October 7, 2003
Responses to CL ideas, and Granularity in Genre Definitions
Updated in the text below. Also, see Ernest’s comments and mine here.
As usual, Ernest provides much to chew on. I can’t get to all of it today, in part because I am recovering from the confirmation that there is no god. (At least with the Warriors, I know what I’m getting myself into.)
1. Let me try to make something a little clearer: I’m not sure I have anything that you could call “Derek’s proposed compulsory licensing system.” I’m throwing out ideas about different ways you could construct a CL. You could do audio-only, you could do music-only, you could do something entirely different. Sometimes I do advocate a particular position or implementation, but that doesn’t mean I have some set-in-stone, thoroughly worked-out plan.
So, when I bring up books-on-MP3 and ask about one way of implementing it, do take it as a question with a suggestion, rather than a “concrete element” of My Grand Scheme. Sorry if that wasn’t clear before. In any case, I’ll come back to why I brought up the question a little later in this post.
2. I don’t think I understand Ernest’s point about how sampling usage won’t make things any better. The way I am imagining things, usage would be based on playing the audio file as an audio file. If you take out the header section and turn the baudio section into a bmp, and you open, that bmp, the system would not count that as a usage. I imagine that the usage counter could tell whether you’re playing the crackly noise or displaying an image file. So if someone downloads but only uses the baudio file as an image, our downloading counting would pick it up, but our usage sampling wouldn’t – because no one would actually have used the audio (unless they actually like the sound of crackly noises, and then more power to them). If I’m wrong and this is not technically possible, then please explain.
3. Ernest asserts that I’m trying to assume away the problem by saying that punishment for misuse. Definitions for misuse are somewhat difficult to come up with. I don’t think I was assuming the problem away – I was saying that we could combat certain misuse through penalties, but I didn’t say it’d be comprehensive. And, in that way, I agree with Ernest’s sentiments here about definitions. To repeat:
“Would it be to tough to catch? Yes and no. To make this gaming technique worth your while, you probably will have to advertise in some way that the wav can be converted to something else. Otherwise, how will people know what to download?” (emphasis added)
Of course, if you don’t advertise that you are only distributing the audio just to get people to convert it, it’s much more difficult to be caught. And if you try to ban those instances, then you run the risk of people distributing the audio files to actually be consumed as audio.
4. Ernest asserts, “Proving one of the points of my earlier post (in compulsory licensing schemes there usually isn’t any discussion devoted to pornography), Derek doesn’t discuss my other main example, which was pornography.” Frankly, I thought it was bound up in his original point about shareware authors as amateur creators who wouldn’t mind having their works freely shared on P2P networks in the first place. So I can’t say I was avoiding a discussion of pornography, because his argument wasn’t really about compensating pornography in particular – it was about amateur producers.
But now it seems he wants me to take the compensating pornography issue on separately. Let’s try it a little.
In his two posts, Ernest actually makes several separate claims about compensating pornography. First, porn will not be fairly compensated because of its content – politics will not allow tax money to go to porn. Second, porn will actually be compensated too much because it will be downloaded in baudio form.
Again, I’m not sure how, if we sampled usage and compared it with the download stats, porn would be compensated more because of baudio, unless a lot of people are actually listening to the audio version.
And would porn be compensated less for political reasons? I’ve never seen a CL that advocates that. Have you? Is it an inevitability?
This is not to say that porn wouldn’t necessarily be treated differently. It could be treated differently on the basis of the economics of the porn industry, [added:] rather than to discriminate on the basis of its content. A download of porn wouldn’t necessarily pay out equal to a download of a song or a download of a typical feature film.
And here’s where I hear: that’s not fair!
Why not? Or should I say, why is it, by definition, not fair? The costs to make a movie and a song are substantially different. Thus, if our goal is to compensate them for what revenue they’re losing or to “make them whole”, we’d have to adequately analyze the economics of each industry. To see how, for instance, Professor Fisher would examine this, see his chapter 6.
Note that Fisher suggests against extreme granularity. We could distinguish between comedies and action films, but that distinction might prove tenuous in many circumstances. Furthermore, comedies and action films, as genres, are not priced differently in the current market.
But porn and action films are often priced differently. In many cases, the economics of the two genres are substantially different. Perhaps this distinction would be too granular, but, given how separate the two industries are now, it’ll be a lot easier than separating comedies and action films.
