[rumori] RE: pho: limited times in the Internet world

From: Don Joyce (djATwebbnet.com)
Date: Mon Feb 19 2001 - 11:03:24 PST

"I think it's a pretty good system. Do you see any holes?"

Yes. It's that old hole in the public (read artist and user) trust. If this
universalized collection agency is owned and operated by the recording
industry, it will be subject to all the drawbacks which RIAA thinking and
bias is now. Why can't an internet collection agency be operated as an
independent INTERNET body, not related to either IP owners or creators,
mediumistically specific, monitered by government auditing, and run as a
non-profit itself, paying itself only for it's own management? Nobody's
going to trust the benevolent good will of a music profits based
SoundExchange any more than they now trust ASCAP/BMI/SESAC for the same
good and demonstrable reasons.

License fees can be negotiated among all parties by an independent,
commercially impartial agency just as fairly as they can be by an industry
favoring one, (or need I say if not more so!) A government (not private
industry) grant (which could be repayable) gets them started and then they
continue on paying for their own operation with the smallest cut necessary
when fees begin. Because they would not be IP profit motivated, they could
run their own dispute arbitration board, appealable to federal courts.

(And I wont even ask the nasty question of what makes you think any of this
is going to suppress the free, "unauthorized" exchange of copyrighted IP on
the Internet?)


>>>>>Don't quite understand what you mean by "a regulated central licensing
>agency and the applicable intermediary".
>By "regulated central licensing agency" I mean an organization (like ASCAP
>or BMI, for instance) which is authorized to grant licenses for a vast
>number of copyrights but, due to the antitrust implications, is regulated to
>ensure that licenses are granted to all bona fide parties on fair and
>non-discriminatory terms. In this particular instance I am talking about
>SoundExchange or any competing organization with a similar function.
>By "applicable intermediary" I mean a commercial entity that wishes to
>disseminate the copyrighted musical works of others over the web -
>webcasters in their broadest sense (to include business models other than
>non-interactive delivery).
>>>>>In a vast majority of the cases, negotiations produce licenses
>acceptable to both sides and the free market works - and, by the way, is
>working extremely well on the Net. Rarely, do proceedings make it to 'rate
>court' but when they do it is imperative that both sides have the
>wherewithal to undertake a major court proceeding.
>EXACTLY. I would suggest that the availability of the rate court as a venue
>of last resort creates an extrememly strong incentive for the parties to
>reach agreement privately - since both know that *an* agreement *will* be
>reached and they can either choose to agree together what *fair* is or let
>the court do it (which makes both sides nervous). IMHO this simple
>difference is why the ASCAP licenses are working "extremely well" (recall
>that MP3.com had obtained licenses from ASCAP very early in its existance)
>and the licenses for the sound recording copyright are *completely*
>On top of this, the deal vis-a-vis the writer and the publisher is ALWAYS
>the same, no matter what deal ASCAP cuts (i.e., each gets paid their 50%
>share directly without regard to the status of the writer's account with the
>publisher)and thus the composers are quite well-protected by the mechanism
>(which I think you would agree is an essential component of any solution
>that means a damn, right?).
>My point is that the ASCAP system as between ASCAP and its licensees (and
>amongst ASCAP's constituents) is a pretty damn good, reasonably fair system
>and should be closely examined in the context of exploitations of sound
>recordings on the web.
>>>>>Who - or what sorts of entities - do you envision filling what rolls re:
>digital distribution?
>I would leave things the way they are with respect to the musical
>compositions (except I would argue that HFA should get their fingers out of
>the pie - one license for musical compositions is all that should be
>reasonably required and, interestingly, the Tasini case [posted a little
>while ago to the list] indicates that making something available over the a
>network is a display [the static analog of a performance] even though a copy
>of that display can be made fairly easily [just like radio, for that
>matter]) as does other language in the Copyright Act.
>Aside from the HFA issue, my suggestion is that SoundExchange (and/or other
>similar entities on behalf of copyright owners) should function much like
>ASCAP and be similarly restricted. This would make ALL music licensing on
>the web work "extremely well" which is the ONLY sure defense against piracy
>(remember, before licensing worked "extremely well" with the NAB virtually
>all radio stations were pirates) and, from the perspective of ASCAP's
>membership should seem exceedingly fair since the way things currently are
>in the vast majority of cases it is up to the owner of the copyright in the
>*sound recording* whether performances may be licensed and thus monies
>accrued to ASCAP's membership.
>In short - ASCAP/BMI/SESAC licenses should be all that are required for the
>musical compositions and SoundExchange licenses that are subject to
>essentially the same terms as the ASCAP and BMI consent decrees should be
>all that is required for the sound recordings. If the parties can't agree,
>then there is a rate court - but everyone will always know going into the
>negotiation that a license *will* be availalable on fair and reasonable
>Were such a system in place, all this crazy litigation would be moot
>virtually overnight. All the copyright parties - artists, composers, record
>companies and publishers - could start collecting their "pennies from [the]
>heaven[ly jukebox]," webcasters (in the broadest sense of the word) would
>have the predictability to attract the venture capital required to build out
>all the required infrastructure to generate those pennies and the public can
>start enjoying the unquestionably legal (and now licensed services) for
>which they have been loudly clamoring.
>I think it's a pretty good system. Do you see any holes?

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