February 08, 2012
SOPAPIPA: Why we need to consider Compulsory Licensing Once Again
Paul Tassi over at Forbes has a great article titled You Will Never Kill Piracy, and Piracy Will Never Kill You. He talks about now Hollywood is trying to drive Netflix out of business by increasing the fees they receive, when in fact Netflix is the lifeboat Hollywood needs.
But Tassi isn't going far enough, I believe, in looking at Netflix as an example of a Silicon Valley lifeboat for Hollywood. Netflix is a microcosm of what could happen, across the internet and all users, if we looked at compulsory licensing for all media and users, and not just Netflix customers. Netflix is a great model for what could exist across the internet.
Denise Howell invited me to This Week in Law (TWiL 146: Mary Hodder and the Lifeboat of Fire) and of course, the SOPA PIPA thing came up.. and I referred to Terry Fisher's Compulsory Licensing ideas (though several others had other versions of compulsory licensing too...). He was at the Berkman center at the time, and still is, and lots of folks commented (like Ed Felton, Ernie Miller and Derek Slater back in the day ...this link goes to a page listing a year's worth of CL discussion in 2003).
At the time, in 2003, I advocated against compulsory licensing, in favor of a P2P system that would pay artists and end the copyright wars from Hollywood. Well, that was wishful thinking and never happened, and in the meantime, we have loads of Hollywood payola flooding WDC looking for even more draconian laws than what we have now, which will be quite harmful to the internet as an ecosystem.
So as the world has shifted over the past 10 years, I realize we need to revisit compulsory licensing, with built in privacy so we maintain our "right to read anonymously" (per Julie Cohen.. an amazing thinker) and deal with other issues like counting, watermarks and tracking (guess what, 10 years later, we all realize that thousands are tracking everything we *each* do online everyday.. so while I want my clickstream, etc to be private and user-controlled, I'm less concerned about this now as far as compulsory licensing is concerned than I was in 2003).
So my thought is, why not collect a fee at the front end of each month, across internet service points, from users. If no one uses any media, the funds stay put in escrow with the ISP and non-users don't pay. But if media is used in a given month, downloaded, etc, moneys are distributed to copyright holders. And if works are in the public domain? No payments would go out either. Yes, it would require a giant copyright registry, and ISPs to track (let's say, for 90 days, before dumping a user's media list) what anyone on an ISP provided connection used, in order to distribute fees. And it would require a giant fight in Hollywood about who gets paid what, for what, at what time, etc. Hey, maybe that will mean you can watch a first release movie on opening day, on your ipad, where a larger share goes to that copyright holder because of the timing of your consumption?
In my view, figuring out how to solve the Hollywood problem with compulsory licensing is worth doing, by getting all the smart people who understand networks, and licensing, and all the other hairy stuff that will come up in a room and working it out. It would get artists paid, and it would get the users whatever they want in terms of media, and it would get Hollywood into the lifeboat that Silicon Valley offers, finally.