How to protect IP

The Washington Post editorial board favors legislation to protect copyright holders from infringement online. Here’s how the Protect IP Act would work:

The proposal would allow the Justice Department or a private rights holder to move against a rogue foreign Web site by convincing a federal judge that the site is “dedicated to” and has “no significant use” other than copyright or trademark infringement. Defendant Web sites would have the right to contest the allegation. An otherwise legitimate site that may have sold a product that turned out to be a fake or unknowingly linked to or posted an item to which it did not have the rights would be spared legal action.

Putting aside the overall desirability of the bill – I’d have to learn more – what would the impact be on copyright holders? Would their position be strengthened? That’s the assumption, and certainly the conventional wisdom. But I can imagine (fantasize?) about a different result.

Say tomorrow downloading or streaming movies or music illegally was impossible. What would the impact be? Would a generation raised on free access to culture throw up its hands and start paying? Or would those artists, creators, labels, studios, etc. who made their content freely available legally gain an advantage? You could imagine shows that could be streamed for free online starting to beat out those that couldn’t, once illegal downloads went away. Or music licensed under Creative Commons finally enjoying significant economic advantage over that which had to be purchased.

You can tell yourself a story about either open licensing or at least legal streaming offering greater not less competitive advantage in this environment. I find it easier to imagine in music, personally, because it’s more difficult to imagine a unified stance against free distribution. Sure, maybe you could get 95% of TV shows behind paid gates. Ditto movies. But does anyone think that’s how it’d go with music? Artists and labels would put their music out for free (either open licenses or legal streaming) in order to gain advantage against more popular artists. And in that way, perfect legal control of illegal copying could theoretically be a boon to those favoring free (as in beer or speech) access to culture.

None of this may be likely, and the kind of perfect control required is pretty spooky. But I find it to be an interesting thought experiment.