Copyright: the Societal Side
This text is outdated. I'm keeping it up because I haven't gotten around making a more up-to-date English version about my current views on copyright. If you can read Finnish, you can find an extensive discussion of my current views in my book Jokapiraatinoikeus (free PDF version).
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1. The Civil Rights Side
Currently, file-sharing is rampant. Different file-sharing services count the number of their users in the millions, and there are probably more Internet users who have illegally downloaded files than users who haven't.
In an attempt to fix this, different copyright agencies have mounted legal campaigns against piracy. Most infamously, the RIAA has sued tens of thousands of private individuals, in one case managing to win fines worth five times the annual income of the person accused. Numerous file-sharing services have been attacked through legal means, some of them being taken down, some of them still standing.
Yet, for all the widely publicised legal battles, it doesn't appear like they'd be having any real impact on piracy. The risk of getting caught is simply too small to frighten people. In order to really make people stop sharing files, the legal resources spent on the issue would have to be drastically increased. However, existing court systems are likely to have vastly insufficient resources for this - in Germany, some of the courts have already began dropping file-sharing related cases on the grounds that they are draining too much time and money and there are more important crimes to tackle.
To get around this, there has been increasing pressure to move the battle from the courts to commercial interests. Internet service providers are being called on to filter the traffic of their users, copyright agencies are asking to get the authority to pursue law violations on their own, and the president of RIAA has even been heard wishing they had the ability to install monitoring software to the computers of people. As I see it, there are three different paths that society could pursue from here:
1) If the courts are unable to make a notable dent on file-sharing, give in to the demands of the copyright lobby and let them monitor people's Internet use. This would effectively give commercial interests powers that have traditionally been limited to the police and the courts, and involves plenty of problems. For one, so far it has been relatively easy to gather the IP addresses of people involved in sharing a particular file, but this would accelerate the shift towards more anonymous file-sharing systems, which are already being deployed. Piracy is also fragmented over a wide variety of systems deploying different protocols, from effectively untrackable file sharing over instant message clients to BitTorrent and the eDonkey network. In order to really bring file-sharing under control, the agencies fighting it would need the authority to monitor effectively all online communication - along with private e-mails, electronic banking and commercial transactions.
Even worse, their activities would be hard to challenge in court, and copyright agencies have shown already that they're prone to acting with flimsy evidence even when they do have to win a legal trial - in a recent case in Sweden, a person was sued for sharing 23,000 songs and 30 movies. It eventually turned out that there was absolutely no technical evidence for the song charge, so that part of it had to be dropped. This sort of solution would effectively let commercial interests sue anyone they wanted on arbitrary grounds. This is somewhere where we simply can't go, in my opinion.
2) Do nothing. Leave file-sharing illegal, but don't expand the powers of copyright agencies, either. This combines some of the worst sides of both legalization and the first alternative - since nothing effective is done to curb piracy, this is close to a de facto legalization of file sharing. On the other hand, since it is still technically illegal, copyright lobbies will still be able to force people to pay immense fines - effectively destroying the lives of a fraction of the populace that's chosen pretty much at random. Whatever you think of the morality of piracy, it's hard to justify fines equal to five times a person's annual income as an appropriate punishment for sharing 24 files. The fact that only a small part of the populace will end up paying this price doesn't really help maintain equality before the law, nor the public's respect for the law, either. This does not seem like a lasting long-term solution.
3) Legalize file-sharing. The consequences of this option will be explored in more detail below. For all its potential problems, compared to the alternatives it would need to have immense downsides in order to justify not being chosen.
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2. The Culturosocial Side
The suggestion that we don't necessarily need to guarantee artists and other producers of immaterial products a living is going to be controversial at best. Yet, solely protecting a specific profession should never, by itself, be the purpose of legislation. There exist plenty of professions that have disappeared as society has changed, and nobody feels it morally wrong that companies storing ice produced in the winter, so that people could use it to preserve food in the summer, no longer exist. To spend resources protecting a specific profession above others is unfair towards everyone working in some other profession.
