Copyright holders have, in practice, always more or less ignored noncommercial copying. Sure, “Home Taping Is Killing The Music Industry … And It’s Illegal,” but they weren’t suing anybody. Why has noncommercial use become a ‘problem’ so recently? If the RIAA could agree to immunize consumers from suits arising out of home taping in 1992, why can’t they do the same now? Why can’t we just agree on a small revision to the Audio Home Recording Act that brings MP3s and CD-Rs into the fold?
It’s because technology has fundamentally changed noncommercial use of copyrighted works. Before the Internet, no matter what you did, there was a practical limit to how far removed any incident of noncommercial use could be from a commercial use. You could copy cassette or reel-to-reel tapes, but only for a few generations before they became unlistenable; you could make as many tapes of your LPs as you wanted, but you still had to buy the LP. Noncommercial use was always sufficiently dependent on commercial use that regulating commercial use was enough. We can take this back further to the player piano and sheet music — they enabled noncommercial public performances, but someone still had to buy the piano roll or the sheet music commercially. They key fact here is that player piano rolls, sheet music, and LPs could not be the product of noncommercial copying; the equipment involved was out of reach of anyone without a profit motive. In this context, the late-80s DAT panic becomes easier to understand; this was the first hole in the wall between high-volume, multi-generation commercial duplication and low-volume, one-generation noncommercial copying. The solution in 1992 was to plug the hole with technology, and force DAT machines to emulate the then-standard LP-to-cassette regime, in which the consumer could make unlimited first-generation copies, but second-generation copies would be of reduced quality.
Now, obviously, the cat is forever out of the bag with regard to duplication. The remove between any act of commercial copying and acts of noncommercial copying is unlimited. Regulation of commercial copying, which always seemed to work before, is no longer an effective method of compensating copyright holders for noncommercial uses of their works.
This is an actual problem for the record companies. A bit-for-bit CD-R of a commercially released album copied by a friend is a close substitute for the purchased album. A downloaded MP3 is a much worse substitute, but it is a substitute. Even if, as the Strumpf paper suggests, we might be able to eliminate downloads from the equation, we’re still left with CD-Rs (which, I heard somewhere, the RIAA knows are a bigger problem than MP3s but which they can’t do anything about).
How do we proceed? We can change the technology to fit the law, or we can change the law to fit the technology. Changing the technology to fit the law won’t work. The best you’ll get is “speed bumps”, and I think designers of such systems underestimate the widespread availability of the local computer whiz kid.
So I think the only solution left is to change the law to recognize the new face of noncommercial copying. We still have a choice — we can sue teenagers, or we can collect money from teenagers’ parents. I think we should license, even if it means a box of 50 CD-Rs costs $50 instead of $5 and broadband Internet access costs $50 a month, not $40.