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Could Eminent Domain Break The RIAA Stranglehold?
Thales_of_Miletus writes "Findlaw has an editorial today on fashioning a compulsory licensing scheme (the IP version of the real property eminent domain takings power)to allow third-party online music distribution to proceed without the RIAA's permission. Thoughtful arguments are made about the role of IP in a free society and restoring the public benefit function of copyright."
There have always been holes in history. There always will be holes in history.
A photographer friend of mine a few years back told me of a drunken party he took place in back in the late 50's. A collection of original glass plates of photographs of American Indians had been found, and people were having fun by throwing them to the floor and smashing them. (this is a real story, not flamebait). Shit like that happens all the time. Beautiful buildings are torn down. Big archives of magazines or books are cleared away for recycling.
That's life. The day we decide all of everything has to be 'preserved' for historical purposes is the day history stops. They pour in the formaldehyde and we all die.
Deal with it.
I always find it interesting how people quote the Founding Fathers as authority, even though in many cases they disagreed amongst each other. In other cases they were wrong and we had to Amend their decisions to correct them. Many times their comments are only valid within the timeframe that they had lived and we can see from historical perspective why that is the case. It all depends, often these same people on some other issue are quite willing to point out these deficiencies in blindly following our "gods."
One note of historical perspective... Right after the US achieved it's freedom and own form of government, the French attempted to do the same.
The French weren't quite so reasonable in their argumentation and many of the extremists took over the revolution. One aspect of this extremism was that all copyrights were revoked, and all information was totally free.
No publisher could afford to make the investment in printing something that was quickly copied by everybody else and sold for a fraction of the cost. The end result was an increase in the number of tabloid rags at the cost of real literature. Stuff so wild and ridiculous that it didn't matter if the content only lasted a day.
The French later realized that this was a bad thing.
It's important to learn from history...
Forgive the mild indescretion of self-linking, but I was speaking of this very occurance a couple months back. The title makes quite a bit more sense if you read the link :-)
l
http://www.doxpara.com/read.php/music/trinity.htm
A number of writers here have stated that Eminent Domain should never be applied to the benefit of individual corporate providers; while I'd normally be inclined to agree, I note there is a strong compulsory licensing program (administered through BMI and ASCAP) that effectively gives radio stations the freedom to play whatever music they like on the air, as long as they hold to certain restrictions(no more of a certain band in an hour, they may only play "official releases"[grr], etc.)
Mass outlets of content should be more free and open, not less free and tightly controlled. As elements of culture become progressively more productized and trademarked(even our stadiums are monetized, at the cost of the legitimacy of our homes), I do believe it's clear that, at least conceptually, there is some dispersal of rights and "ownerships" over that cultural artifact.
Now, what's interesting is the question of whether an artist has the right to prevent their work from becoming such an artifact in the first place. Far from an insignificant argument--it's one thing for "The Red Shoe Diaries" to be compulsory licensed and sold online; it's another for the average person's diary to be downloaded from their computer and sold online! One conclusion you could reach might be that, once the product was commercialized by its author, *but not before*, it was fair game for automatic distribution. Such creates a fluid and "free" market without arduous restrictions on the flow of money.
This does seem to imply that buyers of a good have rights and expectations over that good, even before sale. One could imagine access within a convenient marketplace to be among them.
*scurries off to think this through further*
Yours Truly,
Dan Kaminsky, CISSP
http://www.doxpara.com
A home movie would be private property, and you would discretion over who did or did not see it. If you held the copyright, you could be forced to liscense it out, whether you had any interest in doing so or not.
Compulsory licensing only (AFAIK) applies to already-published musical works. No one can force you to allow them to publish an unpublished musical work, or any non-musical work. So your home movie example is not a good one. Just spreading knowledge of the existence of a work doesn't count as "publishing" either -- the work itself must be presented to the public, usually defined as offered in some way to people you have no direct relationship with.
Also, I don't know if this has changed, but it used to be an inviolable principle that an artist, regardless of what rights he may have signed away, had the right to determine the first publication version of his work. Bob Dylan actually denied a physical license to his own recording company for (if I recall correctly) Mr. Tambourine Man until they got a recording he liked. Meantime the Brothers Four and the Byrds were waiting in the wings with versions of their own; even though the Brothers Four version was finished first, it was the Byrds who got copies to market fastest, making them famous.
