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Could Eminent Domain Break The RIAA Stranglehold? 265

Thales_of_Miletus writes "Findlaw has an editorial today on fashioning a compulsory licensing scheme (the IP version of the real property eminent domain takings power)to allow third-party online music distribution to proceed without the RIAA's permission. Thoughtful arguments are made about the role of IP in a free society and restoring the public benefit function of copyright."
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Could Eminent Domain Break The RIAA Stranglehold?

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  • by Anonymous Coward
    If you follow the career of Lenin, you have an even more effective solution. Annex all property to the state, ban music as "Decadent", and put all the band members, hackers, and music copiers into concentration camps or slave farms. No more pointless debates about napster anymore!
  • by Anonymous Coward
    The Interstate Highway system was not built until *after* WWII. The USA fought and won WWII with rail.

    The Interstate Highway system was pushed through by President Eisenhower, whose earlier training for road-based tranport in WWI deployment exercises (that's One, as in the Great War) was a disaster. Of course, the major automakers, tiremakers, etc., had something to do with it too.
  • by Anonymous Coward on Monday July 30, 2001 @09:28AM (#2182905)
    There have always been holes in history. There always will be holes in history.

    A photographer friend of mine a few years back told me of a drunken party he took place in back in the late 50's. A collection of original glass plates of photographs of American Indians had been found, and people were having fun by throwing them to the floor and smashing them. (this is a real story, not flamebait). Shit like that happens all the time. Beautiful buildings are torn down. Big archives of magazines or books are cleared away for recycling.

    That's life. The day we decide all of everything has to be 'preserved' for historical purposes is the day history stops. They pour in the formaldehyde and we all die.

    Deal with it.
  • if this is going to be argued, can't the riaa and they're group say that much of this music is freely available on the airwaves, mtv (when they play music), etc?

    Where it's paid for, on a per-play basis. The music may be "freely" available TO YOU, but the radio station or MTV paid for the right to play it. And YOU are paying, indirectly, by being exposed to advertising.

    Everything free is worth what you paid for it.


  • Compulsory Licensing makes a helluva lot more sense when you stop thinking of Corporations as People who deserve Constitutionally Guaranteed Freedoms.

    If you're a Natural Person, then you deserve access to whatever is in the Public Domain in addition to what you pay for. If you have to break encryption, compress, expand, xor, rot13, format-shift, time-shift, or export to another country then it's your skills against theirs sans DMCA, and we all know how that one ends.

    If you're a FAKE Person (a Corporation), then you deserve access to nothing unless you have explicit permission in the form of a license (which will probably cost you several bags of moolah).

    If you're a Natural Person, you deserve the right to safeguard your IP for a limited time, after which it becomes public domain.

    If you're a FAKE Person, you deserve the right to NOT complain about ANY of these issues because YOU DON'T EXIST. You deserve the right to go about your business in a peaceful manner until such time as We The People decide we don't like you anymore. And we will tell you so, in no uncertain terms, when we YANK YOUR CHARTER.

    The catch is: If you're a FAKE Person, then you DO NOT have access to the public domain. Only the PUBLIC gets that, see?

    I'm thinking this ought to apply more to Copyright than Patent. Someone else will have to write those rules. And anyway, if Corps aren't people and can't hold rights, then there's probably no need for Compulsory Licensing in the first place. Mickey Mouse was just ink on paper until we made Disney Corp a Person. Now he's a commodity that should have reverted long ago.

    (All copyrights mentioned in this post are the property of their respective holders, though I think they ought to all be tarred, feathered, and run out of town.)

    The real Threed's /. ID is lower than the real Bruce Perens'.

  • As you may have noted, most of us agree with the need for copyright. However, many people (myself included) believe that Congress has overstepped its bounds in extending copyright in both term length and scope. Seems to me that the "limited times" clause has been thrown out the window. What good is it to have a term length longer than a normal human life? Those works will not fall into the public domain and be freely available to all within the lifetime of anyone who was around when they were created. That seems to defy the purpose of limited the length of a copyright term in the first place.

    Furthermore, I thought it had been plainly obvious to people that the right to reverse engineer was essential to progress and innovation. Now that right is under serious threat from the DMCA.

    One of the most onerous effects of the DMCA is to allow copyright holders to dictate terms of how some bit of information may be used via contracts and enforced by the anti-circumvention clause. Whatever fair use rights we had left are basically history now when we want to use some information that is only sold in encrypted format, even if that encryption is of the most rudimentary and laughable sort. The owner must only declare that it is meant to protect the work, and it then becomes illegal to circumvent it.

    While the French may have screwed up by abolishing all copyrights, we may be heading for a simlar catastrophe by giving nearly absolute rights for an effectively unlimited time to copyright holders. I hope we come to our senses and realize that copyright is nothing more than a bargain between the creators and the public, and the public has been getting the shaft for a long time now. When was the last time any copyrighted work became public domain? We need to restore balance to the bargain. Unfortunately we're up against people with A LOT of money, and they don't plan on giving up ANY of their newly bought control.

  • But dammit, the world owns Mickey Mouse by now

    The world will never own Mickey Mouse. Disney has DEEP pockets.

  • You don't seem to understand.

    The point was even in those days the cost of printing was not the signifigant obstacle to having content published.

    It was the cost of creating the content. i.e. the scarcity of talent.

  • by sheldon ( 2322 ) on Monday July 30, 2001 @01:22PM (#2182915)
    I always find it interesting how people quote the Founding Fathers as authority, even though in many cases they disagreed amongst each other. In other cases they were wrong and we had to Amend their decisions to correct them. Many times their comments are only valid within the timeframe that they had lived and we can see from historical perspective why that is the case. It all depends, often these same people on some other issue are quite willing to point out these deficiencies in blindly following our "gods."

    One note of historical perspective... Right after the US achieved it's freedom and own form of government, the French attempted to do the same.

    The French weren't quite so reasonable in their argumentation and many of the extremists took over the revolution. One aspect of this extremism was that all copyrights were revoked, and all information was totally free.

    No publisher could afford to make the investment in printing something that was quickly copied by everybody else and sold for a fraction of the cost. The end result was an increase in the number of tabloid rags at the cost of real literature. Stuff so wild and ridiculous that it didn't matter if the content only lasted a day.

    The French later realized that this was a bad thing.

    It's important to learn from history...

  • by Effugas ( 2378 ) on Monday July 30, 2001 @12:11PM (#2182916) Homepage
    Forgive the mild indescretion of self-linking, but I was speaking of this very occurance a couple months back. The title makes quite a bit more sense if you read the link :-) []

    A number of writers here have stated that Eminent Domain should never be applied to the benefit of individual corporate providers; while I'd normally be inclined to agree, I note there is a strong compulsory licensing program (administered through BMI and ASCAP) that effectively gives radio stations the freedom to play whatever music they like on the air, as long as they hold to certain restrictions(no more of a certain band in an hour, they may only play "official releases"[grr], etc.)

    Mass outlets of content should be more free and open, not less free and tightly controlled. As elements of culture become progressively more productized and trademarked(even our stadiums are monetized, at the cost of the legitimacy of our homes), I do believe it's clear that, at least conceptually, there is some dispersal of rights and "ownerships" over that cultural artifact.

    Now, what's interesting is the question of whether an artist has the right to prevent their work from becoming such an artifact in the first place. Far from an insignificant argument--it's one thing for "The Red Shoe Diaries" to be compulsory licensed and sold online; it's another for the average person's diary to be downloaded from their computer and sold online! One conclusion you could reach might be that, once the product was commercialized by its author, *but not before*, it was fair game for automatic distribution. Such creates a fluid and "free" market without arduous restrictions on the flow of money.

    This does seem to imply that buyers of a good have rights and expectations over that good, even before sale. One could imagine access within a convenient marketplace to be among them.

    *scurries off to think this through further*

    Yours Truly,

    Dan Kaminsky, CISSP
  • Did Schubert, Chopin, Beethoven, Handel, etc.?

    No. They didn't did they?

    They created music that most definitely lasts, but yet it had NO protection whatsoever (in some cases they bemoaned that fact, but produced anyway).

