that the use of encrypting files and protecting against hacking is a relatively new concept. Music CDs don’t even have any encryption. And sure DVDs have encryption and it has been hacked into, but even that was a first effort on the part of encryption designers. The fact is, there are endless design capabilities that may be extremely hard to hack and hard enough that will slow down illegal use.

So how will this work? New technology is the key. We likely can’t just start putting encryption on CDs since that would require a complete overhaul of the devices that play the media and there wouldn’t be much incentive for the user. But what can be done is creating a new type of media that users want and are willing to pay for. This has been done in music several times from vinyl to 8-tracks to CDs to mp3s. It has also been done with movies from reels to beta to VHS to DVDs. So changing media is not only a possibility, but a reality. There are several new products on the market from HDDVD, Blu-Ray media, and even relatively new forms of digital media such as Windows Media Audio (WMA) and Apple’s music media (AAC). There are endless possibilities for new types of media on the market and people will pay for them so they can get the newest and best files.

Once a new media is made then new encryption can be implemented. And again, the encryption may be eventually beaten, but this ok. Hopefully it will at least take some time for the encryption to be cracked and when it is cracked it won’t be that simple. Even now it isn’t the easiest process to hack a DVD with its limited encryption. You first have to find the software to rip the media, then you have to learn how to use it, then you have to take the time to hack it, then you have burn it to a DVD. This is way too much of hassle for the average user. There is a way to cut down on the steps – downloading the movie through a P2P service. DVD’s might be a hard example right now as downloading a 4.5 GB file still takes a long time even with high speed internet connection, but eventually bandwidth will increase (I actually just received an email today from SBC that they will be increasing my upload speeds to 384kbs. This obviously doesn’t increase the speed of downloads, but does help download speeds indirectly by ensuring there is enough bandwidth so downloads can reach their maximum speeds). However, even with smaller song files putting enough encryption on the songs will make it a pain and hassle to rip an entire album or multiple files. Surely it can and will be done by those who really want to, but the encryption really just needs to deter the average user since those are the people buying the products in the first place.