February 13, 2003
[Updated: 2-14-03 ]
Alex Macgillivray discusses Bennett Lincoff’s compulsory license plan (which I have discussed here.) Alex argues that we should “base pay on what we do with music: listen, mix, and derive new music” rather than copying.
Basing pay on precisely how something is consumed has some drawbacks, though. Monitoring use could be seen as an invasion of privacy. Someone might not want their MP3 player sending statistics back to a server telling it exactly how many times s/he listened to a particular song, for example.
It’s worth noting Professor Fisher’s plan doesn’t pay out this way (I think); while it’s based on sampling, it still only samples downloads or streams rather than particular uses. It does not examine how many times you play a given song, even though the pay out for each artistic medium does take into account the typical.use of the medium. All the sampling is done at the router or ISP or webcaster level.
Later: Alex has a good response here. He’s right that tracking copying can be just as privacy invasive. (Though I didn’t note it before, it’s also worth pointing out that tracking particular uses would mean more costs for software creators, which would be troublesome for open source/free software creators.)
Alex’s idea of tracking use made me think once again about how certain reuses of art would work in Fisher’s proposal. I know that we would lift copyright law as it stands now. I assume that includes derivative works.
But, what if you incorporate a song into a movie? Or, what if I synced a music album with a movie (a la Dark Side of the Rainbow)? Those aren’t even really derivative works, since they’re not new versions of the original – they’re using the exact original. Sounds like that the original artist deserves something for that. (If they don’t, then Fisher’s system would be pretty easy to get around. You could, for example, take a picture of yourself, include it with the new Britney Spears song, put that that out on P2P services with your own watermark, and claim that you’re the only person who deservers remuneration because you created the picture+song work.)
So, how do you make sure that the watermark is retained in the movie+song work? Would it be difficult to include the song’s watermark along with the movie watermark? Would transactions costs be high enough to make it difficult for people?