This transcript is from Jim Griffins keynote speech about Choruss at the Digital Music Forum East in March 2009. Jim Griffins heads Choruss, LLC is a non-profit organization created and supported by major music labels. Choruss aim is to provide voluntary collective licensing to universities. It amazingly is backed by both the RIAA and EFF, who usually are on opposite sides of the music file-sharing issue. Choruss would act as a collective pool and then distribute royalties to artists based on various metrics.  

Mr. Griffins discusses the need for a new business model in the music industry as technology has completely changed the game. He states, "It’s a fact of life: If your business model depends on controlling or getting paid for copies of zeros and ones, you may need to look at a new business model." He explains how collective licensing has existed in various industries in various forms and now is no different. Mr. Griffins then specifically addresses a Billboard editorial written by Chris Carter on the issues facing voluntary collective licensing. He provides mitigating arguments to the issues including lack of data to allocate funds, legal implications of collective licensing, opt-in / opt-out, label favoritism, and implementation challenges. He further discusses that this is not an academic pursuit but rather an actual attempt at monetizing and regulating piracy. He stresses that the creation of the system will also expand the market and uses the Copyright Clearance Center as an example of past success. Choruss has the goal to test various systems and eventually make paying for music fast and simple because doing so will release the floodwaters for money to flow.

Mr. Griffin is basically heading up the idea of voluntary collective licensing and is the initiatives public face and voice. This transcript gives a cohesive response to critics of voluntary collective licensing. By addressing the concerns of Mr. Castle, he has provided counter-arguments necessary to push the discussion on this revolutionary concept. His answers are based in reality and admit the concerns faced but are optimistic and derived out of reason.

Chris Castle is a California attorney who represents clients on music technology and public policy. He wrote this editorial in January 2009 and takes a much needed look at the problems with voluntary collective licensing and ISP taxes. He explores what would happen in a world where suddenly downloading music is free. The main issue he brings up is without any legitimate proven tracking sources, ISPs would basically be providing good guesses on how the fees garnished should be distributed. Other concerns he raises are about file quality, illegitimate lawsuits and the lack of feasibility of the plan in actual implementation. He further comments that the record industry would be exchanging one form of uncertainty for another.

The editorial further accuses proponents of voluntary collective licensing of ignoring the positive results in the billion dollar industry of quality digital content such as Hulu and Itunes which are experiencing successful growth. The author questions how collective funds would be distributed with no good data and the addition of another middle-man pulling money out of artists pockets. Questions are also raised about any promises to not sue ISPs, especially by those who opt-out of collective licensing. ISPs will also face issues related to other content illegally downloaded on their sites like images, movies, etc. and international trade agreements that may be tested.

While voluntary collective licensing on a topical level sounds great, Mr. Carter raises some very legitimate points and the issues that could be present in actual practice. ISPs will have to take on additional duties and are vulnerable to attack for participating as a middle-man whether it be voluntarily or involuntarily. Consumers may also be at risk in a world where authorized and unauthorized works are at their fingertips with no clear ability to distinguish between the two. If this is the case, lawsuits may continue unabated.

This is The Songwriters Association of Canada’s proposal for monetizing file sharing of Canadian music. It lays out a voluntary collective licensing scheme similar to that proposed by the Electronic Frontier Foundation. The plan highlights its unobtrusive nature which will basically let consumers continue to download music as they wish but remove the legal risks and legitimize their actions. Consumers would have unlimited access to the world's music collection both preserving and fostering its growth. The association believes the voluntary collective licensing method will usher in a "Golden Age of creativity."

The background of the proposal provides some interesting statistics on music downloading. The estimate 98% of all music is shared and only 2% is actually purchased obviously indicating that sharing is the preferred method of the public at large to access music. The proposal also argues that legalizing file sharing would increase the amount of high quality virus-free music available as only 6mm of the 100mm recordings created are available on legal sites. Legitimizing file sharing will hence increase society's access to all music promoting the arts. It will also answer the most important dilemma: compensation for creators.  

The proposal is an amendment to the current copyright act instituting collective licensing and the payment by consumers of a monthly fee on internet and wireless accounts. This would basically be a government tax but with an opt-out option. Consumers could sign documentation stating they will not share files and face penalty for breaking their agreement. Creators could also opt-out. The proposal would not only benefit consumers, but also ISPs and the music industry. ISPs would receive an administrative fee and record companies would finally receive compensation for file-sharing. The collective would be responsible for tracking music file sharing and distribution of royalties and could be outsourced to firms currently doing similar work.