(Or so the story goes. See The Straight Dope for the details.)
I personally dislike both compulsory licensing and eminent domain; one way of looking at your property rights is examining the extent to which others are allowed to use your property without your consent, or to forbid you to use it in certain ways.
-- Old Man Kensey
That applies to great public need, freeways, bridges, infrastructure to support society. This is just music. I love music, but in no way does napsters existence promote, or threaten societies' structure. While it would be great if the RIAA board all died of a horrible disease and some HUMANS took over the job, I'd even settle for a reasonable payment scheme for online music, provided it was not a pay per listen and the quality was CD level. Half the MP3's out there sound like crap anyways.
errr....umm...*whooosh* *whoosh* Is this thing on ?
It is up to the courts and congress to set a fair price scheme in place for any compulsory licensing. As the article says, if the two sides cannot come to agreement on a fair price then they go to arbitration. The arbitration panel then sets the price.
This is the same thing that happens when the government takes your land for public use. They must compensate you at a fair price. When the two sides cannot agree on a price they go to arbitration.
Wether this works in reality I have no idea, but that is the basic idea.
Q.
If you choose to publish, you are making your relationship with the public. Anyone in between is irrelevant. If you publish a book, I can buy some somewhere and stand on the street in just a trenchcoat swaying in the breeze and sell them, or even give them away. But you get paid per copy so quit your whining. If it's popular, you get rich. If you want to choose to NOT have a relationship with the public, then don't publish at all.
now we need to go OSS in diesel cars
Before the CD, music was distributed on platters of (supposedly) vinyl consisting of a spiral groove of two orthogonal analog waveforms. This was the medium for most of the 1900s. The effect of the music monopoly on this medium was that only one manufacturing company, usually owned by record company itself, made the medium. Due to this monopoly, there was no incentive to produce good quality records as that did cost a few cents more per unit. The end results was bad quality, with some major record companies like RCA producing total shit (I bought several, and every one of them was horrible quality).
I believe one reason the CD rose in popularity so fast was that the quality was so much better, not just because of the vinyl hiss, but also because of all the clicks and pops from the garbage embedded in the vinyl. The CD wasn't totally immune from this damage, but it could correct a lot of it, and quietly skip a lot more, and you never noticed it.
Also, in the early days of the CD, record companies hadn't yet learned how to cut corners and reduce costs without completely destroying the product. Now days they are learning. The quality of CDs is going down and down as the record companies are trying to push the edge of what consumers will accept.
If there was competition in the media production phase of music production, with a compulsory licensing that allowed anyone to produce the medium and change whatever they wanted to consumers, and simply pay the publishing company that owns the rights to the recording (or the artists directly if they own it) the statutory or arbitrated fees, then the consumer would have a free market choice on who makes the CDs they buy.
In the day of vinyl (and even still today to some degree) a few companies were making reproductions of music on quality media. Usually the costs were very high, almost double. I soon found out that the original record company demanded a fee that was at least equal to, and in some cases more than, the retail cost of their own garbage. This would be a fee they would collect for not even producing the media at all. Compulsory and/or statutory licensing would have prevented this rip off.
There is precendent in statute now. This is already how the law works for certain kinds of reproductions (see The Harry Fox Agency and this licensing information page) and performances (see ASCAP, BMI, and SESAC), although it still does not work perfectly as reported in links found via Google.
Still, I think this would be a good step forward to have this kind of law in place not only for media reproduction, but also for digital online delivery.
now we need to go OSS in diesel cars
Eminent Domain is a process whereby the *government* pays the property holder for forced takings. "We're building a freeway through your yard, you can't do anything about it because we own the cops, but the Constitution does require us to at least pay you for it."
The New York Times and other publishers are NOT the government. They should not get the benefit of Eminent Domain. The consequences would turn all of property law on its head.
Consider the implications if this were extended to other non-governmental organizations, or even individuals. "We want to build a hotel on your beachfront property, which has been in your family for five generations, and you must sell to us by law." "We want to take over your company, and your stockholders refuse to sell, tough shit!" "Sorry Bob, I'm going to move your fence three feet closer to your house, and you can't stop me."
