Up on Downloading, continued
There is also the potential for manipulating the compensation system through what Fisher calls "ballot stuffing." The owner of a work could artificially inflate his numbers by setting his computer to download his own songs every 15 seconds, for instance. Then there is the problem of cross-subsidies, in which a tax on all ISPs or hardware means consumers who do very little music downloading are subsidizing the heaviest consumers. "These are not fatal flaws," Fisher is quick to note, "but imperfections in the system. In my book, I discuss ways in which each of these hazards could be mitigated. But in the end, my proposed system is not perfect. None [of the proposals] is."
And, as a complete restructuring of the existing system, his proposal faces the biggest hurdles. Copyright law in the United States typically changes only when all relevant parties agree, he notes. "Studios and record companies are not so sure this is good for them. And, of all the [stakeholders], they have the most political clout." For that reason, industry reps have been far more receptive to the Speed Bumps approach.
"We know they are skeptical," Fisher says. But "if their situation gets worse, they may have no choice." The Berkman Center, in collaboration with others, is developing a pilot project of this model, which they hope to implement on a voluntary, subscription basis. "If we can get the demonstration project up and running, it may reduce the resistance, if we can show it actually works," he says.
"It's a transformation of the foundation of the record and film industries, and a change of that magnitude is very hard to engineer, so I'm not sanguine about the prospects. It will take a lot of work."
But, Fisher adds, "I'm quite committed to the idea. I think it would improve life for lots of people."
Speed Bumps
 Professor Charles Nesson '63 wants to improve the legal commercial market for downloading through his Speed Bumps model. |
With Total Control at one end of the spectrum and Fisher's model at the other, Nesson hopes to forge a reasonable middle ground. Through a carrot-and-stick approach, Speed Bumps would support a viable legal marketplace for digital entertainment while retaining the basic structure of copyright law and the open nature of the Internet.
Speed Bumps suggests making legal downloading inexpensive and high-quality while decreasing the quality of illegal downloading through technology called "spoofing" and also increasing the legal penalties for piracy. It also targets the relatively small group of people who take CDs and convert them into MP3s available for downloading for free. "The more attractive the legitimate market becomes in relation to the online black market, the healthier it will be," Nesson says. "People will become sensitive to the fact you're at risk if you're putting up a whole lot to share, and that downloading isn't always easy, and you don't always get good material."
And, as illegal downloading becomes more common, it will lose its attractive outlaw quality. "The idea you're participating in a revolutionary community by freeloading will diminish," Nesson says.
Nesson likes the fact that Speed Bumps puts pressure on the entertainment industry to reform. The recording industry, in particular, has an enormous image problem, due to the perception that it has overcharged consumers and to its response to the piracy issue, including lawsuits against consumers. It also was slow to develop creative solutions to illegal downloading. "It took them a long time to come up with iTunes," he says. But iTunes has been a success because it's slick, easy to use and high-quality--and "beautifully advertised," he adds. Similarly, Speed Bumps encourages the industry to reform by charging less for its products and giving consumers more flexibility, for example, by allowing people to buy single songs instead of entire CDs.
"This is the approach the industry most naturally favors," Nesson says.
Of Speed Bumps, Fisher says, "If successful, it would facilitate the development of an authorized online market." But, he adds, consumers would continue to pay more for entertainment than some feel is fair. "There would be some savings but nowhere near as much as the new technologies offer," he says. Also, computer systems would most likely include encryption systems to limit what could be downloaded or manipulated. As a result, "The flexibility and movement across systems are not possible," Fisher adds. "So it's better than distributing music in CDs but nowhere near as wide open as distributing it" through his plan.
Within the academic community, Speed Bumps isn't as popular as Fisher's model, Nesson says: "People in the academic world don't like copyright--at least, they don't love it. They feel it's been extended way beyond its original concept. I feel that way too. I don't hold myself up as any great defender of copyright."
But both of their plans, and all of the work around digital entertainment at the Berkman Center, continue to garner international interest. "The industry is looking for concrete ideas," says Zittrain. "Both Charlie and Terry are doing that."
Elaine McArdle is a writer living in Watertown, Mass.
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