    Protection for production of works for money does not produce better content- nor does production solely for the sake of money. I can point to numerous bands such as the Spice Girls to illustrate that point. Do you hear much of them or any of their music? No? Yet, you WILL hear one of the oft played Rolling Stones or Aerosmith songs on a rock station- they've technically not been a band for a while now (though Aerosmith's been back for a little a while back...).

    While I've no illusions about either of the "classic" bands being there for the money, they were there as much for the music and it showed. The same can't be said for over 90% of the stuff that's playing today on the radio that the record companies are shoving down our throats.

    As someone wise once said- you don't go into computer science for the money, you go into it because it's in your blood. If you do that, the money will follow. I believe with all my heart that this is the case for my chosen profession as well as almost every other- including being an author, actor or a musician.
  • What makes you think they're going to bother with anything that lasts these days- that doesn't make as much money. If your argument held any water whatsoever, why do we have Britney or Backstreet in the first place?
  • I saw the same thing - plus there was another interview by some other channel (not MTV or VH1) before that, where he said that basically he does it because he's a nice guy -- satire and parody are protected, so legally, he doesn't *need* permission -- but because he's a nice guy, he goes and gets the artist's permission anyway.

    I have a lot of respect for the guy -- he could just be a dick and do it without permission -- but instead he takes the high road and actually talks with the artists beforehand.

    IIRC, the whole Coolio bit was a misunderstanding between Weird Al, Coolio, and Coolio's agent -- Al talked to the agent, who said that Coolio was cool with it, when in fact he wasn't. Coolio came out *after* the song was released, saying he wasn't OK with it - but by that time nothing could be done, as it was already out there. Al has publically apologized on several occasions for the mixup.

  • One thing which is not specifically mentioned in this article is how one gets the copyright. The New York Times can obviously get the electronic copyright via a suit, but it already has the paper copyright.

    My question is, does the Tasini ruling give parties with no existing copyrights the ability to sue to get electronic copyrights? That is, would Napster (or, etc.) simply be able to sue the RIAA for the rights, or would they have to have physical rights, too? I sincerely hope for the former, as the latter would be little improvement over the status quo.

    For too long, the favor has swung toward the copyright holders. We can only hope that this signals an end to the debacle that has resulted from attempts to get music on the internet.

  • by Old Man Kensey ( 5209 ) on Monday July 30, 2001 @10:27AM (#2182931) Homepage
    Nastard wrote:

    A home movie would be private property, and you would discretion over who did or did not see it. If you held the copyright, you could be forced to liscense it out, whether you had any interest in doing so or not.

    Compulsory licensing only (AFAIK) applies to already-published musical works. No one can force you to allow them to publish an unpublished musical work, or any non-musical work. So your home movie example is not a good one. Just spreading knowledge of the existence of a work doesn't count as "publishing" either -- the work itself must be presented to the public, usually defined as offered in some way to people you have no direct relationship with.

    Also, I don't know if this has changed, but it used to be an inviolable principle that an artist, regardless of what rights he may have signed away, had the right to determine the first publication version of his work. Bob Dylan actually denied a physical license to his own recording company for (if I recall correctly) Mr. Tambourine Man until they got a recording he liked. Meantime the Brothers Four and the Byrds were waiting in the wings with versions of their own; even though the Brothers Four version was finished first, it was the Byrds who got copies to market fastest, making them famous.

    (Or so the story goes. See The Straight Dope [] for the details.)

    I personally dislike both compulsory licensing and eminent domain; one way of looking at your property rights is examining the extent to which others are allowed to use your property without your consent, or to forbid you to use it in certain ways.

  • by Archfeld ( 6757 ) <> on Monday July 30, 2001 @09:18AM (#2182932) Journal
    That applies to great public need, freeways, bridges, infrastructure to support society. This is just music. I love music, but in no way does napsters existence promote, or threaten societies' structure. While it would be great if the RIAA board all died of a horrible disease and some HUMANS took over the job, I'd even settle for a reasonable payment scheme for online music, provided it was not a pay per listen and the quality was CD level. Half the MP3's out there sound like crap anyways.
  • To get the song into heavy rotation, the music label may pay the radio station to broadcast the song or to place it in a different slot.

    In theory, this doesn't happen, because it breaks "payola" laws that state that all sponsorship of particular songs must be disclosed immediately after the song is played. However, intermediaries called "indies" are paid by the record labels to get certain songs onto radio playlists. In the past, this would involve getting cash, promotions, and the traditional bribes of sex and drugs, to the program directors of radio stations. Nowadays, the indies seem to basically take their cut and pay the rest straight to the radio stations.

    There's a series of articles at Salon on ever-more-transparent channels between record companies and radio stations.

    Go you big red fire engine!

  • That [eminent domain] applies to great public need, freeways, bridges, infrastructure to support society.
    Eminent domain applies to more than just infrastructure projects. It's one of the most abused laws by local governments nowadays, mostly used as corporate subsidies.

    The city of Richfield, MN in the Twin Cities, condemned several properties, residential & commercial, to let Best Buy build a new HQ campus there. The reason they did it was for the increased tax revenue. One of the businesses, a car dealership, sued the city, but to no avail. Here's the court decision [] (google cache).

    The city of Columbia Heights, MN condemned a property that was being used as a charity for unemployed & homeless people because it didn't present the right "image" the city wanted for its downtown.
  • by Quikah ( 14419 ) on Monday July 30, 2001 @09:19AM (#2182940)
    It is up to the courts and congress to set a fair price scheme in place for any compulsory licensing. As the article says, if the two sides cannot come to agreement on a fair price then they go to arbitration. The arbitration panel then sets the price.

    This is the same thing that happens when the government takes your land for public use. They must compensate you at a fair price. When the two sides cannot agree on a price they go to arbitration.

    Wether this works in reality I have no idea, but that is the basic idea.
  • Actually there's precedent for having someone who wants to distribute a work they don't have publishing rights to be able to do so over the objections of the owner of the piece. It's called the compulsory license. Any broadcaster can play any song they want, whether the recording company likes it or not, as long as they pay the appropriate royalty for doing so. This would simply be an extension of that right.

    And even the members of the RIAA are in favor of this sort of license, at least when it's them doing the broadcasting. They've already asked a court to consider their use of songs for their on-line music service to fall under the compulsory license rules so they don't have to negotiate individually with the artists for rights to use the songs.

  • A shopping mall in the Fort Worth Texas area wanted to expand. So they took many people's homes to do it and paid they what their tax assessment value was. Home owners somewhat further out were now inundated with traffic, but at least they got to sell at market rates to businesses doing the normal purchase offering with incentives. However the lousy living conditions if they stayed probably would have screwed them over.

  • You are correct. That practice also existed. In part they could succeed because the prices of CDs were around double that of vinyl, while production costs were lower. The first couple of years, "demand" was so high it outpaced production capacity and the record companies could therefore charge more on the basis of supply/demand, and got richer doing so. So yeah, that happened. Had there been a compulsory reproduction law in place, there would have been more incentive for independents to build their own production plants, and the supply would have been higher. This shows even clearer that the record companies, because they have a monopoly on the production, can manipulate supply. And one reason they hate online delivery (not just free sharing) is because it would destroy their capability to do that manipulation.

  • by Skapare ( 16644 ) on Monday July 30, 2001 @01:35PM (#2182945) Homepage

    If you choose to publish, you are making your relationship with the public. Anyone in between is irrelevant. If you publish a book, I can buy some somewhere and stand on the street in just a trenchcoat swaying in the breeze and sell them, or even give them away. But you get paid per copy so quit your whining. If it's popular, you get rich. If you want to choose to NOT have a relationship with the public, then don't publish at all.

  • by Skapare ( 16644 ) on Monday July 30, 2001 @11:41AM (#2182946) Homepage

    Before the CD, music was distributed on platters of (supposedly) vinyl consisting of a spiral groove of two orthogonal analog waveforms. This was the medium for most of the 1900s. The effect of the music monopoly on this medium was that only one manufacturing company, usually owned by record company itself, made the medium. Due to this monopoly, there was no incentive to produce good quality records as that did cost a few cents more per unit. The end results was bad quality, with some major record companies like RCA producing total shit (I bought several, and every one of them was horrible quality).