Overall, the system seems very reasonable and a solution to the secular downward trend facing the record industry. The proposal is broad in its strokes, but it is the details of voluntary collective licensing that make it difficult which are not addressed. Issues such as how royalty streams are fairly distributed, misuse for non-music materials, cheating by artists, impact on record companies and current providers of legal file sharing are not fully tackled. Still the proposal takes the next steps necessary to move the method forward.

This is Fred von Lohmann of the Electronic Frontier Foundation's whitepaper on voluntary collective licensing.  The EFF has been a proponent of the idea since 2004 and put its seal of approval on current attempts to give life to the idea such as Choruss. The idea has gained traction with both Warner Music and Universal expressing interest. There has been a plethora of comments by writers, bloggers, panel discussions regarding the subject.

The paper presents voluntary collective licensing as a method to combat digital music piracy and create a legitimate revenue source for the flailing music industry. It lays out the precedent, the idea, the logic and the advantages. Voluntary collective licensing could be a way to monetize file sharing and hence provide the creators with compensation for their work, but at the same time provide consumers with what they have wanted all along, complete and uninhibited access to music. Since the creation of Napster, peer-to-peer file sharing has resulted in a secular decline of the music industry. Even through numerous evolutions and legal battles, file sharing has continued illegally and impacted recording artists. Consumers have been sued and accused by record companies of piracy, all of which has resulted in ill will towards record companies and little revenue generation for artists. Lohmann lays out the reasons voluntary collective licensing is needed including artists deserving to be compensated for their work, file-sharing has become the normal mode of music distribution, fans are in fact the best distributors, decision makers and preserves of music and finally the importance of letting the market drive innovation more than the government.

Voluntary collective licensing is compared to the system currently used by radio stations and insights are provided on how the concept will alleviate piracy in the music industry. The idea  is to form "collecting societies" similar to ASCAP, BMI, and SESAC which provide music fans with unlimited downloading in exchange for a reasonable monthly fee. The fees would be collected through a variety of sources including at the ISP, university networks or subscriptions (similar to Rhapsody). All money would move to a central organization who would distribute compensation to artists based on popularity of their music, the technology for which already exists. The whitepaper further answers the most obvious questions including antitrust, division of money, and the impact on unwilling artists.

The cases of DVD-CCA (DVD Copy Control Association) vs. Bunner, and DVD-CCA versus Pavlovich are closely related, but rendered different outcomes  In both cases, the DVD-CCA was suing because their secret computer program, DeCSS, was posted on the internet for the public to take advantage of at their will.  This DeCSS code, allows people to play an encrypted DVD on a non-CSS compatible DVD player or drive. In the DVD-CCA's case against Bunner, they targeted Bunner for making the DeCSS computer program on his website.  The court found Bunner innocent, citing the fact that restraining computer programs from distribution is anear impossibility.  Since the program had already circulated worldwide when Bunner posted it, he could be found at fault.  In the DVD-CCA's case against Pavlovich, they targeted Pavlovich for the same reasons as Bunner.  The court ruling was different concerning this case though because they decided that since Pavlovich was a Texas resident, he could not be forced to attend trial in the state of California.  This decision developed jurisdiction lines for claims against posting information on the internet.  These two particular cases were only the highlights of the hundreds of others that the DVD-CCA filed against other citizens who posted the DeCSS code on their websites.  These cases show how difficult existing copyright law can make the prosecution of certain acts that may in fact lead to mass piracy.

 Though not so recent, this article highlights the importance of the Electronic Frontier Foundation and it’s preliminary role in defending privacy against lawmakers. The article reports that the International Federation of the Phonographic Industry, a music-industry based group, attempted to block filtration devices that were used to transfer copyrighted material illegally. The EFF claimed that this move was an “ineffective measure that will do little to practically address the concerns of major rights holders while imposing serious costs on the individual rights of European citizens.” Recording industry groups further asked filtering technology makers, such as Audible Magic, to block users’ access to specific peer-to-peer file-sharing services.

This article targets yet another example of the entertainment industry (and the ACTA by extension) pretending to tailor the Internet to what it wants as opposed to operating with the way the Internet actually works. Developments like this also demonstrate that defenses, such as the EFF, actually do exist and strongly advocate the privacy of Internet users. This relates specifically to my thesis in that it shows the early steps toward the formation of a defense against global control of file sharing.

