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Features: Compulsory Licensing - What is Music?
Posted by Ernest Miller on Friday, October 03 @ 12:51:42 EDT File Sharing
John Cage composed the once (and still) scandalous 4'33". Yoko Ono recorded the sound of a toilet flushing as a track (Toilet piece/Unknown 0:30) on her album Fly. A number of geneticists have created music from DNA sequences (Genetic Music: An Annotated Source List). Long time readers of LawMeme are probably familiar with the DeCSS Song, which puts the source code of the infamous program to music and sort of reminds me of Philip Glass' Einstein on the Beach.

What the heck does all this have to do with compulsory licensing? Presumably, all of the above sound recordings would be compensated under most compulsory license schemes (many of which only cover "music"). No problem, no one would argue with this, right? But what about this [.WAV] [32K] file?

UPDATED 1915 ET 02 Oct 03.

Ka-Blamo Baudio

The .wav file above is the sound rendition of a .bmp file that normally represents a picture of Scott Matthews, author of the smart MP3 server Andromeda. Scott has written a small program called Ka-Blamo Baudio which:

adds a 44 byte header that transforms any type of file into a WAV file, saving it with a ".wav" extension appended to the end of the file name. So, for example, hello.exe would become hello.exe.wav.
Conversely, the Baudio decorder takes a file and removes that 44 byte header and the trailing ".wav" extension, reverting it back to its original state.

What Scott's program means, is that any digital content can easily be transformed into a sound file, or in technical copyright lingo, a "sound recording," which when fixed becomes a "phonorecord." Many compulsory license schemes only apply to "music" but since they don't define the term, or discuss changes in how audio works are categorized, one must assume that they are using the current definitions of "sound recording" and "phonorecord." Consequently, any creator of digital content can benefit from a music-only compulsory license scheme.

A Boon for Shareware Authors and Pornographers?

Such a system works for any digital content, since anything digital can easily be transformed. You can transform video, images or even software into an audio file. However, we can look at two likely users of such a capability - shareware authors and pornographers.

Generally, a shareware author relies on the kindness of strangers to receive recompense for their programs. Unfortunately, the rate of return can be pretty lousy. Many people who use shareware never compensate the author, despite requests, and even annoying reminders. Ka-Blamo can provide a solution.

Under most compulsory license schemes, a shareware author can turn their program into sound file, encourage others to download it, and receive money through the allocation fund. Users of the program can easily compensate the author, not by sending him/her money directly, but simply by downloading the version of the program with a sound file extension. Given the ease of use with which Ka-Blamo Baudio and Not-Ka-Blamo Baudio decoder work, many users would be happy to use such a system.

This even works with "voting" systems, such as Aaron Swartz's system, previously discussed on LawMeme (Aaron Swartz Invents Proto Whuffie). Instead of sending Aaron's gift certificates to musicians, you can send your gift certificate to your favorite shareware author(s).

The same works for pornography as well. As anyone who watches what is being searched for on P2P networks knows, there is an awful lot of interest in pornography on P2P systems. Unfortunately, many compulsory license schemes do not discuss how pornographers are to be compensated when their work is shared. Even if the compulsory license scheme addresses all media, there isn't any discussion devoted to the fact that politically controlled schemes will likely slight pornographers and they won't get fair compensation. Through this means, however, pornographers can freely share their works and be assured of reasonable compensation. This would be especially attractive to amateurs, I think, since they wouldn't have to run websites with passwords or worry about e-commerce issues. Their audience would also love it. No more mysterious credit card charges to explain ... your porno collection is disguised to look like part of your music collection ... there are a lot of benefits.

Choose Your Compensation Scheme

Even if the compulsory license scheme isn't music-only, the fungibility of digital files means that artists will be able to choose which compensation scheme they prefer ... since presumably different media types will receive differing amounts of compensation. Don't like how much your song can get from the compulsory scheme? Turn it into a "video" (or "software" or a "photo" or whatever) that receives more compensation. One can also imagine that programs like Ka-Blamo Baudio can be tweaked to take advantage of the compensation schemes for various sorts of media. For example, many propose compensating audio files on some basis that takes into account their length. Thus a 3 minute piece would be compensated less that a 15 minute piece. Programs like Ka-Blamo Baudio could easily be tweaked to take any file and create an audio file of arbitrary length beyond some minimum size, based on the original file size. I can imagine shareware authors "pricing" their software in minutes and seconds.

Steganography

Another method that can be used to gain compensation would be steganography, which permits one to embed one digital file into another. It can be cumbersome, but the bigger the audio file the better, right? In the case of steganography, one takes an audio file (such as the author singing the Star Spangled Banner), and embeds another file (such a software program or pornographic picture) in the original by taking advantage of unused data. Britney Spears could send a photo of Britney embedded in her latest opus. Pornographers could embed photos in a track of moans and groans. Shareware authors could embed their program into a track created by a text-to-speech program that read the source code.

Good, Bad, Indifferent?

Many people will consider manipulating the compensation system for compulsory license in this way a bad thing. Certainly, if the compulsory scheme is music only, the ability of other media to take advantage of the system will create resentment, as the fixed pie is spread among an ever greater number of mouths. If the system is all media, this will likely be a lesser problem, but the fact that people can media shift to take advantage of "better" compensation allotments will also cause consternation.

Can these problems be solved? Perhaps. One possible law to halt the steganography issue would be, not to ban steganography, but to deny compensation for the sharing of any file that utilized steganography. However, there are costs to this. Interesting marketing techniques would be forever unexplored, for example. It seems odd to say that you can't add value to an existing work this way. What about other forms of bundling files? Will all bundles not be compensated?

