This is from Gerd Leonhard's 2009 book The End of Control. Leonhard is a media futurist and writer.  He discusses how the record industry has attempted to control their product but ultimately failed. The music industry must admit to what is happening and let go of there old economy business models and belief that content is king. They must accept it fast as the longer the wait the more they have to lose. Advances in technology such as memory sticks, iPhones, wireless hard drives / music players have made file sharing easier and easier and its popularity will grow exponentially. Record companies must embrace the end of distribution control and stop harassing their customers with lawsuits and threats. They must move to a service based model.

 

 Leonhard proposes blanket licensing as the best solution. Existing public performance blanket licenses given by collectives are easy to get and make economic sense. The system is straightforward and benefits performers and artists but a new method will be needed for the internet. A blanket scenario would work best and he likens music to commodities such as water or electricity in that everyone should be a legal user. However, it is important to recognize in any discussion that music can be consumed unlimitedly, thus in determining the appropriate fee, TV is provided as an example. Flat rates could be connected to service or other methods.

 

 The article's most interesting topic is its emphasis placed on control. Music companies still hope to maintain control of their product which does not make sense considering how uncontrollable it is. The movement of data has become so commonplace that controlling it seems almost ridiculous. Record companies have no other choice; they should strongly consider the prospects of blanket licenses. Flat rate licensing would work better as it would get money to creators who are not being served properly by the groups trying to represent them. I think this is probably the reason voluntary collective licensing has still not hit the mainstream. Middlemen like record companies realize their role will be diminished in a world where artists can provide their product directly to their fans.

 

The Higher Education Opportunity Act written in August 2008 contained a few mentions of file sharing on campuses. The act addressed three main areas. First, students must be warned about illegal downloading and illegitimate P2P file sharing. They must be notified about potential repercussions such as civil and criminal liabilities. Next, institutions must certify that they have developed plans to combat the unauthorized distribution of copyrighted materials including technology based deterrents. Third, they must, to the extent possible, provide alternatives to illegal downloading.  The timing for this is 1 year after the Act was signed.

The Act is quite specific in its requirements. Universities must both combat and provide solutions to the peer-to-peer file sharing dilemma that has run rampant on college campuses since the creation of Napster over a decade ago. Numerous attempts of other services have been tested, but all have failed the ultimate goal of compensating creators and giving students the music they want. Ruckus was the most recent failure. With the Act in place, universities must address the issue in the near future giving Choruss a unique opportunity as it is backed by both labels and file-sharing proponents. The controlled nature of campuses and use of a central ISP makes them a very attractive place to test the subscription model and this will be important to watch develop for the future of collective licensing.

The editorial by Reihan Salam discusses the benefits and issues with voluntary collective licensing. Four music companies (Universal, Warner, Sony BMG, EMI) control 90% of all record sales in the U.S and have blamed piracy for the 40% decline in music sales over the past decade. Some opinions in the article describe voluntary collective licensing as a "music tax" or even an extortion scheme. Issues such as the masses paying for the actions of a few and the recording industry gaining too much are reflected. Salam believes the system is actually beneficial as it rewards smaller artists and will help creativity. If artists are not compensated and royalty streams dry up, they will in fact stop recording.  I do not necessarily subscribe to this as plenty of musicians do so out of passion not profit.

 

The part of the article that is most interesting is related to Apple, which record companies believe has a virtual monopoly on music downloading and must be kept in check. Voluntary collective licensing helps record companies ease their reliance on the software. Apple's counter attack to voluntary collective licensing is also discussed which poses an interesting proposition. A one-time fee on an Ipod purchase would give purchasers access to all music available on the iTunes website. The reason this hasn't yet happened is price and that it further entrenches Apple in its power against record companies.

 

Additional concerns are raised about how VCL would hurt independent labels; the other 10% of record sales and with the Apple plan its effects on other music software programs. It also discusses what actually may work best and sides with William Fischer’s book Promises to Keep and its strategy of an actually government music tax. Such a strategy would benefit artists and consumers but may cut out the powerful RIAA, which is well liked by the current administration.

