von Lohmann: What Levers Remain?

If the Darknet Assumptions are empirically borne out, their logic suggests that legal regulations focused on circumvention of TPMs will be increasingly ineffective at containing digital copyright infringement. In other words, if the policy goal is to prevent digital infringement from eroding copyright incentives, the Darknet Assumptions suggest that policy-makers regulated the wrong thing when they passed the DMCA in 1998. If we assume for a moment that this account is correct (on that, I'm sure emminently reasonable minds will continue to differ), then this raises the question posed by Jessica Litman: in a Darknet reality, what effective regulatory levers remain?

Answers have already emerged in earlier posts. Legal regulation could focus on "Connectors" (such as search engines, journalists, bloggers, prominent members of small worlds communities) that make people aware of Darknet channels, thereby containing the reach of those channels. In addition, copyright owners could rely on self-help to target the Darknet channels for interdiction, relying on spoofing, poisoning, watermarking, and deterrence built on more lawsuits against individuals. These measures will almost certainly lead to a technological arms race—precisely the dynamic that legal regulation of TPM circumvention was intended to avoid. This arms race, of course, could be ameliorated by more stringent direct legal regulation of Darknet channels, such as artificially constraining residential bandwidth, creating a national filtering (i.e., surveillance) infrastructure, imposing technology mandates on digital communications technologies, and regulating anonymity and encryption technologies. To some extent, several of these strategies are already being pursued by the entertainment industry.

These approaches have, in contrast to TPM regulation, the advantage of efficacy in the face of the Darknet Assumptions. They take aim at the Darknet's vulnerabilities. They have the disadvantage, however, of potentially eroding civil liberties, impinging on free expression, and interfering with the noninfringing potential of new communications technologies.

In other words, the development and spread of Darknet technologies may have signficantly increased the stakes in the effort to contain digital infringement. Before embarking on a regulatory effort to shore-up the DMCA's legal regime, policy-makers should step back and reconsider the costs to other (non-copyright) values that such a strategy may ultimately entail. After all, in a world where the fans enjoy ever cheaper and more ubiquitous communications technologies, the Darknet Assumptions suggest that policy-makers may find themselves on an ever slipperier slope headed toward broad technology mandates and ubiquitous surveillance of interpersonal communications.

It is with this in mind that I suggest that collective licensing approaches may offer a superior long-term solution to the digital dilemma. These approaches are far from perfect, but they may well be the best option available in a world of cheap, ubiquitous digital communications technologies (aka the Darknet).

Comments

[Crosbie Fitch]

The trouble with collective licensing is that it still cleaves to the old IP mindset that holds that it's possible to capture the value of consumption/use of digital art, as opposed to the value of its production.

Open Source software, arguably one of the higher value digital arts compared to music say, is demonstrating the feasibility of moving towards a free market system of rewarding and remunerating producers (of widely varying quality), rather than attempting to apply a blanket valuation, collection, and disbursement by committee selected metrics.

Are you truly trying to save digital artists or merely creating a rescue package for the anachronistic publishers?

[bill]

Crosbie has good points. The other problem is that I don't think that the Darknet is just going to dry up if something legal comes along. In order for a compulsory licensing scheme to work, the metrics are going to have to be accurate, which means that new filesharing software which somehow detects what is being downloaded will be required. The new stuff will still clearly need to be P2P for bandwidth-sharing reasons, but there will need to be some place where the infomation on what was distributed is collected.

How can we trust filesharers under this scheme to appropriately label what it is they are sharing? Barring that, how much do we need to sample in order to establish accurate measures of what has been distributed? Do we sample both the Darknet and the new networks since this will be a more accurate measure of what's being distributed, or do we only measure the new networks since we know these users have paid the fee?

Some of these are technological questions that we can probably solve, and some of them are social ones for which I have no answers.