    I believe one reason the CD rose in popularity so fast was that the quality was so much better, not just because of the vinyl hiss, but also because of all the clicks and pops from the garbage embedded in the vinyl. The CD wasn't totally immune from this damage, but it could correct a lot of it, and quietly skip a lot more, and you never noticed it.

    Also, in the early days of the CD, record companies hadn't yet learned how to cut corners and reduce costs without completely destroying the product. Now days they are learning. The quality of CDs is going down and down as the record companies are trying to push the edge of what consumers will accept.

    If there was competition in the media production phase of music production, with a compulsory licensing that allowed anyone to produce the medium and change whatever they wanted to consumers, and simply pay the publishing company that owns the rights to the recording (or the artists directly if they own it) the statutory or arbitrated fees, then the consumer would have a free market choice on who makes the CDs they buy.

    In the day of vinyl (and even still today to some degree) a few companies were making reproductions of music on quality media. Usually the costs were very high, almost double. I soon found out that the original record company demanded a fee that was at least equal to, and in some cases more than, the retail cost of their own garbage. This would be a fee they would collect for not even producing the media at all. Compulsory and/or statutory licensing would have prevented this rip off.

    There is precendent in statute now. This is already how the law works for certain kinds of reproductions (see The Harry Fox Agency [] and this licensing information page []) and performances (see ASCAP [], BMI [], and SESAC []), although it still does not work perfectly as reported in links found via Google [].

    Still, I think this would be a good step forward to have this kind of law in place not only for media reproduction, but also for digital online delivery.

  • I agree. So by the same token, is it okay to close up copies of GPLd code as "eminent domain"? After all, the intellectual property isn't being taken away, it is only being copied.
  • That wasn't how I read the article or the summary of the court case. The NYT received private permission to privately publish a private article. The court said that they could also publish this privte article in a private online database provided that the author was compensated under eminent domain. Did I read this wrong? Is the NYT not a private company? Are not its print and online publications private as well?

    I am aware of the prevalence of quasi-governmental redeveloment agencies that act as a legal front for the private use of eminent domain, but at least they have to pretend like they're a government agency. The NYT got a governmental ruling, but will any other newspaper need to get one as well, or does this ruling enter into common law for any private publisher to use for their private benefit?
  • by Arandir ( 19206 ) on Monday July 30, 2001 @10:15AM (#2182951) Homepage Journal
    Eminent Domain is a process whereby the *government* pays the property holder for forced takings. "We're building a freeway through your yard, you can't do anything about it because we own the cops, but the Constitution does require us to at least pay you for it."

    The New York Times and other publishers are NOT the government. They should not get the benefit of Eminent Domain. The consequences would turn all of property law on its head.

    Consider the implications if this were extended to other non-governmental organizations, or even individuals. "We want to build a hotel on your beachfront property, which has been in your family for five generations, and you must sell to us by law." "We want to take over your company, and your stockholders refuse to sell, tough shit!" "Sorry Bob, I'm going to move your fence three feet closer to your house, and you can't stop me."

    Or the really scary one if you're an Open Souce fan: "We will use your kernel in our OS despite your objections, but we will pay you market price for it."
  • I would say, less than five years for software patent, fifteen for normal patent, life of the artist for copyright and 20 years for corporate copyright.

    20 years for corporate copyrights? First thats kinda discriminitory, and second the copywrite would then just be held by and employee, who would be contactialy bound to give up all rights to such copywrite, while it still being in the guys name.

    You seem to have forgotten the purpose of copywrite when you say it should be lifetime of the creator, our founding fathers envisioned copywrite to be a very limited monopoly, just long enough to encourage people to create artistic works, not to insure that the artist gets as much money as he can from the work. And indie artist is not less likly to create a work if the copywrite was 20 years. Actually that person is more encouraged to create more works, as he cannot assume, that he can make money off such work for eternity. The only problem I see, is a corporation being more hesitant on funding a project that would receive money slowly overtime even past the 20 years. Creative works that can easily be copied rarly make much money past 20 years, and eventually corporations will just have to get used to the idea, that they can't feed of something forever.

  • Well, it depends upon which framer your talking about, I believe Hamilton was pro IP, while I know Jefferson was anti IP. But Hammy a very centralised federalist government controlled by the rich, anyways. :P
  • I find the author's arguments compelling, and IANAL, but he is! Anyway, my somewhat cynical side can't help but think that it would be extremely unlinkely that the Government would enforce "emminant domain" over music.

    For one, the Music/Media companies, have been VERY succesfull in lobbying all branches of government to seeing their side. (Executive branch: restrictive FCC regs/FBI holding Sklyrov, Courts: DeCSS/Napster rulings, Legislative: DMCA)

    Secondly, I would venture to think that the extensive _private_ music collections of many people would give the courts the impression that an emminant domain is not needed. An online emminant domain might be sutible for newspapers, since most people do not recieve or archive all newspapers, but not for musics, because people personally archive their music into collections.

    However, i'm also unsure as to whether music would be as quick to be proclaimed emminant domain, since i'm not sure if musics is as an essential "protected speech" as the press.
  • by Shotgun ( 30919 ) on Monday July 30, 2001 @09:31AM (#2182958)
    Go with me for just a second here.

    Say record company A produces a record that becomes hugely popular. I'd like to dissect exactly how it becomes popular.

    Part of that increase in popularity comes from using public airwaves to broadcast the song on radio. Part of the increase comes from me telling my friends what a great song it is. Part of it is just from the general sheep mentality of the population.

    My question to /.:

    How much of the value of a popular work is derived from no effort of the publisher and should be returned to the public at large, and how long after a work becomes part of our culture (like the Happy Birthday song) must we continue to be indebted to someone?

  • The simple solution to this problem is compatible with both conservative ("the good old days did it right!") and liberal ("give us our civil rights!") political philosophies: restore copyright terms to sane periods, so these problems don't need to come up, ever. Let them enter the public domain just a few decades after they're copyrighted, the way they were supposed to.

    The problem is that the solution is incompatible with Republicans (sucking up to Big Media and Big Media Money) and Democrats (sucking up to Big Media Money and Big Media).

    Big Media is even harder to fight than Big Oil. Big Oil is just money (which every politician needs). Big Media is money and influence over voters (which every politician needs more). Get AOL/Time-Warner pissed off at you and see if you can run a decent campaign.

    Scared yet?

  • by Restil ( 31903 ) on Monday July 30, 2001 @02:04PM (#2182960) Homepage
    Of course, the music industry won't be quick to settle for anything less than their $15 per CD fee, but the truth is, since most of the cost of that CD is in the distribution process, the actual cost of the material is rather small, and a fair arbitration panel would recognize that fact. In fact, with napster (or its users as the case may be), ALL of the distribution, packaging, marketing is taken care of by napster and its users. The unaccounted for cost is the royalties to the band.

    Ok, so the record companies do pay money for marketing. So what? That should not be a factor when considering the proper fee since without that marketing they might not have ANY sales, in which case they wouldn't have to worry about these issues. In the end, we're looking at what?

    I don't remember the exact amounts but from what I recall from old arguments, the artist probably gets about $1 per CD in royalties. Assuming there are 10 songs on the average CD, thats 10 cents per song that the artist recieves. And thats about what napster should be required to pay per song. That amount could ALMOST be completely covered with banner ads, although some revitalization in the banner ad business will be required to really make a go of this. However, marketers have an advantage with napster users. Direct marketing will be effective with them with regards to music. You know exactly which music they're listening to, and if you want to fire off advertising relating directly to that music, the case is likely that someone might actually pay attention to that advertising and it might be worth the cost.

  • I've thought that this might be an appropriate response to force life-saving drugs to market (AIDS, etc) faster than waiting for patents to expire. The same could be said for Copyright:

    USGov: I'm sorry Mr. Eisner, but Mickey Mouse is too important to the culture of the USA for a single corporation to control; you're work is now public domain (for US citizens only [ed: this leads to its own problems vis-a-vis a new class of quasi-protected works]), here's x dollars.

