Derek Slater, in the midst of a thought-provoking discussion with Ernie Miller about the benefits of copyright-as-leaky-boat, asks a very interesting question:
[Can] we a) acknowledge the constructive role [for "leaky" copyright] while b) opposing widespread infringing filesharing? ...Perhaps a part of the reconciliation is a sense that, whatever may have been the meritorious effects of filesharing during Napster's birth, now competition in legitimate services can become good enough that it's time to call off the dogs.
If I understand him correctly, Derek is arguing that (1) copyright infringement can indeed be beneficial in the larger scheme of things, but (2) publicly justifying it on that basis means we suggest, wrongly, that there should be no cap on bad behavior, so the question becomes, in the case of filesharing, (3) hasn't infringement already done its "job"? Shouldn't we "call off the dogs"?
Ernie's answer, as I interpret it: "If the entertainment industry called off its own dogs, we wouldn't even be having this discussion."
One of the dogs is, of course, the DMCA. Another is the zero-tolerance attitude toward leaky-boat behavior (and I would add, the "me2me" tools that enable it):
Well, blatant copyright infringement was never cool. Yet, I don't think that were filesharing to go away, copyright would be in balance. ...Part of my argument in favor of the public/private distribution distinction as the focus of copyright law is that it provides a clear means for "leaks." If the RIAA keeps music prices too high, people will engage in more private distribution. When prices are reasonable, there will be less private distribution.
Similarly, I think that the DMCA shifts the balance for leaks in ways that are counterproductive.
I will continue to counsel against infringing public distribution via filesharing systems. Yet, I don't believe that there can be true reconciliation until copyright law is better balanced.
For some time now, Derek has been providing a series of detailed reviews
of a variety of authorized services. I wonder if part of the goal has been to investigate whether the recording industry is ready to offer people a genuinely fair deal, to capitalize upon rather than crush new technology, and to move forward with digital age business models rather than stick its thumb in the dam.
I'd like to open the floor on this one. What do you think?