Every month, the Cato Institute has an online symposium on an important public policy issue. This month, the focus is on copyright law, and they’re kicking things off with a fascinating piece by copyright activist Rasmus Fleischer arguing that technological progress will make it impossible for the state to prevent people from sharing copyrighted works:
Record industry lobbyists smell the danger, and now they are urging governments to criminalize [stream ripping]. On their orders the so-called PERFORM Act (”Platform Equality and Remedies for Rights Holders in Music Act”) was introduced in the U.S. Senate last year.  The proposed law would force every Internet radio station to encrypt the transmission of file information, such as the name of the song. Yet anything visible on the screen can still be easily obtained by special software, encryption notwithstanding, and such restrictions would therefore be ridiculously easy to circumvent. Thus the PERFORM Act includes a follow-up clause banning the distribution of this class of software.
People with some programming skills, however, won’t need to do much more than combining a few readily available and otherwise perfectly legal code libraries to compile their own streamripping tool, one that would circumvent the PERFORM Act. For regulations like these to be effective, it is necessary also to censor the sharing of skills that potentially can be useful for coding illegal software. The circle of prohibition grows still larger: Acoustic fingerprinting technologies, which have nothing copyright-infringing to them, but which can be used for the same feared identification of individual tracks, must probably also be restricted.
This domino effect captures the essence of copyright maximalism: Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses. This development undermines the freedom of choice that Creative Commons licenses are meant to realize. It will also have seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.
Tomorrow I’ll be offering my reaction to Rasmus’s essay. I don’t want to steal my own thunder, but in a nutshell, my take is that Rasmus is basically right to predict that copyright will grow increasingly difficult to enforce as technology continues to reduce the cost of storing and transmitting information. However, I think it’s a mistake to view this as the end of copyright. Even if the war on file sharing is hopeless, copyright can and should adapt to continue serving its essential function, which is not to stop all copying, but rather to reward the creation of creative works. Watch the site tomorrow to see my suggestions for how copyright law can adapt to the stresses placed on it by digital technologies.