    On the surface, we (the people) get (free) access to works protected either by patents or by copyright. However, the implication of doing this is to equate a principle of Property (in the Tangible sense) Law to (so called) Patents, Trademarks and Copyright ("Intellectual Property" in the vernacular of the law). The danger, then, would be that this treatment of protected ideas the same as Property gives credence to content holders' arguments that "piracy" (however defined) is the same as stealing property thereby perpetuating the myth of "Intellectual Property".

  • This is not that big a deal. It calls in the recent Freelance writers victory over publishers, giving them the right to negotiate separately publication formats.

    All it means to the RIAA is:

    1. They must negotiate the right to publish online separately. They'll just add another clause to the existing contracts and continue as usual.

    2. Older content that was not licensed under the newer contracts must be renegotiated for electronic format with the artist. That just means that older content is not likely to make it into newer distribution channels if the artist doesn't agree or can't be found.

    So less music makes it into the channel. And we all lose more of our history and old favorites becuase RIAA chooses not to redistribute or can't.

    Putting further restrictions on content flow is not a good thing, even if it is limiting the RIAA.

  • So instead of Napster users paying the RIAA an RIAA set per-song price, they'll be paying the RIAA a court arbitrated per-song price.

    No... the end user will be paying the record label (I don't know why the RIAA would be involved at all).

    Stop thinking about Napster, start thinking about CD-Now (or Amazon, or B&N or whatever) where you can pay and download any given track from their libary, instead of buying a whole CD and waiting for it to land in your mailbox. This decision would (if I understand it correctly) allow CD-Now/et al to do this as long as they give a cut to the label that owns the copyright. That cut has to be negotiated, of course.
  • Assuming this argument works - that Napster could force music labels to license their music - this would just lead to numerous other lawsuits as to how much this licensing should cost. If the RIAA determines the licensing, it could in theory set "compensation" so high that Napster still can't do anything. Also, it can easily vary how much each song is worth. It's a good idea in theory, but in practice, it's just going to cause more aggravation IMHO.
  • And when we decide we don't have to learn from history...
  • by Big Jojo ( 50231 ) on Monday July 30, 2001 @10:40AM (#2182972)

    The real problem is the way copyright terms have been extended far beyond the the realm of sanity.

    That's the way "holes in history" get created lately: companies are able to prevent independent collections of relatively recent information from even getting created. In the US, copyrights haven't expired for any work since shortly before Mickey Mouse was created; that's another part of the "copyright bargain" that has gotten completely corrupted.

    The simple solution to this problem is compatible with both conservative ("the good old days did it right!") and liberal ("give us our civil rights!") political philosophies: restore copyright terms to sane periods, so these problems don't need to come up, ever. Let them enter the public domain just a few decades after they're copyrighted, the way they were supposed to.

    Heck, there's a lot of older music I'd love to have access to. If it weren't for the way that the media (RIAA just one member) have locked it up in endless copyright, Napster (and the like) would be able to offer it for free (or for money!) without needing to worry about lawsuits. (And likely the new music coming out would be better, since it'd have to compete in terms of quality not just marketing!)

  • 2. Older content that was not licensed under the newer contracts must be renegotiated for electronic format with the artist. That just means that older content is not likely to make it into newer distribution channels if the artist doesn't agree or can't be found.

    What? According to the article, in Tasini, the supreme court specifically addressed removing the content. They seemed to have some amount of concern that "holes" would be created in the historical archive of information, so they required that compulsory licenses be negotiated.

    A compulsory license limits the rights of the copyright holder, and prevents them from holding content hostage by refusing to license it at any reasonable fee. What happens is that the copyright holder and the licensee will go into arbitration, which will determine a "reasonable" compensation for the copyright holder.

    So the point of the article is that if compulsory licenses are applied to RIAA and napster, then the RIAA loses some of its grip over their copyrights of the songs. Napster users will still have to pay (because compulsory licenses do not alleviate the copyright holders right to compensation) however it would prevent the RIAA from holding songs hostage in order to be able to set prices and force out competition.

    Putting further restrictions on content flow is not a good thing, even if it is limiting the RIAA.

    This doesn't put restrictions on content flow. It specifically puts restrictions on copyright abuse, which frees content flow. This is a good thing, and I hope it works.


  • As I said, the periods are arbitrary decisions. There will always be some group who can (and will) argue that whatever periods are selected are not long enough in their special case.
  • by ericfitz ( 59316 ) on Monday July 30, 2001 @09:51AM (#2182978)
    If the goal (as explicitly stated) of patent and copyright is to "promote the progress" of the arts, I fail to see how extending the length of time a limited monopoly is granted to the creator, will help.

    Reducing the period of the limited monopoly will have the desired effect, because artists/creators/publishers/RIAA/whoever will have to continue to invent new things to sustain a steady income.

  • by ericfitz ( 59316 ) on Monday July 30, 2001 @09:16AM (#2182979)
    As has been stated in numerous posts every time the intellectual property issue comes up on slashdot, the framers of the Constitution were against "Intellectual Property". The idea of an idea being property is as silly now as it was then. Patent and copyright were [rightfully] deemed necessary for SHORT periods of time to help promote the arts. Our legislature has repeatedly failed to exercise due diligence in maintaining the balance between a limited monopoly to promote the arts, and between the rights of the citizenry. Everything is speeding up- books are routinely published overnight- yet for some reason the terms of patents and copyright are going the opposite direction.

    We only need one reform: incredibly short terms for patents and copyright. Although any decision is arbitrary, I think that 3 years is more than generous enough in the case of copyright these days, and that 7-10 years is more than generous enough in the case of patent.

  • Could you please post some links to information about these two cases? Thanks!

    Here [], or here [], or just search on google [].

    This kind of crap is nothing new. The only thing new about it is how egregious governments are becoming about it. Now, they no longer need to lie and say it's to build a road, or expand a school. Now, they'll just come out and say it's so we can hand it over to a developer to build a shopping center [].
  • by camusflage ( 65105 ) on Monday July 30, 2001 @09:09AM (#2182982)
    This won't happen.. An argument MIGHT be able to be made if the RIAA/member organizations weren't making efforts, but given the services out there that allow downloaded music for a buck or more per song, compulsory licensing won't happen. Even if it did, the likelihood of it being on terms palatable to the average Napster user is about zilch. Combined with the fact that some of the recording industry is working with Napster already, it's not going to happen.
  • The RIAA wields the power that it does because the government granted that power through insanely long copyright lengths and draconian protection of those copyrights (see DMCA). The solution to this is NOT a new law; we've already seen the damage that these laws can do. The answer is to go back and re-write the existing law, and to get it right this time!
  • 3 years for copyright?

    Do you know how many people won't go see movies in the theatre because they say "Oh, I can just wait six months and rent it."

    What would happen to the copyright holders if people said, instead "Oh, I can just wait three years and download it for 10 cents."

    Also, this kind of disfavors indie movies ... big hollywood movies (planet of the apes) tend to make most of their money up front, while indie films make much less money consistently over a period of time. Also, in terms of movies, this most disadvantages *good* movies, which are the only movies that continue to make money after four or five years.

    Also, short software patents are a good idea, but I can envision patenting something mechanical and it taking ten years to develop the processes need to mass-produce it, by which time you will have lost your patent :P

    I would say, less than five years for software patent, fifteen for normal patent, life of the artist for copyright and 20 years for corporate copyright.

  • Compulsory IP licensing is not like eminent domain, because the copyright holder still has the stuff when it's licensed to someone else. Furthermore, it generally only applies to one medium.

    Compulsory licensing is already implemented with regards to music broadcasting, I'm pretty sure. That's what ASCAP and BMI are for; radio stations can play any song they want, and they just pay a bit more to ASCAP or BMI (more like ASCAP _and_ BMI) for the priviledge. So that's the kind of thing we're talking about. Not "taking" the music from the labels.

    Furthermore, this seems silly, because napster would still have to pay royalties. At least as much as a radio station, and probably more since it's music-on-demand. So, there would still be usage fees and/or tons and tons of advertising to support it, both of which seem to be death knells for that service.


