A Copyright Perspective
I’ve discussed compulsory licensing before. It’s an idea that won’t quite go away. LawMeme has a series of commentaries on aspects of compulsory licensing, including three in early October 2003:
Ø An October 3 posting raises the novel question, “What is music?” Consider John Cage’s “masterpiece, 4’33”—a stretch of silence lasting just over four and a half minutes. Or Yoko Ono’s half-minute toilet flush track on the album Fly. Or music created from DNA sequences… Are those all music? Should they, then, be compensated under a compulsory license scheme? In fact, any digital file can be rendered as a .wav file, which makes it music of a sort. All it takes is a little program to add a 44-byte header and save the file with a .wav extension. (Yes, there is such a program, “Baudio,” with a decoder to remove the 44-byte header and extension.) Any data—software, documents, pornography—could be a piece of music, given that there are no real definitions of what constitutes music and what doesn’t. The posting—it’s a four-page article—suggests an alternative, particularly for compulsory licensing schemes that factor the length of a composition into compensation: Steganography, where the real digital file (a photo, a program, whatever) is embedded in a “real” piece of music by modifying certain bits in certain bytes. (This is easy to conceptualize. If you wanted to transmit a 100-character text message, for example, you could take a digitized photo and modify the bit patterns so that the last bit of each byte was changed to “0” or “1” to spell out your message—that is, if the receiving program ignored the first seven bits of each byte, it would restore the message. That would only require 800 bytes for 100 characters, a tiny little photograph—and the differences in image rendition would be minor, if not insignificant. In music, the effect would be essentially-inaudible changes in loudness. You could use a fancier scheme, of course.)
Ø An October 7 discussion continued this discussion, responding to a post by Derek Slater regarding the first one. Slater basically says not to worry: If it’s copyrightable, it should be compensated. But compensation also includes “use”—and, given that you really don’t know what’s being copied, how do you define use? (Much of this discussion has to do with gaming a system: That is, manipulating monitoring systems so that creators get more or less compensation than actual usage would justify.) The discussion goes on—and if you’re at all interested in compulsory licensing, it’s worth a read. Derek Slater gets into trouble when he tries to distinguish between songs and “sounds,” and uses as a “sound” the Windows bootup sound. Except that the Windows 95 sound is a composed piece of music, created by Brian Eno, and more recent Windows bootup sounds are clearly music. (According to comments from Eno quoted in this post, Eno actually created 84 “tiny little jewels” in the process—given that the piece of music had to be 3.25 seconds long, it was an interesting compositional challenge.) So: Should Eno be compensated for all those plays? If not, why not? And how about the theme for the NBC Nightly News, written by John Williams in 1985 (on commission)?
Ø The next post, also October 7, discusses the issue of whether compulsory licensing should move beyond music to all media. Derek Slater believes that other industries would only support compulsory licenses if either the music system worked great or it worked very badly and they thought they could find ways to benefit from those flaws. But the LawMeme writer believes the public would push for broader compulsory licensing—and that may raise broader issues. He offers examples of why arguments for compulsory licensing for music also apply to other media.
Ed Felten is uneasy about compulsory licensing for various reasons (explained at Freedom to Tinker). “I’ve said before that I’m skeptical about their practicality. One reason for my skepticism is a concern about the measurement problem, and especially about the technical details of how measurement would be done.” That’s from the first paragraph of a December 10 posting. He goes on to note that advocates tell us what they want to measure, but “as far as I know, nobody has gone into any detail about how they would do the measurement.” He doesn’t believe there’s an easy answer and wants a serious proposal with technical details that covers existing, new, and diverse platforms. “The devil is in the details; so show us the details of your plans.” Comments on the posting tend to dismiss the problem, either because broadcasters and webcasters are required to keep detailed records, because “you can easely track how many times a song gets purchased or downloaded” (from someone who assumes that all downloading will be from “shops,” even though the whole point of compulsory licensing is to compensate for P2P networks), because the PC music player could do it—although none of them do—and you could “simply generalize this to all MP3 players and portable devices,” or, well, “who cares?” One person does question the revenue side: Where does that “wonderful pool of money” come from?
Why should librarians care? Either the compulsory licensing revenue pool would come from general taxes or from added internet service fees. In either case, there would be an indirect effect on funds available for other services. And if the concept—which, effectively, is that the government enforces the idea that every use of a piece of music results in compensation to the creator—is accepted for music, it would soon be expanded to books and the like: One way or another, there would be a fee for each circulation. (That’s not paranoid; the UK has such a system already.)
I have other problems with compulsory licensing. First, I don’t believe such a drastic solution is called for at this point. Apple’s iTunes offers some indication that people will do the right thing if it’s convenient, even though I regard iTunes as overpriced (given that it’s offering heavily-compressed music and that, for a full album, you’re paying what a physical CD with uncompressed music, artwork, and liner notes should cost). If 40% of the minority of home Internet users who were downloading on an infringing basis have stopped, then compulsory licensing means that the honest majority is indirectly subsidizing the dishonest minority: We would all pay heavier Internet fees to account for the actions of a minority.
Litman, Jessica, “Sharing and stealing,” early draft version (November 24, 2003). 32 p. www.law.wayne.edu/litman/papers/ sharing&stealing.pdf
“The purpose of copyright is to encourage the creation and mass dissemination of a wide variety of works.” Well, SCO and some of the “copyright industries” would assert that the purpose is to assure maximum profit for corporations, but Litman knows the law and the way it should be. She goes on to note that dissemination used to require a significant capital investment—and that digital distribution changes that. “Digital distribution, thus, invites us to reconsider the assumptions underlying the conventional copyright model.”
Litman looks at the odd, complex mesh of ways that facts (inherently not coyprightable) now get distributed and wonders what lessons it could hold for music and other creative distribution.
I’m not providing a coherent summary here because I need to read the article again, at leisure and at length (and, of course, in print form), before I really know what to say about it. Meanwhile, I recommend that you download, print, and read the article if you’re interested in the whole complex of possible alternative models for compensating musicians and other artists. That recommendation is not an endorsement of Litman’s conclusions (not that my endorsement or denunciation would count for much), at least not yet—but it is an assertion that Litman writes well, thinks better, and knows her stuff. You may wind up wildly enthusiastic about her suggestions; you may wind up disagreeing; later drafts of her paper might take different approaches.
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