Still quite busy, but wanted to start to formulate my thoughts on the Development of a Alternative Compensation System (ACS) for Digital Media in a Global Environment meeting. It’s going to take some time, because it was quite overwhelming – between dinner at pho and the 9 hour conference, all the incredible participants with a multitude of viewpoints (lawyers, artists, computer scientists, e-experts, market researchers, and on and on, from the US and numerous other countries), it was a lot of ACS. And, as conference scribe, I spent most of my time just trying to digest what people were saying without interpreting or responding to it. I’m hoping someone posts some notes from it, so I can try to remember all the interesting points that caught my attention. Professor Felten has a nice description of the discussion’s general flow.
I came out of the meeting a lot more interested in what comes in-between where we are now and a mandatory compulsory licensing model – that is, something like Professor Fisher’s voluntary co-op idea. Right now, there is little chance the record industry will voluntarily offer blanket licenses. Digital music services will continue to evolve, but it will be a long time before they attempt to realize the potential of the Internet and create a model that does not depend on controlling all copying and distribution. So someone outside the current industry would have to step up to demonstrate the model’s potential. The value in that demonstration, whether it leads to a government-mandated or market model, is significant.
Who could be such an intermediary? As Professor Felten suggests, ISPs and universities seem like a fit, and they’re the most likely to eventually get some record industry interest (though I have leveled criticisms at university involvement before). Another option could be a tech company oriented towards music and/or searching for content – someone who already has some infrastructure and a related business interest. A third option could be a group interested in promoting and sustaining culture and creativity – someone who perhaps has a connection to the artistic community already and enough resources to take the project on.
I’m not sure what it will take to get a service off the ground or whether it will definitely be able to compete with free any better. What I do know is there’s a far better chance of this helping as compared to, say, Coca-Cola opening up yet another iTunes look-alike (they’re doing so in the U.K.).
Even though people were quite intrigued by this voluntary model, there was a sense that it would still require something like Professor Nesson’s technodefense as well as heightened enforcement against direct infringers. Slowly and quietly, support at least for the latter option is coming out. In the meeting’s discussion, this was rarely made explicit, but, between breaks, I heard several people support it.
I’m looking forward to what Donna has to say on the subject, because I’m not so convinced that direct infringer suits are really a solution, even if we limited the disproportionate penalties and privacy invasions of the current system. A part of me looks at my limited experience speaking to students about their P2P file-sharing habits – many people I talk to have stopped or significantly cut back on file-sharing. Even some who know that the RIAA is only going after uploaders refrain from downloading. And then I think, if we were to get a no DRM, no technology mandates, no P2P infringement future, aren’t the lawsuits worth the cost? At the same time, I read articles about Earthstation 5 and question whether the lawsuits are a futile exercise.
That’s why, despite the many problems with a mandatory model that were discussed in the morning session, I still feel like we’re headed in that direction. The problems make me very nervous about that direction, but they don’t persuade me that the mandatory model should be off the table or that it won’t happen.
One key thread that came up during both this conference and the Gartner/Berkman conference is that norms will factor in to a large extent. The voluntary co-op model would comport with people’s norms, in that it would not allow people to download and upload content on P2P, as long as it was authorized by that voluntary ACS. However, that is not a guarantee that it can compete with free. People will have to want to buy into legit services and see artists get paid. Even in the mandatory model, norms are needed against cheating the system in order to reduce that problem. The effect of this norm won’t have be comprehensive, but it will have to affect many more than it does today. Allowing people to copy and distribute content, ease of use, and special features can help compensate for weak norms and shift them.
So I began to think, what role, if any, could the government have in creating these norms? I’m not talking about education campaigns. They’d need something that would be pull more than push. Could the government create rewards for compliance? Such a policy would distort the market, encouraging over-consumption of copyrighted goods. But, in an already distorted market, would that be worth it? I’m not trying to make a concrete policy suggestion here; rather, I want to point to a broader possibility: the government can do things other than create a mandatory ACS or harsher penalties for infringement in order to promote legitimate digital media services and, perhaps, particular types of models like ACSes. Such solutions can focus on the consumer side or on the copyright holder side (for example, prohibiting or providing disincentives for using DRM).
More on all this later. But, before I go, let me make one footnote: it’s very important to separate conceptually the ACS models found in Fisher’s book and Netanel’s article from other sorts of digital music services. Napster 2.0 is not an ACS. ACSes do not try to stop P2Pization of content acquired through the system; they are blanket licenses that remove restrictions on digital media use. Napster is a DRMed streaming service.