The question of whether file-sharing software providers are legally culpable for copyright infringement is back in the courts. This essay will use the current court case as the jumping-off point for a discussion about the future of free art online.
Here's where things stood in the legal proceedings as of April, 2003:
"Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends," Wilson wrote in his April opinion. "Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights." [news.com]
Now the 9th U.S. Circuit Court of Appeals is reviewing that decision.
My personal opinion about this issue is changing. Previously I thought that it was obvious that P2P networks had no other real reason to exist than to swap files illegally, because legal files can be more easily retrieved from a central server. If they aren't available on a big public server like mp3.com, it's only because they are illegal, I thought. So, to me, the issue appeared to be very different from VCR's, which people mostly bought for legal use. There was no strong legal reason to use P2P file sharing, I thought.
My viewpoint has changed. Now I can think of a good legal reason why people should use P2P. And that is based on the fact that central servers cost money.
Somebody has to pay for all that hardware and bandwidth. So companies that supply those central servers need to skew their services in the direction of making money. It wouldn't make sense for a central-server-based site that supplies things like the Paris Hilton sex video for free -- the hardware and bandwidth requirements would just be too much. So they are commonly shared by P2P means. That sort of thing seems to me to be a legitimate use, but more importantly, it points in the direction of a much larger and more subtle issue.
Central-server based music and video sites (not just porn ones) will need to make a lot of money to pay for bandwidth and hardware, and therefore they will never serve two communities optimally: a) the community of people that care about and enjoy free music and video art, and b) the artists who produce free music and video art.
For instance, the iTunes Music Store could very easily offer free music as well as $.99-per-track music. But it would lose money on such tracks due to bandwidth and hardware needs. So, it won't offer such music. And even if it did, for instance as a way of getting good PR, it would not emphasize them so that they were as easy as $.99 tracks to find and download. Rather, it would issue a press release about the free music it supported, get articles written about it their wonderfulness for offering such music for free, and then on their actual site they would do everything they could to pull people away from that music and toward the $.99 per-track-music. Ultimately, free music would continue to exist on the margins.
But I believe that in the coming years, many people will care more and more about free music. Free music isn't lesser music. Many great artists supported themselves with "day jobs" while making their greatest art. The great poet William Carlos Williams, a doctor, is one famous example. We don't hear about such cases in the music world very much because we tend to only know about mass-marketed music, and that music is supported by expensive marketing, and the money to pay for that marketing had to come ultimately from the consumers. So, if we know about it, it almost certainly isn't free.
But there is plenty of great music out there that is almost completely unknown because no one chose to mass-market it. Much of it is made by people with day jobs. Many of those people care more about having an enthusiastic audience than they do about money. They'd very much like to make money from their art, of course, but making enough to really matter may unfortunately not be an option because their potential audiences may be too small to support mass marketing. A representative of BMG recently stated that a major label needs to sell 2,000,000 copies of an album to break even.
It is very possible for artist to be great without appealing to that many people, and without having any potential to appeal to that many people. People may simply not be ready for the art (as the world was not at all ready for the art of Vincent Van Gogh during his lifetime, resulting in his penniless death while every painting he ever made is now worth millions). Or it may be that the art simply appeals only to very particular tastes. That doesn't make it lesser as art -- it may in fact enable it to have the deep resonances with its audience that makes it really mean something, because it is very unusual to have deep resonances while appealing equally well to everyone.
William Carlos Williams wrote his poetry even though the money he made from it meant little if anything to him. It was a very small amount compared to his "day job" of being a doctor. A girl with guitar can make similarly great music without giving up her day job. Due to modern technology group of friends with a video camera and a macintosh can make great video art without giving up their day jobs.
A question may be raised at this point in the discussion: why would this art be free, rather than simply low-cost, as in micropayments? Well, are you paying anything to read this blog? Do you pay anything to read any blog? Do you pay anything to read the news sites you read online? Other sites? As Clay Shirky has written:
[The micropayment] strategy doesn't work, because the act of buying anything, even if the price is very small, creates what Nick Szabo calls mental transaction costs, the energy required to decide whether something is worth buying or not, regardless of price.(The whole Shirky article is well worth reading on this subject.)
Once there is some readily available free content, any for-fee content must compete against this "mental transaction cost" and the result is inexorable pressure forcing virtually everything towards zero cost.
In summary, P2P networks have the potential to enable this kind of free art to become known and to prosper alongside the Britney Spears' of the world. Frankly I think it's possible that, in a world where distribution expenses are essentially zero, the free art world may, in the long run, produce more great art than the paid art world. It's not knowable yet whether that will happen, but it could.
Of course, current P2P technology doesn't solve this problem, because people only tend to download music and videos they know about through mass-marketing. So ultimately, P2P systems today really are primarily about pirating, and current usage patterns are, ironically, ultimately dependent upon mass-marketing.
But that may change with the addition of new technology into the mix that will take the role of replacing mass marketing for making music known. The P2P networks are effectively replacing the distribution piece--the piece of the music industry that involves making physical objects that contain the art (such as CD's and DVD's) and transporting those physical objects into stores. Now we need something to replace the mass marketing part of things, and there will be the opportunity for real revolution to potentially occur. And even if there isn't a complete revolution -- even if most art still costs money -- I believe that the balance between free art and paid art will change dramatically. There will be a lot more free art that is known and enjoyed by a substantial number of people than is the case today. And I believe the world will be enriched by that fact.
In the meantime, I think there is a real argument to be made that P2P software has the ability to enable legitimate activities that promote the general well-being of the population, arguably even more than VCR's did. So I think the idea that such software should be legal is defensible in the courts, even though, today, 90% of the use of such networks has been reported to be illegal.