  • The whole point of the article was that if the two parties could not come to an agreement on a fair licensing rate, then the court could call for third party arbitration to determine the licensing fees. Naturally, Napster would want to license everything for free, and the RIAA would want to license everything for some ridiculous price; the option of an arbitrator is what gives the court decision some teeth.

    - Russ
  • by Ender Ryan ( 79406 ) on Tuesday July 31, 2001 @06:15PM (#2182995) Journal
    "Congress shall have the power to..." promote the Progress of Science and useful Arts, by curing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Look at that. It is a sentence. Sentences follow rules according to the English language.

    Congress has the power to

    What power does Congress have?

    To promote the Progress of Science and useful Arts

    How is Congress supposed to do this?

    by curing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

    Congress does NOT have the right to regulate copyright, it has the right to "promote the progress of science and useful arts", and it is allowed to do that by "curing for limited times to authors and inventors the exclusive right to their respective writings and discoveries".

    If it isn't being done to promote science and arts, Congress doesn't have the power to do it.

  • by Ender Ryan ( 79406 ) on Monday July 30, 2001 @10:13AM (#2182996) Journal
    "Copyrights do not exist to provide works to the "public at large" they exist to protect the works and allow those who created them to garner value from their work without someone else ripping them off."

    That is false. Copyright exists solely for the purpose of promoting progress. Read the Constitution.

  • by G-Man ( 79561 ) on Monday July 30, 2001 @10:47AM (#2182997)
    This has already happened. Some folks in New London, CT, are getting their houses seized just so Pfizer can have bigger digs. [] The town government justifies the seizure as "public use" because they'll get more tax revenue out of Pfizer than Grandma. Great rationale, huh? Since they define revenue generation as a public use, it basically justifies any whoring of themselves they can come up with. I seem to recall another town in New York state doing the same for a shopping center.
  • You gotta remember, the court only does what it can with the shit that it's dealt. The real solution to the problem is to bring a lot of pressure to bear on Congress. While it's true that they do get a lot of money from the big corporate interests, it is we who put them in office and we who can take them out again.
  • Not that you said so, but isn't it scary that Happy Birthday isn't public domain []? I always wondered why at Applebee's they sing that stupid pseudo-miliaristic not-quite-the-real-thing Happy Birthday tune.

    Goddammit, the USA had declared folk music illegal. Isn't that sick?

    To answer your question, if something becomes so popular that it's part of the national culture- be it a catch phrase, song, picture, movie, cartoon characters, etc., then the public owns it. Sure, the author/publisher deserves a some profit for it for a little while, perhaps a single lifetime. But dammit, the world owns Mickey Mouse by now, just as much as it owns Ichabod Crane, Merlin, or Oedipus.

  • I hope the courts come to a similar decision in M$ vs. everyone. Microsoft has, by virtue of it's monopoly, illegaly claimed rights over the device drivers of almost every PC hardware company in the world without paying a dime. The source code for Windows device drivers should be bought by the government with a small programming fee going out to each manufacuer, and be placed in public domain.

  • You misunderstand the ruling -- Tasini can be compelled to allow the Times to republish the article in an online database.

    Irrelevant, since that is not what is being argued in the article here.

    There are times when content producers, especially musicians, object to being associated with other content producers.

    Suppose the NRA wanted to make a video about guns and include a Sheryl Crow song as background music. I'm assuming Sheryl Crow, given her anti-gun views, would strongly object to that. But the second you talk about compulsory licensing of content you immediately step into these problems.

    That's why the author of this article brings in the eminent domain argument. When they need to tear down houses to build a new sports complex for some NFL team, some homeowners would prefer not to do business with the team, but eminent domain allows the government to force the homeowners to do so on the grounds that they are creating a public good.

    The author is arguing that if the RIAA doesn't bargain in good faith, that Napster should be given the right to exercise a compulsory license in music. But, as he notes, you wouldn't be able to do that just for Napster.

    So what happens when the NAMBLA decides it wants to start selling MP3 downloads from its site to raise money? Or [fill in the group here]

    And what happens when such a solution is inevitably applied to other forms covered under copyright laws?
  • Well sure, but you might as well just say Congress could declare that all music published automatically belongs to the RIAA. Congress could do anything, but I thought what was at issue here is what would be the best way to resolve the issue not what Congress or the courts could theoretically do.

    Compulsory licensing assumes that the only interest copyright holders have is monetary. That is simply not the case.
  • by briancarnell ( 94247 ) on Monday July 30, 2001 @09:56AM (#2183006) Homepage
    But this violates my right to choose who I associate with.

    For example, a few years ago an essay I wrote about rape was stolen and put on a porn site, because it did well in search engine searches on "rape."

    Now even if the porn site were willing to pay me $1,000 for that short article, I would not be interested in granting them a license to publish.

    But once you get into compulsory licensing, this sort of discretion goes completely out the Window, and creative types can no longer choose for themselves who they will associate with.
  • I'm a bit skeptical. IANAL, but one thing in his story struck me: The Tasini case is about a (legal) person relationships and the rights in the matter. But the Napster comparison is a three (legal) person case, with Napster having not much relationship with the other two parties (except for Bertelsmann).

    Suppose John lets Alice to publish his work, and John gets a reward. Then as I understand it, it is Alice who has now the rights to republish John's work and put him for an arbiter in worst case.

    In that story, Alice and John had a relationship, but if now somebody called Pete drops in, does Pete *really* have the right to put Alice for an arbiter? Or does Pete need to negotiate with John? Isn't it like this: Alice has the right to republish such that John doesn't get a monopoly?

  • If you read the article, it clearly states that both sides negotiate with each other to settle on a liscencing fee, and if no agreement can be reached, both sides must accept binding arbitration by an independant panel, which will set a fair value for the property.
  • It mentions that fees and royalties would be required for this to work. Which means that the RIAA doesnt get to say no, but it does get to have some of our money out if it. I dunno about the rest of you, but I'm sticking with my local trading groups and free things like audiogalaxy for now.
  • by jvmatthe ( 116058 ) on Monday July 30, 2001 @09:24AM (#2183015) Homepage
    Ok, this is one of the best suggestions I've seen in a long time: use a pre-existing concept of law plus a recent ruling by the Supes to provide a path to breaking the "monopoly" granted by copyright.

    At some point, each of us has hated the US legal system and the evils it produces. Then you see something brilliant, simple, and reasonable like this and it all seems worth it. Maybe. :^)

    Oh, and free speech ain't too bad either. :^)

  • Here you go. But I assume he's on the side of the RIAA, not against them.

    Goliath Artists (EMINEM2-DOM)
    444 Washington Blvd., #5522
    Jersey City, NJ 07310

    Domain Name: EMINEM.COM

    Administrative Contact, Billing Contact:
    Paul D. Rosenberg, Esq (EP2695) paulbunyan@MAILEXCITE.COM
    Goliath Artists
    444 Washington Blvd., #5522
    Jersey City , NJ 07310
    (201)8760313 (FAX) (212) 935-0554
    Technical Contact:
    Rogas, Adam (AR1789) adam@PHUTURSOFT.COM
    3013 La Mesa Dr.
    Henderson, NV 89014

    Record last updated on 31-Oct-2000.
    Record expires on 22-Nov-2002.
    Record created on 22-Nov-1998.
    Database last updated on 30-Jul-2001 02:05:00 EDT.

    Domain servers in listed order:


  • "IP on everything" - seen on a shirt worn by Van Jacobsen - the guy who came up with the TCP compression used over PPP that helps telnet-style protocols) at a linux convention a long time ago
  • by Nastard ( 124180 ) on Monday July 30, 2001 @09:34AM (#2183019)
    Only if you hold the copyright. A home movie would be private property, and you would discretion over who did or did not see it. If you held the copyright, you could be forced to liscense it out, whether you had any interest in doing so or not.

    The problem here is that, while possibly helping napster and screwing the RIAA (which is what we all want, right?), it also takes certain freedoms away from the little guy. If I copyright something personal *just* for the sake of protecting it, I could, theoretically, be screwed into releasing something that I never wanted anyone to see.

