Part 4 is fresh off the press, read the first part here and part two here , part three here if you need to catch up.

Section Three: Evolution, Reactions and Compromise.

“The Internet is the widest public space that mankind has ever known. A space where everybody can have their say, acquire knowledge, create ideas and not just information, exercise their right to criticize, to discuss, to take part in the broader political life, and thus to build a different world of which everybody can claim to be an equal citizen”

–An excerpt from the proposed Internet Bill of Rights.[1]

[1] Collaborative work. “The Internet Bill of Rights” Last updated: November, 2005. Accessed: August 10, 2008.


The digital revolution can be thought of as an evolutionary process.  The current decline of the print media is evidence of the evolutionary processes changing our culture.   Adapt or die is one of the evolutionary tenets that our culture is following; the print media has been scrabbling furiously to establish a digital presence on the Internet in order to maintain their readership and profitability.  Similarly technologies such p2p networking have radically changed the environment with regard to the reproduction and distribution of cultural artifacts.  The corporate media is resisting this evolutionary trend by attempting through legislation, to control and enclose cultural products.  The feudal influences of the past are seeing their profits decline as people use the power of the digital age to unleash their creativity.  The DMCA, Bill C-61, and DRM (digital rights management) are all subsets of the overall attempt to put the digital genie back in the bottle.  It is a pyrrhic struggle at best; the ease of digital distribution trumps the power of the law to contain the phenomena.

The existence of web sites like[1]is a testament to how pervasive p2p sharing, both legal and illegal, have become.  Applications like TOR and Privoxy work to hide individuals’ IP addresses from authorities and keep dissident voices broadcasting their message to the world.  The DMCA and other like policies are reactionary in nature.  They are a panicked response to a rapidly changing cultural medium.  Barring a massive change in the fundamental structure of the internet[2], legislation like the DMCA and Bill C-61 are ultimately ineffective as barriers to the illegal copying and distribution of cultural materials.

The Copyright legislation may be ineffective, but it does not change the fact that some of the file sharing that takes place is illegal.  The corporate media companies are coping poorly with the digital age.  Lessig says, “One obvious response to this efficiency [of p2p file sharing and other forms of digital distribution] is thus to make the Internet less efficient. If the Internet enables “piracy,” then, this response says, we should break the kneecaps of the Internet.”[3] The media corporations angle of attack is flawed; they conspire to extirpate a salient feature of the Internet. (e.g. A decentralized highly interlinked network).  Their efforts are like trying to combat a termite infestation by burning down the house.  Lessig  lists four different types of sharing:

A. There are some who are using sharing networks as substitutes for purchasing CDs.

B. There are also some who are using sharing networks to sample, on the way to  purchasing CDs

C. There are many who are using file-sharing networks to get access to content that is no  longer sold but is still under copyright or that would have been too cumbersome to buy off the Net.

D. There are many who are using file-sharing networks to get access to content that is not copyrighted or to get access that the copyright owner plainly endorses. [4]

The RIAA, MPPA,  and media corporations , through their zealotry for the elimination of type “A” sharing, also threaten type B and C sharing which, if anything, increase demand for copyright product, as well as threatening sharing that enhances autonomy by increasing choice i.e. type “D” sharing.  Lessig is charitable in his work and grants that type “A” sharing does constitute grievous harm to the industry, but points out that the losses claimed by the industry are specious at best: “If 2.6 times the number of CDs sold were downloaded for free, and yet sales revenue dropped by just 6.7 percent, then there is a huge difference between downloading a song and stealing a CD.”[5] Given the notorious corporate commitment to the bottom line, however, even these losses, likely negligible in reality, cannot be tolerated

