I think that much of the problem now stems from the position taken by the RIAA, who is reaping much of the consequences of sticking its head in the sand as new technology was spawned and in trying to prevent MP3 technology, etc. instead of taking advantage of it.
They have now tried to move the debate to one of “theft.” There are practical problems with the philosophical element of this debate. If I buy a cd, and tape it or burn a copy on a cd burner that is not part of a computer, but is a stereo component, then there is no debate that this is legal. If I make 1,000 copies or even a 1,000,000 copies and give them away without charging any money, then this is legal.
If, however, I burn one cd with a burner that is not a standalone stereo component, but is attached to a computer, I am now a thief according to the RIAA. So if I buy a cd, make a million copies on my stereo, that is ok. If I make a single copy on my computer, I am a thief. There is an inherent disconnect in logic there.
Without a doubt, the issue needs to be addressed with specificity in the law, and the DMCA has not been tested or really interpreted consistently such that anyone really knows what it ultimately means, and I believe that once it has been, it will still need to be replaced with legislation that actually had some thought put into it. The RIAA has lost in certain courts based on its interepretation, and has won in certain courts based on its interpretation. The ninth circuit does not speak for the entire country, nor does a single district judge. Until the Supreme Court rules, what constitutes fair use in the digital age will remain in limbo.
The great shame for the independent developers of ebooks, programs and the like is that it is likely the RIAA that will be their only spokesperson. I think this would be something like having Saddam Hussein be your spokesman for human rights. There certainly needs to be reasonable protection for intellectual property, and consideration given to the new challenges posed by digital technology. One of the problems is that publishers and distributors want to charge as much for things that cost them almost nothing to produce, such as ebooks, as they do for the printed copies, which are far more expensive to produce. (I am talking about the actual product production, not the cost of development). In so doing, they leave themselves open to those who are willing to take the time and effort to reduce physical media to digital form and give it away. If instead, they were willing to make their charges reasonable, they might just find they would make even more money.
As a final note, I think the effects of file sharing are way overblown. Much of what is downloaded is listened to once or twice and put away, deleted or simply stored, but never used. To avid fans of particular artists, there is nothing like having the original cd, the original jacket, etc. CDs will sell regardless of file sharing. What won’t sell are single songs that are novelties or are the sole quality work on a cd of substandard performances.
Record labels will find ways to offer more value for purchasers of the originals, and to make money from songs and albums download from the internet. When they begin to do so in a serious way, I believe they will find that the current situation is an old story with a new book cover. Just as vcrs did not bring about the end of the creative world, as was so widely predicted, neither will file sharing. It will actually be a new profit center to forward thinking and creative companies.