 | EFF vs. RIAA And the Monkey in the Middle A pseudo-blog by Scott Matthews, developer of Andromeda. |  |
By way of introduction, I make software (Andromeda) for playing music over the Web or local networks and so I take a personal interest in the file-sharing situation from two, sometimes opposing, viewpoints: 1) I sell my own digital works that are also vulnerable to file-sharing, and 2) my software is even better when people can use it to share. As you probably know, lots of people regularly copy music over file-sharing networks like Kazaa. The problem is that in most cases such sharing is illegal copyright infringement. But because so many people are doing it, some want to pass new laws that would make it legal. One leading contender to legalize file-sharing is 'compulsory licensing' which, generally speaking, would add a new tax on some aspect of Internet use, and then divide it up among the copyright holders (from record companies to individual artists). At first, compulsory licensing sounds great: you get to share whatever you want and the authors get paid. But when I tried to learn more about how it would actually work, it wound up sounding not-so-great... I prepared a few posts (below) on some of the complications that I've encountered so far. They are presented here in reverse chronological order:
You can't stop cheating if you can't define it.
2) I hope that some of the issues raised here will help to reduce the 'solution space.' In other words, let's get some questions out of the way: Will the system track 'downloads' or 'listens'? Will it apply to file-sharing over the Web, FTP, IM, etc? Will it be ok to deny certain kinds of works compensation? If compulsory licensing advocates continue to avoid answering questions like these, perhaps we should be looking for solutions elsewhere. |
(Who are the South Park gnomes? see this, this, this.) Here's a quick and simple demonstration of just how wacky things can get under compulsory licensing. In homage to the South Park gnomes, I present:
Phase 2: ??? Phase 3: Profit! Easy. Just add a background sound to your Web site. Yep that's it, and here's how it works... Let's say that you add Radiohead as background audio on your Web page; that's the sort of thing that compulsory licensing sets out to make legal by directly compensating copyright holders. For each page load, Radiohead plays, and each playback is counted and then used when dividing up the compulsory tax. Next, instead of Radiohead, make the background audio point to a friend's band -- now they're getting that compulsory compensation instead of Radiohead. Now make the background audio point to your own band's music. Not in a band? No problem: just record something and put it up, and now you're ready to collect compulsory compensation for every visit to your site. And if you think that doesn't add up to much, think again. What if Google does it? Or Slashdot? What if the countless thousands of popular but underfunded Web sites decide to give it a shot?
That's cheating, you're a cheater! But I just don't much like the idea of a government agency deciding what is and isn't art. Nobody likes it when students are sued for sharing music, but might compulsory licensing be even worse?
Reaction to background music & compulsory licensing
Ernest Miller on LawMeme |
I just put together a 'concept-app' called Baudio. The intent is to raise questions about what counts as music under compulsory licensing. But more importantly, I'm hoping to raise questions about what sort of works might be excluded. Generally speaking, compulsory licensing only sets out to compensate music, even though file-sharing applications readily share any kind of file. So I built Baudio to take any computer file and convert it to an audio file, theoretically enabling non-musical authors to benefit from a music-only compensation system. Will compulsory licensing exclude Baudio-encoded files? Who gets to decide what is excluded? What other works might come to be excluded: 'offensive', 'noisy', 'bad'?
Reaction to Baudio More discussions followed on Derek Slater's A Copyfighter's Musings and Blogcritics. Some have suggested that Baudio shows that compulsory licensing must track 'listens' rather than 'downloads', though that's seems more invasive. If the EFF wants to track listens, I sure wish they'd say so. |
If you're more than a casual observer of the file-sharing debates, you'll often hear compulsory licensing fans say something along the lines of "you can't put the genie back in the bottle." The problem is that the very same people often seem to be rubbing the genie's bottle, coaxing the genie out. A prime example is the EFF and their campaign, "File Sharing: It's Music to our Ears." Not long ago, the EFF was arguing that file-sharing technology shouldn't be held accountable for how some may misuse it, and to that end the EFF suggested that the RIAA should be suing infringers. Having grown increasingly baffled by the EFF's position, I wrote an article for Salon.com, which was published simultaneously with a response by the EFF. If you're not a Salon subscriber, just follow the 'day pass' link for free access to the full articles. The intention was to discuss how rhetoric along the lines of "the RIAA sucks" is being used in place of practical explanations of how compulsory licensing would actually work. Furthermore, I hoped to discuss how compulsory licensing compromises free speech if certain kinds of works are excluded from compensation, as well as the privacy/ accuracy/ fairness/ cheat-proof/ tradeoffs. Quite frankly I think that the EFF's response sidestepped the free speech and privacy concerns, and resorted to more of the same "RIAA sucks" rhetoric. For example, they seem to acknowledge that free speech and privacy are legitimate concerns, but rather than explain how compulsory licensing does not compromise them, they instead discuss flaws of the Digital Millennium Copyright Act (DMCA). If the DMCA needs fixing, then fix that -- how does that justify compulsory licensing?
Reaction to the Salon.com articles Ernest Miller, fellow of the Information Society Project at Yale Law School and former editor-in-chief of LawMeme, wrote a more thorough analysis: Some Questions and Concerns Regarding EFF's Filesharing Policy Derek Slater, a junior at Harvard who has worked for the EFF and Creative Commons and is now an affiliate at the Berkman Center for Internet & Society at Harvard Law School wrote a pair of thoughtful responses. The first kicks off with a great John Perry Barlow (EFF co-founder) quote from the recent Digital Media Conference: "Are you seriously considering the [government] regulation of artists? That is so Orwellian. I'm astonished this is even on the screen."Yes, it seems that they are. The second, though critical of some of my own rhetoric (point taken, and I'll try to do better next time), picks up on many of the issues that I had hoped to raise, and pushes the dialog forward.
Other fun following the Salon.com article included a live one hour guest spot on the nationally syndicated David Lawrence Show radio program, a nice mention by Siva Vaidhyanathan, and even Donna Wentworth of the EFF and Copyfight.org seems to agree that it's time to move the conversation forward (1, 2, but I'm still waiting for Donna to follow up and clarify the EFF's solution and strategy... |
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Monkey in the Middle: a pseudo-blog by Scott Matthews, developer of Andromeda.