Time To Scrap All Music Industry Licensing Schemes

from the a-house-of-cards dept

It's impossible to be a legal innovator in online music these days. No matter what you do, you will run afoul of some kind of music licensing issue. That's because of the way that copyright law is designed. Basically, each time some new technology comes along that doesn't fit with the way copyright law used to work, the copyright holders run to Congress and demand yet another new "right" to be included in copyright -- and anyone who wants to do anything has to now pay for yet another license to cover that right. The end result is a comical house of cards that no one can actually figure out -- and you're pretty much bound to be sued by someone for violating one of those "rights," if you do anything even remotely innovative. At MidemNet, in one of the panels I watched, an executive complained that for every track one startup streamed online it needed to negotiate eight separate licenses. And that's not the worst of it. At a panel last week, execs from all over made it clear that things aren't about to get any better at all. Instead, it's just a bunch of legacy industry execs who keep demanding that the government grants them more rights.

But here's the problem: no one is providing any actual evidence that these rights are necessary. So let's scrap them all.

Plenty of musicians are showing that they can make good money by embracing new business models that have nothing to do with these antiquated licensing schemes. So why not get rid of them all and just let the market work. The end benefit would be great for everyone except the folks in collections societies who have made themselves a fantastic living sitting in the middle collecting money. Musicians would still make money by embracing new business models, and the ability for internet startups to actually innovate without getting sued or having to pay multiples of any possible profits to guys in suits doing nothing, would help grow the music industry many times over.

But, instead, we just hear from the folks representing the industry trying to add new licenses to the mix insisting (falsely) that they are somehow needed for the industry to survive. So we slap on another unnecessary layer that's really just designed to keep the guys in suits rolling in cash, but has nothing to do with helping out the actual musicians or creating more music. Meanwhile, the collections agencies -- the SoundExchanges and the ASCAP's of the world -- insist that a new license layer is a great thing, and they're more than willing to step up to be the ones to collect it. But it's not necessary and the answer is to go in the other direction.

We don't need to add more music licenses. We need to get rid of the old licensing regime. Entirely.

Even copyright attorneys are realizing that this is leading to the death of copyright. Layering licensing right on top of licensing right is building a house of cards that has to collapse. Copyright attorney David Post talks about the ridiculous situation of trying to determine how one would go about getting all the proper licenses for one of the thousands of increasingly viral videos made by people using Microsoft's Songsmith software, combined with vocals from classic music hits. As Post notes, that's definitely a creative endeavor -- the sort that copyright law is supposed to be encouraging. But he notes that copyright doesn't scale. All those different licensing rights make it impossible to actually get all the rights necessary to make that sort of creativity legal. After going through the impossibility of getting the licenses for just one of those videos, he asks how you would do it for the 100,000 Songsmith-inspired videos on YouTube alone -- not to mention those not even found on YouTube, or which will be loaded up in the future.

We've built a copyright system by having politicians incorrectly accept the screaming complaints of legacy industries every time some new technology comes along. So they add another layer of complexity to that house of cards, and we've now reached the point where it's impossible to innovate legally -- and even doing basic creativity puts you at significant risk. Yet, there's ample evidence that none of this is actually needed for musicians to make a living making music. It's time to recognize this and look to just wipe out all of these unnecessary legacy artifacts of a dead system, and clear the decks to let real innovation thrive.

Filed Under: copyright, innovation, licensing, music


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  1. identicon
    Jason, 2 Mar 2009 @ 4:12pm

    Well, within reason

    Well, creators & distributors should still be protected by SOME rights, basically:

    -To not have their work used or distributed w/out their consent.

    A purchase is an agreement between two parties, which often does and must come with limitations and obligations for both.

    (If they don't want to give consent for something the consumer wants, the consumer doesn't buy, and that's how the market works it out...)

    This should be clearly defined at point-of-purchase. Hypothetically,

    "You're paying to:
    -Play my music where you want to, even as background music in the live presence of customers whose main transaction is to pay for something else.
    -Even to copy onto solid storage (maybe of whole contents?) you can hand to friends/aquaintances.

    But NOT to:
    -Broadcast, distribute or copy over a network.
    -Integrate w/ any other media (unless I've said it's ok), b/c I don't want my work appearing in your P.O.S porno, hillbilly website, or crappy dance song.
    -And you certainly can't do that for as little as you're paying me now.
    -And I certainly don't want you getting paid for my work, without including me in proportion.
    -And you certainly can't try to pass it off as your own work.

    If you think that makes me too greedy, then don't buy from me."

    *Maybe this could be taken out of government's hands and be on the shoulders of creators/distributors to protect themselves contractually with their customers. Then you'd get into how aggressively they'd have to follow up on that, how strongly they'd have to sue to see the contracts followed, and if its fair to ask companies to have to do that just so they don't get ripped off.

    I think it would be more fair to have a breach of such contracts be considered a criminal offense, to reasonable extents depending on the magnitude of the breach.

    *Just because we can't prevent something doesn't mean there should be nothing that protects us from being forced to embrace it (no matter how wise embracing might be)... I know when I go on the road that there will be, guaranteed, speeders & drunk drivers, that doesn't mean they should be allowed on the road.

    *Better business models or not, creators/distributors should still have their right protected to choose if they want to be part of it, if we want to keep the market truly free. Behind all rights, the key is preserving our choice.
    If the consumer doesn't like the terms, he/she just shouldn't buy.

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