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