Or the really scary one if you're an Open Souce fan: "We will use your kernel in our OS despite your objections, but we will pay you market price for it."
A Government Is a Body of People, Usually Notably Ungoverned
Go with me for just a second here.
/.:
Say record company A produces a record that becomes hugely popular. I'd like to dissect exactly how it becomes popular.
Part of that increase in popularity comes from using public airwaves to broadcast the song on radio. Part of the increase comes from me telling my friends what a great song it is. Part of it is just from the general sheep mentality of the population.
My question to
How much of the value of a popular work is derived from no effort of the publisher and should be returned to the public at large, and how long after a work becomes part of our culture (like the Happy Birthday song) must we continue to be indebted to someone?
Aah, change is good. -- Rafiki
Yeah, but it ain't easy. -- Simba
Of course, the music industry won't be quick to settle for anything less than their $15 per CD fee, but the truth is, since most of the cost of that CD is in the distribution process, the actual cost of the material is rather small, and a fair arbitration panel would recognize that fact. In fact, with napster (or its users as the case may be), ALL of the distribution, packaging, marketing is taken care of by napster and its users. The unaccounted for cost is the royalties to the band.
Ok, so the record companies do pay money for marketing. So what? That should not be a factor when considering the proper fee since without that marketing they might not have ANY sales, in which case they wouldn't have to worry about these issues. In the end, we're looking at what?
I don't remember the exact amounts but from what I recall from old arguments, the artist probably gets about $1 per CD in royalties. Assuming there are 10 songs on the average CD, thats 10 cents per song that the artist recieves. And thats about what napster should be required to pay per song. That amount could ALMOST be completely covered with banner ads, although some revitalization in the banner ad business will be required to really make a go of this. However, marketers have an advantage with napster users. Direct marketing will be effective with them with regards to music. You know exactly which music they're listening to, and if you want to fire off advertising relating directly to that music, the case is likely that someone might actually pay attention to that advertising and it might be worth the cost.
-Restil
Play with my webcams and lights here
Assuming this argument works - that Napster could force music labels to license their music - this would just lead to numerous other lawsuits as to how much this licensing should cost. If the RIAA determines the licensing, it could in theory set "compensation" so high that Napster still can't do anything. Also, it can easily vary how much each song is worth. It's a good idea in theory, but in practice, it's just going to cause more aggravation IMHO.
The real problem is the way copyright terms have been extended far beyond the the realm of sanity.
That's the way "holes in history" get created lately: companies are able to prevent independent collections of relatively recent information from even getting created. In the US, copyrights haven't expired for any work since shortly before Mickey Mouse was created; that's another part of the "copyright bargain" that has gotten completely corrupted.
The simple solution to this problem is compatible with both conservative ("the good old days did it right!") and liberal ("give us our civil rights!") political philosophies: restore copyright terms to sane periods, so these problems don't need to come up, ever. Let them enter the public domain just a few decades after they're copyrighted, the way they were supposed to.
Heck, there's a lot of older music I'd love to have access to. If it weren't for the way that the media (RIAA just one member) have locked it up in endless copyright, Napster (and the like) would be able to offer it for free (or for money!) without needing to worry about lawsuits. (And likely the new music coming out would be better, since it'd have to compete in terms of quality not just marketing!)
Reducing the period of the limited monopoly will have the desired effect, because artists/creators/publishers/RIAA/whoever will have to continue to invent new things to sustain a steady income.
We only need one reform: incredibly short terms for patents and copyright. Although any decision is arbitrary, I think that 3 years is more than generous enough in the case of copyright these days, and that 7-10 years is more than generous enough in the case of patent.
This won't happen.. An argument MIGHT be able to be made if the RIAA/member organizations weren't making efforts, but given the services out there that allow downloaded music for a buck or more per song, compulsory licensing won't happen. Even if it did, the likelihood of it being on terms palatable to the average Napster user is about zilch. Combined with the fact that some of the recording industry is working with Napster already, it's not going to happen.
The truth about Scientology, Xenu, and you: Operation Clambake
"Congress shall have the power to..." promote the Progress of Science and useful Arts, by curing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Look at that. It is a sentence. Sentences follow rules according to the English language.
Congress has the power to
What power does Congress have?
