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Features: Compulsory Licensing - Why Only Music?
Posted by Ernest Miller on Tuesday, October 07 @ 04:42:38 EDT File Sharing
Derek Slater asks a good question regarding the extension of audio-only compulsory licenses to other media types (So Which Is It?). Derek asks whether, given the opposition of most content industries to a compulsory license, why those industries would switch their position if a compulsory license was imposed on the recording industry. Derek concludes that the other industries would support compulsories in only two cases: 1) the system for music works great and everyone is happy; or, 2) the system is seriously broken and the other industries see ways to benefit from the flaws. He is right.

However, that is not my concern with a media-limited compulsory license. I don't think that the pressure will come from industry to extend the licenses to other media ... I think the pressure will come from the public. Assuming that the movie industry, for example, is not going to quietly accept unlimited file sharing, the question I would like answered by those who support music-only compulsories is why the arguments used to support compulsories for music are not applicable to other media types or why other types should be treated differently despite the similarity in arguments supporting music file sharing. Is there a clear, simple argument one can use to explain to little Johnny why sharing music is okay, but sharing movies, television shows, software, or Books-on-MP3 is not? Is there an argument to justify distinguishing music videos from music?

Below are a few of the major arguments that concern me:

Millions Are Sharing Music

And millions are sharing movies and software too. The only thing that is really holding back more movie sharing is the lack of bandwidth. But as broadband is increasingly adopted, more and more people will be able to easily share movies. Software, particularly videogames, requires much more bandwidth than music, but generally less than movies. Even the longest Books-on-MP3 can be shared as easily as several full length music albums. How many millions must engage in sharing of other media before we start hearing a call to legitimize that sharing? After all, millions can't be wrong, can they?

You Can't Stop P2P

Indeed. If so, why would copyright be any more enforceable on P2P networks for movies and software than for music?

File Sharing Has Created an Incredible Library of Music

And file sharing can or has already created an incredible library of software and movies. In fact, the arguments in favor of a global library of software are in many ways more compelling than for other types of copyrighted works. After all, due to rapid innovation, it is much more likely that software will be lost to the future as the systems on which it runs are abandoned. All the rhetoric about liberating a worldwide community of music fans to collaborate applies equally to other media types, does it not? Is there any reason why music fans should be privileged over movie fans?

The Recording Industry has Promoted Losing Business Models

Ignoring the issue of whether promoting poor business models justifies breaking the law, I'm unaware of any major copyright industry that doesn't have serious flaws in their business models. Movies and DVD DRM. Sheesh. At least the RIAA wasn't able to stop the Diamond Rio player and MP3 rippers. No major electronics manufacturer creates a device that will easily rip a CSS encrypted DVD, while I can easily rip CDs to my heart's content. Although movie studios are experimenting with downloads, their systems usually make the recording industry's experiments look like the heavenly jukebox. And what is up with getting me to buy the same movie on DVD several times? I should be able to buy the movie and get the special edition extras for a separate fee without having to pay for the movie again. Where are the videogame download services? Yahoo! had (has?) one, but the selection was limited and the darn things erased themselves after some time period. Valve has Steam but the system leaves much to be desired, if you can get it to work at all.

The RIAA Aggressively Attacks Their Own Customers

While organizations such as the MPAA and ESA have not taken as nearly a prominent role in going after file sharers, it would be hard to find light between their stated positions on the issue and the RIAAs. Certainly, the MPAA and ESA have been at the forefront of supporting the RIAA in attacking the legality of P2P systems and in using the notice-and-takedown provisions of the DMCA to get file sharers off the internet. These other organizations have not pursued as public a lawsuit strategy, but they have brought a number of lawsuits. To a certain extent, bandwidth constraints and other technical reasons (i.e., DVD burners are not as common as CD-Rs, yet), have provided these other industries some measure of protection. Another reason is that these industries have been more successful in attacking the technology providers (mod chip manufacturers, server emulators, DeCSS) which hardly is a checkmark in their favor.

Music Has Always Been Different

Some might make the claim that we've always licensed recorded music differently than other copyrighted works. They'd be right. The problem is, only lawyers and members of the recording industry know this. The public is blissfully ignorant of this difference and would not necessarily consider it terribly relevant when informed.

