Imagine if the web had not progressed past the technology available around the mid 1990s, when it made its way into the mainstream.

No Flash or JavaScript, no CSS, PHP, or XML, no widgets or APIs. Just plain vanilla HTML (and maybe some server-side scripting if you knew what you were doing).

It would be hard to imagine a web like this today. Today’s web allows a myriad of ways for people to engage in communication, commerce, social networking, entertainment, and learning. This is possible because the technology behind the web continued to progress, rather than being frozen in place.

Freezing the technology in place would make little sense. Yet, when it comes to the legal framework that protects copyright and content creators, there are some who call foul whenever new legislation is proposed, who believe it makes perfect sense for the law to be frozen in place while technology rapidly advances.

The underlying idea seems to be that unchecked, wide-scale copyright infringement is just how things are going to be from now on. Content creators need to get busy adapting or get busy dying.

But why shouldn’t the law continue to adapt as well?

Currently, two bills are pending in Congress — S.978 and the PROTECT IP Act. Both address specific problems. S.978 standardizes the criminal penalties for streaming large amounts of copyrighted works with the penalties of copying and distributing large amounts of copyrighted works, since the harm from both types of piracy is the same. The PROTECT IP Act targets websites whose sole purpose is infringement. These sites are easy to set up, and the ability to profit from advertising or subscriptions provides an incentive to create them. Copyright owners find the DMCA takedown provisions ineffective against such sites and civil lawsuits are difficult to bring against such sites because of their nature. Legitimate advertising and financial transaction providers are also in a bind with these sites since they expose themselves to liability whenever they cut service off to a user.

In other words, laws like these take into consideration the evolution of the online world. As the internet matures and new business models for providing content develop, new problems emerge. The same is true in most areas of life.

Consider automobiles. Although driving has been the primary means of transportation for decades, laws continue to be tweaked for safety, environmental, and other considerations. Just ten years ago, very few states had so-called “move over” laws. But today, every state except Hawaii and D.C. has enacted such laws. The goal with these laws is not to completely eliminate traffic accidents, but to address specific situations where safety problems have arisen.

In the same way, the goal of legislation like the PROTECT IP Act and S.978 is not to completely eradicate online piracy, or allow copyright owners to “go back to the way things were.” Piracy is part of the copyright landscape, and it will always exist in some form or another.

The goal is rather to allow creators and legitimate intermediaries to develop sustainable business models that allow both widespread dissemination of content and the ability to be remunerated for those who invest their time and money to create. Obviously, one of the big challenges facing creators is figuring out these business models, but that doesn’t mean the law shouldn’t also play a role. The alternative would be like using a static web site in a Web 2.0 world.

Share: Reddit Google+ LinkedIn

17 Comments

  1. Great timing on my phone call this morning. And good post. I would just add to this paragraph:

    In other words, laws like these take into consideration the evolution of the online world. As the internet matures and new business models for providing content develop, new problems emerge. The same is true in most areas of life.

    The same is also true in most areas of the law. But copyright is not well-suited for judicial adjustments. It’s not terrible, like antitrust law, but it’s pretty bad.

  2. Pingback: Peer-meme for June 13th, 2011 | The Peer Press Podcast

  3. “Currently, two bills are pending in Congress — S.978 and the PROTECT IP Act. Both address specific problems. S.978 standardizes the criminal penalties for streaming large amounts of copyrighted works with the penalties of copying and distributing large amounts of copyrighted works, since the harm from both types of piracy is the same.”

    Yet again, that’s been the debate. Particularly, if a copyrighted work is old or out of print, and a website decides to stream it, they run afoul of the DMCA, PROTECT IP, or S.978 which makes them “guilty” until they prove their innocence. The problem with both bills is that no one has explored the unintended consequences of these bills.

    “Obviously, one of the big challenges facing creators is figuring out these business models, but that doesn’t mean the law shouldn’t also play a role”

    Obviously, the best solution is the one with the least amount of people. Having a bureaucratic entity as an inefficient middleman has already produced spectacularly disastrous results. It’s high time “creators and legitimate intermediaries” depend not on government, but newer methods of doing business. At least that much we can agree on.

