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Features: Compulsory Licensing - More What is Music?
Posted by Ernest Miller on Tuesday, October 07 @ 02:20:26 EDT File Sharing
Derek Slater has responded to my piece (Compulsory Licensing - What is Music?) on Baudio and the fungibility of bits with a post that illustrates the apparent ease with which these issues can be solved (News and Notes on CLs).

His first point is spot on. We really don't want to get too deep into the problem of defining whether an arbitrary .wav file is art or not. If it is copyrightable, it should be compensated.

Beginning with his second point, he and a btempleton begin developing a compulsory licensing system that will ostensibly avoid the flaws I've pointed out. However, this simply moves the question of fungibility to another level or layer. We can't easily define what music is. How easy will it be to define what "use" of an arbitrary audio file is? Such a definition is itself fungible ... certainly a computer has no way of knowing whether one "use" of an audio file is legitimate and another illegitimate. If I double click on an MP3 file, my computer launches a file player. If I double click another file, my computer launches another application. Each is a "use." Just as you can change one file type into another, arbitrary file type, just so you can convert any "use" into another arbitrary "use." Tell me what the "use" is and I'll tell you how to arbitrarily convert one use of a file to the "use" that counts. As usual, there are even good reasons to justify such shifts - such as showing that any such definitions are, in fact, arbitrary.

It is good, however, that Derek makes his proposal more concrete. However, every compulsory licensing system has trade offs. Monitoring usage sounds good, but then you begin running into problems.

I'm not going to go into all the potential problems right now (I'll save that for another post), but as you begin choosing particular paths to avoid, your options for dealing with other problems grows more limited. For example, it is potentially much easier to game the system by faking how many times a song is played, then to download a song multiple times. However, having chosen to follow the path of monitoring "use" - the increased vulnerability to gaming is inevitable. This is not to say you cannot solve the gaming problem, but your options for dealing with gaming have been limited in certain ways by the previous decisions you have made.

As the proposals for compulsory licensing become more concrete these are some the details that we will need to begin to discuss. It really isn't an option to assume the difficulties away - which is Derek's third point. Advertising bans sound easy, but heavily implicate the First Amendment. You might be able to craft such a law, but it won't be simple and you shouldn't just assume the problem away. After all, how do you clearly articulate the claim that this is an illicit abuse of the system? Any compulsory licensing scheme is going to result in the increased creation of works that more effectively adhere to the rules of the incentive system. Do you arbitrarily punish the works that adhere to the rules, but that you don't like? Of course not. However, just as it isn't easy to define what is music, it will be difficult to define what is an abuse of the system. Scott Matthews says that his conversions are to be enjoyed both as audio and executable. Why should he not be compensated for the audio? Why is this illicit? Why is this "gaming"?

Derek's next issue is that many content creators won't take advantage of this because they won't want their materials to be shared in the first place. He notes that one of my main examples is shareware. Proving one of the points of my earlier post (in compulsory licensing schemes there usually isn't any discussion devoted to pornography), Derek doesn't discuss my other main example, which was pornography. Granted, many content producers won't try to take advantage of this because they don't want their files shared. However, there is an awful lot of shareware out there that can take advantage of this ... as there will be pornography. How much is too much? I can imagine that much pornography and many shareware programs will be far more popular than many, many musicians. It would be a strange musician compensation scheme indeed that rewarded many pornographers more than many musicians. I doubt such a result would please musicians.

Note also, that we now have another concrete element of Derek's proposed compulsory licensing system - it is music only (I'd say audio, but he raises the issue of "music-only" at the bottom of his post). Again, there is nothing wrong with advocating this, but it raises new issues. Indeed, if we aren't going to define "music" for toilet flushings then why define Books-on-MP3 as non-music?