 

The Apple tax idea is interesting and one that sticks in my mind, but again grants power to Apple who the record companies are too dependent on already. If an agreement was reached, I think it would be revolutionary but still limit consumers full access to the world’s music catalog as iTunes only holds a small percentage of all music available.

This is a New York Times article written by Eric Pfanner in January 2009. It discusses a proposal by the Isle Of Man to test voluntary collective licensing. For $1.38 a month, the eighty thousand residents, who all have broadband access, would be able to download unlimited amounts of music. A fee would be collected by the ISP. The music industry estimates that currently 95% of tracks distributed online are pirated and this is a potential solution offered by the Isle.

 

The article discusses European perspectives on the issue and they do appear to be farther along than the U.S. A similar proposal made it Parliament in France, but it was eventually rejected after a fierce battle by copyright holders. Currently European countries seem more interested in the idea of holding ISPs responsible for illegal downloading on their networks. They have also proposed ideas including a 3 strikes your out rule and the banning of individuals from broadband access. While these idea are taking shape in the U.S., it seems unreasonable to hold ISPs responsible for reporting their customers actions. It also could create competitive advantages for those ISPs who refuse to participate and also distrust in them in general. Similar to phone tapping under the Patriot Act, it impedes on individuals freedom without the concerns of national security. It seems to be another example of the record companies alienating their own customers and building ill will and holding onto their past control ideals vs. adjusting to the future and the fact that file sharing is here to stay.

The article brings up some interesting questions on what is remaining up in the air with the Choruss service. One of the biggest concerns is the what methodology and technology to use to track downloading which is a key component of the concept as artists are eventually funded based on their popularity. Cost also seems to be a concern and the appropriate method to actually charge the fee is still up for debate. Whether the school picks up the cost or passes it on as an activity fee is not yet established and past results have shown students are unwilling to pay. Certain leaders feel Choruss is nothing new and the same concerns exist that made past sites fail. However a break-even analysis of the current cost to protect against illegal downloads on university IT departments vs. the Choruss model may make it feasible. It also is important to find something soon as only 25% of schools currently have some sort of alternative which need to be in place by August 2009 per the Act.

 

What I find interesting in this article as universities will be the testing grounds for voluntary collective licensing. This seems clear and makes sense as universities are often first adopters of new technology and provide a microcosm to work out any kinks. The insight provided on the cracks in the mirror of the model is important.  The devil of the plan is in the details. If Choruss can work out appropriate royalty distribution strategies that creators agree with and help protect against opt-outers and other issues, it gains credibility. After which plans to scale the model become more reasonable.

 

This is Chapter 6: An Alternative Compensation System from William Fisher III's 2004 book Promises to Keep. Mr. Fisher is the Hale and Dorr Professor of IP Law at Harvard and Director of the Berkman Center for Internet and Society. This is a very comprehensive discussion of the creation of a governmentally administered reward system for music and movie file sharing. Its basic premise is musicians or filmmakers would register their work with the copyright office and be given a unique identifier that would be used to track downloads of their work. The government would enact taxes which would be used to create a central fund.  Using techniques created by television rating agencies, performing rights organizations, etc. the government would determine what frequency the work was used. The artist would then receive their royalty payment. The benefits would be consumers would pay less for more entertainment and artist would receive their fair share. Distribution companies would largely become obsolete over the long run. Society at large would benefit with less litigation and transaction costs. 

 

The chapter goes on in detail to explain the various components of the plan. It also performs a deep analysis into revenue sources to determine the financial impact of the system. In the end, Mr. Fisher determines a tax of approximately $27 per year per household would make the system work. Concerns with this do exist such as consumers potentially supporting music they are morally or ethically opposed to. Another funding source could be taxes on the goods and services that are used to gain access to the media. Items such as ISPs, mp3 players, etc. are all explored and in the end an approximately tax of 12% is calculated as being appropriate. This is very deep and thoughtful analysis on what the actual numbers are that is helpful in pushing the discussion of voluntary collective licensing forward.

