More on Commercial/Noncommercial, Public/Private

Updated 9/15 6:12 PM to reflect comments

1.  Matt links to Stan Liebowitz’s criticism of compulsory licensing. Definitely worth checking out. Like Ernest’s post on commercial use, the doc brings up many questions that will need to be answered before CLs can succeed. These problems’ significance depends in part on your premises; for instance, if you think DRM is dreadful, the RIAA’s lawsuits won’t solve anything, and regulating third party tech developers will greatly harm innovation, then the problems involved in CL seem far less severe.I find myself somewhere in between the two extreme positions on CLs. I don’t know enough (in regards to economics and technical issues) to say whether Liebowitz’s concerns and those expressed in the pho discussion are severe enough to make CL not worth pursuing. Some part of me hopes that the lawsuits and new music services solve everything, but I doubt that will happen. So I’m left with few options.

Regarding Ernest’s questions about commercial/noncommercial use, a short brainstorm on a few problems:
We’d start by defining commercial use as Netanel does: “selling copies of, access to, or advertising in connection with the copyright-protected work or any modification of the work.” The latter part seems aimed at webcasters while the former parts focus on an exchange of money at point of copying/distribution.

Of course, one way to deal with Ernest’s questions is simply to not allow the tipjar people to link it in any way to the mp3 page. Netanel suggests that earning revenue and getting donations in any way would not be allowed in his regime. So, linking to your blog with a tipjar wouldn’t be ok, nor would any of the other examples where you link the copyrighted work to any money gathering site. That would be simpler in some ways, but it would also lead to some overbreadth. [Update:] At the same time, if the transaction costs of monitoring any exemption are too high, as Ernest suggests they might be, it’s probably worth proscribing any site from receiving payment from downloaders for supplying copyrighted works.

[added conditional] If we don’t want to sweep up all the tipjar people in the definition, and we don’t want to have a giant loophole allowing all uses if there’s no immediate exchange of money, perhaps we could assume that sites that earn under $X are not commercial. Sites making above that amount would be suspect and open to further investigation to see if their way of earning money is effectively equivalent to Netanel’s definition.

Similarly, the advertising part would generally not target people who get free webhosting for serving ads, regardless of the content of the files they upload. Unless financial benefit is directly tied to distributing copyrighted works, it would not be commercial. Think of Netcom here – in that way, direct financial benefit and thus the commercial/noncommercial distinction does have some roots in the law already without being completely tied to businesses. [updated:] You can make similar fixed fee vs. sliding scale distinctions, and you can then distinguish cases where a fixed fee is paid to all site owners but the service is designed specifically to feature distributors of copyrighted works, so they’re effectively getting paid for that distribution.

[Updated] Ernest says there’s a loophole here too, but I’m not quite sure where. I guess I’m thinking of two types of sites – one where ads are served and web space is allocated regardless of the site’s content, and one where supplying copyrighted works gets you a better deal or where your payment is directly related to you serving coyprighted works. The latter sites are commercial, the former aren’t. Note, I’m talking about the sites themselves, not really the hosting services – the hosting services might be contributors to infringement, but the commercial/noncommercial distinction should be linked to whether the distributor gets money for distributing.  Maybe that’s why I’m missing the loophole. What services would “spring up” if this were the case? 

Who would investigate instances on the border of commercial/noncommercial? I wonder how hard it would be for the Copyright Office or courts to do audits in the close calls. If people are earning income from their websites, they should be recording that for tax purposes, right? Or perhaps we could condition the NUL on keeping some records on money earning – I doubt that would be a heavy burden if it just means printing your paypal records. If it’s more than paypal records, then it’s more likely to not be a non-commercial venture. (begin privacy concerns here)

But won’t it be difficult to determine who to audit? And won’t many people go under the radar? The sites likely to go under the radar are the least likely to be making any significant impact on the copyright owner’s profits, in the same way that private distribution is so incidental that allowing it would not be a major change from the status quo.

Now, that doesn’t take care of all Ernest’s questions, and it’s not as if what I’ve said here is perfect. But I do think that there are creative solutions to some of these problems. We can come up with decent lines to separate commercial from non-commercial –  at least as long as we’re not trying to make it perfect for all possible imaginable and unimaginable situations.
(BTW, I do agree that public/private is currently better defined than commercial/noncommercial, but it’s not an impossible distinction in either case.)
(Also, it’s worth noting that Fisher’s plan is not limited to non-commercial use.)

2. Following up on Ernest bringing up his public/private distinction, here’s a link to Taking the Copy out of Copyright, in which he discusses several ways he’d like to see copyright changed.

Some brief, mostly unrelated comments: look at how they deal with first sale. There are some decent arguments for limiting digital first sale (see Copyright Office arguments here), but I’m not completely comfortable with saying that eliminating copyrights “copy-centrism” means getting rid of first sale. What about libraries? Are they totally left out in the cold? Do we really think that copyright holders need control over the digital video rental market, or are we better off keeping that separation of control? Why not allow only lawfully acquired copies to be legitimately redistributed under first sale? I know that keeps some focus on distinguishing between certain copies, but I’m not sure it’s grave enough to mean that we shouldn’t include such an exemption.

I find it interesting that the authors worry about people in dorms and apartment complexes systematically sharing copyrighted works under digital first sale, but they wouldn’t mind if those same people systematically distributed permanent copies under a private distribution right. Seems a bit odd.

Finally, also recognize that you’d be able to record webcasts under this plan with no infringement. Would we want an exception there, to keep separation between those two markets? Would doing that and a first sale exception open us up to a world of exceptions making this new distribution-centrism worthless?

Worth some more thought….

[Updated] In his comment, Ernest says I misconstrue a few things. I’ve added my response in the comments box.