Saturday, September 29, 2007

Booze and bytes

We were talking in my cyberspace law class about the DMCA and the recording and movie industries’ war on file-sharing.

Specifically, we were talking about whether our current system for controlling the ownership and use of intellectual property makes sense in a world in which such property generally ceases to be tangible and instead becomes digital.

Tangible property can be duplicated to some extent – books can be copied and music can be taped, for example – but it tends to be much more difficult and time-consuming to do so than it is to duplicate digital property.

I read a law review article that explained how, and why, it was functionally impossible for regular people to duplicate or otherwise copy vinyl records when they were the only way in which music was distributed commercially. The article also said that while the introduction of taping devices gave people the ability to copy records and tape songs off the radio, the cumbersomeness of the process and the often erosion in quality meant that this did not become a huge problem for the record companies. And much the same is true for the movie industry; the introduction of video recording devices made it at least possible to record movies shown on television and, later, to copy tapes rented from a store or obtained otherwise. But it was still enough of a pain that it didn’t become a major problem.

As we all know, digital technology changes all that. Property moves from being tangible to becoming bytes, and bytes can be copied easily and quickly and without the erosion of quality you saw in older methods. And that, of course, causes major problems for the industries the existence of which is predicated on monopolizing the ability to distribute music, movies and other types of intellectual property.

And we all, I’m sure, know the approach these industries are taking to the problem of file-sharing: First, they’re encouraging the federal government to bring criminal copyright infringement suits against larger-scale file-sharing operations. Second, because there simply aren’t enough federal agents and federal prosecutors to go after a significant percentage of the people who are engaging in file-sharing, these industries – particularly the music industry – are using the threat of civil suits to deter individual file-sharers. The music industry has been sending offer to settle letters to students at many colleges and universities; they tell students they have been identified as having illegally downloaded copyrighted music and can either settle their liability by paying $3,000 or face a lawsuit seeking damages for the full amount, which can easily run into six figures.

We were talking about all this in class, and about whether it is a rational and/or effective way to deal with these issues. I said that what the music and movie industries are doing reminds me of the United States’ experiment with Alcohol Prohibition in the 1920s, but with one difference. The laws implementing Alcohol Prohibition in this country did not make it a crime to have or consumer alcohol; they only made it a crime to manufacture and/or distribute alcohol. Whoever drafted these laws apparently realized that it would be impossible to go after everyone in the United States who continued to buy and drink alcohol, so they tried to address the problem by cutting off the source of alcohol.

As we probably all know, that didn’t work either because alcohol could be manufactured pretty easily. Distilling alcohol is not, as they say, rocket science. I’ve never tried it, but I know people who’ve made their own wine and their own beer, and from what I’ve read online it’s really not that complicated . . . even in our contemporary, primarily urban environment. It would probably have been even easier in the 1920s, when the country was less urban and therefore more used to doing things from scratch.

My point is that Alcohol Prohibition failed because the government could not cut off the source of the prohibited item. That is, they could not prevent people from making and sharing alcohol. We all know about Al Capone and the infamous bootlegging mobs, but there was a lot of local, home-grown bootlegging, as well.

And that’s what I was mentioning in my class: I see some interesting parallels between our failed national experiment with Alcohol Prohibition and the mostly private effort that is currently underway to eliminate the digital distribution of unlicensed copies of music, movies, software, and whatever else industries are or will be concerned about.

The music and movie industries are in one sense making the mistake the architects of the Alcohol Prohibition laws avoided: They’re trying to go after the consumers of the product, the people who possess and use unlicensed digital copies of music or movies. The problem with that is scale: To do this effectively, the music and movie industries, alone and/or with the assistance of law enforcement, would have to continually track down and prosecute a segment of the domestic file-sharing market that is substantial enough to put the fear of God into everyone who might even consider file-sharing.

I don’t think that’s possible. Law enforcement, and especially federal law enforcement, has a number of other priorities it needs to attend to; so law enforcement can spare only a small part of its resources to assist in this effort. The civil suits are intended to act as a separate deterrent, but I’m not sure how effective they are going to be. Some colleges and universities are resisting the industries’ efforts to get them to provide the names of students linked to IP addresses used to illegally download files, and this trend might increase. The industries’ approach does put colleges and universities in something of an untenable position; their posture toward their students has traditionally been semi-parental, but this threatens to transform it into a more adversarial one. There’s also the issue of resources: Why should colleges and universities have to bear the added, extraordinary cost of identifying students and otherwise contributing to the industries’ effort to discourage illegal file-sharing?

There are other problems. The civil suit approach only works within a country; the music and recording industries cannot use the threat of civil suits hear to target file-sharers in other countries, even if they can identify them. They could transport the civil suit tactic abroad, and threaten to sue file-sharers in France and Pakistan and many, many other countries, but I suspect the cost of such an effort would soon become prohibitive. And, on another note, the technology of file-sharing may become more sophisticated and therefore more undetectable. If it becomes impossible, even extraordinarily difficult, to identify file-sharers, then this approach simply cannot be effective.

What is the alternative? Well, we could continue our analogy to Alcohol Prohibition and argue that the music and movie industries should emulate the approach taken there by targeting not the consumers of the outlawed product but those who create and distribute the product.

I see two problems with that analogy: One is that with digital file-sharing the distinction between production and consumption arguably erodes; each file-sharer is, or can be, not only the recipient of shared files but also the distributor of shared files. So the industries might argue that the approach they are currently using is inevitable. I’m sure they would also point out that they, in cooperation with law enforcement, have also gone after the higher-level distributors in file-sharing operations. The RIAA got Napster shut down, and there have been prosecutions of software-sharing, warez sites.

That brings us to the other problem: Even if we assume that the music and movie industries and the laws they employing are analogous to the approach taken with Alcohol Prohibition, that approach did not work. It simply failed to cut off the supply of alcohol in this country, both because it could be imported from Canada and elsewhere and because it could be manufactured here. And manufacturing and distributing alcohol is a much more time-consuming and risky endeavor than digital file-sharing. The former takes place in the real-world, and is therefore a highly visible endeavor; you need space and materials and time and then you have to transport a very bulky, somewhat fragile product over highways or sea lanes or rail lines. All of that increases the chances you will be identified and apprehended. You run some of those risks with file-sharing, but they are much reduced, both because of the relative invisibility and ease of the process and because it is highly distributed. You’re no longer looking for Al Capone’s operation; you’re looking for, what, 10% of Illinois?

Like many others, I think our current approach to the protection of intellectual property rights is seriously flawed when it comes to dealing with distributed file-sharing. I will not attempt to outline the alternatives, because others who are far more knowledgeable than I have already done so.

My point is that the use of criminal and quasi-criminal sanctions cannot be effective when it is impossible to control the manufacture and distribution of a product and when the culture sees such control as illegitimate. When people in a culture see such control as illegitimate, and have access to the product, norms of evasion grow up. Compliance with the control system becomes the exception; the norm becomes the process of evading the system. During Alcohol Prohibition, alcohol use increased in this country, especially among women. There was a disconnect between what the law forbade and what people saw as appropriate.

We have something similar, albeit on a much smaller scale, with file-sharing. And it may be that the disconnect we see see between laws outlawing file-sharing and attitudes toward file-sharing in a segment of the populace are merely an indicator of what is to come. We may find that the approach our law has used to allocate and enforce tangible property rights is not a viable approach for intangible property rights.

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