Today I was talking with Blythe about some of the problems in trying to make affirmative policy proposals to solve current problems in digital media. 

One issue that kept coming up was how many different subpossibilities there are within each possible future scenario.  For instance, as I’ve discussed before, your opinion of the status quo hinges on what you think of DRM.  Your opinion of a no DMCA, let-the-market-decide scenario depends on whether you believe the market will really sort these issues out fairly (given the concentration in the entertainment industries and possible misuses of DRM).  Within each possible policy choice, you have to play out tons of different alternatives to determine how it could unfold.

So many different issues are interconnected. For instance, I’ve noted how I see the broadcast flag issue as intimately connected to the spectrum issue.  Furthermore, the future of television is also tied to commercial skipping and piracy as threats to the current business model.  Even if you were to deal with piracy and deal with the spectrum side, the commercial skipping one would still greatly change people’s ability to profit from TV.

And what’s good for TV isn’t necessarily good for music. Even what’s good for consumers of TV isn’t necessarily good for consumers of music.

This complexity is quite overpowering for me sometimes.  I don’t know where to begin to think about what sort of policy proposals I’d suggest writ large because there’re so many different variables to consider.  So, I end up focusing  narrowly on single pieces of legislation or change I’d favor. That’s good, but it’s weaker in some ways than the RIAA’s and MPAA’s stances, which fits all of their ideas into a larger framework.

Moreover, because there are so many variables and so many possibilities, I often feel like maybe what we should do is just pursue the laissez faire strategy. Get rid of the DMCA, and let technologists create and let people use technology.  Give it a little more time, and we’ll go from there. 

Though a more sweeping change, I think we should also push for opening up the spectrum now, because that’s key to letting technology flourish in a competitive market.  It goes along with a let-the-market-decide mentality. Spectrum  also plays a significant role in several issues in digital media. It’s critical to how we conceive of content’s production and distribution, and thus important to how we’re trying to protect the movie, television, and music industries.  If we wait and try to deal with spectrum later, we might undermine any solution we come up with in the meantime. (This is not to say it’s significant to all issues; opening up spectrum or keeping spectrum the same doesn’t change the essence of the piracy problem.) 

The DMCA is probably the most effective line of attack because it’s a much smaller change than opening the spectrum.  But, as long as we’re pulling off needless restrictions, reshaping spectrum must be considered, too.  It’s still a much more clear-cut argument than some other policy proposals, because the way spectrum is treated right now is “bad science.”

The problem with the laissez faire strategy is, first, that the free market strategy won’t necessarily be good (as noted above), and it’d be nice to mitigate those problems now.  Second, when have we waited long enough?  Think of this in terms of the debate about an Internet sales tax.  We haven’t had one in part because we wanted to let e-commerce grow absent such constraints. But when is enough enough? Lastly, the laissez faire strategy doesn’t always feel like an affirmative strategy.  It’s hard to say, “My policy proposal is no more policies for a few more years” because, with fair use and piracy in particular, it seems like there are plenty of urgent issues.  Doesn’t it seem negligent to wait?

Many Congressmen treat it as negligence.  They want a solution to these problems now; they fear the negative impacts on the economy, and they’re tired of dealing with the MPAA and RIAA breathing down their necks. That’s my impression, at least.

If that’s the case, then we’re almost forced into a position to propose more than a free market strategy.  If they won’t settle for anything more than a quick fix (good or bad), then we’ve got to push policy changes like compulsory licensing.

[Updated: 2-14-03 ]

Alex Macgillivray discusses Bennett Lincoff’s compulsory license plan (which I have discussed here.)  Alex argues that we should “base pay on what we do with music: listen, mix, and derive new music” rather than copying.

Basing pay on precisely how something is consumed has some drawbacks, though.  Monitoring use could be seen as an invasion of privacy.  Someone might not want their MP3 player sending statistics back to a server telling it exactly how many times s/he listened to a particular song, for example. 

It’s worth noting Professor Fisher’s plan doesn’t pay out this way (I think); while it’s based on sampling, it still only samples downloads or streams rather than particular uses.  It does not examine how many times you play a given song, even though the pay out for each artistic medium does take into account the typical.use of the medium.  All the sampling is done at the router or ISP or webcaster level.

Later: Alex has a good response here.  He’s right that tracking copying can be just as privacy invasive. (Though I didn’t note it before, it’s also worth pointing out that tracking particular uses would mean more costs for software creators, which would be troublesome  for open source/free software creators.)

Alex’s idea of tracking use made me think once again about how  certain reuses of art would work in Fisher’s proposal.  I know that we would lift copyright law as it stands now.  I assume that includes derivative works. 

But, what if you incorporate a song into a movie?   Or, what if I synced a music album with a movie (a la Dark Side of the Rainbow)?   Those aren’t even really derivative works, since they’re not new versions of the original – they’re using the exact original.  Sounds like that the original artist deserves something for that.  (If they don’t, then Fisher’s system would be pretty easy to get around. You could, for example, take a picture of yourself, include it with the new Britney Spears song, put that that out on P2P services with your own watermark, and claim that you’re the only person who deservers remuneration because you created the picture+song work.)

So, how do you make sure that the watermark is retained in the movie+song work? Would it be difficult to include the song’s watermark along with the movie watermark? Would transactions costs be high enough to make it difficult for people?