"3. Lastly, I'll note (again) that once you go down the path of transferring
>control to Washington (and make no mistake, that's where it will go), you
>invite/assure certain consequences. (Insert all things here that people
>hate about politics--red tape, money buys power, inefficiencies, etc.). Do
>we want this uberagency governed by the DOJ as are ASCAP and BMI?"
Duff
This is why I suggest a PRIVATE non-profit and government
monitered-to-make-sure it-remains-so Internet Collection Agency, Initially,
start-up funded by the government who set up a Congressional committee
which establishes an initial Congressional funding grant and hires a board
of directors from the private sector, who then hire it's employees from the
private sector, but anyone also in the employ of the music/publishing
business is excluded as well as anyone who is representing any united
artist type organization or union. The Internet Agency's sole goal is to
accurately and fairly distribute compensation to creators/owners via
detailed statistics of usage. It requires no music biz or artistic
knowledge to do this statistical tabulation and redistribution of funds. It
will need plenty of help when it comes to establishing the fee and
distribution formulas, however. Expect bog down down time. Meanwhile, make
no other laws respecting the Internet.
The Internat Agency begins and lives on the substantial, initial Gov grant
until sites are registered, (registration could be legally required but I
would love to try optional for a while first), tracking has begun, and
compulsary fees begin coming in. It distributes to creators according to
what was "used" and how many times. Artists can register pieces with them
as individuals, as companies, through companies, or whatever. See BMI song
registration form.
The agency simply -(Ha!) distributes monthly/yearly payments to
artists/writers/publishers with income from WEBSITES who are
downloading/streaming other's IP. Both Websites and Artist/IP are
registered with the Agency and the amount of website sends acrued goes back
to the creators as compensation from what the websites pay the IA for the
"right" to download to users.
P2P, computer to computer transference of copyrighted material is not
involved in all this. This whole collection scheme deals only with
distributions directly from on-line websites. The same kinds of infingement
prosecution ( in this case, against unregistered aggrigate downloading
sites) will be possible on the Net that are now possible elsewhere.
ONE place, government monitored but not government operated, will be
registering and tracking send-only downloading of copyrighted material to
the public from websites only by law. As scary as this may seem, these are
also the very things (Granting, tabulating, and auditing) that our always
suspect government is BEST at, and their very limited role in overseeing
the Internet Agency actually avoids their governmental role becoming most
of the reasons-to-hate-government listed below. We have to start trusting
them to do SOME THINGS right or just get rid of them altogether!
The Internet's users are completely out of this picture of legal concerns,
applicable laws, and necessary charges.
The IA fees and payment formulas are up for grabs (ha) but traditional
off-line organizations like BMI/ASCP have certainly done this for years via
tabulation and payment formulas and have, if not the accuracy, at least the
mechanics figured out. So if they would be so kind as to share those
mechanics with the Internet Agency it should ease their way considerably,
and I bet they can streamline your system with a fresh view which I'm sure
they'll share with you... outside suggestions also useful, of course.
If the Internet Agency fails economically as a non-profit, the Congress
disolves it and waits until more payment controls on the Net become
installed or the actual traffic there is sufficient to allow this
necessarily self supporting/non-profit operation to be viable - using what
they are able to earn through tracking and tolling downloads/streams of
registered sites and taking their own non-profit operational cut. What
could make OR break its survival is the - NEW - aspect of being able to
actually and accurately track EVERYTHING that goes out AND how often, 24-7.
The Agency's per-download monitering could be a part of the registered
site's download software, which would be distributed free, being paid for
by the initial grant, by the Internet Agency to all registered sites. This
monitoring may hold surprises compared to, for instance, BMI's grossly
inadequate sampling of actual use and the necessary elimination of slight
usage in their statistics.
Send-only tracking data from the sites would be going direct to the
Internet Agency and results tabulated by them and shared with the site and
those compensated. There is no tracking of user, user's end, user's use,
user's identity, user's ANYTHING.
Most of the government's calandars may be saying 1984 forever, so
restarting up a disolved Agency again later would be another big battle
then, like now, between the Freebies and the Chargers, as we will be
calling the contestants by then. Present copyright holders will be doing
everything they can now or then to stop this from happening.
But it also may do just fine, distributing checks for like $10 all the way
up to many digits behind dollar signs to artists, writers, publishers, and
copyright owners according to EXACTLY what got played and how often on the
American system of IA/IP websites.
Coming next: The United Nations Internet Agency, UNIA, which will centrally
track ALL downloaded registered IP from the world's IA registered websites,
and distribute to artists/writers/publishers all over the planet in the
appropriate currency.
Same payment scale/percentage formula/division of compensation
internationaly for all who register with the UNIA.
(Before that, there will be a national IA police force of casually dressed
sleuths to find, fine, prosecute, and eventually blow up if necessary
infringing unregistered websites. A private security system like Wackenhut,
no doubt. Once we have a UNIA, policing will probably be done by a crack,
or is it joint Net-busting force in raybans and jumpy suits, manned and
maintained by personel from participating countries.)
