Thursday, January 26, 2012

The Trouble with the Copyright Debate

The Trouble with the Copyright Debate:

A few days ago, I committed an illegal act.

Instead of watching the latest episode of the British fantasy
show Merlin on the SyFy channel and suffer through a
hundred commercials and pop-up ads that sometimes deface the screen
during the show itself, I got online and watched an illicitly
streamed video. What's more, I intend to continue my crime spree
and download the three-episode second season of Sherlock,
which aired on the BBC earlier this month, rather than wait until
May when it finally gets to PBS.

The point of this true confession is that the current debate
about copyright enforcement and piracy on the Web largely misses
the boat. Yes, creators and copyright holders have important rights
and legitimate interests. And yes, some Internet users display an
obnoxious sense of entitlement to "free" intellectual content. But
media corporations and other owners would be far better helped by
being savvy about consumers' wants and needs than by draconian and
ultimately futile attempts to police the Web. 

Right now, the copyright enforcement debate has focused on

two controversial congressional bills
, SOPA (Stop Online Piracy
Act) and PIPA (Protect Intellectual Property Act), both withdrawn a
few days ago due to a ferocious backlash from technology companies
and websites—a backlash that culminated in a day-long blackout of
popular sites including Wikipedia. Among other things, the
legislation would have enabled the federal government to take down
websites based on mere allegations of copyright infringement, even
if the offending material was uploaded by users without the owners'

Yet even without these bills, which may yet be revived in some
form, there's plenty of heavy artillery in the war against Internet
piracy. Even as SOPA and PIPA were breathing their last, news came
of the government's
seizure of
, a hugely popular file-sharing site,
and the arrest of several of its top executives on charges of
racketeering and criminal copyright infringement. 

Megaupload, which has made $175 million since 2005, was a
particularly juicy target due to its size, popularity, and
apparently blatant moneymaking from enabling copyright violations.
But most experts acknowledge that the raid will barely make a dent
in the black market for copyrighted material. At most, Internet
users looking for illicit movies or TV episodes may have to search
a bit longer and settle for less convenience (for instance, having
to download the video without the option to watch online).

It is commonly
that digital piracy causes huge revenue losses: $3.5
billion a year to the film industry, over $4 billion to the music
industry. Yet these figures come from industry sources, which are
hardly objective. A 2004 analysis  by Harvard business
professor Felix Oberholzer-Gee and economist Koleman Strumpf found
the impact of file sharing on legitimate music sales to be
negligible. In a 2009 paper, Oberholzer-Gee and Strumpf noted that
several other studies supported their conclusion while others
documented a real but small effect, accounting for no more than 20
percent of the overall sales decline.

The notion that every illegal download represents a lost sale,
on which official claims often seem to be based, is frankly absurd.
It's unclear whether these estimates even account for the impact of
legal video streaming through Netflix and video-on-demand services.
They certainly don't account for the positive effect of
unauthorized content sharing—for instance, sales to people who buy
a TV show on DVD set after sampling it online, as I and quite a few
of my friends have done.

A common retort is that theft is theft. But do owners of
intellectual property have a right to collect a profit from every
consumer? Consistently applied, such a position should lead to a
ban on libraries and make it illegal to lend a book or DVD to a
friend—or even to resell used books, CDs, and DVDs.

Of course, if few consumers paid for media content, the
entertainment and publishing industries would either collapse or
require vast public subsidies. Most people understand this, and are
willing to pay their way. But this is where entertainment companies
should meet customers halfway. Why not make more content available
via pay-on-demand? (To take my earlier example: if British shows
with a substantial American following became available in the U.S.
shortly after their original airing for a reasonable fee, many fans
would gladly pay to watch them legally.)

In their 2009 paper, "File Sharing and Copyright,"
Oberholzer-Gee and Strumpf conclude that file sharing does weaken
copyright protection—but does not discourage artistic production
and, in fact, benefits society as a whole. It is important to
remember that copyright was originally instituted, as the Copyright Clause of the
U.S. Constitution
says, "to promote the progress of science and
useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries."
The "limited times" have been extended again and again, from an
initial maximum of 28 years to the present term of author's life
plus 70 years, or 95 years for corporate creations. Copyright law
has also been extended to derivative works, raising roadblocks for
authors and artists who engage in the sort of creative reimagining
of classics—such as Gone With the Wind retold from through a
slave's eyes—that has always been culture's lifeblood. 

The defeat of SOPA and PIPA is the first time a proposed
expansion of copyright enforcement has been stopped by those who
champion intellectual freedom. Perhaps it should be the start of
rethinking and rolling back an overgrown law that, in its current
form, arguably hinders rather than promotes creativity and
expansion of knowledge.

Contributing Editor Cathy Young is a columnist at
RealClearPolitics, where this article
originally appeared