Good License v. Bad Tax
By Fred von LohmannAs David noted in his initial post, EFF has been in favor of a collective licensing solution for music file sharing since 2003. In an effort to update that proposal and distinguish between a “copyright tax” and a voluntary collective licensing solution, I recently posted some additional thoughts:
Voluntary for Music Fans. People who do not share music shouldn’t have to pay for a license they don’t need. After all, we don’t have a “music tax on restaurants.” Restaurants are free to experiment with no music, public domain music, or CC music, as they see fit. Internet users should have the same freedom. But this means that there will still be some enforcement against those who don’t pay but keep downloading. That seems fair, and enforcement to get people to become paying subscribers will look very different from today’s “mount a few heads on spikes to scare the rest” approach being used by the RIAA and MPAA.
Voluntary for Artists. Artists shouldn’t be forced to participate if they don’t want to. That said, the vast majority of creators and rightsholders will likely opt in, rather than opt to sue individual Internet users. After all, 99% of all songwriters are members of one of the three performing rights organizations (PROs) we have today. It sure beats having to find and sue every radio station every time it plays your song.
Not a Collecting Society, but Collecting Societies. Freedom of choice for artists only means something if they have options to choose among. Competition is critical to keeping collecting societies honest and transparent. If you compare the three PROs that service songwriters in the US to the unitary, government-backed collecting societies in the rest of the world, our system wins hands down on these fronts.
Voluntary for ISPs. There is no need to force ISPs to offer blanket sharing licenses to music fans. Some ISPs will voluntarily bundle the license with their offerings (”buy the all-you-can-eat music package for $5 more”), some ISPs may choose not to. Universities might choose to buy campus-wide licenses in bulk in order to stop the RIAA’s college litigation campaign. Software companies like LimeWire might choose to bundle the license fee into their software, paid either by subscription fees or advertising. At the end of the day, it’s the individual fan who needs the license, and she should have lots of ways to buy it.
All the Music, From Anywhere. Music fans have made it clear that they are going to use whatever software they like, to download anything that can be found in any “Shared” folder on the planet, including the unauthorized concert recordings, the rarities, the old b-sides, and the alternate takes. It’s time to figure out who should be paid for them, rather than wishing for a world where you can somehow make them disappear.
Technology Agnostic. Linux, Mac, Windows, iPod, cell phone. Downloads, streaming, buffered streams. Music fans want their music in whichever format, on whichever device, works best for them. Once you’ve paid, it’s nobody’s business where your music comes from or where it ends up. It should go without saying that DRM is has no place in this future.
Protects Privacy. Paying for music sharing shouldn’t entail giving up your privacy. While the collecting societies will need to have some metrics of popularity in order to divide up the revenue pie, we should take our cue from television, where we divide up huge advertising revenues by relying on sophisticated sampling systems like Nielsen’s. Sampling and surveys are good — a perfect census of what every person listens to is not.
April 8th, 2008 at 11:09 am
As a user of last.fm and someone who does not think Sound Exchange is evil, I waver on the last point here that the system must Protect Privacy. Perhaps it must decriminalize untraceable recordings so that b-sides, bootlegs and rarities are protected from prosecution, but I hope we’re ready for a music tracking system more sophisticated than “metrics of popularity”. As with the $5 fee proposed in the first post, I fear this would disproportionately go to the major labels (who are already selling albums as well as having them shared) at the expense of indie labels who are a dim light (but what might be a signficant glow) to artist being listened to.
Also, I believe it is highly misleading when you say “After all, we don’t have a “music tax on restaurants.” Restaurants are free to experiment with no music, public domain music, or CC music, as they see fit.” To those people new to the conversation, resturants can and do play copyrighted music and there *are* royalties collected. Here is BMI’s explaination:
http://www.bmi.com/licensing/entry/C1162/pdf533759_1/
Of course, how are the artists that opt out of payment going to be kept track of? How will this be different than Sound Exchange now where it is not an option?
Best-
Courtney
April 8th, 2008 at 11:18 am
Are you aware of PlayLouder?
http://www.pro-music.org/musiconline/news270903.htm
This is an example of an MSP (music/media service provider).
It probably helps indicate that a Voluntary Collective License can only be voluntary for the licensors, i.e. must be compulsory for the licensees. Otherwise people would be flocking to PlayLouder in droves to take advantage of this great opportunity to pay a voluntary license - perhaps they are?
I understand that VCL has never been envisaged as anything but compulsory for ISPs (and consequently their users). Of course, its proponents are quite happy to have ‘voluntary’ in the name of their tax if that makes it more palatable due to people confusing it as being voluntary for them.
April 8th, 2008 at 1:42 pm
Re: decriminalization — Excellent point. The simplest approach would be to limit the choice of individual copyright holders: either license *all* their works or none of them. Any other solution would require users to consult some centralized white list of material that had been approved for sharing, or ISPs to filter out works that hadn’t been. Ugh. Although I like the simple approach, I think artists would still like to be able to stop people from sharing material that wasn’t meant for public distribution, such as unfinished recordings and personal demos.