         Media moghul Comcast plans to use protocol agnostic controls to manage online traffic. Comcast, a US cable provider, strives to appease global IPR parties by mediating broadband traffic via time-spaced analysis of internet usage.  As a result, the normally strengthened pipeline for information transfer is deemed as severely handicapped via this inevitable middleman. It thus comes as no surprise that “Comcast’s objective here is still largely to prioritize NON-peer-to-peer traffic above P2P sharing." Commentator Shaun Nichols writes that Comcast plans to use these deliberate traffic limits in order to prevent users from occupying large chunks of bandwidth with the use of P2P services. Comcast claims that online traffic will be analyzed every 15 minutes in order to rank users based on the amount of bandwidth each is occupying. Individuals who appear to be occupying large amounts of bandwidth will be placed at a lower priority for network access, inhibiting access to peer-to-peer applications. This compromise will be met with increased speed for web page viewing during peak access times, leaving non-peer-to-peer users at a general advantage as far as web surfing is concerned. Not to our surprise, the Electronic Frontier Foundation (EFF) found this to be an improvement over the ACTA’s (Anti-Counterfeiting Trade Agreement) initial stringent regulatory stance on file sharing.
         The structure of my argument hinders upon the past and future implications of file sharing legislation. Considering that the middle man (in this case the service provider) is of central importance to the movement of information across the web, it makes for a nice standstill between the normally warring EFF and ACTA. However, the ACTA’s ability to recruit more providers across the country could force users to look elsewhere for alternative means of accessing information. Though this article addresses the role of internet providers in information transfer, it largely ignores the general transfer of information via Bluetooth and other external devices that can also be used in file sharing.

    This legal analysis by Fred Von Lohmann of the Electronic Frontier Foundation is empathetic of the McCain campaign’s fair use/YouTube problem, as the EFF has been championing internet freedom and fair use principles for many years.  However, he is highly critical of McCain proposed solution, which would put the burden on YouTube to conduct legal reviews of videos posted by political candidates that receive takedown notices.  He thinks this notion is backwards, since in terms of political speech, amateur commentators are the ones that need special protection from phony takedowns.  Despite the failings of the McCain proposal, he goes on to identify the true problem in these situations: the news media organizations.  He believes it is their responsibility to refrain from sending bogus takedown notices for legitimate fair uses.  As for a recommended response by the public when they don’t, he encourages public shaming of the companies, as well as potential lawsuits for submitting a takedown they knew was illegitimate.  He also supports the claim made by the McCain campaign that it is not incumbent upon YouTube to follow this strict procedure in the case of fair use, which YouTube itself could reasonably determine with human intervention.
    Lohman’s analysis will be useful in that it finds fault with all parties involved in the process: the alleged infringers, the copyright holders, and the host.  He also puts forth a compelling reason why McCain’s solution would not be ideal from a societal point of view.  The actual reason McCain’s proposal was rejected was because YouTube said that their hands were tied in the process; Lohman says that even if YouTube could treat politician's videos differently, they still shouldn’t.  The author is transparent in placing most of the blame on the news organizations themselves.  Other articles refrain from making the obvious claim that if it weren’t for the media foolishly asserting a broad claim to copyright, this wouldn’t be a problem.  Finally, he corroborates the assertion made by the McCain campaign that YouTube does not necessarily need to act with as much immediate speed as it says it does.

Blizzard Entertainment sued a group of volunteer gamers who created free, noncommercial, open-source software to allow Blizzard game owners to play the games over the Internet. Claiming that the gamers reverse engineered Blizzard’s own Battle.net server software to make their own BnetD server software, Blizzard cited anti-circumvention violations of the Digital Millennium Copyright Act. Both Battle.net servers and BnetD servers were available for free online to enable online game play. However, BnetD was created as an alternative to Battle.net to fix some connection difficulties that some users encountered while using Battle.net.

Blizzard attempted to stop distribution of BnetD, alleging that the software has been used to permit play of pirated Blizzard games. However, the volunteer developers did not design BnetD for this purpose, nor were they are using BnetD for this purpose. The free software was a legitimate use and could not be bluntly labeled as a piracy device. Blizzard argued that the developers reverse engineered sections of the game, thus violating Blizzard’s End User License Agreement (EULA). The Electronic Frontier Foundation (EFF) represented the programmers and declared that BnetD was a legal free product which worked with the original product in order to benefit game owners. The court ruled in favor of Blizzard, ultimately stating that reverse engineering and emulating of Blizzard software in this case were illegal.