My general point is: it’s not a matter of whether we distinguish on the basis of genres. Any scheme is going to have to do that. Differentiating between music and movies is a level of division. It’s just a matter of how granular we go. And, as Ernest would surely point out, each level of granularity brings with its own questions and problems – there is no perfect scheme.
[added:] Ernest makes an absurd assessment about my intentions for discussing this general point – as if I’m trying to accommodate people who would try to limit compensation for porn based on content. I did not discuss the granularity issue “in order to reduce the politically explosive issue.”
[added:] Actually, I was trying to distinguish between treating a genre or medium different on the basis of content and on the basis of economics (note: Ernest also tries to discuss that point as separate from my point about assessing production costs – really that’s just one part in the economic analysis). I wanted to make the more general point that granularity is already part of the system, and we have to decide what a reasonable level of granularity is. Some people believe that one download/use should count the same no matter what the media/genre, so I was trying to address that.
[added:] However, Ernest’s argument about granularity leading to content-based (discriminatory?) distinctions, weird incentives, and category problems is understandable. I don’t have a complete answer right now. I think some categorization – like books-on-MP3 – will be legitimately easier to make, but I haven’t found an underlying principle that can be applied across the board.
5. Now let’s tie this all the way back to books-on-MP3. Ernest asked, “Indeed, if we aren’t going to define “music” for toilet flushings then why define books-on-MP3 as non-music?”
Toilet flushing, books-on-MP3, and typical songs cost different amounts to produce (and are sold at different rates, I suppose). But categorizing toilet flushing as a separate art genre would probably lead to unnecessary disputes because it wouldn’t really be a clear distinction.
The distinction between books-on-MP3 and typical music, however, would be much clearer, I’d say. Even this granularity in distinctions could lead to problems, but I think it’s a pretty safe and reasonable distinction because it would pick up on an established difference in current industries. Moreover, it would pick up on our/my intuition that the spoken reading of a textual work is distinct from the creation of a musical work. (And don’t we already have the makings of this distinction in current law? Is there a composition and recording copyright for books on tape?) Again, that doesn’t make it a perfect scheme, but I do think you can reasonably decide to define books-on-MP3 differently from music without also having to define “music” for toilet flushing.
6. Ernest pokes plenty of holes in my concept of “agency.” Like I said, it risks being overbroad in many circumstances, so I don’t entirely disagree with his points.
Unfortunately, Ernest doesn’t address my suggestion of subdividing on the basis of genre. He does talk about my distinction of the “Windows noise” versus a musical song, but he only does so in the context of “agency.” Could we make a distinction between those types of sounds and typical music based on subgenre, without getting to too granular definitions?
Fire away. 🙂
Filed by Derek Slater at 3:25 pm under General news
5 Comments
I understand that Derek uses various concepts of compulsory licensing at various times. That is legitimate, but that is the problem with many of these proposals. As concerns and flaws with particular approaches are broached various responses, which are contradictory or inconsistent as a whole, are proposed. In the end it makes it difficult to weigh the validity of the compulsory license approach.
The original point of my post on “What is Music?” was to point out the fungibility of the digital world. Many people think it is easy to say what an audio file is. Seems straight forward, but I pointed out how easy it was to create “audio” files that people probably didn’t anticipate would be part of the mix.
Similarly, it seems easy to say what “usage” is, but the digital world is slippery as all get out. You can say that you’ll measure “audio” files being played as “audio” files, but that is no more a definite statement then one that bmps are bmps and wavs are wavs and never the twain shall meet. Tell me how usage records are generated, and I’ll show you how any file type or program can be rigged to generate usage records. Shareware could all include music players and launch the playing of music files at launch. Or maybe the shareware would just encourage you to click a “play” button set prominently on the user interface while you use the program (with a convenient volume control, so you don’t actually have to listen). Just as some music players generate pleasing images from the audio signal … what would prevent a music player from doing the opposite, generating pleasing audio from pleasing image files?
The question of misuse and enforcement are important ones. Derek is quite right, it won’t be easy. Still, when the enforcement mechanism offered is an advertising ban, that raises all sorts of First Amendment red flags. Free speech generally disfavors bans, and even if we are talking commercial speech, there is a concern about protecting factual speech regardless of its commercial nature. We need ways to deal with misuse, but if your first reaction is a factual speech ban … that should induce serious caution, especially when there hasn’t really been a real discussion of what makes the opposed action misuse in the first place. Derek calls file fungibility “gaming” but Scott Matthews sincerely calls it “artistic statement.”