    Then again, IANAL and all I really know of this is what I read in the article. I could be wrong.
  • by Nastard ( 124180 ) on Monday July 30, 2001 @09:13AM (#2183020)
    Finally, IP freely!
  • Whether IP is property or not is a lot less relevant than people think.

    You can define IP as property, or you can define it as a limited monopoly granted by the government. You can define it as the square root of PI. It doesn't matter.

    All of these definitions are simply a convenience for lawyers, so that they can have a starting point on which to base the law. The programmer's analogy is whther IP could have Foo as its base class, or Bar as its base class. Regardless of which one you pick, the customer has a set of specifications that you want to meet.

    In this case, the customer is the public, and the specification is that we benefit producers and consumers without violating the rights of either. This formulation of arbitration between RIAA and Napster in terms property law illustrates my point. They could also formulate a remedy in terms of limiting the monopoly, but regardless of how they formulate a remedy they need to respect both sides.

  • The smart folks have recognized that the 21st century will be even more unsettling than the 20th century. Computer controlled extraction of natural resources and production (including nanotechnology) can drive manufacturing costs to almost zero. (Go read 'A for Anything' , by Damon Knight) With the Internet, we will be able to distribute the knowledge of how to produce. This will eliminate the challenges associated with distribution, so there will be no money to be made there.

    This is why there's such a fight for intellectual property rights. Only by controlling the knowledge of how and what to produce can power be maintained by those who value it. By the middle of the 21st century, the major cost of any material item will be the 'intellectual property' charge. With production automated, almost everyone who is employed will be working in service jobs by 2050. And then it gets more interesting.

    For all the gory details, []

  • the article deals with that issue
  • The record companies would not go under even if copyright were only 3 years. A GREAT deal of the money is made during the first 3 years. There wouldn't be less content due to lower incentives, there would be MORE content due to the need to actually work to maintain your revenue stream.

    Under capitalism, you only need to give as much incentive as necessary to get the product to market - any more is waste.

  • Tabloid rags are still around today, so copyrights certainly didnt cure that problem. The French are a bit snooty about their "culture", so they overreacted again when they thought it was being diluted.

    Basically without copyrights the printing houses couldnt afford to commision the creation of new books. But they could print whatever they wanted at the same cost.

    So they print what they think people want to buy. There is no artificial scarcity of tabloids, or popular books, and no artificial abundance of books that noone wants to buy. No artificial monopolies. Whats wrong with that?

    If no printer was making a book that people wanted- then the first publisher to do so would stand to make some good money.

    If another printer insisted upon printing books that were not worth buying, or were overpriced, they would go out of business.

    Good writers have other motivations for writing books, so content would always come around, though one might never see millionaire authors.

  • Is there any evidence that the artists actually want their stuff traded for free? Or are we imprinting (that's not the word I'm looking for) our "information wants to be free" mindset on them?

    We all know that the RIAA is against this, but what about the artists. There are artists that have come out against it (Metallica), and some indepentants that are for it, but I never got the sense that there was a prevailing opinion either way.

    Maybe its something I missed.

  • by AntiNorm ( 155641 ) on Monday July 30, 2001 @11:21AM (#2183036)
    The RIAA is not a cartel like Opec. OPEC controls a significant proportion of a limited resource. In contrast, the RIAA controls just some of the music artists of an ubiquitous resource. They just control signed bands; not the majority who are unsigned, don't want to be signed, play bars, etc.

    Trouble is, if an artist wants to get anywhere, they pretty much have to sign a contract with a big label. Sure, it is possible to succeed using other methods, but their chances are 10000x better this way.

  • by elfkicker ( 162256 ) on Monday July 30, 2001 @09:58AM (#2183038)
    I was a bit disturbed that was the main basis for the court's decision. What about a person's freedom not to publish? They can be forced by way of arbitration into selling that which they don't want to? That's a little too much power for anyone to have in my opinion. I can understand it's sparing use in land property or, say, intellectual property which is applicable to a process (eg, a patent), but NOT for creative works under copyright.

    There was a post in the forums for the article which I'll reproduce here cause I thought is was intelligent, if a bit right wing...

    Robert Brammer - 10:10am Jul 30, 2001 (565. 972/972)

    Court to property rights: Drop dead.

    You claim compulsory licenses help to avoid abuse of monopoly? WRONG! The only monopoly in this case is the arbitration board, which engages in state sanctioned price fixing, by determining a price at which a copyright holder must sell under penalty of law.

    As for the court's concern for "holes in history," this is simply not a concern, and I'll explain why. Suppose a freelance writer will not give permission for the NYT to publish his article online. The Court only seems to be able to think this far through this dilemma, and claims this situation results in a "hole in history." Do they forget that the freelance writer wants money from his articles, and that is, at least in part, why he writes them? Common sense dictates he will eventually sell his article for online publication at the price he desires, even if not to the NYT. So, let's say the Washington Post buys the right to publish his article online. The Court would probably claim that this is still not acceptable, because their is now a "hole in history" if you visit the NYT site, because the article in question is only on the Post site. The Justices, in their arrogance, assume that the free market could not handle this problem. It should come as no surprise that they're wrong. Sheer market demand would quickly bring about the solution to this problem in the form of a search engine for articles, independent of any newspaper, that would be setup to include links to all of the articles on all of the different newspaper sites. Now the "holes in history" concern is a dead issue. It is disturbing that the justices overlook this obvious solution and immediately render a decision which violates an individual's first amendment right to not speak, the right of a person to control the distribution of their product, and the right of an individual to negotiate the sale of their product as a free trader.

    This is undoubtedly one of the worst decisions by the Court in recent years, and certainly one of the most repugnant to the goals of a free society.

  • Yes, but all this presupposes that you will be allowed to transfer the digital copy to, say, a CD once you download it. As it stands right now (correct me if I'm wrong), it is illegal, or it will soon be technologically prevented, to make a CD containing your favorite songs. Even though Mac ads in Wired and elsewhere show hip youngsters doing it.

    Once again, so I am clear (as I am certainly not clear about this!):

    Is it legal to burn a CD of your favorite songs via ripping them from your CD and writing them to another? If it is legal, how far away are we from the realization of the SDMI [] (RIAA wet) 'dream' of encrypted music that won't rip or burn?
  • I don't know. If the service was reliable and had the content I wanted, I'd be happy to pay a modest fee for Napster. If it's easier to use than the old alternatives of web searching and irc then it's a service worth paying for. If it sucks and doesn't have any obscure content I want then it's not. People have to be willing to pay for's the way the world works. You can't get everything for free (as much as we might like to).
  • I've asked it before, and I'll ask it does the life of the author + 75 years protect the works and allow those who created them to garner value from their work without someone else ripping them off?

    Color me crazy, it's rather difficult to rip someone off once they're dead...

    Also, IIRC, IP was originally introduced as a measure to allow authors to benefit financially from their works for a limited time (I believe it was originally 5 years for copyright), then have the works pass into the public domain. This would provide incentive for artists/scientists to create new works.

    In the current system, an author can concievably release a few pieces of work, then sit back, relax, and collect the royalty cheques...until they which case, their children have 75 years to find a new source of income...where is the incentive to create new works?

    One comment which I read about a year ago here on slashdot, which really struck home for me (and I wish I could remember to whom it belonged) was that no DVDs would ever enter the public domain. CDs/DVDs have a lifetime of about 15-20 years before they begin to breakdown, IIRC. Very few, if any will survive to see their copyrights expire.

  • The RIAA can go to Tower Records [and all other major music chain stores] and say, you WILL give us 100% of shelf space or we won't authorise you to sell any of our product. So the store capitulates (as going bankrupt on 'principle' is not an option).

    But the consumer is largely unaware of what's going on and can't even inquire about such deals because they're "secret".

    The smart RIAA will even allow slots for a tiny tiny few indie bands to throw the sharp eyed shopper off. "See, they sell indie stuff". But they don't put up enough shelf space to support the indie bands as a whole, i.e., no one indie band can rely on a small chance lottery of seeing their stuff carried at major retailers.