There is nothing sacred or necessary about any company's website. There is
no government or Internet Agency effort to assist websites to discover
where their income is going to come from. That's up to them, just as it was
for radio. They can try anything they want to, but if they can't pay their
Internet Agency fees for downloading/streaming other people's stuff -
ptooey - they're gone. Free market, remember?
Independent artist owned and operated sites are not required to register
their downloads or use Agency software, (an unnecessary circular trip for
money, if there is any, from artist/owner and back to self, and they still
receive payments from the Agency when other sites are sending their stuff,
but everyone else who is distributing digital IP as aggrigators, as clubs,
as whatever they want to call themselves, anything not their own unless the
creator agrees they can use it without compensation, must register by law
with the IA as downloading copyrighted material. This law is passed by
Congress to accompany the initial IA start-up grant. The only exceptions to
this law are the traditional Fair Uses PLUS collage which would be
considered as valuable and original work we would like to encourage no
matter what it's made out of, and does not require IA compensation to
extend beyond the collage maker to the copyrighted material it might
include, as long as it is a collage.
In other words, the IA immediately shows it's independence and intent to
promote, not hinder the creation of new and grass roots art, institutes ITS
OWN cut-off line for any extended, secondary compensation to the
copyrighted contents of collage appearing on the Internet. The IA would be
immediately sued by copyright holders and the court, surprisingly, would
rule that the IA, as a non-profit organization designed to balance public
good and private gain, and existing in a new domain, is not beholden to the
mechanics of copyright laws which were not designed with this new
technology in mind or imagination, and has made adjustments to best serve
this new medium and its unique interface with the public citizenry in mind.
The eventual Supreme Court decision upholds that they should be allowed to
try this.
Congress responds to the courts wise decision by amending and ratifying
copyright law to include this adjustment to copyright on line. Wow, just in
time!
Digitized collage, audio, visual, or literary, is considered to be owned by
the collage maker only, period. This would be INTENDED to specifically and
legally expand Fair Use on the Net in a unique way there. perhaps just a
bit looking back at copyright's original mandate and giving the synergies
of public domain a bigger role, specifically in terms of recycling culture,
on line than it has ever had in the past elsewhere. You know, times change,
technologies change, the stuffing of our legal system with this secondary
usage junk requires streamlining, etc.
(I spare you my best definition of collage, available on request,
distinguishes between all forms of compilation and aggrigation, and all
forms of collage, available in the pho archives...opps, sorry. we're not
interesting enough for that yet.)
DJ
Negativland
>WB:
>
>A thought or two on this compulsory license issue:
>
>1. If it can be said that compulsory licenses are the exception, and that
>exception has been historically made only in exceptional (sorry)
>circumstances, I don't see the current situation as so exceptional. For
>instance, mechanical compulsories grew out of a Congressional fear that ONE
>company was cornering the market in song compositions (Aeolian). I've read
>your posts on this, but don't see the similarity extremeties of
>circumstances (another example--compulsories for cable to help that industry
>get off the ground--I don't think you can argue Real, etc. need help getting
>their businesses going).
>
>2. Perhaps more fundamentally, I was under the impression from all the
>"radio stinks, label music blows, etc" that no one wants to listen to that
>over-produced talent-devoid cacaphony. Well, if that's the case, why is
>everyone so desparate to force its owners to license it? And as I've noted
>before, once things get put in place (esp. in DC), they rarely, if ever, go
>away. So, if and when there comes a time when artists own their stuff, many
>of them won't like the compulsory scheme. It's always dangerous to tinker
>with the law b/c of certain circumstances of abuse. I draw the following
>parallel to current events: the Founders wisely created a Presidential
>pardon power, and I think it would be foolish to tinker with it b/c of the
>abuses of one rouge exerciser.
>
>3. Lastly, I'll note (again) that once you go down the path of transferring
>control to Washington (and make no mistake, that's where it will go), you
>invite/assure certain consequences. (Insert all things here that people
>hate about politics--red tape, money buys power, inefficiencies, etc.). Do
>we want this uberagency governed by the DOJ as are ASCAP and BMI?
>
>Duff
>
>----- Original Message -----
>From: Whitney Broussard <WhitneyATsmmmusiclaw.com>
>To: 'Dean Kay ' <deankayATearthlink.net>
>Cc: ''John Parres ' ' <johnparresATyahoo.com>; <phoATonehouse.com>
>Sent: Sunday, February 18, 2001 2:25 PM
>Subject: RE: pho: limited times in the Internet world
>
>
>> >>>>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*
>> disfunctional.
>>
>> 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
>> terms.
>>
>> 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?
