Updated in the text below. Also, see Ernest’s comments and mine here.
As usual, Ernest provides much to chew on. I can’t get to all of it today, in part because I am recovering from the confirmation that there is no god. (At least with the Warriors, I know what I’m getting myself into.)
1. Let me try to make something a little clearer: I’m not sure I have anything that you could call “Derek’s proposed compulsory licensing system.” I’m throwing out ideas about different ways you could construct a CL. You could do audio-only, you could do music-only, you could do something entirely different. Sometimes I do advocate a particular position or implementation, but that doesn’t mean I have some set-in-stone, thoroughly worked-out plan.
So, when I bring up books-on-MP3 and ask about one way of implementing it, do take it as a question with a suggestion, rather than a “concrete element” of My Grand Scheme. Sorry if that wasn’t clear before. In any case, I’ll come back to why I brought up the question a little later in this post.
2. I don’t think I understand Ernest’s point about how sampling usage won’t make things any better. The way I am imagining things, usage would be based on playing the audio file as an audio file. If you take out the header section and turn the baudio section into a bmp, and you open, that bmp, the system would not count that as a usage. I imagine that the usage counter could tell whether you’re playing the crackly noise or displaying an image file. So if someone downloads but only uses the baudio file as an image, our downloading counting would pick it up, but our usage sampling wouldn’t – because no one would actually have used the audio (unless they actually like the sound of crackly noises, and then more power to them). If I’m wrong and this is not technically possible, then please explain.
3. Ernest asserts that I’m trying to assume away the problem by saying that punishment for misuse. Definitions for misuse are somewhat difficult to come up with. I don’t think I was assuming the problem away – I was saying that we could combat certain misuse through penalties, but I didn’t say it’d be comprehensive. And, in that way, I agree with Ernest’s sentiments here about definitions. To repeat:
“Would it be to tough to catch? Yes and no. To make this gaming technique worth your while, you probably will have to advertise in some way that the wav can be converted to something else. Otherwise, how will people know what to download?” (emphasis added)
Of course, if you don’t advertise that you are only distributing the audio just to get people to convert it, it’s much more difficult to be caught. And if you try to ban those instances, then you run the risk of people distributing the audio files to actually be consumed as audio.
4. Ernest asserts, “Proving one of the points of my earlier post (in compulsory licensing schemes there usually isn’t any discussion devoted to pornography), Derek doesn’t discuss my other main example, which was pornography.” Frankly, I thought it was bound up in his original point about shareware authors as amateur creators who wouldn’t mind having their works freely shared on P2P networks in the first place. So I can’t say I was avoiding a discussion of pornography, because his argument wasn’t really about compensating pornography in particular – it was about amateur producers.
But now it seems he wants me to take the compensating pornography issue on separately. Let’s try it a little.
In his two posts, Ernest actually makes several separate claims about compensating pornography. First, porn will not be fairly compensated because of its content – politics will not allow tax money to go to porn. Second, porn will actually be compensated too much because it will be downloaded in baudio form.
Again, I’m not sure how, if we sampled usage and compared it with the download stats, porn would be compensated more because of baudio, unless a lot of people are actually listening to the audio version.
And would porn be compensated less for political reasons? I’ve never seen a CL that advocates that. Have you? Is it an inevitability?
This is not to say that porn wouldn’t necessarily be treated differently. It could be treated differently on the basis of the economics of the porn industry, [added:] rather than to discriminate on the basis of its content. A download of porn wouldn’t necessarily pay out equal to a download of a song or a download of a typical feature film.
And here’s where I hear: that’s not fair!
Why not? Or should I say, why is it, by definition, not fair? The costs to make a movie and a song are substantially different. Thus, if our goal is to compensate them for what revenue they’re losing or to “make them whole”, we’d have to adequately analyze the economics of each industry. To see how, for instance, Professor Fisher would examine this, see his chapter 6.
Note that Fisher suggests against extreme granularity. We could distinguish between comedies and action films, but that distinction might prove tenuous in many circumstances. Furthermore, comedies and action films, as genres, are not priced differently in the current market.
But porn and action films are often priced differently. In many cases, the economics of the two genres are substantially different. Perhaps this distinction would be too granular, but, given how separate the two industries are now, it’ll be a lot easier than separating comedies and action films.
My general point is: it’s not a matter of whether we distinguish on the basis of genres. Any scheme is going to have to do that. Differentiating between music and movies is a level of division. It’s just a matter of how granular we go. And, as Ernest would surely point out, each level of granularity brings with its own questions and problems – there is no perfect scheme.
[added:] Ernest makes an absurd assessment about my intentions for discussing this general point – as if I’m trying to accommodate people who would try to limit compensation for porn based on content. I did not discuss the granularity issue “in order to reduce the politically explosive issue.”
[added:] Actually, I was trying to distinguish between treating a genre or medium different on the basis of content and on the basis of economics (note: Ernest also tries to discuss that point as separate from my point about assessing production costs – really that’s just one part in the economic analysis). I wanted to make the more general point that granularity is already part of the system, and we have to decide what a reasonable level of granularity is. Some people believe that one download/use should count the same no matter what the media/genre, so I was trying to address that.
[added:] However, Ernest’s argument about granularity leading to content-based (discriminatory?) distinctions, weird incentives, and category problems is understandable. I don’t have a complete answer right now. I think some categorization – like books-on-MP3 – will be legitimately easier to make, but I haven’t found an underlying principle that can be applied across the board.
5. Now let’s tie this all the way back to books-on-MP3. Ernest asked, “Indeed, if we aren’t going to define “music” for toilet flushings then why define books-on-MP3 as non-music?”
Toilet flushing, books-on-MP3, and typical songs cost different amounts to produce (and are sold at different rates, I suppose). But categorizing toilet flushing as a separate art genre would probably lead to unnecessary disputes because it wouldn’t really be a clear distinction.
The distinction between books-on-MP3 and typical music, however, would be much clearer, I’d say. Even this granularity in distinctions could lead to problems, but I think it’s a pretty safe and reasonable distinction because it would pick up on an established difference in current industries. Moreover, it would pick up on our/my intuition that the spoken reading of a textual work is distinct from the creation of a musical work. (And don’t we already have the makings of this distinction in current law? Is there a composition and recording copyright for books on tape?) Again, that doesn’t make it a perfect scheme, but I do think you can reasonably decide to define books-on-MP3 differently from music without also having to define “music” for toilet flushing.
6. Ernest pokes plenty of holes in my concept of “agency.” Like I said, it risks being overbroad in many circumstances, so I don’t entirely disagree with his points.
Unfortunately, Ernest doesn’t address my suggestion of subdividing on the basis of genre. He does talk about my distinction of the “Windows noise” versus a musical song, but he only does so in the context of “agency.” Could we make a distinction between those types of sounds and typical music based on subgenre, without getting to too granular definitions?
Fire away. 🙂
Filed by Derek Slater at 11:26 am under General news
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