Suppose that, back in the 70s, DARPA had developed two revolutionary networks. In addition to the precursor to the Internet we all know and love, they had also developed a teleportation network enabling small, inorganic objects to be instantly transmitted via miniature wormholes from any point on the network to any other point. The effect can even be time-limited, so that objects will snap back to their original locations after a predetermined number of minutes, hours, or days has elapsed.
Among the many areas of life transformed by this technology is the entertainment industry. People quickly realize how inefficient it is that all our homes are packed with books, DVDs, and CDs that we’re legally entitled to be reading, viewing, or listening to as often as we like—but in practice only really make use of for an infinitesimal fraction of the time we own them.
Libraries and video rental stores already take advantage of the fact that most people are happy to read a particular book or movie once, then let someone else enjoy it. But the teleportation network, combined with the power of the Internet, suddenly allows millions of individuals to make their personal copies of these works available for instantaneous loan to others. Every book, movie, or album you’re not currently using, or just about to, is listed publicly as available for borrowing. (Maybe borrowers feed their credit cards into the system, to ensure that you’ll be bought an immediate replacement if your copy should be damaged while on loan.) The massive waste of letting a book or DVD sit unused on a shelf for months or years for every few hours it’s actively enjoyed is suddenly eliminated—to the delight of everyone but the companies in the business of selling those books and movies.
Since the system doesn’t involve copying, but only the transfer of physical objects, it is plainly legal under the First Sale Doctrine: No copyright is even arguably infringed at any point in the process. Because it’s so obviously legal, nearly everyone participates in the system. Possibly some small fee is paid into the system by those who borrow vastly more than they loan out, and transferred to those who do the most loaning. Over time, this evolves, so that when a work is in high demand but short supply, people who don’t want to wait can pool small amounts of money to buy a shared copy (to be resold once everyone’s read/heard/seen it as much as they care to).
This proves understandably vexing to copyright owners, who find that many fewer copies of each book, DVD, and CD are sold once large numbers of potential buyers are able to get all the satisfaction they wanted from a single, widely-shared copy. The MPAA and RIAA launch a major public relations campaign attempting to persuade people that “lending is theft,” which prompts widespread public ridicule and is, predictably, an enormous flop. Reluctantly, creative industries begin looking for new business models that will allow them to thrive in the changed technological context, while policy makers contemplate whether alternative incentive mechanisms are needed to ensure that creative works continue to be produced.
Obviously, this fanciful scenario isn’t exactly analogous to unauthorized file sharing, which allows many different downloaders to simultaneously use each particular work—though it’s not clear how great a practical difference this would make, given that each copy still sits fallow most of the time it’s in any individual’s possession. It’s actually not far off at all from a “cloud storage” model we could see emerge over the next few years, however, provided each privately-purchased song, movie, or book can only be used or accessed by one device at a time. (Access might be allowed only to devices incapable of making a permanent copy—though nothing physically prevents me from making a personal copy of a book or CD I have borrowed from a friend.) Henry Farrell points out that it’s also almost exactly the model Zediva is employing for remote DVD rentals (in contrast with the more familiar Netflix streaming).
A situation like the one I’ve imagined might be considered a major policy problem, and it might not.It might have less effect on sales than BitTorrent does in our world, and it might plausibly have more because of higher rates of adoption. But if it were a policy problem, then the problem would have nothing at all to do with the moral properties of “illicit copying,” nor would jeremiads against “theft” from artists be relevant, or likely to be regarded as anything but risible.
The policy problem would just be this: New technology had multiplied the number of people who were able to enjoy each copy of a work—in itself an obvious and enormous benefit—reducing the number of people prepared to buy individual copies of those works, and calling into question whether the traditional business model predicated on mass individualized sales would continue to supply enough revenue to incentivize production of (enough) new works. Here is a solution no sane person would propose to this problem, if it were a real problem: Prohibit people from using the teleportation network to loan books and movies to their friends, and monitor it to ensure they did not do so.
Some readers, of course, are probably bouncing in their chairs with eagerness to interrupt that my thought experiment is quite irrelevant: In our world, people are shamelessly copying rather than loaning works. True enough. But there’s nothing morally special about copying. It’s a method we regulated to solve an incentive problem, because given the available technology in 1909—when statutes first sought to control “copying” rather than “publication” and “sale”—that was the most efficient point at which to regulate in order to solve that problem. If technology had evolved in order to make mass loaning, rather than copying, instantaneous and frictionless and easy, the underlying problem wouldn’t be any different. Any moral baggage “copying” has picked up is a pure artifact of the chance fact that “copying” is what it seemed to make sense to restrict given early 20th century tech.
So here’s one way to think a little more rationally about copyright policy: Pretend that instead of BitTorrent, we’d invented the Teleporter Library. Then think about what business or policy solutions would make sense in response. It’s a neat way of clearing from consideration a lot of charged rhetoric about “stealing music” that should have been irrelevant all along.
Addendum: Taking the Teleporter Library notion seriously on its own terms, and not just as a kind of allegory about IP, it’s worth noting that in some ways, it would put many consumer goods suppliers in the position our content industry is currently in. Maybe it would continue to make sense for everyone to just continue to own (say) their own screwdrivers and such. But there are a lot of things we only need (at most) a few hours of the day, or even a few days of the year. Some of these things we might nevertheless have various reasons for wanting to own (I don’t want to hook up and then disconnect a dishwasher every time I run it, even if it’s only every other day) but many would more sensibly be shared. Just glancing around my apartment, things I would probably “subscribe to” rather than own in a world of nearly-free teleportation include: Luggage, a printer, a bicycle, toaster, blender, vacuum cleaner, television set, Playstation (and Rock Band controllers)… hell, even my sofa, reading chair, and coffee table don’t really get used more than a few hours a day—and some days not at all… though in the latter cases the convenience of just flopping into them after a long day without waiting even a short time for a “download” might weigh in favor of owning. I can imagine you might see an increase in investment in innovation as each Teleportation Library competed to distinguish its catalog of subscription appliances—and maybe appeal to the broad group of people who’d pay a few extra bucks to have a fancy espresso machine for their dinner party, even though they’d never dream of buying one.