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On the Enforcement Fantasy

January 25th, 2012 · 14 Comments

This is probably the least interesting (because it should be so self-evident) and yet most important paragraph in a must-read Cory Doctorow essay:

In short, [proponents of more aggressive copyright enforcement] made unrealistic demands on reality and reality did not oblige them. Copying only got easier following the passage of these laws—copying will only ever get easier. Right now is as hard as copying will get. Your grandchildren will turn to you and say “Tell me again, Grandpa, about when it was hard to copy things in 2012, when you couldn’t get a drive the size of your fingernail that could hold every song ever recorded, every movie ever made, every word ever spoken, every picture ever taken, everything, and transfer it in such a short period of time you didn’t even notice it was doing it.”

I’ve found myself stressing this to reporters who call to ask about what we should do “instead” of SOPA and PIPA, because the framing of this entire debate remains mindblowingly shortsighted. In five years, regardless of anything Congress does now, the current round of garment rending over “rogue websites” is going to seems as comically quaint and irrelevant as old jeremiads against the libidinous excesses of jazz dancing and Elvis lyrics. The big, dumb, obvious technological fact that an awful lot of smart people seem reluctant to grok is this: Copying and sharing information is vastly cheaper and easier than it has ever been at any time in human history. It is also vastly more difficult and expensive than it will ever be again.

This weekend I finally upgraded to the latest version of Mac OSX, Lion. Owing to some weird decisions by Apple, I had to install it from physical media: An 8 gigabyte “thumb drive,” which is really rather misnamed, because it’s actually about the size of two wooden matchsticks. The year I was born, that amount of data storage space—without any software—would have cost more than the office building you’d need to house it. The year I got my drivers’ license, it would’ve cost about as much as a good used car. In 2012, 8 gigs of storage is the kind of thing you give away as freebie conference schwag—like a logo-embossed pen, except a good deal smaller. If I decide to use it for something else now that I’m done installing the OS, it will easily accommodate about 4 feature-length films in high definition. IBM recently announced a breakthrough in storage technology that could increase current capacity by a factor of 100 within a few years, which means instead of just carting half our music libraries around with us in our pockets, we’ll have entire music libraries, and high-def video libraries to boot.

One of the features I noticed they’d added in Lion is Airdrop, which establishes an ad hoc peer-to-peer WiFi connection with other nearby Apple devices. This isn’t particularly useful for my desktop, since anyone who’s actually in my apartment is probably already on my home WiFi network, but one can imagine it being awfully handy for mobile devices. “What am I listening to? Hang on, I’ll beam it over.” For transfers outside physical proximity, the next generation wireless data standard recently approved by the International Telecommunications Union maxes out at about a Gigabit per second. In practical terms, that means about a minute to transmit  an uncompressed music CD (and much shorter for, say, MP3s at the bitrate you get from iTunes) or 90 seconds for a high-definition TV episode.

Existing online social networks, with near universal adoption in many social circles, already provide a trust infrastructure for limited sharing that will make these kinds of transfers almost impossible to police—or even reliably detect. In a world where every teenager in the country is carrying a pocket-sized server, and encrypted wireless VPN relays can run out of palm-sized cubes, an enforcement strategy based on raiding data centers is just going to look cute. Legislators who think “the Internet” means “the Web,” who are too fixated on the problems some lobbyist is complaining about right now to think two steps ahead, are in for a rude awakening. They’re in the grip of the enforcement fantasy: The misapprehension that technology is going to stay still long enough for traditional, targeted law enforcement approaches to effectively limit the scope and scale of copying.

That’s not to say that nothing can be done to avert a near-future world of largely unregulated and unregulable copying and sharing. If we were willing to implement  a comprehensive scheme of innovation-stifling technology mandates and pervasive surveillance so absolute as to  make the People’s Republic of China look like Burning Man, it could at least be delayed. But I assume that the United States is not yet prepared to completely betray its basic principles to safeguard the profitability of Friends reruns.

