Napster Judge's Suggestions On How To Fix Copyright: Massive Bureaucracy

from the ugh dept

Judge Miriam Hall Patel, who among other things, is known for her decision that effectively killed off Napster (which I still believe interpreted copyright law incorrectly, and put the liability on the wrong party… but that’s another post). Apparently, Patel has also been spending some time thinking about how to repair copyright. She gave a speech this week at Fordham Law, where she laid out the details of her plan that are certainly… different. The idea would basically be to establish a hybrid public-private entity that would effectively determine everything having to do with music and copyright. If this makes you cringe, you’re not alone.

On the good side, the suggestion includes the idea to wipe out the massive patchwork set of copyright royalty and licensing rules that are so much of the problem today. Every time some new technology comes along, we end up with yet another new patch on copyright law, making it so that it’s nearly impossible these days to do much of anything with music without having to hire a lawyer to figure out which six or twelve different stakeholders you’ll have to pay.

But, that’s about all that’s good here. Everything else looks like it’s setting up a huge bureaucracy (the fact that it would be a mix of public and private representatives is rather meaningless) that would effectively decide everything having to do with music. There would be compulsory blanket licensing, and you would have to apply for a special exemption to get out of it.

Then there’s the ugly part. She would require any new device manufacturers or application developers to get approval from this new body before creating any new products. Yes, she wants to create a board to approve new innovations and determine what is and what is not allowed. This should scare pretty much everyone. That’s not how innovation works, and any such plan would basically move all innovation in the industry outside of the US, allowing everyone else to leapfrog us quite quickly.

It’s great that people are trying to come up with out-of-the-box ideas, but this one, perhaps needs a bit more time marinating in the box.

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Comments on “Napster Judge's Suggestions On How To Fix Copyright: Massive Bureaucracy”

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SteveD says:

Heh, bye-bye American tech industry. How long would iPods proudly keep that ‘designed in California’ sticker?

Still it would be interesting to hear what sort of reasoning lead her to this point. After 7 years you’d think she’d have some sort of argument to back it all up.

And she probably owes the RIAA performance royalties for that ‘Momma’ song…

dave says:


#5 comment said

“Ipods would, they make lots of money and would buy the approval, but the smaller players that keep innovating wouldn’t.”

You missed the point. The ipod would have to be aproved be for it could be made. Therefore there would be no way of knowing if it was going to be sucseful and a good chance it would be denied.

At this point the inventor would probably take the idea to some other country, create it, make money all over the world until the USA finally agreed to make it legal.

Can you see how bad that would be for us? It’s like if the car was denied because it infringed on the horse and buggy. The rest of the world would have cars and we would have been far behind on our horses. Hell if you really want to consider how bad it is, we would have probably lost WWII because our tech was held back.

Anonymous Coward says:


If you abolish copyright you can pretty much garantee and END to new music. What incentive would recording artist have to provide new music if they have no rights to the music they create?

You people are so short sighted you expect people to record music and then give it away. That would be like expecting Ford to manufacture cars and then give them away (whic at this point may be the only way to get them off their lot – but that isn’t the point).

This judge is basically punishing businesses for the sins of the internet pirates. They should make unauthorized file sharing a criminal offense and jail people who violate the law. It might not remove the pirated material that is already in the wild, but it would severly limit future infringement. It would provide protections for artist, the industry and not limit innovation. It would punish those people who are creating the problem (those people that are violating distribution restrictions).

There that was EASY!!!

Nobody says:

Re: #2

“They should make unauthorized file sharing a criminal offense and jail people who violate the law.”

Part of the problem is that “they” want to make every conceivable way of sharing any data/files into a criminal offense.

And not just for the new stuff that will come out, but for anything that has ever been done anywhere at anytime.

So, not quite as simple as all that…

Anonymous Coward says:

Wow, talk about being short sighted.

If Ford could make 1 car and then replicate an infinite number of time I would expect it to be a heck of a lot cheaper. I expect the same thing from the music industry. Their business model is bloated, antiquated and no longer serves a function in the day of instant and wide spread communication. The recording industry does not provide the benefit it once used to for the artists and customers and needs a major overhaul. They can flush millions down to drain on teeny-bopper stuff like MTV or whatever as long as they want but don’t expect the average customer to pick up the tab.

If I buy the rights to play a song I should retain those right until the day I die regardless if the media containing the song is destroyed or not. I should be able to play it in my house regardless of how many people I have over and I should also be able to play it on my non-profit website. I create an ambiance at my home that is appealing to my friends and I do the same on the website.

