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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...
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.
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
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.
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
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.
Finally, IP freely!
--CTH
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