April 5, 2003 · Lessig
They say I’m a pessimist about the future of freedom on the net, and they’ve got two books of mine to prove it. But the report that the RIAA has now filed suit against four students for sharing content over a university network is a moment of hope. If we work hard to report the details and reality of this suit, then the extremism of the RIAA’s tactics will finally get through.
Let this extremism finally force recognition of the best response to this problem for now: a compulsory license with a large carve out for non-commercial “sharing.” Napster proposed as much in 1998. Had Congress listened, then we would have had just as much sharing over these last 5 years, but artists would have 5 years of income, and fewer of our children would now be felons. Instead, Congress did nothing (except pass the Sonny Bono Act and the DMCA), and 5 years later, artists are no better off, our kids are now “terrorists” (such is the rhetoric of the other side), and the cartel of the RIAA is only stronger.
What politicians need to remember is that Congress has always adjusted the rules by which creators get paid as a response to new technology. That’s just what they should be doing today. Never before has the law been used to force new technology into old way of doing business. Every time before this, it was the law that adjusted to assure artists got paid given the new technology.
There are any number of proposals floating about just now for a compulsory license for content [Ed Felten has a nice post on this; my favorites are William Fisher's from Harvard, and Neil Netanel's from Texas] — a way to free content while assuring that artists get paid. All of them would also have the salutary effect of leaving our courts to deal with real criminals (can anyone spell Enron anymore?), and leaving the internet to do what it does best (making content broadly and efficiently available).
It’s time for Congress to turn its attention to constructive ways to assure that artists get paid without destroying the extraordinary freedom of the internet. This has been Congress’s role in the past. It needs to get beyond the distortions of a bunch of lobbyists if its to play its proper role in the future.