How Technologists Could Whipsaw Content Providers Using the DMCA
It occurred to me today that there’s a unique opportunity, right now, for technologists to provide for a more robust environment for distributing content works, which embraces and extends the DMCA’s anti-circumvention provisions, rather than attempting to get around them or fight them head-on. This opportunity involves setting up a licensing non-profit to act as a weak “gateway to publisher distributors.” Although careful implementation and attention to new legislation is required to insure that currently dominant content providers do not successfully sabotage this effort, nonetheless this plan would not require any legislative cooperation.
No amount of cajoling is likely to make the oligopoly of the music industry change their ways. Rather, the market must be fundamentally restructured. But given that current copyright law gives monopoly power over information for a very long time, how can this be done? I suspect that some clever contracts, marketing, and technology can combine to effectively force the information monopolists to submit to the public good.
To begin, we require a technological platform for delivering content. The platform must have strong incentives for consumers and content providers to use it. Content providers will use it iff it is popular with consumers, greatly simplifying the matter. The technological platform must use the anti-circumvention provisions of the DMCA, which effectively means that content given to the consumers does have at least some minor restrictions (at a minimum, some weak encryption and a counter that keeps track of when copies are made).
Now, the fun part: the keys to the technological platform are owned by a not for profit organization, a “gatekeeper”, which has the explicit goal of making information as widely available as possible for as long as possible. The organization may maintain its own archive and library of materials, but does not presume that it has a good awareness of what consumers want to know, hear, experience, or see over the long run. Rather, it licenses access to its consumer platform and content that it itself has recently licensed to distributors and publishers on a non-exclusive basis. The effect, after some time, would be that our “gatekeeper” organization has monopsony powers to wield against content creators in negotiating licensing fees, while publishers and distributors would compete against each other on more or less equal footing. Distributors and publishers cannot legally access the technological platform without agreeing to the competitive “rules of the game” set down by the gatekeeper. This is the whipsaw alluded to in the title, in which the law that content distributors lobbied for is wielded against them.
But, what draws consumers to a platform? There are a lot of arguments, but the amount of content available on the platform is a good start. There is more free content available today than ever before, due to the Internet and the rise of copyleft philosophy. Software, art, and prose can all be thought of as being pre-licensed to our gatekeeper at a cost of nearly free. Thus, our content platform gets a running head start on any other in history.