Good article about copying and copyright enforcement

Good read about making digital copies and associated copyright issues.

On the Enforcement Fantasy

Julian Sanchez
January 25th, 2012

This is probably the least interesting (because it should be so self-evident) and yet most important paragraph in a must-read Cory Doctorow essay (http://boingboing.net/2012/01/10/lockdown.html):

In short, [proponents of more aggressive copyright enforcement] made unrealistic demands on reality and reality did not oblige them. Copying only got easier following the passage of these laws—copying will only ever get easier. Right now is as hard as copying will get. Your grandchildren will turn to you and say “Tell me again, Grandpa, about when it was hard to copy things in 2012, when you couldn’t get a drive the size of your fingernail that could hold every song ever recorded, every movie ever made, every word ever spoken, every picture ever taken, everything, and transfer it in such a short period of time you didn’t even notice it was doing it.”

I’ve found myself stressing this to reporters who call to ask about what we should do “instead” of SOPA and PIPA, because the framing of this entire debate remains mindblowingly shortsighted. In five years, regardless of anything Congress does now, the current round of garment rending over “rogue websites” is going to seems as comically quaint and irrelevant as old jeremiads against the libidinous excesses of jazz dancing and Elvis lyrics. The big, dumb, obvious technological fact that an awful lot of smart people seem reluctant to grok is this: Copying and sharing information is vastly cheaper and easier than it has ever been at any time in human history. It is also vastly more difficult and expensive than it will ever be again.

This weekend I finally upgraded to the latest version of Mac OSX, Lion. Owing to some weird decisions by Apple, I had to install it from physical media: An 8 gigabyte “thumb drive,” which is really rather misnamed, because it’s actually about the size of two wooden matchsticks. The year I was born, that amount of data storage space—without any software—would have cost more than the office building you’d need to house it. The year I got my drivers’ license, it would’ve cost about as much as a good used car. In 2012, 8 gigs of storage is the kind of thing you give away as freebie conference schwag—like a logo-embossed pen, except a good deal smaller. If I decide to use it for something else now that I’m done installing the OS, it will easily accommodate about 4 feature-length films in high definition. IBM recently announced a breakthrough in storage technology that could increase current capacity by a factor of 100 within a few years, which means instead of just carting half our music libraries around with us in our pockets, we’ll have entire music libraries, and high-def video libraries to boot.

One of the features I noticed they’d added in Lion is Airdrop, which establishes an ad hoc peer-to-peer WiFi connection with other nearby Apple devices. This isn’t particularly useful for my desktop, since anyone who’s actually in my apartment is probably already on my home WiFi network, but one can imagine it being awfully handy for mobile devices. “What am I listening to? Hang on, I’ll beam it over.” For transfers outside physical proximity, the next generation wireless data standard recently approved by the International Telecommunications Union maxes out at about a Gigabit per second. In practical terms, that means about a minute to transmit an uncompressed music CD (and much shorter for, say, MP3s at the bitrate you get from iTunes) or 90 seconds for a high-definition TV episode.

Existing online social networks, with near universal adoption in many social circles, already provide a trust infrastructure for limited sharing that will make these kinds of transfers almost impossible to police—or even reliably detect. In a world where every teenager in the country is carrying a pocket-sized server, and encrypted wireless VPN relays can run out of palm-sized cubes, an enforcement strategy based on raiding data centers is just going to look cute. Legislators who think “the Internet” means “the Web,” who are too fixated on the problems some lobbyist is complaining about right now to think two steps ahead, are in for a rude awakening. They’re in the grip of the enforcement fantasy: The misapprehension that technology is going to stay still long enough for traditional, targeted law enforcement approaches to effectively limit the scope and scale of copying.

That’s not to say that nothing can be done to avert a near-future world of largely unregulated and unregulable copying and sharing. If we were willing to implement a comprehensive scheme of innovation-stifling technology mandates and pervasive surveillance so absolute as to make the People’s Republic of China look like Burning Man, it could at least be delayed. But I assume that the United States is not yet prepared to completely betray its basic principles to safeguard the profitability of Friends reruns.

If we’re not willing to be China, though, then all these discussions about “what we’re going to do” about piracy are just the wonky equivalent of fanboy debates about whether Wolverine would beat Batman in a fight, for all the bearing they have on reality. What are we going to do that makes a long-term difference? Nothing. Anyone who wants to copy stuff without paying for it can do so easily, and it only gets easier and faster from here. Finding this morally outrageous or throwing a tantrum about the deep unfairness of it all won’t make it less true, though the tantrum might break a vase or two.

A slightly more Zen approach would be to “accept the things you cannot change,” as the coffee mug has it, and take the opportunity to step back and reevaluate. We have a legal structure for incentivizing creativity that makes copying and public performance the key points of regulatory intervention. There isn’t some deep moral reason that it’s these points and not others. There are lots of other ways to enjoy creative works without paying the creator, after all: Borrowing a copy, buying used, watching at a friends house, DVRing the broadcast and skipping all the commercials, incessantly singing (to yourself or with a friend) that catchy tune you overheard in the cab. Nobody tries to claim those are “stealing,” mainly because we’ve decided not to try to regulate those activities.

We decided to regulate copying instead, because copying was a lot easier and cheaper to regulate when we wrote the copyright statutes. Copying a book or record on a mass scale, unlike lending or singing in the shower, was not the kind of thing an ordinary person had the necessary equipment for—and the equipment tended to be bulky enough that you could usually track it down without having to pry into a lot of homes (and bathrooms). But the thing we decided to regulate because it was rare and expensive is now as cheap and ubiquitous as all the other stuff we didn’t regulate because it was cheap and ubiquitous. The good news is, most people are still glad to pay for the content they really like, if it’s provided in a convenient form and at a reasonable price, even when they can (or did!) easily copy it free. But maybe that’s not enough, and there are other points of regulatory intervention that will help creators internalize enough of the value of their output to make the investment worthwhile. That’s an actually productive subject of inquiry, but it’s not one anybody’s putting much effort into as long as they remain in the grips of the enforcement fantasy.