To promote the Progress of Science and useful Arts
How is Congress supposed to do this?
by curing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
Congress does NOT have the right to regulate copyright, it has the right to "promote the progress of science and useful arts", and it is allowed to do that by "curing for limited times to authors and inventors the exclusive right to their respective writings and discoveries".
If it isn't being done to promote science and arts, Congress doesn't have the power to do it.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
That is false. Copyright exists solely for the purpose of promoting progress. Read the Constitution.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
This has already happened. Some folks in New London, CT, are getting their houses seized just so Pfizer can have bigger digs. The town government justifies the seizure as "public use" because they'll get more tax revenue out of Pfizer than Grandma. Great rationale, huh? Since they define revenue generation as a public use, it basically justifies any whoring of themselves they can come up with. I seem to recall another town in New York state doing the same for a shopping center.
But this violates my right to choose who I associate with.
For example, a few years ago an essay I wrote about rape was stolen and put on a porn site, because it did well in search engine searches on "rape."
Now even if the porn site were willing to pay me $1,000 for that short article, I would not be interested in granting them a license to publish.
But once you get into compulsory licensing, this sort of discretion goes completely out the Window, and creative types can no longer choose for themselves who they will associate with.
At some point, each of us has hated the US legal system and the evils it produces. Then you see something brilliant, simple, and reasonable like this and it all seems worth it. Maybe. :^)
Oh, and free speech ain't too bad either. :^)
Curmudgeon Gamer: Not happy
Here you go. But I assume he's on the side of the RIAA, not against them.
Registrant:
Goliath Artists (EMINEM2-DOM)
444 Washington Blvd., #5522
Jersey City, NJ 07310
US
Domain Name: EMINEM.COM
Administrative Contact, Billing Contact:
Paul D. Rosenberg, Esq (EP2695) paulbunyan@MAILEXCITE.COM
Goliath Artists
444 Washington Blvd., #5522
Jersey City , NJ 07310
(201)8760313 (FAX) (212) 935-0554
Technical Contact:
Rogas, Adam (AR1789) adam@PHUTURSOFT.COM
PhutureSoft
3013 La Mesa Dr.
Henderson, NV 89014
702-898-1234
Record last updated on 31-Oct-2000.
Record expires on 22-Nov-2002.
Record created on 22-Nov-1998.
Database last updated on 30-Jul-2001 02:05:00 EDT.
Domain servers in listed order:
NS1.PHUTURESOFT.COM 206.159.180.2
DNS4.REGISTER.COM 209.67.50.254
Corollary to Moore's Law: The IQ of new computer owners is declining.
Only if you hold the copyright. A home movie would be private property, and you would discretion over who did or did not see it. If you held the copyright, you could be forced to liscense it out, whether you had any interest in doing so or not.
The problem here is that, while possibly helping napster and screwing the RIAA (which is what we all want, right?), it also takes certain freedoms away from the little guy. If I copyright something personal *just* for the sake of protecting it, I could, theoretically, be screwed into releasing something that I never wanted anyone to see.
Then again, IANAL and all I really know of this is what I read in the article. I could be wrong.
Finally, IP freely!
This is why there's such a fight for intellectual property rights. Only by controlling the knowledge of how and what to produce can power be maintained by those who value it. By the middle of the 21st century, the major cost of any material item will be the 'intellectual property' charge. With production automated, almost everyone who is employed will be working in service jobs by 2050. And then it gets more interesting.
For all the gory details, http://www.consumerrevolution.com/IPR.html
The RIAA is not a cartel like Opec. OPEC controls a significant proportion of a limited resource. In contrast, the RIAA controls just some of the music artists of an ubiquitous resource. They just control signed bands; not the majority who are unsigned, don't want to be signed, play bars, etc.
Trouble is, if an artist wants to get anywhere, they pretty much have to sign a contract with a big label. Sure, it is possible to succeed using other methods, but their chances are 10000x better this way.
---
I pledge allegiance to the flag...
of the Corporate States of America...
I was a bit disturbed that was the main basis for the court's decision. What about a person's freedom not to publish? They can be forced by way of arbitration into selling that which they don't want to? That's a little too much power for anyone to have in my opinion. I can understand it's sparing use in land property or, say, intellectual property which is applicable to a process (eg, a patent), but NOT for creative works under copyright.
