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The seven-percent solution

200px-PDmaybe-icon.svg.png"Copyright is a solved problem," a friend said the other week, and I was too stunned to reply beyond, "What?"

She explained: she lives in a "streaming environment". She has Netflix, Spotify, and I forget what else, and so there is no conceivable reason to engage in illegal file-sharing. Therefore: solved problem.

Many of us said long before iTunes that the answer to file-sharing was not to make it illegal or continue to extend copyright law but to build legal, reliable "Napster-killer" services, and certainly her experience helps prove that point. But unauthorized copying is such a shallow, surface, *single* issue: the real problems in copyright are about how to remunerate artists and creators for their work. My friend's "streaming environment" pays royalties, sure, but the bulk of those go to the record labels. Songwriters, upon whom the entire industry depends for new work, are watching their income collapse. I suppose you could argue that's not a copyright problem. But if it's not, then streaming isn't a solution.

Music, film, TV, and publishing are still only the start. Sci-Hub is the next move: it's a giant "pirate" repository of journal articles, partially aided by sympathetic academics willing to loan their user names and passwords to help build the site. Unlike, sites like The Pirate Bay, which was built by snotty nerds who seemed to get off on defying legal authority and which relies on advertising to bring in revenue, Sci-Hub was built by a frustrated Russian neuroscientist who thinks the current structure of scientific publishing ought to be illegal. She's being sued in New York; her site may be the thing that really breaks Tor Hidden Services loose from its porn-and-drugs-hub reputation.

There is, of course, a key difference. Downloading music - movies - TV - photographs - is easily characterized as consumers stealing entertainment that formerly they had to pay for, either by subscribing to a cable channel, or by watching ads, or by buying physical media, or by some combination of all three. The "pirates" helping fuel Sci-Hub are scientists and the producers of the work it's making available for free download. The people who most appreciate it, in other words, are the people whose work appears on it, who in turn most need it to continue to do more such work.

Journal publishers are the people on the receiving end of the damage, and they are widely perceived to have been profiting from all sides. Theirs is - or possibly was - a fabulous business model: they paid nothing for content because academics needed to participate in order to get promotions and tenure; and the same universities who paid academics to contribute had to buy copies of the printed journals so their scientists could stay current in their fields. *And* the publishers got to keep the copyrights. As journal prices have continued to rise, we have now reached the point where even Harvard, widely acknowledged as the richest university in the world, is saying it can no longer afford the subscription fees (ditto Cornell). No wonder it's the scientists and academics themselves who are ticked off.

The prospective solution to this is open access, where papers are automatically added to free archives, and academics pay relatively modest fees for peer review and publication. I guess you could call that a kind of streaming, and though I doubt the journal publishers would agree with you it's a "victimless crime" in the sense that the people who are getting damaged are people no one likes and who at one time provided a valuable service but are now impediments to vital science.

The fundamental problem copyright was invented to solve, however, was not how to prevent people from sharing files illegally but how to enable artists and creators to make enough from their work that they would be encouraged to go on doing it. Streaming would help with that if it created a vastly larger market than existed before - and maybe one day it will. But in the meantime creators of all kinds are struggling, in part because the companies that enable discovery of their work are giants who really don't care whether you listen to Beyonce or Bill Steele because they get paid just the same.

freeculture.gifI think it was in Free Culture that Lawrence Lessig wrote that the earliest version of copyright law was intended to curb the power of publishers. If that was the purpose it's arguably failed: only the biggest stars can now make any inroads on negotiating contracts with today' s giant conglomerated publishers, a balance so obviously un that it shouldn't require a #fairterms campaign to point it out.

Banning ad blocking, as the UK government is suggesting might be necessary, is not a solution either because you can't make people consume ads they find obnoxious.

So, what's left is plenty of problems for the enterprising to solve. How do we construct payment schemes so that small-time artists get paid their fair share instead of being regarded as a rounding error that can be safely allocated to the big stars? How do we redress the balance of power so that artists and creators are not stripped of their rights, followed by their royalties? How do we avoid creating new and even bigger intermediaries that scoop the pools of money available? Pick one, and be prepared to rethink it for 3D printing.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.


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