Trends In Copyright Infringement: A Review of Two Predictive Articles
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Abstract: In 1995 Lance Rose and Esther Dyson wrote articles in Wired Magazine expressing polarized views on the future of copyright law and copyright infringement. This essay reviews those articles, analyzes each article's accuracy as defined by current trends years later.
Over the past decade the societal view of creative society has greatly changed due to advances in computer technology and the Internet. In 1995, aware of the beginning of this change, two authors wrote articles in Wired Magazine expressing diametrically opposed views on how this technological change would take form, and how it would affect copyright law. In the article "The Emperor's Clothes Still Fit Just Fine" Lance Rose hypothesized that the criminal nature of copyright infringement would prevent it from developing into a socially acceptable practice. Thus, he wrote, we would not need to revise copyright law to prevent copyright infringement. In another article, Entitled "Intellectual Value", Esther Dyson presented a completely different view of the copyright issue. She based many her arguments on the belief that mainstream copyright infringement would proliferate in the following years, causing a radical revision of American ideas and laws towards intellectual property. What has happened since then? Who was right? This paper analyzes the situation then and now, with the knowledge that these trends are still in a state of transformation. As new software and hardware innovations make it easier to create, copy, alter, and disseminate original digital content, this discussion will be come even more critical.
Whereas Rose advocated better policing practices and improved copyright legislation, Dyson proposed that the de facto legalization of content duplication would nullify copyright law, resulting in a service-based economy with little copyright law. While this economic and legal evolution will continue for years to come, it is this author's opinion that Dyson's model of change seems much more likely based on events and trends over the past six years.
Much of Rose's argument for the retention of current copyright laws stems from the faulty belief that copyright infringement will remain much of an underground practice. In his article Rose asserts that "Net users who aren't at least mildly familiar with the [file-sharing] underworld will never even hear about such systems before they are dismembered" . While file-sharing might not have been an important issue in 1995, the word "underworld" does not accurately describe the flourishing file sharing situation today.
During the month of February 2001, the popular music-sharing program Napster counted over 13.5 million unique American users . This statistic alone identifies file-sharing, not as an underground trend, but as one of major mainstream significance. This increase in file-sharing popularity results greatly from a vast improvement in file-sharing technology.
Major technological improvements since 1995 have made file-sharing more accessible to the general public. One of the major problems with file-sharing is the size of the files. Compared to text and images, sound and video files are quite large. However, since 1995 improvements such as higher quality compression formats have reduced file size, thus overcoming this obstacle. And, although several compression schemes, such as MPEG, have existed for over a decade, recent compression improvements have greatly improved quality and reduced file size. This has resulted in an audio compression format that is now widely accepted as the standard: MPEG Audio Layer III (MP3). While this compression format has existed for many years, the first consumer MP3 player, "AMP", did not exist until 1997 . The availability of high quality compression formats such as MP3 has reduced download times considerably.
Another technological improvement that facilitates copyright infringement is the usage of broadband connections. A recent increase in consumer broadband connections has made the sharing of large files such as audio and video more accessible to the general public. In the period between December 1999 and 2000 residential usage of broadband Internet connections (defined as ISDN, Cable, DSL, and LAN connections) increased 148% . These technological breakthroughs have resulted in a significant increase in the mainstream usage of broadband connections since the publication of Rose's and Dyson's articles. According to a study by Arbitron and Edison Media, residential consumers with a broadband connection access streaming media twice as often as those with a broadband connection . Given the aforementioned increase in broadband usage, this fact indicates that there has been a significant increase of large file sharing over the same period. We can conclude that if users are using broadband connections, they are sharing high quality streaming media. An additional benefit of better compression formats is that, when combined with an increase in consumer broadband connections, they result in much shorter file download times. Shortened download times have greatly increased the desirability of file-sharing to mainstream consumers.
In addition to making file-sharing more accessible to the general public, technological improvements have made it more acceptable to the general public. In Rose's article, he describes the methods for file sharing as either large, centralized, non-anonymous file depositories, or as "Anonymous infringements [that] will arc across the Net like shooting stars, and disappear from sight just as quickly" . Over the past few years, file-sharing programs have emerged that centralize large amounts of files without storing them on centralized computers. Additionally, these programs provide user anonymity, which makes copyright infringement safe for the general public. These two aspects of new programs provide legal security for both the user and the company that creates the program. Law enforcement cannot hold the user responsible because they do not know who the user is, and cannot hold the company that owns the program responsible because no files are stored on the company servers . According to Rose the cost of a pirated file is:
(1) a buck or for free, plus (2) all the time and effort needed to track down pirate dealers with the stuff you want (and who are so deep underground even the cops can't find them), plus (3) more time and effort on security procedures for dealing with pirates and avoiding detection, plus (4) the legal risks of being involved in clandestine criminal activities. 
Rose's view does not apply now because modern programs can eradicate these costs and risks by providing a centralized, easily accessible, and anonymous outlet for file-sharing. This safety and ease of use has created a de facto legalization of many forms of digital copyright infringement. And it is for this reason that Dyson is more correct in predicting on the first page of her article that "content is free" .