    • It’s high time “creators and legitimate intermediaries” depend not on government, but newer methods of doing business.

      Yeah, lets all just put our faith in the magical “New Business Model Fairy”.

      Meanwhile Big Tech can get even bigger by continuing to rip-off content creators, uncontested.

      Get real, freeloader.

      • “Yeah, lets all just put our faith in the magical “New Business Model Fairy”.”

        It’s called blood, sweat, and tears. Not government handout.

        • It’s called blood, sweat, and tears. Not government handout.

          Asking that our lawful, rightful, and constitutional property rights be enforced is not the same thing as asking for a “government handout”.

          Try again, freeloader.

          • “lawful”

            Yeah, those domain seizures that are becoming contested were “lawful”. Let’s see how Rojadirecta’s trial goes.

            “rightful”
            Yep, copyright enforcement is the best thing money can buy. So long as everyone is too poor to oppose that makes everything hunky dory. Great point.

            “constitutional property rights”
            You’re asking the government to enforce a monopoly right. That’s the very definition of a government handout.

            So tell me, how has the domain seizures caused more success? How will banning online streaming do the same? And if it has to do with “rogue sites” or anything of that nature, how is this actually going to stop any online behavior? Next thing you know, the government is going to ban Bittorrent technology at the behest of the MPAA.

          • “Next thing you know, the government is going to ban Bittorrent technology at the behest of the MPAA.”

            Given that 99+% of Bittorrent traffic consists of copyright infringement, it would be right to do so as clearly there is no substantial non-infringement related use.

    • “Obviously, the best solution is the one with the least amount of people.”

      Obviously, since you make the assertion. I have two words for you: Statutory Damages. I’ll see you at the deposition.

  4. I found a great quote from an 18th century American author, Joel Barlow:

    “There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works.”

    • I would say Stephen Kinsella’s arguments, have validity as well.

      Link

      Material progress is made precisely because information is not scarce. It can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, and causal laws that are known, the greater the wealth multiplier as individuals engage in ever-more efficient and productive actions. It is good that ideas are infinitely reproducible. There is no need to impose artificial scarcity on ideas to make them more like physical resources, which—unfortunately—are scarce.

      • It is good that ideas are infinitely reproducible. There is no need to impose artificial scarcity on ideas to make them more like physical resources, which—unfortunately—are scarce.
        Copyright doesn’t protect “ideas”…
        ..try again…

      • Copyright protects expression. Expression that is often extremely costly to produce, and the result of valuable ideas that are not infinite at all.

      • Jay never learns. I clicked his link, only to find that Stephen Kinsella is an attorney. So if ‘information’ is not ‘scarce’, and should be ‘free’, does Kinsella advise his clients for ‘free’? Does he write legal letters and briefs for ‘free’? Does he address the Court for ‘free’?

        • ….and incidentally, I think that whenever someone is quoted as objecting to the concept of intellectual property, we should be told how they make their living. If they are lawyers or academics, their arguments can be dismissed on the grounds of blatant hypocrisy, as they make their living (and often a very comfortable one) by selling their ‘intellect’, while denying others the right to do the same.

          • So you don’t want to actually debate his article, merely discredit him for being an IP attorney that has come to the conclusion that copyright is actually bad for creation and innovation. That sure is disappointing.

            I’ve linked to him at least twice before if I recall. You can look at his “Rethinking IP” video on Youtube for more details into his argument. Perhaps looking into reasons why he feels so strongly against IP might be a reason to glance into it. Your choice.

  5. Pingback: The Copyright Alliance Blog » Blog Archive » In Case You Missed It: We’ve evolved, have you?

  6. “Given that 99+% of Bittorrent traffic consists of copyright infringement, it would be right to do so as clearly there is no substantial non-infringement related use.”

    Warcraft disagrees with you.

  7. Pingback: Copyright Uncertainty | Copyhype