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How to Keep on Rockin' in the Free World: A Solution to P2P, the RIAA, the DMCA and other Acronyms


The reason for all the conflict over file-sharing is quite simple. It comes from a failure of the law to anticipate and react to the changing nature of the digital world. When the opponents of file-sharing are asked why the opposed it, they almost invariably will say something along the lines that the practitioners are "stealing music." But what is stealing, or more to the point, what is it that makes stealing wrong? It's not the idea of getting something for which one didn't pay. That happens in a lot of cases which aren't stealing. No, stealing is against the interest of society because it deprives a party of property which is rightfully theirs. Such a notion is absolutely essential to maintain the concept of private property. The problem then becomes a question of "what is property?" Two distinct categories of property concern us here: physical and intellectual. Stealing physical property is easy to define and regulate, but what is it to steal intellectual property?

If we are to restrict our notion of theft to this kind of deprivation, then to steal intellectual property can only mean one thing. For one party to steal the intellectual property of another is to pass that property of as their own, thus depriving the original owner of the property rights. It is against this type of theft that copyright law was designed to protect. For many years, the type of "theft" which occurs with file-sharing was impossible. The intellectual property was inexorably bound up with the physical media on which it resided. To steal a CD was to steal physical property and private duplication of said CD would literally cost more than the CD itself. Therefore, music was a finite good, whose supply was controlled by the number of CDs in the market. Changes in technology such as cheap media, cheap bandwidth, and high-quality compression caused that bond with physical media to be severed. Now the music industry was faced with something it never had dealt with before: intellectual property in the abstract which could be freely (in both senses of the word) distributed to the masses, all of the sudden music was not a finite good. It panicked.

We all know the results of the panic: the RIAA lawsuits, the DMCA, the copy-protected CDs. All of which totally tramples on existing fair use principles. The harm the record companies say: the destruction of potential profits. To support this, they cite a slight decrease in sales in the middle of an economic downturn. In doing so, they ignore the monopolistic behavior and market saturation which might be turning away potential costumers. Also note the every single RIAA lawsuit has targeted uploaders not downloaders. They're attacking the alleged fences, not the alleged thieves. While that certainly may be the most pragmatic course of action, it clearly shows that they are not interested in the moral aspects of the issue at all, only the alleged profit costs. Despite all these wrongs perpetrated on the consumer base, I propose a truce. Fair use is too important to be left solely in hands of law makers and industry officials.

For the solution to this problem, one needs to turn to the other industry which must deal with abstracted intellectual property. That's right, ladies and gentlemen, music is now software. The software industry does not rely on copyright law to prevent unauthorized distribution. Instead, it uses a licensing scheme. The use of each software product is governed by a unique End-User License Agreement (EULA) which specifies the permitted uses of the software and distribution rights of the user. I propose a similar scheme for the music industry. Instead of having to deal with and pervert copyright law, violators could be cited for violation of the license. It may sound like this idea ends up giving the music industry even more control. In a way, it does. In fact, I considered calling this essay. "On Making a Deal with the Devil." However, I can see both sides benefiting in the end. As part of the deal, I would require the following. 1) Repeal the DMCA. It's a stupid law which succeeds in doing nothing more than criminalizing perfectly reasonable behavior and alienating constituents and costumer-bases.(see my earlier essay(HTML RTF)) 2) Pass a law guaranteeing the Fair Use rights of individuals for personal use. This shall include the right to make digital backups and the right to make format conversions (e.g. from CD to MP3s). Any company which attempts to prevent this (through encryption or through the content of their licenses) shall be guilty of monopolistic practices. In exchange, the distribution of licensed music shall be prosecuted as a license violation and not under copyright law. Music acquired before licensing will be a grey area, but the risk will curtail most uploaders. The others will almost invariably let licensed music slip through. Yes, it will be the end of "free music" as we know it.

It is my vision however, that many artists and labels will realize the value in the distribution of music across P2P networks for exposure purposes. This will create a sort of "music GPL." We may lose free music (as in beer), but we shall gain Free Music (as in freedom). In the long term, I think the popularity of such an idea might force the major record companies to follow suit. It will also give artists better protection for independent music distribution. Let's give the record companies exactly what they want and then let the free market take over. I realize the scheme is, well, far too logical and sage to be accepted by the RIAA and Congress. I welcome ideas to make it more realistic without changing its general character.

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Last Site update on 5-18-05