A Copyfighter’s Musings

Compulsory Licenses for P2P?
Found this on the pho list:
“A Full, Fair And Feasible Solution To The Dilemma of Online Music Licensing” by Bennett Lincoff, “the former Director of Legal Affairs for New Media at ASCAP, where he developed the organization’s Internet license agreement that authorizes Internet performances of the copyrighted music in ASCAP’s repertory.”
Here’s the basics:
“Congress should create an online transmission right for musical works and sound recordings. This new right would replace the now-existingreproduction, performance and distribution rights in these works for online purposes only….
The online transmission right should be subject to a statutory license and administered by a single rights collective on behalf of all rights holders of musical works and sound recordings.
Rights holders and service operators must cooperate in the development and deployment of a uniform rights management system for monitoring which
works were transmitted and by whom. To this end, rights holders would identify the works in which they claim protection. They would also provide a technological means for marking individual works and tracking them when transmitted online. For their part, service operators wishing to qualify for the statutory license must ensure that they only transmit properly marked works and that they keep track of the works they transmit.
In addition, a flat monthly license fee would be charged for members of peer-to-peer file sharing networks and similar online communities wishing to avail themselves of the statutory license.
Royalty distribution would be based on a full census of licensed transmissions. In this way, royalty payments would correspond precisely with online transmissions and they would be made only to those rights holders whose works were actually transmitted by licensed services. Disputes regarding royalty distribution could be settled either by voluntary agreement or by arbitration.”

After just skimming parts of it, I’ve got a couple immediate questions: is this aimed solely at people who put out their music as part of “rights collectives’? That is, how does this plan work with individuals who put out their music independently?
And, why does he only replace those particular rights in copyright? Why not derivative works too?
And what about open source programs not run by any single entity? How could they qualify for the statuatory license?
More comments here.
(Ah, Kevin Marks and others had similar questions on the pho list).

More on “A Full, Fair, and Feasible Solution”
As I discussed below, Bennett Lincoff, “the former Director of Legal Affairs for New Media at ASCAP,” passed a very interesting compulsory license proposal around the pho list. I’ve now had a chance to read it, and I’d like to build on previous suggestions and note what others’ have said.
First, two key flaws:
1. Why does this plan just deal with music? It will not fix the digital dilemma for movies (or publishing, or video games, et al). I don’t see any reason why this couldn’t be extended to movies, and I don’t see why similar market failures in that industry are different.
2. As Temple Law Professor David G. Post writes in “His Napster’s Voice” in Copyfights: “We all heard … about the coming of the ‘celetial jukebox’ …. Most people … pictured this in Library-of-Alexandria terms: there really would be some big box….[It turns out] The network is the jukebox.”
Lincoff’s plan really doesn’t get this. He notes that music will need to be tagged so that one could know which songs were transmitted and thus who to give royalties to. Lincoff suggests that all songs be tagged by the music “service operators,” for “they select the works to be made available for transmission and operate or control the servers from which these transmissions originate.”
Today’s file-sharing doesn’t work that way. There is no big box, no centralized “service operators.” Napster, KaZaA, Blubster – none of them work that way. No central authority selects the works that will be transmitted; the users do that. So, unless Lincoff is saying that no one will want to share files in a P2P setting like today’s because they’ll have these other legal options, his proposal doesn’t really fix the problem. (And, if he is suggesting that, I think he’s dead wrong; people like the experience of sharing with other people, looking through others’ library of songs to find new artists.)
What’s more, he asserts, “Finally, the statutory license fee must contain rates for members of peer-to-peer file sharing networks as well as other online communities that provide the means for their members to transmit covered works. For this, a flat monthly fee per member may be appropriate. Music use reports would still be required.” That’s all he says directly about P2P sharing networks. Why a flat monthly fee, he doesn’t explain, really. Frankly, I’m not quite clear on how such services would be able to do the tagging.

Lincoff notes that “a separate collective should be established for the online transmission right”; it will be separate from ASCAP, BMI, et al What this collective will actually look like, I’m not too sure. Lincoff does a good job of noting the compromises that will need to take place between music publishers, music labels, and “service operators.” He acknowledges and discusses how difficult it will be to come up with the stautory license. What I want to know is: how do we form this rights collective? Who runs it? Stephen Hill, who commented on the article, mentions that “there is no mention of the costs of operating the collective and how they will be assessed on members. This is a contentious issue with existing rights collectives and needs to be wisely and carefully designed.”

Kevin Marks noted that Lincoff suggests taking a true census of what’s been transmitted rather than statistically sampling, as Fisher’s plan would call for. His tagging method, matched with his idea of “service operators”, would make music companies much more comfortable with this idea. The music industry wouldn’t want to lose any money because of poor sampling.

Lincoff does a great job of outlining the problems with DMCA/CARP and all the associated licensing problems. He clearly and carefully outline how the DMCA/CARP process is too burdensome, pointing out specifically how a pay-per-play model is inferior to a percentage-of-revenue model for transmitters.

Filed by Derek Slater at 7:53 pm under
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