Ernest on CDT’s “Balanced Path” for Copyright

CDT has published Protecting Copyright And Internet Values: A Balanced Path Forward
In fairly typical fashion, CDT attempts to take a middle of the road
simply for the sake of being middle of the road, avoiding numerous
substantive considerations and hard questions along the way.  I
largely agree with
Ernest’s must-read commentary, particularly regarding the enforcement and DRM sections.

Eldred in Light of Raich

The Supreme Court delivered its decision in Gonzales v. Raich yesterday. Professor Solum’s posts are a good place to catch up; SCOTUS blog
has also been all over it, with too many posts to link.  To
(over)simplify: it was to be the decision that showed that the
Rehnquist Court conservative majority was serious about its federalism principles expressed
in Lopez and Morrison and thus would apply them to “liberal” causes, too.  Instead, it seems to have rendered those opinions merely symbolic, greatly limiting their key tenets.

As you might recall, the petitioners in Eldred positioned their case in line with Lopez.  If
reading the commerce clause as limitless is wrong, then reading the
copyright clause as limitless is equally so. There was incongruity
between the cases – for one, Lopez dealt with states rights – but this underlying principle was still at the heart of both.

When Eldred came down, Professor Lessig questioned whether the “silent five” was truly committed to the principle in Lopez.  Mark Raich as an apparent answer in the negative.  At least, the five in Lopez did not really share a unified consensus on what the principle was.

Mercora’s Expansion, Hype, Legal Qs, Etc.

Via Postplay comes this article
from about Mercora’s new web-based music search tool. 
Let me counter a bit of the hype: in terms of Mercora’s core features,
this is unremarkable. It is merely a web-based version of the existing
Mercora software.  The ability to search for and instantaneously
play particular artists or songs is already available through the
Mercora client. As in the software client, you can only access content
that is at that very moment being streamed by one of Mercora’s
users.  All this does is allow you to do so through a web
browser after you’ve already installed the Mercora software.

Though SoundExchange’s John Simson states that they’re evaluating the
legality of the new web-based service, the legal questions appear no
different than for the software client. Mercora can provide these
on-demand streams in a lawful way by ensuring that each individual
user is following the DMCA guidelines
for non-interactive webcasting. So far as I can tell, Mercora violates
no law regarding on-demand streaming because they are not actually the
ones streaming. They’re just providing a search engine for songs
currently being streamed by the myriad individual Mercora users. 

This feature is fairly cool, at least for popular content.  Even
though there are plenty of Mercora users with rarer tracks, the rarer
the content the more unlikely it is to be webcast at the moment you
want it.  Also, streams through Mercora can sometimes be slow and
of unreliable quality. suggests that Yahoo! or other music stores might enter this
arena, and that makes some sense. Rather than streaming mere 30 second
clips, music stores could allow customers to try out whole songs before
they buy them.  Mercora currently provides links to Amazon if you
want to purchase a song you’re currently listening; such a feature
would be much more powerful if folded directly into a music
store.  Of course, this assumes that most consumers remain purely
in a pay-per-download mode.  The more consumers shift over to
on-demand services like Yahoo!’s and Rhapsody, the more these on-demand
Mercora webcasts become irrelevant; in terms of quality and reliablity,
Mercora’s on-demand streams are certainly inferior. You might sometimes
be able to find a
stream on Mercora that you can’t find in Yahoo!’s music store catalog,
but that only makes this a worse fit for the music stores, because then
the streams can’t drive people to purchases  Then again, Rhapsody
and Yahoo! both have radio stations with content that can’t be found in
their on-demand streaming and downloads catalog, so, in that light,
including a feature like Mercora might still be worthwhile.