Some Uses Are More Equal Than Others

Derek discusses another related issue, brought up by Scott Matthews, which is how do you compensate music that is automatically streamed by visiting a website, for example? Imagine if everytime you visit Google a 4 second music clip plays. Derek says this "wouldn't really constitute gaming." Glad we have the definition of gaming straightened out. I speculate that Derek doesn't consider this gaming because he can see the value of these intro clips, but has a harder time seeing the value of mixed bmp/wav files. His intuitions may very well be correct (and they may not be), but they don't provide us with the rules necessary for a non-arbitrary legal system. Admittedly, these comments of his are "off the cuff" but they are issues that need to eventually be addressed

Derek further has the intuition that these intro clips should not necessarily get the same compensation as music that is heard in other ways. He basis his analysis on "agency," what the user did to generate a stream. If you deliberately selected a clip to play, that would count more than if a clip were automatically streamed when you visited a website. Which raises the question of how much agency you have with regard to a webcast. Should a webcast be compensated somewhat between a deliberate action to play a particular song and a website that streams music?

Derek admits that distinguishing between songs people actually wanted to hear from songs that just occurred based on another action would be difficult. He suggests distinguishing between a "song" and "the sound when Windows boots up" or "the [hypothetical] Google welcome noise." He actually picked a couple of good examples.

That boot up sound for Windows 95 many of us are quite familiar with was the work of Brian Eno. He is a famous musician and producer, having worked with U2, David Bowie, and his music has been in such movies as Trainspotting, Velvet Goldmine and Heat. His work has been classified as "1. Songs. 2. Instrumental or ambient pieces. 3. Unclassifiable."

Here is what Brian had to say about that boot up sound:

The idea came up at the time when I was completely bereft of ideas. I'd been working on my own music for a while and was quite lost, actually. And I really appreciated someone coming along and saying, 'Here's a specific problem -- solve it.' The thing from the agency said, 'We want a piece of music that is inspiring, universal, blah-blah, da-da-da, optimistic, futuristic, sentimental, emotional,' this whole list of adjectives, and then at the bottom it said 'and it must be 3¼ seconds long.' I thought this was so funny and an amazing thought to actually try to make a little piece of music. It's like making a tiny little jewel. In fact, I made 84 pieces. I got completely into this world of tiny, tiny little pieces of music. I was so sensitive to microseconds at the end of this that it really broke a logjam in my own work. Then when I'd finished that and I went back to working with pieces that were like three minutes long, it seemed like oceans of time.
The piece itself has become iconic, and even inspired some: "But there's something different about the Microsoft Sound -- something erie, disturbing, and disconcerting" (Brian Eno and "The Microsoft Sound"). Reading this, I'm struck by the fact that the "agency" concept doesn't seem to be very good at valuing Eno's music.

Interestingly, Brian Eno is behind a concept album distributed on floppy disk in 1996 that can generate hours of music and still take up only 1 to 25 kilobytes (Brian Eno's generation game).

As for the "Google welcome noise," I'm reminded of NBC News. In 1985, famed movie composer John Williams was commissioned to write the theme song for the NBC Nightly News. John Williams gets a lot of money for composing. Presumably he also gets royalties every time the theme is played (must be nice to be John Williams). Why would NBC spend so much money? Perhaps it is because they realize that music is an important element of attracting the audience they want. Undoubtedly, people choose NBC for their news because of the stirring theme music. Indeed, as this Slate article notes, news theme music is highly competitive (The Sounds of War), and Williams' work has set the standard:

In the mid-'80s, it [NBC] commissioned a grand symphonic work called "The Mission" from Hollywood composer John Williams (better-known for his Star Wars and Indiana Jones themes). The other organizations have been trying to match its success ever since. Williams still rules NBC, and for good reason. The everyday theme for Nightly News (which you've heard for nearly 20 years) is both symphonically and structurally sophisticated. The composer draws on the music of late-Romantic Richard Strauss, whose work includes "A Hero's Life" and "Also Sprach Zarathustra." Its French horns (the instrument used in hunts) blast a syncopated stutter-step rhythm that cadences with a descending major triad, mimicking Aaron Copland's American paean "Fanfare for the Common Man." There's a searching violin line, a dash of fantastical harps; by the time the victorious trumpet fanfares enter, you feel that you've been asked to join an exciting journey for truth.
Wow. Luckily, the theme is available on CD (By Request: The Best Of John Williams And The Boston Pops Orchestra). Again, I wonder how far the "agency" concept will take us in valuing John Williams' work. Does Williams deserve fewer royalties for his work than a song played on a virtual radio station?
 
