James DeLong’s recent comment on this article from Glenn Reynolds raises an intriguing question for me: where do groups like PFF and others who are normally at loggerheads with the EFF stand on proposed revisions to Section 115?
me back up a step. Reynolds laments the difficulties in licensing
podcasting. One of the key problems is that podcasters not only
need licenses from holders of the recording copyright (typically record
labels), but also from holders of the composition copyright.
What’s more, for a single use of a composition, podcasters are being
asked to pay twice – once to those who license performances (PROs),
once for those who grant mechanical licenses (Harry Fox Agency).
Those organizations represent the same artist, but are effectively
competing with each other for licenses.
This problem doesn’t just affect podcasters. As Register of Copyright Marybeth Peters explains, problems licensing compositions have held back all online digital music services. In fact, basically everyone
in the music industry agrees that some change must be made to licensing
compositions and, more specifically, mechanical licensing, though they
haven’t been able to agree on the particulars.
Fred von Lohmann also applauded Peters’ reform proposal. As he explains:
“The proposed legislation would
(hopefully) push (but not force) the composition rights holders to
consolidate all of their relevant digital music rights into voluntarily
formed collecting societies (known as “music rights organizations,” or
MROs), which would then be able to grant blanket licenses for online
uses, such as downloads, on-demand streaming, and podcasting.
Perhaps most importantly, these MROs
would have the power to grant blanket licenses to individual P2P
file-sharers, just as envisioned in EFF’s white paper, A Better Way Forward.
This is an important step in the right
direction, creating the prerequisites for a real, market-based solution
to the P2P dilemma.”
And that brings us back to James DeLong and PFF. They continuously
beat the drum of market-based solutions. They must recognize that carefully structuring and allocating rights can be crucial to achieving efficiency,
just as Peters appears to. DeLong urges laws in this context that
would reduce transaction costs and ease licensing of novel digital
music services, without incorporating “compulsory licenses and
price-fixing.” Peters’ proposal is precisely that sort of
proposal; it even eliminates the Section 115 compulsory.
Thus we might have found at least some elusive middle ground.
At least I hope we have. If I’m wrong and this proposal (or other
similar proposals) isn’t something PFF could get behind, then I’d love
to know why. Hopefully, they will allow an exception to the Everything Fred is False (EFF) axiom, which states that the right answer is opposed to whatever Fred von Lohmann avers.
(For what it’s worth: in the post Patrick Ross cites,
Fred doesn’t say that rights holders should simply “throw up their
hands” in the face of the Darknet. Instead, he lays out the
options we have given that the DMCA is and will be entirely
inefficacious in preventing widespread infringing distribution of
copyrighted works online. Some options do involve heightened
enforcement of various kinds. Fred suggests voluntary “collective licensing”,
which is, of course, what Register Peters is also supporting. At
no point does Fred demand that we “junk the current copyright system”
in favor of compulsory licensing. In fact, EFF’s white paper
specifically says, “Government involvement [through compulsory
licensing], however, should be a last resort.”)