Ka-Blamo Baudio actually raises the more difficult question. How will we readily distinguish and claim that what Ka-Blamo Baudio does (or more sophisticated versions) is not music - is not art? Where and how will we draw the line? Who will get to decide what and what is not music? Will they be able to exclude Yoko's toilet flushing and ring tones? Will they exclude Cage or the DeCSS song? Frankly, I think the .bmp/.wav file is kind of interesting ... certainly I can imagine defending it as art.

In any case, proponents of compulsory licensing schemes may want to consider how they will handle this issue, before we adopt a compulsory licensing scheme.

This is one in a series of posts looking at some of the issues regarding compulsory licensing that don't include collection and distribution of funds. For previous postings, see:
Compulsory Licensing - What is Noncommercial Use?
Some Questions and Concerns Regarding EFF's Filesharing Policy
What Should the RIAA Sue For?
Compulsory Licensing - More on Commercial/Noncommercial
Compulsory Licensing - The Death of Gnutella and the Triumph of Google
Aaron Swartz Invents Proto Whuffie
Compulsory Licensing - Where Are the Defenders of HTTP?
Compulsory Licensing - The Public Domain Lottery?

 
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Re: Compulsory Licensing - What is Music? (Score: 1)
by btempleton on Friday, October 03 @ 20:42:12 EDT
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Music has traditionally had different copyright licencing rules than other media. The compulsory licences we've been investigating in many cases only work for music, not for software and other things.

The likely means of payment in such a system would be through stochastic sampling. Some people would have music players (voluntarily) that note what they listen to and provide data for dividing up the money. It works for the near-trillion dollar advertising industry, it can work for music.

So you can convert software to music, but the author won't be paid unless the "Neilsen family" people sit and play the noise in their player, which doesn't seem very likely.


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Re: Compulsory Licensing - What is Music? (Score: 0)
by Anonymous on Friday, October 03 @ 21:57:35 EDT
In my essay Sharethemusicday.com [www.sharethemusicday.com], I talk about some more follies of compulsory licensing.

Compulsory licenses seems to be the "cleanest" solution, and it appears to have implemented in Canada with moderate success, but the approach has fundamental problems. First, it seems rather easy to game the system to make some songs appear more popular in popularity statistics. It offers advantages to incumbents at the expense of emerging artists. Second, frequency of sharing may not correlate well with user's perception of value (although it may turn out to correlate well with what would have been actual sales figures). Regardless of whether we love the Spice Girls, their files are going to be shared more often than that of Simulacra. Second, a flat fee imposes a cap on potential profits and creates a reason for music businesses to seek "tax increases" on a regular basis. This is more of a "user fee" than a tax, but still establishing a "just rate" would probably result in prolonged battles in public. Just look for example at the ugly negotiations that Internet radio had with the music industry. Third, it's unclear how to measure user statistics when mp3's can be played or downloaded in many different contexts. Should we measure radio plays? What about music scraping applications? What about IRC? What about Internet radio (which plays to multiple listeners)? What about venues in which multiple people are listening? What about foreign listeners? What about car radio? What about PC makers who include freebies like a DVD with free music? I fear that any measuring system will lock us into one specific method of sharing, and it will reveal the folly of trying to micromanage an economy.


The question of compensating pornography may actually be the reason why CL is never tried. But it seems hard to think that this feuding about royalties will be a public debate involving unions and industry groups. (I advocate, btw, a voluntary compensation system for musicians).

But even if compulsory licensing is impracticable, the concept can be incorporated into current distribution/aggregation schemes. For example, with live365, dj's get 50 cents for each subscriber who lists his radio station as a favorite. Certainly it should be possible for mp3.com to compensate musicians according to the number of times that users download. The problem is: mp3.com is not charging money! And probably can't do so given the culture of free. On the other hand, if content aggregators charged a flat fee for unlimited downloads (say 10$) to a file sharing network, that would at least create revenues to distribute according to download popularity.

I believe, btw, that the difference between content aggregators like mp3.com and p2p will fade. It's only a matter of time before mp3.com develops its own custom p2p client for downloading/sharing files within the mp3.com network (perhaps a bit torrent based client requiring some sort of authentication).



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Re: Compulsory Licensing - software (Score: 0)
by Anonymous on Saturday, October 04 @ 20:05:56 EDT
A more practical method for a software author to slide in on the compulsory licensing money would be to bundle in a small music file with the software which plays on every execution, and which is required for the software to function - it might be something really simple, like the jingle when Windows starts up.


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Re: Compulsory Licensing - What is Music? (Score: 0)
by Anonymous on Wednesday, October 08 @ 01:51:28 EDT
(Legal babe in the woods here...)

We are, of course, living in a world where every expression of an idea can be distilled into a sequence of numbers. This will soon be true for everything in practice as well as theory.

It seems incredible to me that anyone can assert "ownership" or be granted "rights" to a sequence of numbers.

It also seems that a soon-to-be-profitable exercise would be to randomly generate arbitrary sequences of numbers (imagine terabytes of random files). Then sue anyone who comes out with a sequence of numbers that bears a close enough semblance to one of my own.

After all, these random sequences can be transformed into any arbitrary media format -- an e-book, a pdf, an mp3, a jpg, whatever -- merely through the appendage of the appropriate bundle of bytes. Who's to say that a sequence of bytes I generate today isn't an early version of a song Madonna will come out with in 2020?

In fact, humankind's capacity for data storage is quickly outpacing our ability to produce "content". One can easily imagine a not-so-distant future (plausibly a few decades from now) where every possible sequence of bytes of every potentially interesting length can be stored in a single facility, and that there can be several of these facilities -- perhaps everybody could have one. At that point, nobody will be able to assert "rights" to any expression of anything, because everybody will already have a copy.


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