Artists and holders of copyright deserve protection for their works.  Individuals deserve access to a wide range of autonomy-enabling choice.  Our culture deserves a solution that promises to bring comprise between the anarchy (?) of p2p file sharing and the commons-destroying, enclosure-happy DMCA.  Lawrence Lessig, in the conclusion of Free Culture, describes such a compromise position[6] called the Eldred Act II.  What the Eldred Act II proposes is this: “Fifty years after a work has been published, the copyright owner would be required to register the work and pay a small fee. If he paid the fee, he got the benefit of the full term of copyright. If he did not, the work passed into the public domain.”[7] Copyright needs to reflect its original intent of encouraging authorship, not contrive to line corporate pocketbooks.  People need the choice whether they want their work protected or the option of letting it fall into the public domain.  The key to making legislation like Eldred II work is the reformation of the Copyright office.  It is only through the establishment of copyright formalities that any compromise can be worked out between the commons and permission-based culture.  People need the ability to easily check to see if a work is copyrighted; the costly legal maze of clearing cultural artifacts that is currently in place simply does not work.  The current copyright system is in such shambles that much of the content that exists is trapped in limbo. People cannot find all the rights holders to clear copyright or it is simply too expensive a process to undertake.  This “dark content”[8] as Lessig says constitutes the majority of what could be in the commons.  Eldred II would fix this problem, as people would have the choice whether to spend the one dollar to extend the copyright term or by default the work would slip into the commons.

It seems like a fairly rational commonsense solution to the problems of copyright law, and of course, the MPAA wants nothing to do with it.  It is the corporate bottom line mentality at work; they want nothing but complete control of our culture, the ultimate bottom line

Cultural evolutionary pressures threaten to usurp control of culture.  The bustling digital commons of the Internet represents a different method of production of cultural artifacts and a turn towards more freedom in general. The digital commons unfettered also represents a renewal of participatory democracy in the form of debate and critical analysis of policy, and an opportunity to enhance our personal autonomy.  Our culture is evolving towards a methodology of production that largely does away with the middle man and gives greater autonomy to the creators and the consumers of content.  The media corporations are doing everything in their power to wrest back the control over our culture that they sense might be slipping away.  The DMCA and bill C-61 are prime examples of this corporate offensive that threatens not only our culture but our autonomy as well.  Benkler shares a similar view stating, “My analysis suggests that too complete a reliance on property rights and on commercial provision of information resources and communications infrastructure undermines personal autonomy.”[9] The decentralized structure of the Internet will ultimately prove too difficult a problem to regulate effectively, but there is much to be lost if corporations continue with their burning down the house to kill the termites style of legal action.  The compromise represented by Lessig’s Eldred II act would protect the commons and the artists, while serving as a transitional bridge that would allow for the gradual evolution of our digital culture to continue.

[1] The boasts of over one million available torrents for download.  Despite being on the hit list of the American government and being raided by Swedish authorities the soldiers on, offering content and access to creative work spanning the globe (a fair amount of this cultural production is copyrighted).


[2] Waiting in the legislative wings is an  i-patriot act which would indeed change the fundamental structure of the internet, at least in the United States.  It would be a massive invasion of privacy and a concomitant decrease in personal autonomy as the government (via control of the DNS servers) could censor, track down and prosecute allegedly ‘terrorist’ activity.  Jonathan Zittrain.  “The Future of the Internet and how to Stop it.”  Last Updated July 14, 2008. (Accessed: August 10, 2008).

[3] Lessig, Lawrence.  Free Culture. New York: The Penguin Press, 2004, 193.

[4] Lessig, Lawrence.  Free Culture. New York: The Penguin Press, 2004, 296.

[5] Lessig, Lawrence.  Free Culture. New York: The Penguin Press, 2004, 71.

[6] Lessig actually describes several solutions to the current copyright conundrum.  I intend to deal with only two ideas: the op-ed suggestion of Eldred II and the establishment of new copyright formalities.

[7] Lessig, Lawrence.  Free Culture. New York: The Penguin Press, 2004, 248.

[8] Lessig, Lawrence.  Free Culture. New York: The Penguin Press, 2004, 255.

[9] Benkler, Yochai.  “Siren Songs and Amish Children: Autonomy, Information, and Law.” New York University Law Review Volume 26:23 (April 2001): 112.

The conclusion.