 

The chapter raises very important issues about voluntary collective licensing including derivative works, artists gaming the system, the inadequacy of the current copyright office, and how to create an appropriate sampling system. This is deep dive is essential to my research project as it peels back the surface to explore further ideas that will have to be confronted as the method moves forward. While a required government tax may face strong opposition, the idea of taxing devices is logical. My other concern with this strategy is the involvement of the government as the EFF plan to have non-profit collectives seems more in-line with letting the market do its work in maintaining innovation and efficiency.

The Higher Education Opportunity Act made it mandatory for universities to provide alternatives to illegal peer-to-peer networks.

 

"INTERNATIONAL COALITION OF LIBRARY CONSORTIA (ICOLC)

Statement on the Global Economic Crisis and Its Impact on Consortial Licenses

January 19, 2009

 

Written on behalf of the many library consortia across the world that participate in the ICOLC, this statement has two purposes. It is intended to help publishers and other content providers from whom we license electronic information resources (hereafter simply referred to as publishers) understand better how the current unique financial crisis affects the worldwide information community. Its second purpose is to suggest a range of approaches that we believe are in the mutual best interest of libraries and the providers of information services."

 

    The “Music, Money, and Sampling” chapter (6) of the book Music, Money, and Success (by Jeffrey Brabec) offers a thorough overview of how sampling works within the music business. It provides an all-encompassing layout of how deals usually go down between copyright holders of a song—artists, record labels, or music publishing companies—and someone who wants to take a portion of that existing song and integrate it into a newly recorded performance—songwriter, recording artist, or record producer. It serves as a tutorial for someone interested in the standard operating procedures of procuring clearances. It can also serve as a source of knowledge to someone curious about how music companies and artists are compensated for allowing samples from their catalog. It ranges from what happens when sampled songs are released without permission to the in-depth negotiating options that exist between the sampling party and the sampled party when clearance is approved.
    The options mentioned are one-time “buy-out” fees, the payment of a percentage of income received from the new song, and the transfer of a portion of the copyright of the new composition with the income that this would generate. Also mentioned are the criteria that copyright holders use in analyzing the new song to help determine types of deals. This type of analysis takes into account: duration of sample, nature of the sample, sales of the new song if it has been released, and whether the sample was a key element or recognizable piece of the original composition. Although there is nothing exact, as it comes down to negotiating, the specific percentages that copyright holders usually bargain are covered.
    The information in this chapter is relevant to my creative project because all of it would be applicable if I were to try and clear the songs I produced by integrating copyrighted work. Here I can see how companies would analyze my music and the type of deal I could expect. It really covers just what people have to go through to clear their samples and how much money they forgive in doing so—paying for the sample and then losing out on publishing percentages. On top of all of this, the chapter helped give me a greater perspective on why so many artists were outraged over court decisions regarding sampling…it cost them a lot of money, and some probably couldn’t afford to keep sampling at all!

 

Music, Money, and Success

Jeffrey Brabec

Schirmer Books; 2nd edition (October 15, 2000)

ISBN-13: 978-0825672668

Listing of technologies available for licensing.

From the website:

ccLearn is a division of Creative Commons which is dedicated to realizing the full potential of the Internet to support open learning and open educational resources (OER). Our mission is to minimize barriers to sharing and reuse of educational materials — legal barriers, technical barriers, and social barriers.

    * With legal barriers, we advocate for licensing of educational materials under interoperable terms, such as those provided by Creative Commons licenses, that allow unhampered modification, remixing, and redistribution. We also educate teachers, learners, and policy makers about copyright and fair-use issues pertaining to education.
    * With technical barriers, we promote interoperability standards and tools to facilitate remixing and reuse.
    * With social barriers, we encourage teachers and learners to re-use educational materials available on the Web, and to build on each other’s contributions.

"NISO's Shared E-Resource Understanding (SERU) Working Group has posted its first public draft best practices document on its Web site. This document, "The SERU Approach to E-Resource Subscriptions: Framework for Development and Use of SERU," presents a shared set of understandings to which publishers and libraries can point when negotiating the sale of electronic content. The framework offers publishers and libraries a solution to the often-burdensome process of bilateral negotiation of a formal license agreement by allowing the sale of e-resources without licenses if both parties feel their perception of risk has been adequately addressed by current law and developing norms of behavior."