There was a post in the forums for the article which I'll reproduce here cause I thought is was intelligent, if a bit right wing...
Robert Brammer - 10:10am Jul 30, 2001 (565. 972/972)
Court to property rights: Drop dead.
You claim compulsory licenses help to avoid abuse of monopoly? WRONG! The only monopoly in this case is the arbitration board, which engages in state sanctioned price fixing, by determining a price at which a copyright holder must sell under penalty of law.
As for the court's concern for "holes in history," this is simply not a concern, and I'll explain why. Suppose a freelance writer will not give permission for the NYT to publish his article online. The Court only seems to be able to think this far through this dilemma, and claims this situation results in a "hole in history." Do they forget that the freelance writer wants money from his articles, and that is, at least in part, why he writes them? Common sense dictates he will eventually sell his article for online publication at the price he desires, even if not to the NYT. So, let's say the Washington Post buys the right to publish his article online. The Court would probably claim that this is still not acceptable, because their is now a "hole in history" if you visit the NYT site, because the article in question is only on the Post site. The Justices, in their arrogance, assume that the free market could not handle this problem. It should come as no surprise that they're wrong. Sheer market demand would quickly bring about the solution to this problem in the form of a search engine for articles, independent of any newspaper, that would be setup to include links to all of the articles on all of the different newspaper sites. Now the "holes in history" concern is a dead issue. It is disturbing that the justices overlook this obvious solution and immediately render a decision which violates an individual's first amendment right to not speak, the right of a person to control the distribution of their product, and the right of an individual to negotiate the sale of their product as a free trader.
This is undoubtedly one of the worst decisions by the Court in recent years, and certainly one of the most repugnant to the goals of a free society.
I find it strange that people seem to use two standards to judge value.
- On the one hand they say that a thing's value is whatever the market is willing to pay for it.
- On the other hand (usually when they are trying to defend property rights) they claim that resources and time invested in something give it an intrinsic value.
This is like the split between the book value and market value of an asset. Sometimes the asset's market value goes to zero. If the market value stays at zero, at some point it becomes irrational to say that it is really worth anything.Just look at Nortel Networks or JDS Uniphase for an example of how assets sometimes need to "disappear". The asset that disappears is usually something like "goodwill", which is equivalent to whatever the buyer paid above and beyond the book value of the company's assets at the time of the purchase. So compare that to the case of the record industry. Consumers are less willing to pay for music. The value of the record industry's "assets" has gone down substantially. Maybe it's time for the record companies to just write off these assets and get on with some other kind of business. I'm sure there's a huge market for T-Shirt and poster sales.
It sounds like the courts are saying that the right to publish a work in print does not carry along the right to publish electronically. If so, is it possible that the court's ruling in this matter will have any bearing on the Mathworld lawsuit? Maybe its a pointless question without seeing the contract betweeen CRC and Mr. Weisstein. I think the void left by Mathworld's absense is only slightly less significant than a 'hole' left in history as the editorial describes it.
Simple people talk of people, better people talk of events, great people talk of ideas.
--CTH
--Got Lists? | Top 95 Star Wars Line
Way to miss the point. This ruling (might, if sustained and interpreted loosely) give Son of Napster the right to distribute music that has previously been published, regardless of the licensing situation. Did you read the article? There were no digital media clauses in the NYT contracts, but the court decision (if carried through) both allows and requires the NYT to publish in that format anyway and reward fairly the copyright holders.
It's not relevant whether the Big 5 record companies have online media contracts with artists, or whether Son of Napster carries Big 5 tracks and/or independent artist tracks. The only salient points are:
The relevant question is actually whether Son of Napster has any right at all to publish any work owned by third parties with which it has no previous business relationship, and who have given no agreement for Son of Napster to publish their copyrighted work in any form. I can't see why this ruling gives Son of Napster that right. But it's an all-or-nothing question, not one of individual contracts between record companies and artists.
If you were blocking sigs, you wouldn't have to read this.
So you're saying that you would trade the de facto regulation of a business trade group for the de jure regulation of the federal government? Forgive me if I remain suspicious.
In this case, if you download MP3s, you really would be downloading Communism.
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