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« First Creative Commons License CD Released | Main | Peer-to-Peer Networks in the News »

November 09, 2004


Good points, Tommy.

If we stay in the "buying copies is legal; downloading over P2P is illegal" paradigm, an ACS would be subsidizing undesirable behavior -- and I agree that it would be unfair. But, at least some (e.g. Fisher) see an ACS not as a solution to the piracy problem, but a basic shift in the way we consume media. On that set of assumptions -- if P2P is how everybody gets their music, not just how "pirates" get their music -- nobody's subsidizing P2P pirates, because everybody's paying and consuming from the same pool.

You make a very good point about the decreasing personal cost (defined broadly) of downloading music for free over P2P. It's more or less accepted now; at least among our generation, it's not seen as "cheap" or wrong. If that cost continues to decrease, if we're going to enforce the laws as they stand, we're really going to have to hit hard with enforcement attempts, making the economic cost so high that the low social cost (in terms of peer approval, not cost to society) doesn't matter.

We haven't even come close. The RIAA lawsuits impose about a $0.54 monthly economic cost on each file sharer, and that's just not enough to change anyone's behavior. (My estimation there is probably not perfect, but I'm sure I'm within an order of magnitude of the right answer.) Copyright enforcement has always been difficult and extremely expensive on a user-by-user level, and that's why we have so many systems of compulsory and collective licensing already (the section 115 mechanical, the section 114 webcasting license, the cable compulsory, ASCAP and BMI, and the AHRA). The cost of enforcement is only going up. To make the risk of being sued cost enough to change behavior, the people who get sued would have to get hit really hard -- life-destroyingly hard, I think. That's not out of the question; the RIAA could be asking for statutory damages in all of these cases, and they'd probably get it at least some of the time. Sharing 500 songs at $750 each (the minimum statutory damage amount) costs you $375,000 -- a debt it would take most P2P sharers a lifetime to repay. I think "musical socialism" (if we must call it that) may solve the enforcement problem without ruining anyone's life.

FYI, an updated version of the "Brave Kingdom" piece will be published in Volume 6, issue 1 of the Minnesota Joutnal of Law, Science, and Technology, forthcoming this December.

I find it odd that "alternative compensation system" is now synonymous with variants of compulsory licensing. Instead of multiple alternatives we have The Alternative. Have our great legal minds gotten stuck in a rut?

I apologize in advance that I don't have any specific alternative proposal to offer.

In response to Ms. Yegyazarin’s article, Joe Gratz commented:

"It’s a bit like saying that property taxes that go to fund public schools are unfair because they make all of us pay costs imposed by the bad apples who choose to send their kids to public school instead of “playing by the rules” and sending their kids to private school."

I’m not sure the analogy fits. Ms. Yegyazarin is not disturbed at being forced into paying for something, which benefits her and society as a whole. I believe she is dumbstruck (as am I) at the idea that she must subsidize the illegal activity of others. Now, before I am berated with emails, I know that as a taxpaying citizen my taxes go towards policing the streets and other programs which are the result of “a few bad apples.” But I also realize that my taxes go towards funding the legal system and my concern is that an ACS-type solution is a system which tragically and inexcusably overlooks an option which appears on its face to be a difficult task, but must be the first step taken towards curtailing illegal activity: a true attempt at legal enforcement of musical piracy.

My initial reaction to Ms. Yegyazarin's comment was the same as Joe's - there are lots of things we are forced to pay for and don't really use. Perhaps the public school example just isn't the best one to use, because everyone benefits from having an educated public. My initial thought was phone taxes that go to 911 and emergency services. We all have to pay them if we want to have phone service. It's not optional - you want that cell phone, you're going to pay even if you never call 911. But even that example has an element of "everyone benefits" to it - the security of knowing emergency services are there if needed is enough benefit to be useful.

So I thought some more...

What about government subsidies to the arts? Even if I never go to the symphony, it might get some funding paid for with my tax dollars. Sure, some people will say that it enriches the community as a whole and benefits me indirectly, perhaps because of overall beneficial economic effects to the city. Why can't downloaded music/movies do the same thing? There could be overall beneficial economic effects in the form of more demand for internet service, electronics hardware (MP3 players, DVD burners, computers), etc. I'm supporting an industry with the tax I pay on my blank CDs because my tax payments get distributed as royalties back to artists. Maybe I don't want to support those artists, but I don't drink milk either and the dairy industry gets tax money in the form of government subsidies.

Also, I think you are discounting the possibility that maybe enough of society does think free downloads are beneficial to society to outweight the people who disagree. Maybe it does hurt some big companies, but who says we can't make such a rule? I just voted here in CA last week, and we had plenty of propositions with similar issues. I could vote to force companies to pay for workers' insurance, to raise phone taxes to pay for emergency medical services, and to raise income taxes to pay for mental health services. Would companies that are forced to pay insurance be happy, or would they say it's unfair? Certainly they wouldn't be happy, but we allowed a popular vote on whether we should make that happen. Maybe "free music" would win a popular vote over the loud objections of the media companies?


My problem as well as I believe Ms. Yegyazarin's is that music subsidies are not intended to i.e. promote the arts and sciences, they are placed on music buyers because leeches deprive artists of their reward. I guess it would be like if suddenly people started stealing milk (ignore the rivalrousness) and then and only then would a tax be imposed. That just doesnt seem fair to the buying public. Taxes like your milk, farm subsidy, and 911 examples are all meant to promote an overall better good, they are not an attempt to offset the illegal acts of others - thats what a judicial system is for.

Now I agree that a vote is a legitimate option for people who think free music is fair. If people so desire and they actually think musicians would produce music in a musical socialism world then i say go ahead and put it on the ballot. But something tells me: (a) in American where the country in large part vehemently rejects something like nationalized health care, musical socialism wont gain favor, (b) Americans hate taxes and the amount of tax necessary to incentivize musicians in a post-socialism world would be enormous, and (c) no one actually thinks music should be free.

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