If we’re not willing to be China, though, then all these discussions about “what we’re going to do” about piracy are just the wonky equivalent of fanboy debates about whether Wolverine would beat Batman in a fight, for all the bearing they have on reality. What are we going to do that makes a long-term difference? Nothing. Anyone who wants to copy stuff without paying for it can do so easily, and it only gets easier and faster from here. Finding this morally outrageous or throwing a tantrum about the deep unfairness of it all won’t make it less true, though the tantrum might break a vase or two.

A slightly more Zen approach would be to “accept the things you cannot change,” as the coffee mug has it, and take the opportunity to step back and reevaluate. We have a legal structure for incentivizing creativity that makes copying and public performance the key points of regulatory intervention. There isn’t some deep moral reason that it’s these points and not others. There are lots of other ways to enjoy creative works without paying the creator, after all: Borrowing a copy, buying used, watching at a friends house, DVRing the broadcast and skipping all the commercials, incessantly singing (to yourself or with a friend) that catchy tune you overheard in the cab. Nobody tries to claim those are “stealing,” mainly because we’ve decided not to try to regulate those activities.

We decided to regulate copying instead, because copying was a lot easier and cheaper to regulate when we wrote the copyright statutes. Copying a book or record on a mass scale, unlike lending or singing in the shower, was not the kind of thing an ordinary person had the necessary equipment for—and the equipment tended to be bulky enough that you could usually track it down without having to pry into a lot of homes (and bathrooms). But the thing we decided to regulate because it was rare and expensive is now as cheap and ubiquitous as all the other stuff we didn’t regulate because it was cheap and ubiquitous. The good news is, most people are still glad to pay for the content they really like, if it’s provided in a convenient form and at a reasonable price, even when they can (or did!) easily copy it free. But maybe that’s not enough, and there are other points of regulatory intervention that will help creators internalize enough of the value of their output to make the investment worthwhile. That’s an actually productive subject of inquiry, but it’s not one anybody’s putting much effort into as long as they remain in the grips of the enforcement fantasy.

Tags: Art & Culture · Economics · Law · Tech and Tech Policy


       

 

14 responses so far ↓

  • 1 kpt // Jan 26, 2012 at 11:07 am

    Minor quibble (that reinforces your point): in many ways, China already looks like Burning Man (or, at least, the big cities do).

    In the biggest bookstore in Beijing (not some small alley shop, but the central, famous bookstore, WangFuJing – think of a 7-story Barnes and Noble on steroids), you can purchase a full install of the latest copy of Office for about 20 bucks. Same with Windows or Photoshop.

    Several years ago, when I was there, you could choose from several competing brands of “all the episodes of ‘Friends’ ripped as mp4 on dvds”. For about a dollar per disc. One even had a play on the episode naming convention for the show and was called “The One With All The Episodes”.

    The peer-to-peer site friends turned me onto was really professionally polished and vetted, with respect to file naming conventions, and full of not only western television and movies, but also plenty of stuff ripped directly from CCTV broadcasts. I’m guessing it was just one of many competing p2p networks.

    The scale of if-not-officially-approved-at-least-not-frowned-on-much “piracy” was mind-boggling to this westerner who reads about lawsuits filed against grandmothers who shared a few files. This horse left the barn years ago. Arguing about exactly how to lock the gate probably does raise money from Chris Dodd, but doesn’t actually accomplish anything.

  • 2 Al // Jan 27, 2012 at 1:52 pm

    One thing I’d add to re-inforce your point: the 250 Gb monthly limit that major ISPs like Comcast have in place seem reasonable on the surface b/c that sounds like a lot of data. It’s incredibly short-sighted to think so, however, if you think beyond bitTorrent-type of apps and think about backing up one’s hard drives online. Doesn’t really fit with the music locker roll-outs either.

  • 3 M. // Jan 27, 2012 at 1:54 pm

    Exactly right Mr. Sanchez.

    I used to pirate music because it was easy and cheap (free!), now I buy the albums or songs from artists I like because iTunes has made it just as (or more) convenient, simple, and reasonable to buy (subjective) than torrent or P2P ever could.

