June 19, 2003
Breaking the Copyright Impasse: Try Compulsory Licensing!

But it's not for the RIAA, yet. They're still working on heavy handed measures that ignore the realities of digital media and flat hierarchy distribution in favor of sending cease-and-desist letters (AP) (or htm) (or BBC) to the four Verizon customers (plus one from Earthlink) for file sharing of copyrighted works. As Wendy Selzer mentions, users are entitled to their privacy until they have had the due process proving they are copyright infringers. The RIAA has sent the letters without judicial review. The only review in this case was whether the ISP could be compelled to violate their user's privacy. See the opinion in the case.

However, Donna points to this article from The Phoenix: Privacy, Breaking the Internet Copyright Impasse by Dan Kennedy:

Simply put, the current paradigm encourages both goon-like behavior on the part of the music industry and other content providers even as it rewards larceny on the part of consumers.

"We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other.... The Net forces us to confront the contradictions between what the law requires and what individuals do," (Jonathan) Zittrain writes.

Certainly paying a copyright tax in return for the right to trade copyrighted files would be infinitely preferable to giving Entertainment, Inc., the right to snoop into your personal information.

While compulsory licensing may not be the answer, though it has been much talked about, keeping the discussion going in the press about alternatives to goon-like behavior is very much appreciated. Note to the RIAA: we would love it if you would just offer the music at a fair price and in an easy, organized manner, fairly compensating the artists, for digital download.

Posted by Mary Hodder at June 19, 2003 04:02 PM | TrackBack

This is a topic I have been following, and I thought this was an interesting addition you probably won't see in the mainstream media:


Posted by: Sean Mahoney on June 20, 2003 04:23 PM

Unfortunately, in the wrong topic... doh!

Posted by: Sean Mahoney on June 20, 2003 05:13 PM

This is the third time in the past two weeks that I've run across this idea of compulsory licensing. The suggestors are, without exclusion, lawyers or law professors. Lawyers not normally being innovative by nature, the idea is something of a new application of the idea of the "private copy levy" or "cable retransmission royalties" that have been used similarly in the past: tax the sale of an enabling hardware device or its media, assign those proceeds to an organization ostensibly representing the artists, and have them distribute the proceeds on the basis of a statistical sampling.

At the very least, this is a short-cut that closes prematurely on technological solutions to artists' compensation. To me it looks like a last-ditch proposal floated by the RIAA to preserve its oligopolistic control and system of royalty disbursements. Here are three issues that immediately occurred to me:

(1) My dad, who uses his computer enabled by his ISP for email will NEVER, EVER download a single music file. I, on the other hand, may download twenty in a week. Under these compulsory license schemes, we pay the same tax. These fees are completely disconnected from any use or transaction relating to music.

(2) If compulsory licensing is viewed as the road back to the good ol' days by the RIAA, then the amount of tax required to recoup the record labels' recent and future losses will be sufficient to alienate some ISP subscribers. To win them back, ISPs might offer services that disallow filesharing, and will then seek to be exempted from the license fee. Users will sacrifice features to keep affordable basic service.

In any event, we're likely talking about a smaller pool of money than before, which leads to the next issue ...

(3) Who will distribute the proceeds? The government, or the government's designee? It could be some sort of quasi-public agency or collective, like the Canadian Private Copying Collective, which has been sued for not distributing royalties as promised. More likely, it will be some sort of consortium of the usual suspects: ASCAP, BMI, Harry Fox, et al., with input or participation by the RIAA, meaning that the same filters on cultural value that have been serving us to date will be INSTITUTIONALIZED as the ONLY legal conduits for royalty payments. With compulsory licensing, there is no need for anyone to pay a royalty, voluntarily or otherwise, by any other means. No need to develop any technology to enable transaction-based royalty payments, because they would be excessive: artists are presumed to be collecting through the license fee - why pay them twice?

In reality, if there's less money, even fewer artists get the star treatment and a share of the proceeds from the license fee. But in one respect, no matter how much is collected, Big Media will be even more powerful than they are now - they'll be sanctioned by government as the final arbiters of talent.

Today, any unsigned artist can assign royalty collection to whomever he or she chooses. Under compulsory licensing, royalty payments outside the system would be extralegal, and artists who don't get signed by the media conglomerates will be out of luck and money. Those who do get signed will never benefit from any innovations that would expedite payment. They will be subject to the same arcane distribution schemes that have been misused in the past. Royalties will sit like they do today, earning interest in a bank somewhere for six months before (hopefully) making their way back to the artist.

I hope someone talks some sense into these folks before they begin lunching with Congressmen.

Posted by: William Hillis on June 22, 2003 02:20 AM
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