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?
Compulsory Licensing - What is Music?
Compulsory Licensing - More What is Music?

 
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Re: Compulsory Licensing - Why Only Music? (Score: 1)
by pde (pde, (at) cs, mu, oz, au) on Tuesday, October 07 @ 20:14:36 EDT
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I've been working on an article [www.cs.mu.oz.au] about a variant of these kinds of blanket licensing schemes, which I call a "virtual market". The conclusion I came to is that writing (books, websites) is in fact much more suited to blanket licensing than music is, for at least two reasons:
  1. authors need royalties more, because unlike musicians and composers, they can't earn much from performances
  2. DRM has more chance of kinda-working (slowing file sharing down enough for the survival of a first sale market) for music and film. Texts can always be copied, OCRed, etc, quite easily, and they're practically impossible to watermark.
It's only a matter of technological development (leather bound, digital paper e-books?) before books are being Napsterized to the same extent as music. Software may not fit into a blanket-licensing scheme like this, at least not if you want to use free software development methodologies -- because it's impossible to fairly decide what fraction of the returns each programmer should get (see Section 2.2.4 of the article for further discussion).


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Re: Compulsory Licensing - Why Only Music? (Score: 1)
by btempleton on Tuesday, October 07 @ 21:19:04 EDT
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This question has been a big one for me, but I believe there are answers. It seems the consumer media -- music, books and movies, with the possible addition of games, have some special economic rules. First of all, there is commodity pricing. A good movie and a bad movie cost the same for a ticket. The good movie makes more money by selling more tickets, not by charging more per ticket. In videos pricing is based on "ownability" vs. "rentability" and it is certainly not the case that good ones cost more than bad ones. For mass market books this is the same (but not specialty books.) And for music of course.

This is not true in software and other high end forms of IP.

That meets requirement #1, that compulsories be workable. I tried to figure how to pool software revenues and I could not come up with a good sharing algorithm, while it's easy for songs and we have a long history of it.

And yes, music has a tradition of being special under the law. That's a symptom though and not the cause.

Software is easier to share than music, actually. Most software packages clock in at the size of a single mp3, few are as large as an album, though of course some are. Yet the software industry (outside of games) voluntarily abandoned copy protection in spite of how readily copied software is and the strong financial incentives from its high price.

The truth is we have a copyright crisis with no solution in sight for music, and we don't have that in software. We may get one in movies, or in books. We certainly don't want to solve the problem until it arises, though.

Looking at rewriting the economic rules for music is something we're doing after it became clear that the old ones were failing, and that the alternatives the music industry was pushing (DMCA and universal DRM) were scary.

So yes, music is special. It's not unique. We will have a copyright crisis in some other fields too, and we will have to deal with it there as well, but one bridge at a time.

Brad Templeton, EFF


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Re: Compulsory Licensing - Why Only Music? (Score: 1)
by JCole on Wednesday, October 08 @ 14:26:58 EDT
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"I should be able to buy the movie and get the special edition extras for a separate fee without having to pay for the movie again."

That comment perfectly illustrates the essential disconnect.

Why should you be able to so buy the special edition extras? Why shouldn't you have to choose between (a) buying the movie early (without extras), (b) buying the movie later (with extras), or (c) buying both editions?

In what soil does such entitlement find root?

Just as one (inclined to entitlement-think) might argue that the market system goes too far; so might the touchy-feely commons system go too far.

A healthy commons depends not only on incenting the individual creator; but also on supporting the corresponding industry that employs all those that produce, market, and distribute such creations. Indeed, without such industries, creators have no more incentive than that provided by their particular muse.

At the end of the day and notwithstanding the aberrant flavor-of-the-month fad, it will always be very expensive to convince tens-of-thousands, hundreds-of-thousands, or millions of people to expend their disposable income in a similar manner. Because of that, income streams must necessarily be protected or such entertainment options cannot exist.

And that brings us full circle: the more celebrity, the more expensive. Or, the more popular the movie, the greater the leverage to make you buy both the movie and, later, the movie with the special edition extras.

Verily,
Jeff Cole


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