Streamcast and Grokster File Brief in MGM v. Grokster

Streamcast Networks (the owners of Morpheus) have submitted their brief, with the aid of the EFF.  Grokster has submitted its brief, too.  Choice quote from the latter:

“Appellants note, repeatedly, that Grokster includes a primitive ‘adult content’ filter that can block searches that contain words that are associated with such content a la George Carlin’s “seven dirty words” list, and then claim that this is evidence of the practicality of copyright filtering. This is akin to claiming that one’s ability to light a campfire is proof of one’s ability to build a nuclear power plant.”

Voting v. Counting, and Payouts in CLs

1.  Aaron Swartz suggests using anonymous, encrypted voting to distribute CL money, rather than allocating funds based on estimating actual usage. His proposal isn’t entirely unique.  Professor Fisher notes two similar ideas on pages 55-60 of his CL regime: the Blur/Banff proposal and Peter Eckersley’s “Virtual Market for Virtual Goods” paper. 

Fisher suggests that there would be deficiencies beyod the encouragement of purposely distorted voting (see Ernest), including increased hassle for users and higher likelihood of privacy violations. Frankly, I’m not quite sure how a website operator recording everything downloaded from his site and then reporting it to the Copyright Office is much different from my telling the Copyright Office directly what music I’m using using anonymous voting like Aaron describes. In both cases, the data would need to be recorded and reported anonymously, like Aaron explains; moreover, both cases cause concern inasmuch as we don’t trust others to record and report information anonymously.

2. In going over all these proposals, I began to think again about two different ways of doing the payout: one-payment-one-consumption using a fixed rate or payments according to relative consumption (that is, if you get 75% of the downloads, you get 75% of the tax revenue). The two are similar in that, if the fixed rate is based on 100 total payouts, and the total number of payouts is 100, and your work is downloaded 75 times, you’re going to get 75% of the money in either system.  However, I see two possible meaningful differences:

1. The latter method would not risk running the money well dry because every payout is related to the total tax revenue. If payout goes up with each consumption, you risk not having enough money to pay everyone.

2. The latter might deal with methods of gaming the system slightly better. Let’s say everyone gets 5 people to ballot stuff for him/her.  With a proportional payout system, this would not affect anyone’s payout. But, if you payout per consumption, then everyone gets five more payments than they ought to have received.  I noted this in the pho discussion, and Ernest voiced his doubts whether such “cancelling out” would occur a significant amount of the time.

Perhaps this is an unimportant aspect relative to the other complications of CLs, but I figured I’d throw it out there again. Any thoughts? Are these distinctions incorrect?

3.  Speaking of how you payout, I’m curious about how Aaron thinks that aspect will work.

If everyone has a different amount of certificate money, then does that alter how many downloads one can make? If so, wouldn’t that defeat the purpose of the CL?  If not, wouldn’t that be rather unfair to the artists? I pay in 2 dollars in taxes, download 1000 songs of Artist X (and nothing more), and give him my two dollars. Aaron pays in 20 dollars, downloads 5 songs of Artist Y (and nothing more), and gives him all 20 dollars.

On the other hand, if everyone would have the same amount of “certificate” money, then would this fairly pay out to artists?  Say I download 100 songs by Artist X and Aaron downloads 50. Because it’s all we download, we give all our certificate money to Artist X.  Now let’s say Ernest downloads 150 songs of Artist Y and gives all his money to him. In a one-payment-one-consumption model based on 300 consumptions, Artist X and Artist Y receive the same amount. In a proportion model, they receive the same amount. But in Aaron’s, Artist X receives twice as much as Artist Y.  Is that entirely fair? What if the respective downloads were 15, 5, and 300?  In the first two models, Artist X gets substantially less than Artist Y; in the latter, Artist X gets twice as much as Y. 

In sum, is it fair to totally ignore volume of consumption? (alternate question: is my math completely incorrect?)