Thierer Against Collective Licensing
Adam Thierer has an excellent post on the pitfalls of voluntary collective licensing schemes. He makes a very convincing case for caution.
How do we determine who should get paid what under a blanket licensing system for the Net? What formula shall we use to determine why one artists gets more than another? After all, counting downloads won’t be simple, and it can be gamed. Lessig says that “there are plenty of ways that we might tag and trace particular uses of copyrighted material.” (p. 272) Really? If that was the case today, then we would have a fully functioning copyright clearance and compensation system in place already. But “tagging and tracing” is easier said than done. The fact is, the same complexities we face trying to enforce such tagging and tracing systems under the present copyright system would be present in any compulsory licensing system.
I wrote something mildly favorable about this approach a few months back that you can find here, and I even tweaked my libertarian comrades.
What plan will work best for music lovers and artists? Instead of a fake music tax, the best solution might be—sorry, libertarians—for the government to step in with a real music tax. In the book Promises To Keep: Technology, Law, and the Future of Entertainment, Harvard Law School professor William Fisher devised an ingenious reward system that levels the playing field for artists. At first glance, it looks a lot like the music biz extortion scheme. The feds would levy a small tax on all broadband subscribers. Musicians, signed and unsigned, would register their creations with the U.S. Copyright Office, who would then set up a massive Nielsen-style sample of music listeners to track the popularity of different songs. The more your song is played, the more you get paid. The revenue from the tax would be parceled out to the copyright holders.
But Thierer has some powerful rejoinders, including:
There are many thorny questions about the fairness of imposing a blanket fee on all online users even if they don’t listen to any music, or those who would be offended at the prospect of being forced to pay for certain types of music (think of grandmas paying for gangsta rap). On the opposite end of the equation, there’s the question of fairness to artists who may not want to surrender the rights to their musical creations at government-set terms and rates.
Ah, the Tipper Gore problem! Vexing indeed. I still think this would be the best way to go — if only it weren’t utterly unworkable!
an ASCAP/BMI system for filesharing would probably be pretty effective since there would be little or no incentive to evade it. youtube is a pretty good example of this. rightsholders who send take down notices to youtube find it’s like whack-a-mole, but rightsholders who cooperate with youtube (like UMG) find that the vast majority of pageviews go to the official version of a video for which youtube pays them advertising. this makes sense from the end user’s perspective. if you want to see, say, a Rihanna video, why bother finding a pirated copy when UMG has uploaded a very high quality copy which costs you nothing to watch? likewise, if you’re a pirate, why bother duplicating the free content provided by the rightsholder? so i think a system where ASCAP/BMI allocated tax rents would actually have relatively little evasion.
furthermore, while there are possibilities for gaming the system, competition might suppress this. first, advertisers don’t want to be bilked and hosting sites don’t want to waste bandwidth on a bunch of zombie pageviews so they have every incentive to hire a third party (probably nielsen) to validate the BMI/ASCAP royalty billings. second, any fixed rent base would be a zero sum game and so ASCAP would not hesitate to call regulators if it caught BMI cheating, and vice versa. (these two agencies have a long and proud history of narcing on each other).
speaking of ASCAP/BMI, Sanjek’s American Popular Music Business in the 20th Century goes into great detail about the various rent allocation schemes practiced by the royalty agencies. certain things would be different because digital technology has radically lower transaction costs than the old school ways and even since about 1990 sales measurement technology has become much more reliable with things like Nielsen Soundscan and Arbitron’s Portable People Meter. however seeing how it was done in the mid 20th century is probably a good way to see how it might be done in the future as it has similarities. for instance, until recently broadcasters basically paid a tax to ASCAP which ASCAP allocated to composers on the basis of a complicated formula combining popularity, seniority, and quality (meaning they gave extra royalties to classical).
the moral objection is a bit trickier but i don’t think it would be /as/ bad as NEA grants to Mapplethorpe because the music tax is dedicated rather than general revenue and there’s a certain legitimacy to a rent scheme that is calculated mechanically, so (at least in perception) it’s not the government that’s deciding to pay for obscenity but the download count.
— gabriel rossman · Dec 2, 03:46 AM · #
You would tax people and give the money to Axl Rose for “Chinese Democracy”? That’s some sort of 21st century Boston Tea Party in the making.
— rortybomb · Dec 2, 04:06 AM · #
It’s a horrible idea, especially if it would work. It would be a step back to bad old medieval days when certain classes of people were supported by the others because they, well, just because.
I don’t see why you said something like this has to happen. Life will go on even if musicians don’t make a dime from their music. We’ll still have music, and might even have a better society where people are participants in it rather than just spectators. If people can figure out a way to use the private marketplace to get others to pay them for being good at what they do, good for them. If not, then they don’t.
— The Reticulator · Dec 2, 06:55 AM · #
Is he serious? Grandmas are already paying for gangsta rap, whether they buy CDs or download on iTunes. You think it’s not the same labels that put out T-I and Sinatra?
— PEG · Dec 2, 08:23 AM · #
P.S. Reihan it’s great to see you back to blogging actively.
— PEG · Dec 2, 08:38 AM · #
No, grandmas who buy Sinatra are not already paying for gansta rap. They’re paying the same companies, but at present they get to choose which products they buy. It’s a pro-choice system now. With a collective licensing system it would not be.
— The Reticulator · Dec 2, 02:09 PM · #