They say I’m a pessimist about the future of freedom on the net, and they’ve got two books of mine to prove it. But the report that the RIAA has now filed suit against four students for sharing content over a university network is a moment of hope. If we work hard to report the details and reality of this suit, then the extremism of the RIAA’s tactics will finally get through.
Let this extremism finally force recognition of the best response to this problem for now: a compulsory license with a large carve out for non-commercial “sharing.” Napster proposed as much in 1998. Had Congress listened, then we would have had just as much sharing over these last 5 years, but artists would have 5 years of income, and fewer of our children would now be felons. Instead, Congress did nothing (except pass the Sonny Bono Act and the DMCA), and 5 years later, artists are no better off, our kids are now “terrorists” (such is the rhetoric of the other side), and the cartel of the RIAA is only stronger.
What politicians need to remember is that Congress has always adjusted the rules by which creators get paid as a response to new technology. That’s just what they should be doing today. Never before has the law been used to force new technology into old way of doing business. Every time before this, it was the law that adjusted to assure artists got paid given the new technology.
There are any number of proposals floating about just now for a compulsory license for content [Ed Felten has a nice post on this; my favorites are William Fisher’s from Harvard, and Neil Netanel’s from Texas] — a way to free content while assuring that artists get paid. All of them would also have the salutary effect of leaving our courts to deal with real criminals (can anyone spell Enron anymore?), and leaving the internet to do what it does best (making content broadly and efficiently available).
It’s time for Congress to turn its attention to constructive ways to assure that artists get paid without destroying the extraordinary freedom of the internet. This has been Congress’s role in the past. It needs to get beyond the distortions of a bunch of lobbyists if its to play its proper role in the future.
I’m pessimistic. Just think about the
“three-strikes” cases
I’m made further comments in a blog entry of my own at
Extremism and the “RIAA 4” megadamages, vs. three-strikes laws
I strongly disagree – such proposals only benefit incumbent publishers, not creators. Here I explained this in detail:
1. By statutorily imposing a solution like this, it makes it much harder to establish a true marketplace for digital media – people are reluctant to pay twice. This will reduce overall spending on music.
2. Statistical measurement of a scale-free distribution like music (or the net) is hard to do well – because the central limit theorem does not apply, most sampling will count the large players accurately, but miss significant numbers of small players who may well predominate in aggregate. This kind of centralised scheme undoes the bottom-up formation and propagation of musical styles that the net can do, and puts us back into a top 20 world. I analysed movies, newspapers and weblogs scale-free distributions. If anyone has good data on music revenues by album or group, let me know.
3. Any centralised taxation-like scheme is highly prone to capture by a few interest groups – ASCAP and BMI are poorly regarded by independent musicians for this very reason.
4. By legitimating only non-commercial repurposing of existing copyright, it does nothing to cut through the thicket of rights and licensing that acts as dead weight on those who create; instead it pushes derived works into a second-class non-commercial status. My model in which derivative works pass through the cost of the source works is far more liberating.
A far better idea is to establish a true marketplace for media that incorporates incentives for those who buy and sell within it to reward copyright holders.
The goal of any intellectual “property” policy should be to allow people to derive income from creative efforts without inhibiting those creative efforts. The problem with treating knowledge and information as property is that it accomplishes neither of those goals.
The reason why it’s difficult to profit from information is that it’s easy to copy, so there’s an unlimited supply. IP amounts to the right to artificially constrain the supply for the purpose of increasing the amount that people are willing to pay for what’s left. However, it does no good to constrain the supply of a small amount of information because there are too many alternatives. If one musician figures out how control access to his music and demands a price, while all other music is available for free, the musician who demands a price will never get heard or paid. Control only becomes an effective means of increasing price if a central authority controls access to a large enough portion of the supply that people find paying a price preferable to circumventing the control.
The problem under such a system is that what is being rewarded is control, not creativity, and most of the benefits go to the creators of the control, not to the creators of what’s being controlled. It should come as no surprise that in every information based industry (e.g. music, books, scientific publishing, software) supply is controlled by a small number of companies, the people doing the creative work get little or (in the case of scientific publishing) none of the financial benefits, and only after agreeing to terms that amount to abrogation of their right to challenge the control of the central authority. This is not an accident.