>>
>> -----Original Message-----
>> From: Dean Kay
>> To: Whitney Broussard
>> Cc: 'John Parres '; 'phoATonehouse.com '
>> Sent: 2/18/01 4:34 PM
>> Subject: Re: pho: limited times in the Internet world
>>
>> Don't quite understand what you mean by "a regulated central licensing
>> agency and
>> the applicable intermediary".
>>
>> The membership of ASCAP is a single class consisting of writers and
>> publishers
>> (the owners of small performing rights under the copyright law) that has
>> been
>> granted the right, via a consent decree, to bargain collectively on
>> behalf of its
>> members with individuals, individual companies (i.e. MP3.com) and groups
>> that
>> represent a particular class (i.e. NAB).
>>
>> 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. This
>> means strong, well funded, well prepared advocates on both sides.
>>
>> Who - or what sorts of entities - do you envision filling what rolls re:
>> digital
>> distribution?
>>
>>
>> Whitney Broussard wrote:
>>
>> > >>>>To arrive at an appropriate fee, every new application must be
>> judged on
>> > its own unique set of perimeters.
>> >
>> > I have come to agree with you on that one Dean - largely due to your
>> input.
>> >
>> > Given that, by its very nature and as its greatest strength, the
>> internet
>> > allows for the delivery of music in a myriad of ways and means, an
>> > ASCAP-like model which allows for the negotiation of licenses between
>> a
>> > regulated central licensing agency and the applicable intermediary in
>> order
>> > to see if, in the first instance, they can agree amongst themselves as
>> to
>> > what a fair and non-discriminatory rate would be in the application
>> > concerned (but which is ultimately subject to the determination of a
>> fair
>> > rate in an expedited rate court proceeding if they cannot) seems like
>> an
>> > ideal mechanism to enable the widespread delivery of music on the
>> internet.
>> >
>> > IMHO, this mechanism has the unique benefit of having been tested
>> > extensively in the context of granting performance licenses for
>> musical
>> > compositions for, among other things, the widespread broadcasting of
>> music
>> > (which was understandibly initially met with many of the same fears as
>> we
>> > see today in regard to the internet) by intermediaries having vastly
>> > different business models. Of particular note as well is the fact
>> that it
>> > evolved over decades of incredibly acrimonious fighting between
>> copyright
>> > owners and those who wish to deliver copyrighted material to the
>> masses and,
>> > as Santayana said: "Those who cannot remember the past are condemned
>> to
>> > repeat it." Reading the history of the early relationship between
>> > publishers and broadcasters, I am not anxious to see a replay in the
>> 21st
>> > Century.
>> >
>> > It seems to me that we would be remiss NOT to seriously explore this
>> type of
>> > a system and see if it cannot inform us as to how best to proceed in
>> the
>> > situation at hand.
>> >
>> > I'm curious as to your views on implementing a system like this given
>> your
>> > obvious familiarity with the workings and history of ASCAP.
>> >
>> > Given that ASCAP's composers and publishers are subject to the same
>> > restrictions as I am suggesting, wouldn't it be in THEIR best interest
>> to
>> > make sure that THEIR income is not blocked by the owners of copyrights
>> which
>> > are derivative works of their more primary copyright?
>> >
>> > Publishers and composers have made (and continue to make) fortunes
>> based
>> > upon exploitations of their works which they cannot meaningfully
>> control
>> > (i.e., mechanical licenses and performance licenses, which together
>> account
>> > for what 70%-85% of the total income generation of a song? - you tell
>> me)
>> > but for which they are guaranteed payment. Why should sound recording
>> > copyright owners have rights which are superior to musical composition
>> > copyright owners? No one has even tried to explain this yet, much
>> less made
>> > a convincing case.
>> >
>> > -----Original Message-----
>> > From: Dean Kay
>> > To: John Parres
>> > Cc: phoATonehouse.com
>> > Sent: 2/17/01 5:27 PM
>> > Subject: Re: pho: limited times in the Internet world
>> >
>> > John Parres wrote:
>> >
>> > > how about a scenario where, after first publication, *everyone*
>> could
>> > distribute
>> > > online at a fair and reasonable stat rate?
>> > >
>> > > JP
>> >
>> > Sounds pretty cute, John, and slides right off the tongue as if it
>> made
>> > sense, but
>> > 'fair and reasonable' has as many definitions on the internet as there
>> > are
>> > technologies and configurations thereof.
>> >
>> > The compulsory statutory mechanical rate applied to carriers of sound
>> > recordings
>> > (O.K., O.K. CDs) works because each unit to which it is applied is
>> > essentially the
>> > same - the only difference is duration - if the music is longer than 5
>> > minutes the
>> > rate increases.
>> >
>> > There is no similar circumstance on the net.
>> >
>> > To arrive at an appropriate fee, every new application must be judged
>> on
>> > its own
>> > unique set of perimeters. On this unsettled frontier we are currently
>> > exploring -
>> > nothing more than short term, experimental licenses makes any kind of
>> > sense for the
>> > either the user or the creator.
>> >
>> >
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