    So the indie artist can't reliably get into the major chain stores to sell his music unless he signs with the RIAA.

    The consumer has no control here. The consumer thinks he sees a fair market. The consumer has been duped. The RIAA was always in control.

  • life of the artist for copyright and 20 years for corporate copyright.

    • What would prevent artists from signing contracts which assigned their rights to a company?
    • Are you saying the benefits of copyright belong to the artist, but that they can't really decide what to do with their rights? I suppose anything is possible if the government wills it, but I can see lots of difficulty in preventing someone from assigning rights which are presumably theirs to do with as they please.
    • Executive power is a defining characteristics of what one ordinarily means when one uses the word property. If I am not allowed to decide for myself whether I want to sell or keep my property, then there's not much point in calling it property. This is not to say that the word "property" has any impact in itself. Just that a situation in which you couldn't dispose of your rights in whatever way you see fit would leave most copyright holders unsatisfied.
  • From the article:

    If royalties are set by negotiation or compulsory licensing, Napster (and its users) will have to pay in order for the site to survive ? but at least survival will be an option. Otherwise, the recording companies will be able to shut out Napster entirely in favor of their own,
    industry-controlled, online services.

    Uhh, I thought Napster was owned by the record industry. Didn't Bertelsmann AG buy it a while back? Or did I miss something?

    Sorry to sound like such a dope, but I can't remember much with all the aluminum [] in my drinking water [].

  • I'd rather lose a house after a few years than lose the rights to my ideas

    • You never had property rights to your ideas in the first place.
    • You only have rights concerning the public expression which your thoughts are given.
    • So even without copyright law, you would still have the "rights to your ideas".
    • Granted, you might not be able to make as much money by excluding others from the enjoyment of "your" ideas, but then if you'd rather give up your house than your ideas, I suppose money is no object anyway...
    • How much fun would your ideas be if they were only yours and no one else's. Would anyone even understand you?
    • Copyright ignores the obvious fact that most of the value of the work consists in its being understood and appreciated by audiences.
    • The level of understanding and appreciation depends as much on the audience's effort as the artist's. In the world of ideas it takes two to tango.
    • What good would copyrighted work be without an audience?
  • namely the corruption in the government would nearly annihilate the giving out to the poor.

    Yeah, I agree governments can be corrupt. But so can not-governments. It's people who do the corrupting, so no matter how you slice it, you're going to get burned. Unless, of course, you're one of the two or three who come out at the top of the pile smelling like roses.

    I think things like this depend more on what you believe is right than on some possibly flawed, circumstantial, or anecdotal evidence. If you go around saying this or that government is a bad government, then you are admitting that you have some idea of what would make those governments better. So you agree that good government is good. Now we can discuss how good government can be achieved. Sometimes the public good can be served by taking away someone's property, especially if:

    • A documented process exists in laws or regulations which sets out a dispute resolution mechanism.
    • The citizen whose property is being expropriated has legal recourse to appeal the expropriation. I don't think anyone is talking about having hit squads raiding someone's house.

    I don't think anyone would call this an ideal solution, but it may be the best possible solution given the circumstances.

  • if an artist wants to get anywhere, they pretty much have to sign a contract with a big label.

    So actually it is the music buyers who create the monopoly by limiting their concept of music to those artists who are "successful" or by thinking of success only in terms of being famous. I can think of many ways to judge success without considering a person's fame and renown. Why are we such suckers for Star-Power?

  • If you own your life, you take care of your life.

    • You don't own your life. In most countries, suicide is illegal. Some places even give you the death penalty if you succeed.
    • You cannot sell yourself into slavery or agree to contracts that require illegal actions.
  • You have many good points, but I'll only respond to one:

    Too often, people forget their real recourse - if somebody wants too much money for their work, don't buy it.

    To use this argument as a defense of copyright is to miss the point of copyright. Copyright wasn't meant to turn creative output into personal legal tender. Copyright was intended to meet a social objective: to encourage creative output for the benefit of all citizens.

    If a government sanctioned monopoly gives an artist enough market power to discourage distribution rather than submit to lower prices, then the system is failing. Just saying "then don't buy it" defeats the whole purpose of copyright. If artists are going to price things in a range that makes most people say "forget it", then the government has to rethink the way it encourages distribution.

  • Do you want the whole band of television programming to be nothing more than mediocre 'community access' channels?

    Obviously you have been well conditioned by the forces of mass consumerism. I find 'community access' television to be far more entertaining and informative than most of what I see on 'high quality, nationally recognized, brand name' television.

    And as far as your contention that people only work for financial reward: you must never have had to raise a child.

  • When was the last time you bought a ticket to hear some guy read an artile he wrote for the NY Times three years ago? Have you worn out your "NY Times freelance guy" T-shirt yet?

    I would pay to hear a lecture. In fact, I have done that many times. And I suppose I'd buy the T-Shirt, too (like I did for Jelo Biafra's spoken word concert) but only if you *promise* to admit that you're wrong.

  • Fourth, if I can get you to admit you're wrong, would you buy *me* an "NY Times freelance guy" T-shirt?

    I guess if I was fool enough to part with my money to hear Jelo Biafra, then yes, I would probably be the kind of person who would agree to that.

    I like that: "NY Times Freelance Guy" emblazoned on a Tee! I think you're on to something!

  • The consumer has no control here. The consumer thinks he sees a fair market. The consumer has been duped. The RIAA was always in control.

    Yes, I agree they exert a lot of influence. I was trying to draw attention to the ease with which they wield that influence. For instance, one might assert that music that makes it onto the shelves of HMV or Tower Records cannot be "indy" by definition. There's no sense in which anything that is mass-produced and distributed in little packages could be called "independent". It depends on a whole infrastructure of mass markets and media.

    I had a funny experience the other day that really left a lasting impression of how impossible it is to have real music when everyone thinks real music comes in a jewel case.

    I have a nine-year-old daughter. A couple of weeks ago, I took her to a huge street festival with tons of live music and activities going on. There was a really funky band playing on stage, having lots of fun. My daughter called me to come and see something. She was standing closer to the stage than I was, so I assumed she wanted me to see the musicians up close. What she really wanted me to see was a discarded 7-Eleven Slurpee cup with a picture of Britney Spears on it.

    What can real musicians do to compete? Nobody can be "indy" if they're already on the shelves of a music store. They've already sold out by allowing their work to be mass-produced.

    I've probably contradicted myself a dozen times, but I stand by every word of it, dammit!!

  • Just out of curiosity, WHY did you go see Jelo Biafra?

    I think the guy is a real character, and some of what he says made sense to me. I like his energy. For that matter, I also enjoyed listening to Henry Rollins do his rant.

    From your other posts, you didn't seem like an actual communist...are you just commie-curious?

    I'm totally middle of the road, really. I think it's stupid to believe that an economy could survive without paying for some social structure through collective effort. On the other hand, it is also ludicrous to think that the requisite collective effort could be achieved under anything but the most favourable economic conditions. You can't go around arbitrarily taking stuff away from people and then expect them to participate wholeheartedly in society-building. They'd do it grudgingly, the way people in Western Countries are acting right now. They would rather withdraw from society than participate.

    Governments have earned some of their infamy, but a lot of the survivalist, anti-government sentiment has been nurtured by multinationals, much the way that the entertainment industry nurtures our perception that all worthwhile information comes from -- and only from -- the mass media. It's in the interests of these behemoths to weaken governments of any stripe, the same way sellers of all kinds stand to benefit from our personal weakness and shame.

    I guess I'm not sounding so middle of the road now. But I firmly believe we should solve our problems by debate and science and reason and passionate optimism, rather than by ideologies that breed hatred and suspicion. I'm not into throwing molotov cocktails at WTO meetings, if that's what you were thinking. If what I described sounds to you like an "actual communist" then yes, I suppose I am an actual communist. I certainly wouldn't be ashamed of that label, but I don't really think I'm quite so ideologically rigid.

    If anything, I am a Participatory Economics - ite. For an example of what that can be, see the Mondragon Cafe and Bookstore []. I am slightly commie-curious. Just don't tell my wife. What she doesn't know won't hurt her.

