Is P2P harmful to copyright holders?

I have been reading this book Titled Free Culture by Lawrence Lessig. The content of the book is very closely related to copyrights and piracy. What specifically grabbed my attention is the view of piracy as a beneficial free marketing tool for copyright holders, but before I talk about the interpretations and conclusions I drew from the book, allow me to talk a little bit about who exactly Lawrence Lessig is (as to avoid someone just pawning him off as insignificant based on my views.)

Lawrence Lessig (Wikipedia Link) is a Law professor at Stanford. He founded the creative commons and has written four books, that I know of, and I have read (or at least started to read) all of them with the exception of Codev2, which there is a list his books and a link to download Codev2 for free from Lessig.org. That being said I hold his work to be very good and insightful, but I like to think I don't judge people (I like to think I judge their work/actions.)

The subject at hand is the concept of P2P being harmful to copyright holders. After reading the first few chapters, you a presented with a generalized view of copyrights, in which Lessig mentions a system of lumping P2P users into 4 categories that would be needed to establish if P2P specifically is harmful. (I hope I don't violate a copyright by talking about it on my blog...) The categories are:

• A. People who will download free content as a substitute for purchasing.
• B. People who will download free content to sample it before purchasing.
• C. People who will download free content because it is not commercially available, or financially feasible for them to obtain the content otherwise.
• D. People who will download free content because the copyright allows it.
  

Lessig says that the way to establish if P2P is harmful you need to determine if the benefit from category B is less than the damage from category A. Also in his argument he notes a figure suggesting that at one point in time over twice as much recorded content was being downloaded than the record industry sold.

This is the point where I draw away from what Lessig said (I think) and I ask the question of analyzing category A a little more. If there are twice as many people downloading content annually than the number of albums the recording industry has every sold in a year(not to be confused with the change in records sales), then how many records would the record industry sell if pirates did not download free content? I think this is the only question that matters. The basis of my belief in this is re-affirmed in the book when Lessig talks about the difference between being illegal and being wrong.

Any moral philosophy class will start making you think about the differences between morality and legality. I feel it is rare we can find a subject like murder where it is both illegal and wrong. This is one of the reasons why laws often change with time (segregation, slavery, copyrights, ect.) I actually think it is a crime that Mickey Mouse has not yet become property of the public domain the same way that the works of other dead creators' works have been in the past, but does that make it wrong for me to disobey the law and use Mickey Mouse in a cartoon I created? Should Disney be able to sue me for using their creation that is now such an icon for children of my generation that the mere silhouette of Mickey instantly pulls up a relation to Disney and the mouse? After all, Mickey's first appearance with sound, Steamboat Willie, was nothing more than a pirated concept of the time.

I actually feel very strongly that piracy via P2P is not nearly as harmful as the RIAA makes it look to be. I also feel that all copyrights should expire after a reasonable length of time (probably around 10 years). Meaning that morally I do not have an issue with people downloading any content released before 1987 (21 years before this post) to avoid permanent monopolies on content. Meaning that a very large amount of older content should be considered property of the public domain making it legal for anyone to share. An example would be that Pink Floyd's original version of A Momentary Lapse of Reason and all albums published before it (basically all of their original albums) should be free for anyone to distribute as well as Metallica's first three albums. However, many older albums are re-mastered; This raises a question of whether or not these remastered works could be covered under a new copyright as original works. I admit that re-mastering an album takes a bit of work, and requires equipment most people can not afford or advanced technical knowledge or writing remastering software. Because these works are not original I don't feel they should be covered under a separate license, however it would provide a valid excuse for an exception to the rule; allowing publishers to provide new and improved content at a price, while the old content could be free.

Now that I have established my moral views, what about harm to the copyright holder? I recall the case with Jimmi Hendrix; where after Hendrix died the record label retained distribution rights, but the Hendrix family (namely his children) did not receive payment for their father's work. This is a case where I feel the creators of content are being cheated. If I record a song with a record label I would be paid a fee, set by congress, for each copy of the album that was sold. I have no control over the content from that point forward. Once it is recorded I get paid per album, then I get paid for each show I perform, but if I want to take my work, and start giving it away for free because I feel I have made the money I need off of the content, then I will have no authority to make that decision. The same is true toward the creator of The Simpsons; The Fox corporation actually owns everything. Even with the creator's permission, you can not distribute this content in any way (even if Simpsons happens to be in the background while you are shooting a documentary.

The argument I am starting to form is not a legal argument, but a moral argument. An argument of who has acted wrongfully: the copyright holder or the pirate. Certainly Shakespeare is considered the public domain, why should Disney, Fox, or anyone else be treated differently. The copyright should last a reasonable time then fade away to the public domain.

Regardless of whether the copyright is valid, enforceable, or even should be enforceable we need to come back to the argument at hand; does P2P harm copyright holders. Can P2P pirates be viewed the same as thieves that steal books or albums off of a shelves in stores? Absolutely not. When you steal a physical object, the entity the object was stolen from no longer has that object; unlike when you share something on a P2P network, nobody looses a physical object. This is because digital objects can be reproduced infinitely at no additional cost to the producer. Decentralized networks like BitTorrent and Gnutella or even semi-centralized networks like FastTrack (KaZaa) clients can distribute content highly efficiently. The user only has to leave the program running after downloading content to automatically share anything on the user's hard drive. Should there be a responsibility for the creators of these networks to scan million or even billions of computers regularly to ensure no copyright content is available? I guess the real question will come down to cost. While a networks like BitTorrent and Gnutella can't exactly be just shut down the same way as a centralized network like Napster, a semi-decentralized network like FastTrack can be shut down. What is the cost to society of shutting these networks down?

I view the claims of the MPAA and RIAA as typical rejections of new technology. These same arguments were made of Radio, Hollywood, and Cable TV; the copyright holders are not getting exclusive control of all distribution methods their content is being distributed with. In all past cases Congress has stated that there is not harm is playing copyright content over the radio without paying the copyright holder; the same is true for TV. Hollywood was formed under the premise that California was not policed, and the film makers did not want to pay Thomas Edison to use his video equipment; so they moved to California and waited for the copyright to expire. These foundations that form much of our every day life now, were once all just a bunch of pirates trying to use the work of someone else. Now, being played on the radio is the main goal for many record companies; TV is our source of entertainment and news. These older industries were forced to give content to the public domain in certain ways that would benefit society over the monopoly of a copyright holder.

I think that it is a greater crime to not allow P2P sharing of free and otherwise unavailable content than to allow a subset of P2P users to illegally download content as a substitute for purchasing content. I am sure that some of these people will not buy an album that they otherwise would have bought, but I feel more people will download content that they otherwise would not have bought; which means these people are not stealing profit from the copyright holder as much as they are enjoying content that exists in the world on demand.

Later,

SteveO