Merger and the Machines document the issues of compatibility regarding both computer software and video games. Licensing is needed for not only consoles or computers but for cartridges, and operating systems as well. Basically the compatibility wars are battles for Monopolization, which Teter uses the term "Wrestle Mania" to describe. The question he proposes is whether or not the law should in fact allow the steps (such as borrowing from already existing software) necessary for compatibility to occur. Teter believes that in fact, the law should allow for such things. Teter's argument is that interfaces which have become standards are able to thrive because there is a balance between intellectual property protection and standardization. Therefore, the deliberations upon policies regarding compatibility should not be that hard to solve, considering that perhaps Copyright Law is unsuited to take on such issues. The statues of basic Copyright law in his opinion are simply inappropriate for determining issues regarding software of both video games and computers, considering that the protection is so long that it's quite easy for one case decision to allow one company to dominate the industry. Mergers and compatibility should become standards for the industry in order for the "Wrestle Mania" to cease. The question of compatibility is a pertinent one in regards to my paper. This article documents the struggle and fear of monopolization that was present during the boom of both computers and video games, and the inability of the Courts to quickly come to a decision regarding the rush of technology.

Short article proposes an alternative to licenses for e-resources:

"After looking at the risks perceived by librarians and publishers that initially prompted the creation of license agreements, the group became convinced that it is possible to develop a new way to address the exposure that each party felt in dealing with electronic resources. ...

Despite the range of perspectives on the problem, there was consensus that a best practice approach was possible and could be useful in many cases. The best practice approach would rely on existing law and create a document describing a brief list of expectations that could be shared by librarians and publishers. If a publisher felt that the best practices and existing law were sufficient to manage their perceived risk, they could market their product indicating their reliance on the expectations described in the best practices and forgo use of a formal license agreement."

 

 The book Licensing Photography is heavily copyright-optimistic and written to teach photographers how to make the most money off of their photos.  Only one chapter is dedicated to online photography issues, and it is not a very thorough discussion.  It is indicative of the lack of innovation in traditional photography circles, and the lack of education regarding many new digital photography markets.  For being a “how-to” guide, it is obviously lacking some key insights in the integration to the internet and online/digital photos.  Their only discussion of the use of new technology is of an offline database for linking licensing info to a photo or group of photos.
Even though the book was written in 2006, there is no mention of Creative Commons or DIY licensing issues, even though there are commercial Creative Commons licenses.  Their insistence of holding onto traditional methods could potentially harm photographers, as Creative Commons licenses can increase online exposure.  The book is not marketed just to commercial photographers, and therefore omits the interests of a large group of people who may be looking for an education in digital photography copyright concerns.  The authors also do not take into account that artists may want to use their photos in different ways and still have them available for wide use.  The chapter discourages the use of watermarking, image recognition software and web spiders, by claiming they do not work.  While being a very copyright-optimistic book, it has a very bleak and pessimistic look at online photography issues.  They mention how vital it is to track and enforce your photos’ licenses, but there is no discussion of modern licensing models. 
There is a quote in the chapter regarding copyright infringement and how it is a “double edged sword”:  “Make sure the edge closest to the offender is the sharpest one”.  This is a troubling attitude, as there is no further discussion on sending letters to copyright infringers, cease and desists, or alternatives in internet technology – even in 2006.  For being a very recent book on photography licensing issues, it is disconcerting that there is but one chapter on the topic of the web, and basically no discussion on modern issues.  This plainly indicates the need for a greater education in the photography world of recent innovations and licensing matters. Many photographers are looking for a solution like Creative Commons, as it has the potential to balance commercial and creative interests.  It can make it easier to track your licenses, and yet also increase your business and exposure.  If more artists were aware of Creative Commons as an option, it might open their minds to the issues it addresses- like a wider public domain, and more moderation in our copyright culture.