And….just so you know most musicians do NOT have the rights to the music they themselves wrote. As far as the incentive….umm…probably to be a musician? Otherwise they can go flip burgers at the local Hooters, pick up trash, etc. I ran light shows for bands for a long time and despite what you may think, playing in clubs and partying all the time really doesn’t suck that bad.

The judge isn’t punishing anyone, she is just a short sighted idiot. I would expect this type of lunacy proposed during an economic meltdown to be laughed at and never approved.

Killer_Tofu (profile) says:

Re: Re:

Also, I think it is worth mentioning that there are many bands and people who do make music and give it away. The poster in #9 was making it sound as if without copyright protections, nobody would make music. There are plenty who are already ignoring the stupid copyright laws. They realize that by giving away the music already created they stand a greater chance of reaching a greater audience. The larger the audience the greater chances of getting fans who are willing to pay for stuff. Be it t-shirts, going to concerts, paying money up front to get the band to create the next album, or even paying for plastic discs.
Make sure almost nobody can share the music and you are severly limiting your audience size. Smaller audience will always equate to less people paying.

For years people passed around recordings of songs on cassette tape. Nobody complained then. Or if they did they were ignored. I certainly never heard of any complaints about it (although I was a bit young).

As for cars vs music and infinite vs finite, I believe the AC in #14 adequetly explained.

But AC #9, do not try to make it sound like nobody would ever create music and give it away when so many already are.
Perfect example of an artist making music and giving it away:

Anonymous Coward says:

I forgot this is the pirate site, everyone here steals music. You can’t convince a thief that he is stealing if he feels that he is taking something that he can copy. When you pay for a song you are repaying the musician for their services. And their services are not free just like materials are not free so your idea of an “infinite good” is a myth, a lie, and fabrication by people who are too CHEAP to pay for music. Don’t lie to yourself, if you are sharing your music you are STEALING (unless the musician gave you permission to share the music). Go ahead tell me how music is an infinte good, defend yourself. Hoist the anchor, set the sails, face it you’re a pirate.

Mike (profile) says:

Re: Re:

I forgot this is the pirate site, everyone here steals music.

Hmm. Actually, as I’ve made quite clear, I do not download or share any music. I still buy it the good old fashioned way.

But, you know, if you don’t have any real arguments, why not make up bogus accusations against everyone.

It makes you sooooo much more credible.

When you pay for a song you are repaying the musician for their services.

Not quite.

nd their services are not free just like materials are not free so your idea of an “infinite good” is a myth, a lie, and fabrication by people who are too CHEAP to pay for music

Well, considering you just showed your own ignorance of basic economics, I would suggest perhaps you try learning a bit before throwing around false and defamatory accusations.

Their services are not free, indeed. And I have no problem with paying people for services. But the point — which you seem to have trouble grasping — is that selling music is not selling services. It’s selling the single output of a service multiple times. And, if you CAN do that, that’s great. My point is merely that this is economically unsustainable.

I have no problem with people trying to sell music. I’m just pointing out the basic economic evidence of why it’s not likely to be a good business model long term.

I’m not sure how that makes me a “thief.”

But, I’m pretty sure you don’t know either.

Don’t lie to yourself, if you are sharing your music you are STEALING (unless the musician gave you permission to share the music).

I’m not sharing music. So, I’m not sure what your point is.

Is it really that difficult to get it into your brain that we’re talking about from the musician’s point of view? We have never defended file sharing unauthorized music. We’ve just explained to musicians why it’s in their best interests to recognize how to take advantage of the economics they face.

Hoist the anchor, set the sails, face it you’re a pirate.

Except that I’m not.

I’m not sure what it makes you.

Anonymous Coward says:

Re: Re:

This is pretty much the same kind of argument that extremists use to defend their position when they really believe in something and can get no one else to go along with it. The thing is, the mounds of evidence and the fact that these large entities that claim to represent this artist or that one, aren’t representing them at all and gobbling up the money being had from new, and innovative ways of distribution that costs them virtually nothing.

The fight against file sharing isn’t one about money so much as it is about the control of distribution and innovation. If one can control and regulate distribution, then one can set whatever price they wish. Now that the once complete control is slipping away from the large companies, they cry foul and blame innovative platforms for their “losses”.

The point to all these posts defending file sharing is not the defense of getting something for free, but the recognition of near free distribution cuts out the need for extraneous and archaic systems that actually hurt economic growth. Even someone with a little economic sense should be able to see that the creation of something, then sharing and allowing others to distribute it at no cost to the creator, is the same as word of mouth advertising. And just as word of mouth advertising will not always yield direct sales from people that have been given shared information, so too will file sharing not always yield direct sales from people that download and listen, or watch, or play digitized formats.

