June 10, 2003

The demise of copyright

- by Lee Schlesinger -
Last week Justin Frankel, the founder of Nullsoft, the company that created the popular Windows music player Winamp, quietly posted on Nullsoft's Web site a collaboration program called WASTE licensed under the GPL. Nullsoft is owned by AOL Time Warner. The day after Frankel posted the software AOL ordered it removed from the site, and instead posted a notice asserting the company's rights to the software. (Shortly after that, Frankel said he expects to leave Nullsoft in the wake of the AOL's move.) However, in the short time the software was available, it, as well as the entire site on which it was available, was downloaded by others on the Internet, who have now posted mirrors of the missing site, allowing anyone to download and try the software.

If they post it, will users come? You bet. I plan to review it here soon. But may they? Ah, that's a trickier question.

In this case, if Nullsoft had had the legal right to post it initially, users would be free and clear. Section 6 of the GPL states:

Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

Since Nullsoft didn't own the copyright when Frankel posted the program, however, the law is not your friend. Copyright law says you can't legally use the application. In the same way, copyright law forbids you from downloading copyrighted music from Kazaa or Gnutella (fun fact: Nullsoft also released the original version of Gnutella, and AOL also yanked it almost immediately), or copyrighted images someone uploaded to alt.tasteless.pictures.

In reality, however, chances are you have downloaded copyrighted material and saved it on your hard drive, and if you haven't, the guy next to you certainly has. The fact is, copyright works only as long as the barrier to violating it is high enough that the average user or reader isn't able to violate it. When it took a printing press and skilled compositors to produce books, it wasn't worth chancing one's livelihood by pirating works for which one could be sued. Once the barrier was lowered, copyrights became ineffective.

Think of speed limits. You may not drive over 55 or 65 on the highway, but how many people routinely violate that law?

Enforcement helps keep speeders honest, but won't work for digital rights. Copyright violations happen invisibly, in private, and far too frequently for policing to be effective.

If a legislative solution isn't the answer, what about a technological one? That's what Microsoft is trying to develop with its Next-Generation Secure Computing Base. Consumers are unlikely to agree to let third parties determine what rights they have to files on their own PCs, however, so NGSCB seems stillborn. Consumers will vote with their pocketbooks, opting for non-limited clients. Unless Microsoft and its development partner Intel truly do have a monopoly, any available alternative should bury NGSCB.

If we can't depend on the law or science to enforce digital rights, how can writers, artists, and musicians hope to make a living nowadays?

New paradigms needed

One thing that will help is providing a mechanism for allowing people to do the right thing. Most people believe that creative professionals have a right to profit from what they create, and don't mean to steal their livelihood.

I would happily pay an author the same amount he now gets from a publisher (which is far less than retail cost) if I could download his books, read them on a handheld device, and delete them afterward. A little PayPal button on an author's download page would work fine. If this became the rule rather than the exception it is today, publishers would all but disappear, and editors would be paid by writers, not publishers.

I would happily pay an artist for a print I found on her Web site and avoid the 100-percent markup the dealer or gallery owner gets.

I would happily pay for open source software that did a better job than other available options.

With no corporate publicity organization working to promote new works, critics and magazine editors play an important role. They sift the available works and highlight those they feel are most worthy of attention. Also important are Web sites where buyers can exchange comments about the works.

While taking advantage of the Internet's ubiquity can help creative professionals, at the same time it behooves these artists to come up with more new ways of making a living. In the performing arts, product placement has helped supplement production costs for years. Not so long ago, the concept migrated to the novel, though not without much gnashing of teeth from the literary community. Personally, I prefer works untainted by commercial considerations, but I can understand auteurs putting practicality over principle.

The democratization of access to the mass media in the form of the World Wide Web is transforming many businesses, eliminating others, and creating new job categories. The experiences of open source software developers may point the way for the larger community. A Creative Commons license may become the natural heir to copyright a few years down the road.

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