The Darknet: A Digital Copyright Revolution
By Jessica A. Wood Richmond Journal of Law & Technology Volume XVI, Issue 4
Cite as: Jessica Wood, The Darknet: A Digital Copyright Revolution, XVI Rich. J.L. & Tech. 14 (2010),.
Introduction We are in the midst of a digital revolution. In this "Age of Peer Production," armies of amateur participants demand the freedom to rip, remix, and share their own digital culture. Aided by the newest iteration of file sharing networks, digital media users now have the option to retreat underground, by using secure, private, and anonymous file sharing networks, to share freely and breathe new life into digital media. These underground networks, collectively termed "the Darknet[,] will grow in scope, resilience, and effectiveness in direct proportion to [increasing] digital restrictions the public finds untenable." The Darknet has been called the public's great equalizing force in the digital millennium, because it will serve as "a counterbalancing force and bulwark to defend digital liberties" against forces lobbying for stronger copyrights and increased technological controls.  This article proposes a digital use exception to existing copyright law to provide adequate compensation to authors while promoting technological innovation, and the creation and dissemination of new works. Although seemingly counterintuitive, content producers, publishers, and distributors wishing to profit from their creations must relinquish their control over digital media in order to survive the Darknet era. Absent a government-granted monopoly, free market forces will provide adequate incentives to producers to create quality works, and an efficient dissemination infrastructure will evolve.  Part I examines the prospect that, due to the Darknet, it is virtually impossible to control digital copying. Peer production is increasing and darknets are becoming more prevalent. Liability rules, stringent copyrights, and technological protection measures stifle innovation, smother creation, and force consumers further underground into darknets. The Darknet poses a particular threat because it is impossible to track or proscribe user behavior. Further, the presence of the Darknet will render technological protection measures unenforceable, or at least impracticable, as a solution for digital copyright management. Part II introduces a digital use exception for copyright to deter development of the Darknet. The proposed copyright shelter is the solution most closely aligned with the goals of copyright, and a monopoly is no longer necessary or practical to accomplish those goals in the digital realm. Part III explores methods by which content creators, publishers, and distributors can profit under this new rule. Absent copyrights for digital works, service providers will capitalize on alternative business methods and data mining. Driven by necessity, they will commission the production of new works.