By assuming a decrease in the marketability of creative content, Dyson strengthens her argument. Unlike Rose who assumes that copyright infringement will be "kept outside the public marketplace", Dyson believes that "Intellectual property that can be copied easily likely will be copied" [1,2]. Indeed, over the past few years the increased feasibility of large-scale consumer file copying has created an extremely large file-sharing community. This community has extended to the point where file-sharing could almost be considered part of our current culture. This proliferation of file-sharing has expanded to the point where Ralph Farquhar, creator of a cartoon show owned by Walt Disney (A company which avidly protests copyright infringement), can openly state: "I have copyrighted materials, but I like to download stuff as well" . Our current (2001) society considers the act of file-sharing an acceptable practice, even for employees of companies that ardently oppose copyright infringement. Because Dyson's outlook on the prevalence of file-sharing more accurately represents current trends than does Rose's, her economic predictions are much more relevant to today's market.
In the current technology-based market, one can already see the emergence of new market strategies, which emphasize free content as an advertisement for content creators. According to Dyson, "The way to become a leading content provider may be to start by giving your content away. This 'generosity' isn't a moral decision: It's a business strategy" . Many businesses currently employ this strategy to promote their marketed content. One such company, EMI, currently releases videos through the file-sharing network Gnutella [8,9]. These videos contain embedded links to online vendors where users can purchase EMI albums. According to Ted Cohen, the Vice President of New Media, EMI is "extremely supportive of music fans turning each other on to new videos in a secure environment, one that has a strong potential to drive sales" . While this strategy may generate sales at the moment, the current trend towards unrestricted file-sharing will eventually undermine the approach.
The de facto legalization of file-sharing, and the ensuing decline of the content market will stimulate a service-based economy. According to Dyson, "Packaged software is a property, but in many ways it is becoming simply an advertisement for follow-up goods and services - bug fixing, support, upgrades, training, implementation and development services" . Despite his insistence on the permanence of a content market, even Rose can envision a future service-based economy: "we will see a shift toward information services instead of information hoarding. For instance, it would not be surprising if much of what is sold today as 'products'...become no more than cheap promotional tools for premium services" . While this economic change is not inevitable, current trends greatly forecast such a transformation.
Despite attempts by many economic sectors to uphold copyright law on the Internet, the availability and protected nature of file-sharing technology has created a de facto legalization of file-copying. Our current situation contains aspects of both Dyson and Rose's predictions. It is quite possible that an increase in the prosecution of copyright infringement offenders could scare enough people to push file-sharing out of mainstream culture. In this case Rose would be right, copyright law would effectively govern the Internet. However, recent file-sharing trends favor the economic and social predictions of Dyson. While it is conceivably possible for copyright law to reclaim its original territory on the Internet, obstacles such as the global dispersion of file sharing programs will likely prevent this occurrence. However, it is possible that economic governance of online content will uphold the original intent of copyright law: to encourage the greatest dispersion of information to the greatest number of people.
1. Rose, Lance. "The Emperor's Clothes Still Fit Just Fine". Wired. February 1995. <http://www.wired.com/wired/archive/3.02/rose.if_pr.html>. In this article Lance Rose explains his beliefs about why the current (1995) copyright law will survive upheaval created by the Internet.
2. Dyson, Esther. "Intellectual Value". Wired. July 1995. <http://www.wired.com/wired/archive/3.07/dyson_pr.html>. In this article Esther Dyson explains her ideas about the effect "free content" will have on the market.
3. Pastore, Michael. "Napster Users Fan Out in Search of File-Swapping Apps". Cyberatlas. July 23, 2001. <http://cyberatlas.internet.com/big_picture/applications/article/0,,1301_806531,00.html>. This article includes large amounts of research on the user statistics for several large file-sharing programs, as well as an analysis of how users are spread out over the programs.
4. Morgan, Scott. "MP3 and Beyond: A Brief History of MP3". ZDNet. Last accessed: November 8, 2001. <http://www.zdnet.com/devhead/stories/articles/0,4413,2633688,00.html>. This article gives a background history of the audio compression format MP3.
5. Pastore, Michael. "Residential High-Speed Access Takes Big Step in 2000". Cyberatlas. February 8, 2001. <http://cyberatlas.internet.com/markets/broadband/article/0,,10099_583711,00.html>. This article chronicles the increase in residential broadband usage between 1999 and 2000. It additionally analyzes the amount of users accessing streaming media based on connection type.
6. Lara, Ankarino. "Napster Shut-Down? The File-Sharing FAQ". ZDNet. November 8, 2000. <http://www.zdnet.com/products/stories/reviews/0,4161,2609080,00.html>. This article provides an introduction to Napster and other file-sharing programs.
7. King, Brad. "Disney's Peer-to-Peer Pressure". Wired. October 24, 2001. <http://www.wired.com/news/business/0,1367,47806,00.html>. This article reports on a Disney cartoon, which contained controversial content surrounding file-sharing.
8. King, Brad. "EMI Has No Fear of Peers". Wired. November 6, 2001. <http://www.wired.com/news/mp3/0,1285,48147,00.html>. This article discusses the usage of free content as a form of advertisement, and specifically EMI's usage of this business strategy.
9. For information about the Gnutella network see: <http://www.gnutellanews.com>