As I mentioned, Cato Unbound this month is focusing on the challenges technological changes are creating for copyright law. My first contribution to the discussion is now online. I find myself basically persuaded by Rasmus’s argument that the war on file sharing will fail for the same reason that the wars on drugs, gambling, prostitution, and other vices will fail. Personal copying is becoming too cheap and easy for the law to effectively control what goes on in the privacy of peoples homes.
It’s a conclusion I’ve reached with some reluctance. I’m personally not comfortable with peer-to-peer file sharing and if I thought there was a practical way to prevent it I’d probably be in favor of it. But it has become increasingly clear that stopping file sharing is futile, and the strategies used to curb file sharing have grown more and more illiberal. If we have to choose between file sharing or a police state, and I think we do, then I choose file sharing.
But it’s important that we don’t over-state the consequences of a de facto legalization of non-commercial file sharing:
It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true. The starkness with which the copyright debate is often framed reflects a misunderstanding of the function copyright served in the 20th century. Copyright is commonly conceived as a system of restrictions on the copying of creative works. But until recently, it would have been more accurate to describe copyright as governing the commercial exploitation of creative works. From this perspective, the inevitable legalization of non-commercial file sharing looks less like a radical departure from copyright’s past, and more like an incremental adjustment to technological change. It will require the rejection of some misguided policy developments of the last decade, to be sure, but in a sense it will simply restore the common-sense principles of 20th-century copyright law.
In my essay, I argue that copyright law will continue to be important for the music, movie, software, and other content industries. And I contend that there will still be plenty of opportunities for people to make a living producing creative works.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.