Charlie Nesson’s Essay (rant.doc)

Donna Wentworth has passed along a short write-up by Charlie Nesson of his thoughts on hacktivism in support of artist copyright (See also her posting: Let the Music Pay IV). She has indicated that Charlie wants to get it out there for discussion, so here it is. (My comments will have to wait – I’m already late for a meeting; check for potential comments at these places and I’ll try to get something up later — Derek’s, Prof Solum’s, LawMeme and bIPlog):

Artists have been helpless to prevent their new releases from being illegally copied and freely shared on the peer-to-peer networks. All to often, even before the store release-date of a work, someone will rip a copy of the work and put it in the shared folder of a peer-to-peer client like Kazaa, thereby planting a seed which will rapidly and freely spread. Some artists feel that this process of rip-seed-share damages their ability to realize commercial value from their work, and that, to date, they have had no effective way to stop the damage.

Against this background, suppose the following service is offered to artists as a means to protect at least a portion of the commercial value of their new releases. Treat this service as hypothetical, although some companies may be offering some forms of it without talking much about it. The service (1) watches the peer-to-peer networks on behalf of the artist-client who wants to protect a new release to catch the first appearance of a copy of the new release illegally posted to an open network; (2) finds it fast enough to enable the service to get in queue to download it before anyone else; (3) downloads the copy of the new release from the infringer in a manner that effectively competes with others trying to get it; (4) at the same time causes a notice to be posted in the infringer’s traffic window politely requesting the infringer to remove the work from the publicly shared folder.

Assume that as a consequence of this service those who try to download the work from the infringer’s shared folder find it difficult or impossible to do so, and those who put the artist’s work in their publicly shared folders are induced after a while to remove it. Assume that this service, applied to each new seed, is maintained up through the store release date and for a few weeks thereafter, then discontinued, and that during the period in which the service operates it either significantly slows the process of proliferation of free copies on the peer-to-peer networks or stifles such proliferation altogether, with the result that the artist can realize commercial benefit from the new release during the time period most crucial to its commercial value.

Is this service legal? If not, what specifically makes it illegal? Who would sue whom?

[rant mode on]

Publishers have hidden behind the skirts of artists, shamelessly advancing the hapless artist and his impoverished grandchildren as excuse for extending copyright to inordinate lengths (Eldred) while giving the artist and his progeny somewhere close to zero as their cut of CD proceeds (60 cents out of $17?). Yes, the labels have been screwing consumers to the max that corporate greed could figure. This is why, when Shaun [sic] Fanning birthed the current era of promiscuous copying we all (at least many many of us) felt a lift. Napster surged into our lives to demonstrate the impotence of a greedy industry and the helplessness of law. It was like a riot situation in which the plate glass windows of the record stores were smashed and all the inventory of the corporate gluttons was there for the taking. Plus, taking it was fun; the tech was slick, savvy, young, totally now. The labels were the enemy, like the merchants in the ghettos gouging helpless consumers with outrageous prices for inferior goods. We smiled at their predicament, rooted for the kids, maybe even downloaded a song or two ourselves.

So okay, the record industry needs overhaul. Change in the business model has got to be a predicate for re-establishment of order. Prices need to drop. Consumers want ability to buy songs without having to buy whole albums. Artists want to reach the marketplace without having to sell their souls to the Big Five. Digital delivery of songs needs to come with rich inventory and wide flexibility.

But now it comes, five years later, iTunes and MusicMatch and songs for 99 cents or less, open to any artist with an indie label. At last the business model is changing. Is it time for the riot to end? Time to re-establish order with a reformed marketplace? Do you want iTunes and its PC variants to succeed? Or would you rather see the riot continue until desperation forces changes in the fundamental architecture of the net, or of the law? Is the idea to argue against any means of protecting the commercial value of an artist’s work until the current system totally breaks?

For some the answer to this will be yes, the vision of a global tax and royalty system appearing to them to be the greener grass. This, I admit, is amazing to me. The very idea that those who have loved the net should be striving to establish a global government-run system of net administration complete with taxing power over Internet facilities and ability to say what creator should be paid what for what content is, to me, mind boggling. Cries for caution based on the Canadian experience seem to go unheeded. Why does this path seem more attractive than one which builds on the capacities of the net itself for self protection?

The service I describe is for artists. It offers them a limited protection during the initial crucial period of a new release. At the very least it is arguably legal. Why is first reaction to it to look for ways to condemn it rather than for ways to support its legality? No doubt this reaction is rooted in hostility to the historical greed of the labels, but times and business models are changing in just the directions those who have been calling for change have wanted. The interests with which this artist’s protective self-help service might potentially interfere are (1) the infringing seeder’s interest in being able illegally to serve the artist’s content through his peer-to-peer client; this is not an interest that deserves the law’s protection; (2) the infringing seeder’s interest in serving up other content through his peer-to-peer client at the same time he is illegally serving up the artist’s content; this is not a matter of any economic consequence to the seeder, thus causes him no damage, and moreover is easily and immediately remedied by him; (3) the would-be downloader’s interest in illegally getting the artist’s work from the seeder, not an interest the law should respect; (4) the would-be downloader’s interest in getting other non-infringing works from the seeder during the period in which the seeder persists in illegally serving up the artist work; this seems insubstantial unless the seeder is the one and only source of the desired work on the p2p net; no one counts on getting a particular work from a particular p2p source.

[rant mode off]

In fact, I believe in this view so much, I’ve agreed to help out a start-up company that wants to offer this service.