The real gain in the end is that MORE people know, MORE people will care about the content, and MORE people will be willing to pay for the content if presented in manner that means something to them, tangibly. A digital file means little to someone who is unable to show it off. A limited collector’s edition box set extravaganza that contains the digital file means a lot. If it didn’t, the kinds of wacky box sets of tv shows, music albums, and movies would not exist and wouldn’t be so successful, yet they are tremendously successful.

Throwing out a claim that anyone file sharing is automatically a pirate is not realistic because people who share files and download files do not think of it as an act of theft when there’s no physical theft involved and their inclination is correct. If they went to a store walked out with a CD under their jacket, that IS theft, because that’s not something that can be infinitely reproduced and shared with others.

File sharing is a market shift, not a criminal act. Many artists have been fed the idea that the act of file sharing is directly stealing their work, when it’s not. The artists who understand (and there are many), know that when they enter the market expecting to make money from their work, they do so with the knowledge that they are going to be competing, as that’s what a free market is all about.

The thing is, an artist has a distinct advantage in their kind of market because music (and this applies to all media) can be controlled directly by the artist. If its good, then people will pay attention and the artist’s efforts will be rewarded by the sale of tangible goods. A t-shirt, collector’s box, or signed cd are things that the artist can sell that will give their fans a real sense of connectedness to that artist.

Trying to profit from digital content alone will only end in disaster, and trying to sell digital content without ever sharing it, but relying on physical goods for sales, only hurts their chances of being known by others. Sharing small portions without giving them the ability to listen to the whole album is better, but a limiting factor because you may miss potential fans that didn’t care for the shared content but may have enjoyed the rest of the content that wasn’t provided. Sharing in its entirety gives people the chance to evaluate the artist and decide if they like them or not.

That’s where you get the true fans, because those that are given the opportunity to evaluate haven’t invested anything except a bit of time to know if they like an artist or not. There are art exhibits and street musicians that give the public their work out in the open and all they expect is a bit of your time. Good artists know that people are more than willing to pay for a good performance. Really good artists know that people are happier when they can take a bit of that performance with them to show to others.

When someone shares content, people that are really moved are going to want a piece of that artist’s work in some way. Digital files do not give them what they want, but the artwork, apparel, album, etc will give them that. A book by an author that I like is far more valuable in my hands than in PDF form on my hard drive (and printing the book from my own printer is not the same).

Digital media is not able to fulfill that role. It’s not a centerpiece, it’s not something of much value until someone puts an artificial price on it, and when that happens, people are less willing to share it with others, and that only hurts the artist because in order for someone to know of the artist in this situation, they would have to be physically present in front of someone’s digital library to know that they even exist. Considering that black and white text in a long list of files is not really a conversation starter, it’s highly doubtful that anyone would even make a passing glance at an artist and be intrigued enough to listen and buy the content.

Let’s face it, if an artist is bad, no one will want their content anyways, even if it is free. Let’s also come to terms that the industry heads that want to regulate content are doing so because they understand what the internet has given to artists, and that’s a way to skip the middle man and go directly to their fans. Further, artists that are bad will go away (the industry has produced many one-hit wonders that are generally considered very bad artists), but artists that may have never been able to make it in the music industry on their own are now given an opportunity to share their work with people in a way that would never be possible if regulations and financial blocks are put in place to deny people access to their content (or the industry itself hindering their ability to succeed because the industry determines whether the work will be a success or not).

It’s not only shortsighted, but a complete denial of what’s in front of us if we perceive file sharing as criminal.

Killer_Tofu (profile) says:

Re: Re: Re:

Nice post.
Almost sad its under the AC tag, even though I know it is well within your right.
Very well said indeed.

Mike may not download music, but I do.
My friends share music with me. I share music with them. That is just the nature of things. It has been going on for years and years and years. People share stuff. There is even another blog post today about communication, culture, and sharing. I would say that is pretty spot on.

I will not go to see an artist in concert because I like a single song of theirs. If I did the concert better cost about 2$. Through our sharing we have been introduced to many artists we may have otherwise not heard. I can tell you that a few of us have gone to concerts of artists that, without this sharing, we would have otherwise probably never heard of. Whether the artists know it or not, they should be thankful that we shared the music. Even if some of us never end up paying for it. There are a few of us as well that do buy a CD or other such merchandise (like a t-shirt) for the bands we like a lot of. I can also tell you that we try to buy the CDs directly from artist’s webpages first, as we all strongly hate the RIAA and their ilk (naturally).

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