    There. You now know much more about me than you wanted to, I'm sure.

  • by Sydney Weidman ( 187981 ) on Monday July 30, 2001 @02:35PM (#2183063) Homepage
    The work has monetary value, in terms of the resources and time used to create it

    I find it strange that people seem to use two standards to judge value.

    • On the one hand they say that a thing's value is whatever the market is willing to pay for it.
    • On the other hand (usually when they are trying to defend property rights) they claim that resources and time invested in something give it an intrinsic value.
    This is like the split between the book value and market value of an asset. Sometimes the asset's market value goes to zero. If the market value stays at zero, at some point it becomes irrational to say that it is really worth anything.

    Just look at Nortel Networks or JDS Uniphase for an example of how assets sometimes need to "disappear". The asset that disappears is usually something like "goodwill", which is equivalent to whatever the buyer paid above and beyond the book value of the company's assets at the time of the purchase. So compare that to the case of the record industry. Consumers are less willing to pay for music. The value of the record industry's "assets" has gone down substantially. Maybe it's time for the record companies to just write off these assets and get on with some other kind of business. I'm sure there's a huge market for T-Shirt and poster sales.

  • come on... "Under the doctrine of eminent domain, the government may declare a piece of land necessary for public use and then simply take the land -- as long as it pays the landlord a reasonable price" how does this apply to any of the music that was ever traded on napster? if this is going to be argued, can't the riaa and they're group say that much of this music is freely available on the airwaves, mtv (when they play music), etc?
  • At some point, each of us has hated the US legal system and the evils it produces. Then you see something brilliant, simple, and reasonable like this and it all seems worth it. Maybe. :^)

    I kind of agree. I've been thinking more and more that law is like code. But think about this: this is sort of like garbage collection (removing copyright monopoly allocations) by a process with higher priority (The New York Times) than yours (citizen).

    When you find an injustice without a higher priority process to take up the argument, you have a serious memory leak that is undetected by litigative garbage collection initiated by your weak citizen process. Which leads some of us to think it would be better to carefully manage the allocation of copyright monopolies (memory) in the first place.


  • This may seem off-topic at first, but please read through it and you'll see what I mean.

    I would like to present you with a song about George W. Bush. I didn't write it, of course, and the RIAA owns the rights to it, but I present it as an act of drawing upon the popular culture in order to make a political statement:


    He's a real nowhere man
    Sitting in his nowhere land
    Making all his Nowhere Plans For Nobody.

    Doesn't have a point of view
    Knows not where he's going to
    Isn't he a bit like you and me

    Nowhere man, please listen
    You don't know what you're missing
    Nowhere man, the world is at your command

    He's as blind as he can be
    Just sees what he wants to see
    Nowhere man can you see me at all

    Nowhere man, don't worry
    Take your time, don't hurry
    Leave it all, 'till somebody else
    Lends you a hand

    Doesn't have a point of view
    Knows not where he's going to
    Isn't he a bit like you and me

    Nowhere man, please listen
    You don't know what you're missing
    Nowhere man, the world is at your command

    He's a real nowhere man
    Sitting in his nowhere land
    Making all his Nowhere Plans For Nobody.
    Making all his Nowhere Plans For Nobody.
    Making all his Nowhere Plans For Nobody.


    Now, what the article is saying is that the Supreme Court's ruling on the freelance publisher case could be interpreted to mean that the recording industry could be compelled to license its material to Napster by a court ruling at a price to be determined by a court. What I'd like to know is if I use RIAA material as I have just done to make a political statement would the same apply? And if so, what amount would the court set as an appropriate fee for the compulsory licence?

  • Lawyers,

    It sounds like the courts are saying that the right to publish a work in print does not carry along the right to publish electronically. If so, is it possible that the court's ruling in this matter will have any bearing on the Mathworld [] lawsuit? Maybe its a pointless question without seeing the contract betweeen CRC and Mr. Weisstein. I think the void left by Mathworld's absense is only slightly less significant than a 'hole' left in history as the editorial describes it.

  • "Reducing the period of the limited monopoly will have the desired effect, because artists/creators/publishers/RIAA/whoever will have to continue to invent new things to sustain a steady income."

    Do you think they will make music [] that [] lasts [] or stupid [] rubbish [] that doesn't when they know they have a limited time to milk money from people?

  • by hillct ( 230132 ) on Monday July 30, 2001 @09:15AM (#2183094) Homepage Journal
    It looks like Ginburg was looking to prevent and Orwellian (1984-style) scenerio here:
    Why did the Court suggest possible limits on the freelancers' property right? Because the majority was responding to the concern that there would be "holes in history" created by the removal of the freelancers' important work from electronic databases.
    This is actually a legitimate point. ALthough we are not operating at this level yet, there will eventually be a time when databases of this sort will replace the microfiche archives of newspapers like the New York Times that libraries pay an arm and a leg for now. If articles which appeared in the newspaper were omitted from the online database, there would indeed be 'holes in history' - presuming that the New York Times is the definitive record of history - which in and of itself is a frightning thought.

  • by Rogerborg ( 306625 ) on Monday July 30, 2001 @09:44AM (#2183114) Homepage
    • They must negotiate the right to publish online separately. They'll just add another clause to the existing contracts and continue as usual. [...] Older content that was not licensed under the newer contracts must be renegotiated for electronic format with the artist

    Way to miss the point. This ruling (might, if sustained and interpreted loosely) give Son of Napster the right to distribute music that has previously been published, regardless of the licensing situation. Did you read the article? There were no digital media clauses in the NYT contracts, but the court decision (if carried through) both allows and requires the NYT to publish in that format anyway and reward fairly the copyright holders.

    It's not relevant whether the Big 5 record companies have online media contracts with artists, or whether Son of Napster carries Big 5 tracks and/or independent artist tracks. The only salient points are:

    • The work has previously been published.
    • The copyright owner is compensation for further publication in other formats.

    The relevant question is actually whether Son of Napster has any right at all to publish any work owned by third parties with which it has no previous business relationship, and who have given no agreement for Son of Napster to publish their copyrighted work in any form. I can't see why this ruling gives Son of Napster that right. But it's an all-or-nothing question, not one of individual contracts between record companies and artists.

  • by s20451 ( 410424 ) on Monday July 30, 2001 @09:26AM (#2183135) Journal

    So you're saying that you would trade the de facto regulation of a business trade group for the de jure regulation of the federal government? Forgive me if I remain suspicious.

    In this case, if you download MP3s, you really would be downloading Communism.

  • There have always been holes in history. There always will be holes in history.

    This, of course, in no way means that the court should encourage such holes by an overly broad interpretation of subsidiary and non-negotiated IP rights. At the time that the agreements were reached, neither of the parties felt that these rights were important enough to hassle over.

    What would you say if you bought a land to build a house on, but the mineral rights were not mentioned in the deed - neither you nor the seller felt that the possibility of there being any useful minerals were important enough to worry about. In fact, lets say no one had discovered that a new mineral - dirtonium - had amazing curative powers at the time.

    But the scientists worked and discovered that dirtonium was amazingly good for people. And you did a survey and found a bunch of dirtonium right under your house! Then you set up a system for selling and distributing Dirtonium(TM).

    Now suddenly, the original land holder is suing you because he didn't sign away his mineral rights to the land. How do you feel now? Again, no one even knew that this stuff was important when the sales agreement was made.

    The court is in between a rock and a hard place in this one. Obviously no one knew on-line rights were going to be worth anything when these agreements were signed or else they would have been mentioned. In short, the sellers thought they were being paid for an article and the Times thought they were buying an article. Period. The court doesn't want to weaken IP law, nor does it want to screw over the Times. The best thing you can do in these cases IS to appeal to a greater interest, if there is one. In this case, the use of the information to historians outweighs the value to the copyright holders who didn't object when asking to sign these agreements and probably didn't even know that the electronic rights woul ever be worth anything. The only other possible decisions are worse - have NYT dump the articles into the river (which they seem to be doing) or preserve the status quo by telling the copyright holders to go away.

Vitamin C deficiency is apauling.