But of course, there are also valid reasons for protecting certain professions, if those professions contribute to society in ways that wouldn't be possible otherwise. So the question here is, would quality art be produced even if people couldn't make a full-time living on it?
There are obvious reasons for thinking no: creating good anything requires a full-time dedication - you won't be able to fully concentrate on creating quality if you have to spend half your time worrying about bills. There are historical precedents that suggest that without copyright, art won't be produced without wealthy sponsors.
At the same time, there are also reasons for thinking yes. Times have changed since a couple of hundred years ago: today, work leaves people with considerably more spare time, and the Internet creates a great way to disseminate, effectively for free, the things you create as your hobby. Money is not the only thing that drives people to create - fame and recognition in the form of people enjoying your work is a powerful incentive in itself. The Open Source movement is the best example of all this: open source software is of a sufficiently high quality that it is increasingly used in critical roles rather than commercial products.
Still, it might be that computer software is not a good comparison: software products are largely results of team work, where individuals can make small contributions without investing an enormous amount of time. In contrast, art is hard to created by committee, or by large amounts of individuals making small contributions. This is not to say it couldn't be done, though - any major fiction franchise involves the work of a large amount of people, though it is arguable that these aren't of an equally high quality as artwork done by a single or a couple of individuals. Also, even open source software requires a number of dedicated individuals who keep the project running and do the majority of the work.
Also, there is probably enough fiction of most varities legally available for free online that a person could spend close to a lifetime enjoying it (counting only the art that has been purposefully produced for the public domain, and not works whose copyright has lapsed). Movies are a possible exception, and TV series a definite one, due to the cost of producing them. The art is of widely varying quality, but so is that available commercially.
For all this speculation, though, currently the majority of available art is in some way commercial, published by companies whose employees make a full-time living of it. For all the spare time that people might have, studies and work always take a priority over hobby projects, and projects where there's no tangible reward in sight easily get constantly put off. A reward, either in the form of money or the fame of getting on the lists of a famous publisher, encourages people to complete projects that they otherwise would not. In a somewhat perverse situation, we can be glad over the fact that there are more people doing commercial art part-time than professionally. This suggests that it is not strictly necessary to be able to live off art, if one is able to make a minor profit anyway.
Whether society needs professional creators in order to create as much new (quality) culture as we're used to remains uncertain. It seems likely that there will be a lot of new art regardless, but in order to really keep people creative, it would be good if there would be a way to earn a living off it.
(One of my favorite ways to guarantee a living for artists even without copyright would be the citizen's wage scheme - giving every citizen a state salary good enough to live by [though not necessarily very comfortably]. Marshall Brain argues that once society becomes sufficiently automated and jobs disappear, we'll be forced on this path if we want to avoid mass joblessness and social unrest. I hope he is right, for currently people object so heavily to the thought of "freeloaders" that this isn't, for now, a very realistic solution to the copyright issue.)
2.2 Making a profit without copyright
There are a number of ways to make a profit without copyright - I mentioned some of them in the "My views about copyright", and in the comments of an LJ post, there's a discussion about eleven ways to profit without copyright. I won't reiterate those lists here, but instead mention a couple of general considerations and then look at how different branches of the entertainment industry are currently doing.
A frequent objection I hear to examples about successful use of "copyrightless" sales is that the people doing were already popular, and it wouldn't work for less famous artists. It is true that less famous artists wouldn't have been able to generate an equivalent profit - but that is always the case, even in traditional business. It is a general tendency of human psychology that a lion's share of the profits will always go to a relatively small number of really big names, and then there are a large number of moderately successful ones who get a considerably smaller share, and then there is the yet larger group who gets barely enough to make a profit. (This is pretty inevitable when you think about it.)
The difference in a copyrightless model is that the competition for money is more fierce, and that a far larger part of the populace is likely to at least sample a product that is free compared to a product that you have to pay to sample, so small names have an easier time getting popular. It doesn't matter if distributing your product for free cuts the fraction of people bothering to pay to a tenth, if twenty times as many people become your fans as a result. This is an important point to remember.