Compulsory licensing with non-commercial carve outs would be a step in the right direction, but it starts with the assumption that the profits of the information industries must be preserved, and that consistent with that we should minimize the harmful impact on creativity. Why not start with the assumption that obstacles to creativity must be avoided, and consistent with that we should make it as easy as possible for the creators of information to make a living? That is, after all, what the Constitution requires. The sole authority of Congress to pass IP laws stems from the copyright clause. The framers of the Constitution intended for the copyright clause to be interpreted in a way that did not conflict with the first amendment. If we perceive a conflict, the first amendment, as an amendment, trumps the copyright clause.
Rather than a compulsory licensing system, why don’t we have a compulsory payment system? Jeremy Herrick has proposed replacing copyright with “profitright.”
http://www.uea.ac.uk/~j013/wipout/essays/0315Herrick.htm
Under such a system, creators would receive the right to share in the proceeds of commercial exploitation of their work, but not the right to control it. I would modify his proposal by enumerating the modes of commercial exploitation covered by profitright, and by requiring that the lion’s share of the proceeds accrue to the original creators, or that they obtain fair value for the sale of their profitrights.
For example, we could say that a percentage of the proceeds from the sales of CDs, ad revenue of radio stations playing music, movie theater tickets, home video rentals, and printed books would accrue to the creators of the content. There are other modes of commercial exploitation, but as long as we identify the largest ones, and ensure that the creators of the content receive a fair share of the proceeds, instead of the pitiful share they currently receive, everyone who is providing value benefits. The creators benefit because much more money will be available to support them, and they will no longer have to agree to the terms, amounting to indentured servitude, currently imposed upon them. Consumers will benefit because everyone, whether rich or poor, will have to the same unlimited access to information, and products and services maximizing the value of that information will finally be legal. The providers of those products and services will benefit, because by agreeing to be taxed to support the creators of content they will be ensuring the supply of content feeding the growth of their businesses. This solution is also “future proof” because as technology changes the list of modes of commercial exploitation covered by profitright can also be changed, without creating barriers to creativity or structural economic inefficiencies.
The only losers under this proposal would be the current information monopolies. Since they claim to be such proponents of the free market, they should get a taste of the free market when it’s really free. If they want to stay in business, they should get into a business providing products and services that people want. If they can’t do that or don’t want to, they should share the fate of other unprofitable businesses. In any case, they should stop whining that everyone is stealing from them, least of all some college kids who supposedly “stole” $100 trillion, when if fact the content monopolies are the ones doing all the stealing, and using the proceeds to pay Congress to make their brand of stealing legal.
I don’t want to get bogged down in details at the moment, so I’ll just state some observations.
With the ability to take digital content and automatically create physical art, we have effectively made information into property. What we’ve done is make information into something that _must_ be treated like property, or else all of the rules of the physical world that have served us so well over the years just go away, and huge problems, legal and societal, ensue. The best way we know of to move forward is to build on past intellectual structures, and if we’ve lost the foundations of those structures, we must build them anew in the digital world.
My second thought is that in almost every case, it seems like most of society would rather look out for themselves (as individuals) than follow the law. If there were no guards against theft but the law, everyone would steal. That doesn’t make it right, or more importantly, that doesn’t mean we have to live with that seemingly natural state of affairs. We devise solutions, just as we devise public health measures and force them upon everyone, again seemingly against their will. So in my mind, the fact that “our kids” are now felons in large numbers should not be scoffed at. The vast violation does not imply that the laws are ridiculous, rather that effective measures (not punitive but preventative) are not in place to bring the preponderance of kids in line with the law…
Right now it seems like a compulsory license is at best a stopgap measure. Perhaps “for now” it is a better solution, but the RIAA will not accept any system that does not give it complete control over pricing and distribution (initial or post-sale).
There is money to be made in this arena – I have yet to speak to anyone who said they would mind paying a reasonable fee for legal music sharing. Supposedly Apple has something in the works for their new I-Tunes service, and they’ve even managed to wrangle contracts with some top record labels. I’m hoping that this will serve as a proof of concept – make it a reasonable, unrestricted service and the users will come.