 

Freedom of Expression is a very recent book in the tradition of Free Culture and The Future of Ideas.  McLeod describes how the two main enemies of the creative public are the CTEA and the DMCA.  He has a more optimistic view than we see in Lessig’s writings – he believes that individuals do have options when it comes to “overzealous copyright bozos”.  Fair use is expensive, but should be used in court cases, following the principle of “use it or lose it”.  And individuals should not back down when confronted with frivolous threats or lawsuits – they should do their research, educate themselves and others, and explore spaces and holes in the law.  He also gives examples of free speech cases where the “copyright bozos” lost, including Nader v. MasterCard, “Victor’s Little Secret” v Victoria’s Secret, and Annie Liebowitz’s case against the Naked Gun franchise.
McLeod’s book is a veritable encyclopedia of examples from every aspect of modern life as to how the privatization of our culture is harming us irrevocably.  He goes over sampling and music, collage art, book publishing and education, filmmaking, the internet and online content, the privatization of nature and public spaces, and electronic voting.  He explains how in today’s world such innovators as Woody Guthrie, Martin Luther King, Jr., and Muddy Waters would be copyright infringers of the highest order.  He argues that “freedom of expression” (which he trademarked for the book as an example of the extreme to which private ownership has gone) needs to have greater meaning to public life.  This ownership, branding, and franchising of life impedes innovation and creativity.  It is better for business, but worse for creative people.  Society as a whole needs the existence of “the commons”, because the alternative goes against our cultural traditions.  In the discussion of folk and blues music, he stresses the importance of building on tradition, and states that “a rented future forgets the past”. 
McLeod explains how compulsory licenses in music would help artists and the market, and how Creative Commons licenses are good for society because they increase the public domain.  He advocates for moderation, and a balanced public policy that takes into account private and public interests.  This book is Free Culture’s “hip” younger brother, and could educate younger generations and pop culture experts to the current state of copyright in the US.

This article, written by Kathleen Murphy in 1999, illustrates some of the copyright issues photographers faced in the early stages of the internet.  This was a time when the online legal rights for photographers and other content owners were unclear and untested.  The rights of photographers were entangled with the property rights of website creators and owners.  Piracy was a problem before digital photography came about, but hosting, storing and displaying photos online made it easier to steal them.  All of a sudden it only took a right click and “save”.  It was also a daunting task to try to catch and punish photo pirates, given the enormity and anonymity of the internet.
 Ms. Murphy describes some cutting-edge technology to track down online piracy, including digital watermarking and web “spider” services like Cyveillance.  She admits that nothing is perfect, and much of the work of catching online copyright infringement is left up to the photographers themselves.  Many photographers were not willing to spend the money on watermarking, or monthly service fees for services like Cyveillance.  It is easy to see how quickly online content owners were lulled into a sense of complacency, that it just “wasn’t worth it” to track down copyright infringers.  In 1999, the alternatives were pricy and unreliable.
 Another key issue discussed is that the contracts photographers signed when licensing their photos to a website were weighed heavily in favor of the website owner, and against the photographer.  Many of them took all rights from the photographer forever.  Those rights would then be transferred to a client, in the case of a stock photo website for example, and the photographer’s rights would be omitted yet again.  Licensing is only mentioned in this context, not in the context of the photographer creating or controlling their own licenses.
 The article seems to be geared toward photographers who sell their photos to “big business” or stock photo sites, and displays a desire for stronger copyright and better online piracy detection.  This was a time when the future of internet content and technology innovation was unsure.  Very few people had the insight to sense what the internet would become, or how important individual content owners would become; on sites like Flickr for example.  Creative Commons deals with some of these issues – it allows photographers greater control over their rights.  It allows people to dictate how their work can be used, and allows for the possibility that not all photographers want “all rights reserved”, as this article would suggest.  Using Creative Commons licensing on your photos will not stop piracy altogether, but it can go a length to prevent unintentional piracy, and make your work more accessible on the internet.  Creative Commons can help create a realm of work online that is in between the two extremes suggested by this article – complete anarchy with constant photo piracy, or strict licensing that takes and wields all of someone’s rights.

"Provides news and commentary about the intersection of law and technology, with a focus on copyright and licensing."