The consequences of the ruling were detrimental to game upgrades and user enhancements. If this decision set the precedent, user-developed programs that work with original products would be banned. Furthermore, consumer choice would be limited by the available products. Since users would only be authorized to use a certain company’s products with that same company’s accessories together, this would have a profound impact on software and game products. In a similar analogy, imagine if Brand A’s eraser had to be used in conjunction with Brand A’s pencil. What would happen if computer users were forced to run only Microsoft products with Microsoft Windows? What if gamers could only play certain games with specific designated programs and accessories? Inevitably, such precedent would drastically reduce competition in the marketplace in addition to loss of both innovation and user-generated creativity.

Newman, Jon O. EFF: Appellate Decision in Universal v. Reimerdes. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/Video/MPAA_DVD_cases/?f=20011128_ny_appeal_decision.html>.

This famous court case involved the publication of the "DeCSS" decryption program on the website 2600.com.  "DeCSS" was designed to break through the CSS encryption on DVDs.  The action of posting this program challenged the Digital Millenium Copyright Act which bans any measure of breaking through digital encryption, or any publication or distribution of any such measure. Eight film studios, including Universal, brought a suit against the operators of 2600.com, seeking to have "DeCSS" and any links to other sites containing it removed from 2600.com for violations of the DMCA.

The appeal challenged the constitutionality of the DMCA, claiming that it restricts free speech, and called for a narrow construction of its terms.  They also claimed that "is rooted in and required by both the Copyright Clause and the First Amendment," and that the DMCA restricts this.  However, the appeals court found no reasoning for these claims, and upheld an earlier injunction by a lower court requiring the removal of the "DeCSS" program and any links to it.

This case is extremely important because it establishes that arguments regarding fair use and free speech are almost no match for the terms of the DMCA.  Were it not for the DMCA, I think it would definitely be easy to argue for my video project as a fair use; however, cases like this clearly state that this is no defense.  The court states that there is no constitutional requirement for a fair use standard, and that such claims cannot supersede violations of anticircumvention laws.

Electronic Frontier Foundation. EFF: Unintended Consequences: Seven Years Under the DMCA. Electronic Frontier Foundation. 28 November 2006. .

This article tracks the continued influence of the Digital Millenium Copyright Act, specifically the "anti-circumvention" provisions of Section 1201, throughout its first seven years in effect. The Electronic Frontier Foundation argues that the DMCA has not been used as a method of blocking piracy and devices used to perpetrate it, as Congress intended it; instead, the DMCA has become a tool for big businesses to eliminate potential competition and a blockage to fair use, creativity and technological innovations. Because the DMCA "chills free expression and scientific research... jeopardizes fair use... impedes competition and innovation... [and] interferes with computer intrusion laws", the EFF argues that circumvention must be permissible. The article also contains an exhaustive list of court cases in which the DMCA has been a key factor.

Full knowledge of the restrictions of the DMCA and a general sense of the ways in which legislation has surrounded it is absolutely vital for the creation of my project; the essential goal of my project is to make a challenge to the DMCA and the restrictions that it has placed on artists, specifically in terms of digital video.

Electronic Frontier Foundation. EFF: Digital Video Restrictions. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/digitalvideo/>.

As could be expected from an article written by the Electronic Frontier Foundation, this article was firmly opposed to DRM and DMCA restrictions. It gives a general overview of the ways in which digital video technologies are encrytped, and accuses Hollywood of using "scrambling, down-rezzing, and a host of other restrictions" for purposes that have nothing to do with their originally stated intent, the prevention of piracy. Most of the article is occupied by a listing of the ways in which DRM is used on a different digital video technologies, from DVDs to cable TV; each of these descriptions also lists "Why It's Bad" and the ways in which the EFF is planning to fight the restrictions. At the bottom of the web page, there is even a listing of ways in which Hollywood is attempting to expand restrictions on video technologies, from to filling in the "analog hole" to blocking the creation of unrestricted video outputs; each of these newer techniques also has a listing of the ways that the EFF is fighting against it.

This sort of information will definitely be very important to my project, as the project itself relys on avoiding DRM to use clips from DVDs. Although it is, at the moment, rather easy (albeit illegal) for anyone with certain technical knowledge to bypass the CSS encryption on a DVD, expanding control over these technologies (as Hollywood seeks to do) could definitely make it nearly impossible in the future. This could have many consequences for the creation of appropriation art pieces; I think it would be interesting to judge how a project such as the one that I am working could be created if Hollywood does get its way.