A friend asked me:
If the Supreme Court does away with the Sony doctrine for copyright infringement this year, with what should it replace it? What would be the best way to balance the interests of copyright owners with these emerging technologies?
I believe the best outcome would be for the Supreme Court to uphold the Sony doctrine. Any other outcome will postpone the eventual balancing of competing interests that I believe must come through new legislation.
Here’s why: making P2P services illegal will have no effect on their ubiquity. The technology is too basic and knowledge of the techniques is too widespread. Although specific services may be shut down, hundreds of clones with new security features will reappear in their place, as has happened each time popular P2P services have been shut down in the past.
So: P2P is a given. The question then becomes: how to compensate artists? I believe the best balance can be achieved through an alternative compensation system of the kind espoused by William Fisher. In fact, I believe such a system would compensate artists far better than what we have now.
Unfortunately, the current political climate makes it exceedingly unlikely that the required legislation will come to pass, just as I fear it will result in a neutered Sony doctrine this spring. So the current system will probably stick around for a while, slowly fading into irrelevance, and will eventually be eclipsed by new systems starting from scratch. As Lucas Gonze put it:
Can I just say this? Napster politics are brutally boring. The action right now is in making the music and video owned by the major labels and film studios archaic and unpopular. We’re going to do to those properties what talkies did to silent films, what political bloggers did to Dan Rather, what Elvis did to Mantovani. Our stuff is better, that’s how we’re going to win.