7.20 Consequences of control
The Net potentially increases the exposure of copyrighted material to copyright infringement. This is a serious issue that copyright owners have a legitimate concern about. The Net also potentially:
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makes monitoring and control of content use greater in some circumstances;
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threatens existing media by providing alternative production and distribution channels.
In most of the cases chosen the courts appear to be protecting copyright owners against internet innovation. Lessig goes further and accuses the courts of giving established business a veto over innovation and new competition. Despite the opportunities for existing industries provided by the Net, old business models are getting the protection of the courts.
Yet it is precisely because we do not know what the future holds that this is not a good idea – we should keep our options open and allow innovation to flourish, rather than allowing large businesses or industries with an interest in maintaining the status quo (at least insofar as it protects their interests) a veto over the future:
In the name of protecting original copyright holders against the loss of income they never expected, we have established a regime where the future will be as the copyright industry permits.
If the music industry, for example:
… has the absolute right to veto distribution it can't control, then it can strike deals with companies offering distribution that won't threaten the labels' power.
Lessig believes that there are, however, choices that can be made by ordinary people as consumers and voters, and by courts and governments as policymakers, which can influence the control that the old exerts over the new. One example is the choice that was made by the US government in the cases of the ‘player piano’ and cable television (the ‘first Napster’) – the ‘compulsory licence’. Under the compulsory licence Napster, MP3.com and others would get the right to use copyrighted material in innovative ways but they would have to pay the copyright owners a rate set by the licence. As long as the rate is reasonable, for both copyright owners and innovators, the copyright owners get compensated. But they get ‘compensation without control’.
"Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain."
(Judge Alex Kozinski in Vanna White v Samsung Elecs (1993))
Further reading: Some very smart people have been thinking about alternative compensation systems for copyright holders, including William Fisher at the Berkman Center at Harvard. A draft chapter of his book, Promises to Keep: Technology, Law and the Future of Entertainment, published in 2004, is available online.
7.19 IPR enforcement, PIRATE and INDUCE