Re: music tax on restaurants — I think Fred’s correct, actually. Restaurants who don’t want to play music don’t pay anything to anybody. Restaurants that don’t want to pay the PRO’s can stick with public domain music, or strike deals with local songwriters. That’s different from the Griffin approach of requiring all of an ISP’s customers to pay for music-sharing rights regardless of whether they want them.
Re: PlayLouder — its problem is that the major labels haven’t been willing to grant them licenses. So it’s hard to say whether the VCL concept works based on the PlayLouder experience. And Crosbie, you really should have read Fred’s post before suggesting that VCL “has never been envisaged as anything but compulsory for ISPs (and consequently their users).” You’re wrong on both counts. The labels might like to think in those terms because the economics work better for them, but that’s hardly the only proposal on the table.
April 8th, 2008 at 4:21 pm
[…] agreement with Fred, I’m of the opinion that any blanket licensing must be on a voluntary basis in terms of […]
April 8th, 2008 at 7:14 pm
Record labels or licensing collectors could be selling blanket “private listener” deals right now. They just open a web shop, take payments and issue licenses. Some people might even buy. No need for any new legislation and absolutely no need to bundle it in with ISP plans. The RIAA could continue with their campaign of terror, people getting a threatening email from them would email back with their license number and get back a polite “OK, you’re cool”. The ISP would remain a neutral carrier like always.
As soon as they start with saying that ISPs will add a surcharge to their data plans, you are looking at a mechanism for ensuring it is NOT voluntary for the end-user. Exactly the same as a blank tape fee, or a blank CD fee, which in turn is the same as tax by any other name. There is nothing new about any of this, only maybe a new way to sell the old scam to gullible customers. Nothing new about tax, nothing new about government sponsorship of the arts either — all solved problems here.
The only thing fundamentally changing is that the “man in the middle” business model no longer has value. The artists are sick of being shafted, and realize that they make more money selling direct than they do through distribution contracts, even including the “loss” due to copying.
April 9th, 2008 at 5:06 am
This is really just a case of “Heck, if RIAA is ready for Jim Griffin’s ideas, then we want some of the action too, because we have similar, BETTER ideas”, which may be the EFF worrying that it needs to be able to lobby for a kinder licensing regime than would otherwise be instituted if the labels had their way.
A tadette of rivalry between the Fred von Lohmann and Jim Griffin schools of thought here methinks.
See http://www.mathewingram.com/work/2008/03/27/is-a-music-tax-paid-to-isps-the-answer/
The thing is, the whole voluntary collective licensing idea (tax by another name) is based on copyright, which itself is an anachronism that in these enlightened times we can recognise as intrinsically unethical, let alone wholly incompatible with the digital domain.
So if you think really hard about it, the ultimate conclusion you inevitably reach is to abolish copyright.
April 9th, 2008 at 6:48 am
[…] seems ideal. The census privacy problem is an obvious no-go in my book, and I disagree with Fred that sampling should be the answer. While Nielsen can serve as guidance, sampling to set prices to […]
April 9th, 2008 at 11:13 am
[…] sympathetic to Fred’s view that if we’re going to have a collective licensing system, it should be voluntary on all […]
April 15th, 2008 at 4:57 pm
Fred, your definition of “voluntary” could use a little strengthening.
You say: “People who do not share music shouldn’t have to pay for a license they don’t need.” While that’s certainly true, it’s not usefully prescriptive. I would rephrase it as “People who do not share music MUST NOT BE FORCED to pay for a license they don’t need.”
In the first case, a mandatory license fee might be rationalized as a best-effort implementation, leaving a consumer with no recourse at all against the bad ISP. In the second it would be a blatant violation of the underlying policy; this would seem to give consumers a useful legal recourse when (not if!) an ISP crosses the line.
I’m also not very satisfied by Fred’s restaurant analogy. Many restaurants already pay royalties for the music they use, either because they play royalty-paid corporate muzak, or they use a coin-op jukebox. And most of the restaurants I patronize seem to use the local “soft/warm rock” station, which is already royalty-encumbered, isn’t it? That would mean that demanding royalties of the restaurants playing the station would be unconscionable double-dipping. I can’t think of more than a handful of places, offhand, that would seem to be subject to any form of royalty demands — and those only the few places that play CDs.
April 15th, 2008 at 5:15 pm
Re: the restaurant analogy — The point is that no restaurant is forced to play music. That’s the sure-fire way to avoid paying royalties. After that, any restaurant that wants to play music can find some that don’t require royalties. But CDs don’t automatically fit that bill, I don’t think. It would have to be works that are in the public domain — e.g., 19th century symphonies — or ones that were obtained under permissive license terms — e.g., a friend’s band or Creative Commons artist who waived performance royalties.