    I copy (borrow?) music that I haven’t heard but might like from friends and colleagues who already own it. If I like it, then the artist’s next release is on the top of my “music to buy” list.

    The result of technology on commercial creative art is great enough to write a manifesto, but I believe it causes the masses to focus on the product’s quality and the artist’s ability to make more quality works, rather than ubiquity alone.

    Every time copyright in music comes up in media, I’m think of the electronica/hip-hop DJ “Pretty Lights”. This man gives away his music on his web site (www.prettylights.com) and makes his earnings (assuming) on live concerts/events/and music festivals. Not only that, but he’s doing very well! That sounds like a model of repeating returns to me.

  • 4 Scott // Jan 27, 2012 at 3:09 pm

    Very interesting read. Some day, I should add up all the money I’ve spent buying music, seeing concerts, etc., for artists that I’ve discovered through downloading or other legally questionable means. I suspect it will be at least $2000.

  • 5 TD // Jan 28, 2012 at 11:44 pm

    “Every time copyright in music comes up in media, I’m think of the electronica/hip-hop DJ ‘Pretty Lights’. This man gives away his music on his web site (www.prettylights.com) and makes his earnings (assuming) on live concerts/events/and music festivals. Not only that, but he’s doing very well! That sounds like a model of repeating returns to me.”

    This is just a long-winded way of saying, “Some live performers make money by staging live performances.”

    Yeah, OK, great. But it has nothing to do with the actual issue on the table, which is about the copying of creative works.

    Sorry, I’m not trying to be a dick here. It’s just that this sort of off-topic, red-herring “argument” has been a tired cliche since, like, the second week of Napster debates 13 years ago. “Bands can make their money by touring, dude!” is irrelevant to the topic of copyright, intellectual property and incentivizing creative works.

  • 6 Julian Sanchez // Jan 29, 2012 at 5:44 pm

    That’s a little like saying it’s “irrelevant” to bring up wireless broadband when you’re wrestling with the topic of how to run copper cables through tundra. It’s only irrelevant to the “topic” if you narrowly define the “topic” as one (increasingly unworkable) method of serving a function routinely accomplished by other means.

  • 7 Eric Biesel // Jan 29, 2012 at 8:42 pm

    Succinctly said, Mr. Sanchez. Also, clearly Wolverine would beat Batman’s ass in a fight.

  • 8 TD // Jan 29, 2012 at 10:19 pm

    (Does HTML work here? I can’t remember. I’m gonna try.)

    “That’s a little like saying it’s ‘irrelevant’ to bring up wireless broadband when you’re wrestling with the topic of how to run copper cables through tundra. It’s only irrelevant to the ‘topic’ if you narrowly define the ‘topic’ as one (increasingly unworkable) method of serving a function routinely accomplished by other means.”

    No, it’s irrelevant in the way that bringing up, say, coffee-mug production is irrelevant to a discussion about Internet service in the tundra.

    So, some people perform music in front of some people who pay them to do it. Awesome. That has nothing to do with the topics actually raised in your (insightful) post, about the storage and distribution of copyable content, and the regulation thereof.

    I’m not making a normative argument here. Maybe the existing copyright framework should go; maybe it shouldn’t. My point is simply that “musicians can make money with live performances” is about as operative a response as “musicians can make money with a job at a gas station.” It’s like, yeah, I’m sure some of them can; now can we talk about the distribution, regulation, etc., of copyable content?

    A song is not “a guy performing in front of an audience.” A recording is not “a guy performing in front of an audience.” A film is not “a guy performing in front of an audience.” “A guy performing in front of an audience” is to a copyright discussion what the coffee mug is to Internet service in the tundra.

  • 9 TD // Jan 29, 2012 at 10:30 pm

    And this is really weird, but my “coffee mug” reference was not drawn from your post (unless it was just tucked into my subconscious from last night’s reading). I actually just glanced around my desk and latched onto the first object that caught my eye.

  • 10 Mike // Jan 30, 2012 at 12:04 pm

    @TD: It is unrelated if you assume that copyright exists for its own sake.