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Re: Compulsory Licensing - More What is Music? (Score: 0)
by Anonymous on Tuesday, October 07 @ 12:41:01 EDT
This article demonstrates the shortsighted kind of thinking that has created the system we have today. For example, the suggestion that streamed music should only be compensable if a user clicks on a button labeled "listen". But why not a button labeled "play" or "go" or ...?

Ultimately, the main argument boils down to one that would certainly favor the wealthy and influential: Letting judges use their psychic powers to determine "intent" on a case-by-case basis. Each case could then be settled in the manner most satisfactory to the wealthiest litigant. What a sad joke.


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Re: Compulsory Licensing - More What is Music? (Score: 1)
by Ernest_Miller on Wednesday, October 08 @ 00:58:18 EDT
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Derek Slater has some good responses [blogs.law.harvard.edu]:

As usual, Ernest provides much to chew on. I can't get to all of it today, in part because I am recovering from the confirmation that there is no god. (At least with the Warriors, I know what I'm getting myself into.)

1. Let me try to make something a little clearer: I'm not sure I have anything that you could call "Derek's proposed compulsory licensing system." I'm throwing out ideas about different ways you could construct a CL. You could do audio-only, you could do music-only, you could do something entirely different. Sometimes I do advocate a particular position or implementation, but that doesn't mean I have some set-in-stone, thoroughly worked-out plan.

So, when I bring up books-on-MP3 and ask about one way of implementing it, do take it as a question with a suggestion, rather than a "concrete element" of My Grand Scheme. Sorry if that wasn't clear before. In any case, I'll come back to why I brought up the question a little later in this post.

2. I don't think I understand Ernest's point about how sampling usage won't make things any better. The way I am imagining things, usage would be based on playing the audio file as an audio file. If you take out the header section and turn the baudio section into a bmp, and you open, that bmp, the system would not count that as a usage. I imagine that the usage counter could tell whether you're playing the crackly noise or displaying an image file. So if someone downloads but only uses the baudio file as an image, our downloading counting would pick it up, but our usage sampling wouldn't - because no one would actually have used the audio (unless they actually like the sound of crackly noises, and then more power to them). If I'm wrong and this is not technically possible, then please explain.

3. Ernest asserts that I'm trying to assume away the problem by saying that punishment for misuse. Definitions for misuse are somewhat difficult to come up with. I don't think I was assuming the problem away - I was saying that we could combat certain misuse through penalties, but I didn't say it'd be comprehensive. And, in that way, I agree with Ernest's sentiments here about definitions. To repeat:

"Would it be to tough to catch? Yes and no. To make this gaming technique worth your while, you probably will have to advertise in some way that the wav can be converted to something else. Otherwise, how will people know what to download?" (emphasis added)

Of course, if you don't advertise that you are only distributing the audio just to get people to convert it, it's much more difficult to be caught. And if you try to ban those instances, then you run the risk of people distributing the audio files to actually be consumed as audio.

4. Ernest asserts, "Proving one of the points of my earlier post (in compulsory licensing schemes there usually isn't any discussion devoted to pornography), Derek doesn't discuss my other main example, which was pornography." Frankly, I thought it was bound up in his original point about shareware authors as amateur creators who wouldn't mind having their works freely shared on P2P networks in the first place. So I can't say I was avoiding a discussion of pornography, because his argument wasn't really about compensating pornography in particular - it was about amateur producers.

But now it seems he wants me to take the compensating pornography issue on separately. Let's try it a little.

In his two posts, Ernest actually makes several separate claims about compensating pornography. First, porn will not be fairly compensated because of its content - politics will not allow tax money to go to porn. Second, porn will actually be compensated too much because it will be downloaded in baudio form.

Again, I'm not sure how, if we sampled usage and compared it with the

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