CopyNight DC, April 2009

Last night was the second CopyNight for the DC area this month.  It was another small gathering, like last time, but there was some new faces as well as appearances from past attendees I hadn’t seen in a while.  The topic of discussion was the Pirate Bay trial and it proved an inspiration for a very lively and lengthy conversation.

The suggestion of Google being targeted in a similar fashion to The Pirate Bay was roundly dismissed.  Google has a record of good faith action in the presence of take down notices.

One great question posed, without an easy answer, was what would happen to existing models, like blockbuster films, if P2P file sharing was legalized as some possible, if mostly improbably, outcome of the trial and its inevitable appeals.  The consensus was that as interesting a thought experiment as that may be, law doesn’t change its contours in that drastic a fashion.  We have seen some adjustments, like compulsory licensing being introduced to cover some innovators.  There are certainly some experiments amongst the most popular creators and the newest that would be more resistant to unchecked file sharing, but not enough to draw any general conclusions.

From there we spent some time discussing the gap between norms of copyright usage and the state of the law.  There was considerably back and forth on the interrelation between laws and norms, and by implication the market and architecture as per Lessig.  There wasn’t much general agreement on exactly how the upcoming generation will relate differently to the functioning of digital copies, DRM and the mismatch with law.

We did explore other models, mostly academia, for trying to understand how the absence of copyright might affect production of works.  There was general agreement that there is a place for other motivations but in a fully open access model of academic publishing, there would be little role for the market.  Admittedly, for authors and peer reviewers there already isn’t much in the way of financial motivations.  I am sure that either Justin or Gavin can do a fairer job of expanding on this topic than my brief notes here.

Delving into the typical negotiations involved with journals and publishing revealed that there are troubling defaults when it does come to contracting around copyrights.  Even if a publisher would be willing to leave the copyrights with the author, or at least strike a non-exclusive deal, the pressure to publish as part of tenure consideration encourages academics to conceded to boiler plate agreements rather than quibble.  There are certainly correlations in commercial publishing.  Worse, where the market does enter into the equation, there probably is a real chance that the increased transaction cost incurred by an author merely asking about their rights is enough for a publisher to nix a potential deal.  This probably holds true for all but the most well known authors or those exceptional publishers already exploring interesting sharing of interests, like Tor with Doctorow and others who wish to use CC licenses on their works along side commercial contracts.

There was a suggestion of a bit of legal machinery, like the Creative Commons model, for building publishing contracts more simply that deal better with sharing rights.

That led into one of the last questions discussed at length, of the general comprehensibility of copyright.  It is possible that the inability to easily comprehend the law may have something to do with the gulf between it and the norms.  Kevin suggested tax legal as a technically elegant model but that notion was met with cat calls and skepticism among those without any kind of legal training.  The driver of the point, though, was a thread throughout the conversation about how copyright law actually does change, in the absence of sweeping reform.  Mostly it is riddled with exceptions and carve outs for specific situations.  Often, the processing of making this is gamed for political advantage.  Gaven characterized the passage of the DMCA as a prime example, that offering such specific considerations was undertaken to erode any sort of coalition building among its opponents.

We just about closed Teaism, to give an idea of how much longer last night’s gathering ran than the usual.

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