    If we go back to the root purpose of copyright, as in to encourage the production of new art by providing a way to make a living on said art, it becomes directly applicable.

  • 11 Julian Sanchez // Jan 30, 2012 at 12:16 pm

    And “selling a copy of a video on DVD” is not the same thing as “broadcasting it for free with advertising.” And selling downloadable MP3s is a different business than selling 8-track tapes. But they’re somewhat more closely connected than either is to working at a gas station. Obviously, some people who make recordings can’t or don’t wish to tour; for them, this strategy for monetizing their creative output will not work. Some other ways of capturing revenue from copyrights—such as licensing for other media—aren’t particularly affected by low cost consumer copying. Others fuse the copyable with the uncopyable (think signed-limited-edition vinyl release).

    Now, it’s true, none of these are exactly the same as a pure recorded-content-sold-to-consumers model. But so what? The ultimately interesting question is whether some combination of these and other methods allow creators to capture the public value of their content that content continues to be produced at socially beneficial levels. If they don’t that’s a problem. If they do, the precise mechanism isn’t that important. Sheet music sales presumably dropped off a good deal with the advent of recorded music, but this was not a net bad thing for songwriters.

  • 12 Southern Beale // Jan 31, 2012 at 3:48 pm

    A couple thoughts on this. I live in Nashville, so naturally everyone around here looks at this issue from the music industry perspective, and that seems to be where most bloggers’ attention has been, too. But actually, according to my Congress Critter, SOPA etc were written more with the needs of pharmaceutical companies in mind. I’m not sure if he was right about that but it makes a little more sense. Pirating a favorite CD is a lot easier than pirating a favorite pharmaceutical, and it explains why the laws were so sloppily written.

    Here’s the bottom line. This debate has been going on FOREVER. I grew up in the music business and I remember back in the ’80s the big uproar over cassette tape duplication. It was basically the same argument. Record buyers didn’t want to buy two copies of an album, one for the house and one for the car. They’d buy a blank cassette tape and record the album for the car on it. (I know you young kids will find it hard to believe but yes, we oldsters actually did that back in the day). The RIAA saw a big cash cow leaving their barn, but they had to suck it up. There was no way they were going to win that fight. Oh, they tried to make it sound like Joe and Jane consumer were the ones putting performers and songwriters out of business, but really the big money loss was coming from huge counterfeit operations out of Taiwan and places like that, people who duped the cover art and sold everything on the cheap in the boonies of the U.S.

    Eventually Congress allowed the industry to put a tax on every blank cassette tape sold and that money goes into some fund to compensate publishers and performers. I think they updated the law when digital came along.

    So, you know, increase the tax, then. Just recognize that this theft is gonna happen, you can’t stop it, and try to compensate people along the way. Is it fair? No it’s not fair, but life isn’t fair. Suck it up. “Why should I pay when I follow the rules?” Because you do. Stop being such a baby. Make your own damn music then.

    And as for the big counterfeit operators, well what can I say. The RIAA has maintained that American law doesn’t reach internationally and that’s why they needed SOPA,e tc. But I thought there were all sorts of international agreements and treaties and stuff protecting copyrights globally? If not, WTF when I sign a contract am I signing away my “international rights” to the stuff I write? So I’m really not buying that argument, either.

    Years ago I interviewed a very cutting-edge music star on this issue who basically said, “as many walls as the industry outs up, technology builds ladders. As soon as they build a wall, up goes another ladder.” And that’s 100% true. The bean counters are gonna have to adapt. Their reason to exist may be gone now, and all the ladder building won’t protect them. They’re just isolating themselves more.

    So. That’s my $2.37.

  • 13 Southern Beale // Jan 31, 2012 at 4:11 pm

    BTW when I say “increase the damn tax” I meant on sales of such product in general, not blank cassette tapes, which obviously no one uses anymore.

  • 14 Online Anarchy // Feb 14, 2012 at 11:02 am

    [...] efficacy of that attempt and its unintended side-effects. Both of these, alas, are determined by annoyingly stubborn “facts” about the nature of the technological context in which you want to implement [...]

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