The threat of efficiency
By Mikael Pawlo, associate lawyer, Advokatfirman Lindahl, Stockholm, Sweden
Your favorite lobbyist is quite busy now. He spends his time in Brussels and Washington D.C., working on new copyright acts. Your favorite lawyer is quite busy as well. Both of them have the same objective: to stop you from communicating freely and efficiently on the Internet. They are afraid that your freedom will make their clients--the music industry--lose money.
In the past, legislators have designated a private sphere in the life of each individual as unregulated. In your private sphere, you could do many things, as long as they concerned only yourself and maybe some friends. The private sphere was considered your home. You could exercise your fair use rights to copy music and papers for personal or academic use. The Internet tampers with this old tradition. Your means of communication are much more efficient than legislators could have foreseen when the copyright statutes were designed. Making a copy of something for your friends is completely different in the Internet age. You can send the copy to a thousand of your friends with very little effort at a very low cost. It is extremely efficient.
Legislators did not want to regulate the private sphere and did not recognize a need therefor. Ten years ago, when the Swedish Copyright Act was revised, this position was still held by the legislators. They were aware of the common practice among friends to copy and distribute mix tapes of favorite songs. Swedish legislators reasoned that it was not a good thing to try to regulate the private sphere, since it would be very hard to enforce the legislation. In regulation, one should try to refrain from creating rules that cannot be enforced, since they erode the populace's confidence and trust in the law as something logical and beneficial to society.
But with the digitization of copyright and the Internet, it is much easier to obtain control over and monitor copyright violation, even if such activities are conducted in the private sphere.
In the mix tape example, there was a physical barrier preventing the communication from reaching efficiency, since distributing the tapes en masse would be prohibitively expensive. When Xerox first introduced the copier in 1959, several smaller printing houses were forced to close. In 1966, Xerox introduced the Telecopier (now known as the fax machine). Xerox made copying possible over the physical barrier of distance, but it was still possible to make money on printed works. The improved means of communication and distribution of information represented by the copier and fax machine did not put all journalists and writers out of work, and neither machine was prohibited. Still, it looks like the musical equivalent of these Xerox machines--Napster and its followers--will be prohibited or at least sued out of business. Some intermediaries will die because of the new technology, just like the smaller printing houses died out when the copier was invented. But is this really an argument to prohibit technical progress as such?
So, what is the proper balance between the music industry's wishes and the sanctity of your personal sphere? How efficiently will copyright holders and record companies allow us to communicate with each other?
For the record, I do not think that music should be free as in free beer. But I do think we need compulsory licensing to stimulate creativity and innovation. Music would then be free as in free speech (but that's another story). It is important that the legislators--and the courts--give users the freedom and the right to a private sphere. Even though enforcement and control of the private sphere could increase with new technology, I do not want record companies and Microsoft to become a private alternative to the Orwellian surveillance state. Stay away from my hard drive. Please. And let me communicate in the most sophisticated and efficient way available, even if it means that you risk losing money from my possible contributory or direct copyright infringement.
To ensure that the record companies still obtain revenues, it is important that the developers in the post-Napster era create commercial alternatives to the user-driven free beer networks. With the right commercial package, I am certain that record companies and artists can find a future in the post-Napster era without monitoring everything in the private sphere. After all, the fact that the record companies would stay away from my hard drive wouldn't mean that they waive all rights to digital music.
Communication is important, and no matter what your favorite lobbyist and favorite lawyer tell you, technical progress and innovation should not be sacrificed on the altar of copyright.
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