We can try to somewhat estimate the impact of legalizing file-sharing by looking at how different parts of the entertainment industry have reacted to piracy becoming more widespread. Obviously there are more variables than just the popularity of piracy, and a considerable part of the populace hasn't gotten on the pirate bandwagon yet, but this should still be useful - after all, piracy is likely to be one of the biggest factors influencing sales, even now.
* Movies: Doing quite well, actually. According to a report by the Motion Picture Association of America, the box office in 2007 was $9.629 billion (up 2.161 billion from 2001 and 5.066 billion from 1992) in the US and $26.7 billion (up 10 billion from 2001) internationally - making it a record year on both fronts!
* Music: CD sales are definitely down. On the other hand, concert sales are up. An interesting article in Prospect Magazine, for instance, reports that attendance at arena rock shows grew by 11 per cent in Britain in 2006, and that the prices for concerts have gone up worldwide, at best over tenfold compared to what they were in 1980. Artists are getting an increasing share of their income from live appearances.
Online sales of music in services such as iTune are also seeing moderate growth, though the growth is already slowing and is very unlikely to reach the same levels as CD sales once did.
* Computer software: This is effectively two different fields: "utility" software, such as operating systems, word and image processors, and computer games. Utility software has so far been partially unaffected by piracy because large corporations can't just use pirated software like private people can: somebody will inevitably report them and they'll end up paying large fines. This risk would presumably go away if file-sharing was legalized. This doesn't seem too worrying, however, because of the large variety of good open source programs available, the fact that user support is a good way to earn from software even if nobody paid for the software itself, and that special-purpose software that doesn't have an open source equivalent can always be either ordered or made internally by the interests requiring it.
Computer games, as a medium that's been digital from the very beginning, are probably among the most pirated varieties of entertainment you can find. But regardless, they have only continued to grow as time has passed, even actively driving home computers to become more powerful. It seems likely that enough people will keep buying them to keep them profitable even if they can be acquired for free - for that's the case already.
* Books: A brief Google gave me a bunch of reports by the American Association of Publishers, which seem to indicate that the book industry has been seeing steady growth since at least 2005. I wonder what more long-term trends look like - one would imagine that the book lobby would have been hit the hardest in the recent decades, as they are not only suffering from piracy, but also the fact that Internet and computer gaming are actively competing for the readers' attention.
* Comics: In the comments of an LJ post, I was informed that the comic book industry is at one of the lowest points of its existence. On the other hand, some estimates say that there are between 15,000 to 36,000 webcomics around, more or less regularly updated, and several webcomic authors are making a living off it. Japanese manga has also seen explosive growth in the last decade (still growing in Finland), despite the fact that it's often been floating around the net in scanned and translated form for years before it's even officially made available in the West in the first place.
* Others: Did I miss any?
If we go by these figures, things look promising - all the industries have had at least parts which have grown in the recent one or two decades, despite the file-sharing explosion that has occurred during that time. It looks nowhere certain that a legalization of file-sharing, or maybe even a general abolishment of copyright, would hurt society.
2.3 The "Super Library" argument
In his excellent speech "Copyright Regime vs. Civil Liberties", Rick Falkvinge paints a view of society that has legalized file-sharing and "taken a step forward much larger than the one when public libraries appeared" - suddenly all of human culture, or at least all the culture that has been digitized, is freely available for anyone, with only a few clicks of the mouse. We already have the technology for this, it's only a question of making the legislation match.
This is a very compelling argument. One could argue that if this were the case, it wouldn't even matter if no more culture was produced, for humanity has already produced far more culture than anyone could consume in his lifetime. But art does actually get better and develop over time, so most would probably still prefer it keep getting produced. Still, many would likely consider even a considerable drop in the production as an acceptable deal.
3. In conclusion
I would definitely say that file-sharing ought to be legalized - while such a society remains untested, it hardly seems like a worse alternative than the corporate police state that we'd risk getting if we kept it illegal. It might very well even be better than today's society.
2.1 Do we need professional producers of immaterial work?
This work is copyright Kaj Sotala and is licensed under a
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