Digital Media in Cyberspace: The Conference (Part 1)

Today, the Berkman Center and GartnerG2 hosted “Digital Media in Cyberspace: The Legislation and Business Effects“, a summit that grew out of the groups’ joint research. (That research, btw, is still going strong. When I can tell you, I’ll have more details on the exciting directions the project is about to take.)

I’m a bit exhausted and overwhelmed. There was a lot to digest, so it’ll take me some time to get it all out (aside: I wasn’t able to blog it because of a malfunctioning Palm and a no-attribution/off-the-record policy. However, Matt was there, scribing away, so expect to see something from him soon.)

For now, some brief notes:

Let me get the most unfortunate info out of the way: both Cary Sherman and Fritz Attaway did not attend because of Hurricane Isabel – they didn’t want to get stuck in Boston and then miss some meeting in DC. People did a good job of filling their shoes, so it wasn’t a horrible loss. But, it was a bit of a bummer.

Now, onto the good stuff: There was an amazing, diverse assortment of speakers, both in the audience and on stage. The whole event was very interactive, with plenty of time for questions, dialogue, and debate.  We got a lot on the table from a lot of different perspectives.

As the scenarios were laid out, I was both encouraged and surprised by the audience’s confusion and uncertainty.  Many were confused by the particulars of certain plans, particularly the public utility scenario which people had trouble connecting to the existing compulsory licenses in 17 USC 114 and ASCAP’s/BMI’s antitrust consent decrees.  I also had the feeling that there was an overall, pervasive uncertainty regarding what sort of business and legal regimes will work. Sure, people made arguments with strong conviction, but even then they were far better at saying what they didn’t like rather than what they did. For example, many people suggested that taking no legal action would be good, because the music industry should simply die out or suffer from some piracy like it always has or change its business model in some more comprehensive way – but the answer of precisely how these shifts would happen was fairly elusive.

Why was I surprised? Because I was in a room full of top tech and media biz execs.

Why was I encouraged? Because if no one’s made up their minds yet, that means that there’s still room for people to consider many possibilities. That’s a solid way to start a conference.

And, luckily, that theme – of a future open to many possibilities – ran throughout much of the day. It was in what I found to be the most interesting line of discussion, which revolved around defining what it would take to compete with free.  I hadn’t seen the full spectrum of opinions, from people in tech and media and law, in quite this way.  And I hadn’t expected that many, perhaps most, would say that you can compete with free to some extent.

Hearing all the views together reminded me that there’s still a lot left to try – a lot of room left for people to innovate and compete to figure out what’s best.  From a government compulsory regime, to a voluntary version of Fisher’s plan (which I’ll try to reflect on a bit more in the next few days, following up on Ernest’s post), to derivatives of the iTunes model, to the development of more robust DRM.

Although, most people didn’t seem to believe DRM was the answer. I didn’t go to the “breakout” session about an “effective DRM” scenario, but my sense from the speakers and the audience was that few really believed that DRM was the end all be all.

Nor did anyone really think that government intervention in the form of the CL regime was the right answer (neither was the public utility regime, which was dismissed a little too prematurely for my tastes). Professor Fisher’s CL proposal got a lot of play during the conference, and people took to it in varying degrees. But no one seemed to really be eager to go with it – it made everyone a little nervous.

So where did we end up? Well, right back where we started. As one of the speakers remarked, we were left with a wide range of choices that, potentially, could coexist together, some moreso than others.

Does that mean there’s no urgency to fix copyright? Of course there’s urgency. I still am incredibly worried about the situation quickly detiorating if the lawsuits don’t have any noticeable impact. I worry that we won’t seriously consider alternatives and that we’ll be stuck with this system or something much worse for far too long.

But I am encouraged to see that people are starting to seriously consider alternatives, that they are trying to come up with solutions, and that many future possibilities still exist. If anything, the RIAA’s lawsuits can be beneficial in that they’re getting these issues more out in the open. Not only is there debate in the biz and tech circles like I saw today at the conference, but there is debate in Washington and in the public at large.  With more people focusing on these issues, we have more ability to move forward.