Future Shock

Alvin Toffler, in his book Future Shock, posited that the world was changing rapidly and that the rate of that change was itself increasing. Toffler argues that society as a whole has difficulty keeping up with that change. If that was true of the world in the 60s, it is even more true of the world of the new millennium. The progress of the Internet is placing unwanted incentives on infringers. On the Internet "impact and presence" are everything, while legality is of only ephemeral concern.

An Internet business can rise from nothing, prove its idea, float and explode across the world long before a contested legal action can progress through an interlocutory stage - even where the trial is being heard on a priority ticket. With the speed and rate of progress of the Internet, it is almost ill advised for someone with a brilliant new idea to approach their lawyers about it (who would tell them that what they're doing is illegal and they shouldn't even consider it) instead of adopting a "crash or crash through" approach.

On the Internet Napster and MP3.com have so eloquently proven that he who hesitates is lost even in face of substantive adverse legal findings. Indeed court action may simply bring publicity and make the infringer "sexier" in the eyes of their target community.

The Demise of Pimpled Youth

Sooner or later, hackers will cease to be foolish youths and will become adults with a mission. Perhaps the issue for copyright in the new millennium is a combination of all of the factors listed above, but expanded by the possibility that "hackers" may actually do some research about the structure of copyright law.

To date these people have demonstrated that they are certainly talented and not lacking in intellectual ability. Equally in their dissemination of copyright works they have been more concerned with the technical capabilities of the Internet and the transfer of information from one point to another as quickly and easily as possible. It has not focused on the creation of means of dissemination which are specifically intended and designed to exploit weaknesses within the copyright law itself [91].

That is, no one has really attempted to do technically legal (but, in breach of the spirit of the legislation) what they are currently doing illegally. Such attempts as have been made have taken the naive path of asserting that copyright is dead (which it isn't) or that it ought not to apply to a given category of work.

Consider, for example, recent indications are that there are literally millions upon millions of Web sites located around the world. Consider further a thought experiment involving the average novel, with on the order of 100,000 or 200,000 words. It would be interesting to see the Court reaction to a system which took each and every separate word of the novel and placed that word on a distinct and separate Web site. Would each of those individual words would be considered to be a reproduction of a substantial part of the copyright work? [92] The novel could be compressed first so no one piece of data could necessarily be associated with the original text then split and scattered.

A similar argument could be made in relation to most computer programs, the majority of which are less than four or five million bytes in length. Under such a regime clearly the end users who download the full copy of the item will be breaching copyright. However, as we discussed above, this is not a great deal of use to the holders of copyright. Such a "scheme" is already standard practice in redundant storage technologies (eg. RAID arrays) in which a file is deliberately and redundantly spread over a number of storage locations so that if any one is lost, the file will still be recoverable.

The interest of copyright holders is to eliminate the sources from which end users may acquire unauthorized copies of copyrighted works. As hackers continue to expend their energies in their attack on copyright it is likely that they will dream up far more inventive schemes to ensure the anonymity of end users who acquire copyrighted works, the relative untraceability of the servers that provide those works to those individuals and perhaps the elimination of altogether of any "distributor".

The unfortunate fact is that there is a discouragingly large number of malcontents out in the world who are willing to expend their time and energy undermining the statute given copyright monopoly and to do so without any prospect or intention of securing a profit or any kind of return from their activities. Indeed, the evolution of Gnutella and particularly of Freenet, simply represent the consumer community relying on self help to the extent their resources permit (and those resources have been greatly increased by the degree of collusion permitted by the Internet).

Their existence and use are strong evidence of consumer discontent with the current legislative regime. Having attempted to influence that regime and discovered they are unable to, consumers appear now to be quite content to play a purely spoiling game.

Toward the Frictionless Environment

We must not forget that we are currently not even 10 years out from the first use of the World Wide Web [93]. Further, it has been only 10 or so years since the use of desktop computers has become particularly widespread [94]. Nowadays consumer grade components are able to make perfect digital copies of CDs in five to ten minutes at a cost of less than A$2.00 per CD. Technologies are available to burn MP3 data onto a CD. These technologies can allow up to the equivalent of seven to ten ordinary CDs to fit onto one physical CD, albeit at reduced sound quality [95].

Under this scenario a person is able to copy the equivalent of ten CDs in the space of under ten minutes and to store that in a medium which will fit into their coat pocket for less than A$2.00. The more adventurous of the technically literate in our community can create "virtual jukeboxes" through the use of hard disks. It is possible to get trays which fit into a computer bay which allow hard drives to be slotted in and out of the computer without the need to open the case of the computer.

A 20GB hard drive in Australia at the time of writing this paper cost about A$250.00. To copy such a hard drive when attached to a system would take something on the order of an hour. A 20GB hard drive could carry the equivalent of about 30 CDs at full CD quality or approximately 300 in an MP3 format. Put another way, today an individual could acquire a copy of 300 CDs from their friend while waiting for the BBQ to cook on one lazy Sunday afternoon [96].

In the past, the time, effort and expense [97] of reproduction have always induced friction into any piracy attempt. Such friction provided a natural limit to the amount of piracy that would take place and exclude those who lacked the will or technical expertise. Today there is still some element of that friction present, but much less so, and the future will only see that friction decrease. What will happen when these friction creating elements have disappeared?

For example, five years ago a 2GB hard drive was something of a premium product. If this trend continues, by 2006 200GB hard drives may be the norm. To take the analogy to its logical conclusion, imagine a world in which a person's entire life can be fit onto a device the size of a credit card or smaller and can be replicated with no effort whatsoever. Imagine a world in which technologies such as the successors to BlueTooth [98] or Radiata [99] have delivered a broadband wireless existence in which everyone is a walking server of themselves and mere physical proximity to a person allows you to access the information that they have made publicly available on their server - by which we mean a credit card sized device on their body or in their briefcase.

Think about how many people you might pass by in any given day. It would only take a handful of those people to have infringing material on them to create the copyright holder's nightmare. Should you wish to actively seek out infringing material a short walk across a university campus would net you plenty to keep you occupied.

Further, in such a world each computer in a house down a street could be a wireless server for its neighbors. There may be an entire sub-network of peer to peer relationships which do not rely upon the existing networks of telecommunications carriers [100]. It is a world in which there is no one "pipe" which can be watched to enforce copyright compliance. That is, the whole paradigm of telecommunications carriage may be undermined and there may be no static targets that could be the subject of regulation or litigation.

About the Author
Brendan Scott is a lawyer currently working with a major technology law firm in Sydney. He was admitted to practice in 1993 and has practiced in the areas of Telecommunications and Information Technology Law throughout his professional career. During that time he has acted for a broad mix of clients, both vendor and customer in these areas. Brendan is the immediate past president of the New South Wales Society for Computers and the Law. Brendan is on the editorial board of the Internet Law Journal and is a former editor of Computers and Law.

E-mail: brendanscott@optusnet.com.au
Website: http://www.members.optushome.com.au/brendanscott/