I frequently raise the issue of pornography because proponents of compulsory licenses so seldom wish to address it. The reason is because it is political nitroglycerin. Sure, no proponent of all-media compulsory licenses claims to want to provide less compensation for pornography … but I’ve never seen one that really addresses the issue of porn at all. Derek asks whether it is inevitable that porn will be compensated less for political reasons. The answer is that there will always be major pressure to do so and what politician is going to stand up and defend the monies earned by “Wild Azz Hos”?
Cultural conservatives will not take kindly to their tax dollars buying some guy named “Seymore Butts” a new mansion and fancy cars, not to mention that many won’t be in favor of supporting the bling bling lifestyle for Hip Hop stars either. Frankly, I can’t really imagine that such systems will be politically viable or won’t cause us huge political headaches.
This brings us to Derek’s next option. In order to reduce the politically explosive issue of pornography, he proposes to compensate works based on how much they cost to produce. First, there is the question of why we should want to reduce income to pornographers at all? Isn’t the possibility of trying to avoid the politically explosive issue by reducing income to pornographers precisely my complaint in the first place? Would Derek be making this proposal if we weren’t talking about pornography? If not, isn’t that evidence that even a good free speech liberal like Derek will try to accommodate culturally conservative forces who oppose pornography?
Derek proposes that we analyze the economics of creating particular media and base our recompense on that. At a large enough granularity (audio, video/film, multimedia) that seems fairly reasonable, but once you get below that, things start to get very interesting. The porn market is different than the feature film market, true, but what is pornography and can we only know it when we see it? Moreover, though the markets are separate now, how will be able to see how separate they are in the new compulsory license regime?
Now we run into a very interesting conundrum, is “Last Tango in Paris” pornographic or not? It was certainly called pornographic when it was released in 1973. Who will decide? If it is pornographic, then the creators get much less compensation, since the economics of “porn” is different than feature films. Suddenly, it becomes much less viable for major studios to stray near the pornographic boundary. Nor is this an issue from our puritan past, as this article from the Los Angeles Times noted in 2001 (Graphic Sex Scenes on Film Causing Little Fuss–for Now).
In any case, doesn’t this open the door for cultural conservatives to attack disfavored genres under the guise of following the “economics”? After all, it is likely that many works cultural conservatives will be interested in attacking will be marginal in the first place. If they are marginal, their economics are likely to be marginal too, which makes them even easier to suppress by taking away their potential to get compensation.
Granularity is a huge question. One can claim to make distinctions based on a variety of characteristics, but the more granular you get the more likely you are to open the door to permitting people the ability to make content-based distinctions under the guise of content neutrality. If you aren’t granular, then you create odd economic incentives.
Usually, this is why we choose market mechanisms. Let the market figure it out. Once you get rid of the market, though, the government must take on the burden of making such decisions and distinctions … and the government isn’t allowed to make certain distinctions that are perfectly legitimate for a market to make.
With regard to the Books-on-MP3 issue, it is true that current law makes some distinctions regarding non-dramatic musical works. What that means, I don’t really know, but there you are. Although such distinctions might have worked well as an industry-developed compromise, I’m not so sure how viable it is with regard to licensing the public as a whole.
I’ll leave it at that for now. When people actually start defining particular genres … we can revisit this issue.
The point is, pornography shouldn’t be treated any differently than other types of media under a compulsory license. Yet, you immediately note how it would be perfectly legitimate and possible to treat pornography differently based on the “economics” of porn, while the economics of comedies and action films are likely much harder to distinguish. That alone is revealing. It may not have been your intent, but your arguments and examples open the door to precisely the sort of faux-content neutral distinctions I fear.
I mean revealing in the sense that it shows the inherent danger of these systems. If one of the first examples that comes to your mind is of ways that the system can be weighted against pornography (or other marginalized and disfavored media types), imagine what people who actually do have it in for porn will be able to think up.
Ernest, maybe I shouldn’t have brought that point about granularity up in a discussion of pornography, because you seem to think that I wouldn’t have brought it up if we weren’t talking about pornography. Yet, if you remember, I had originally brought up the idea of these sort of granular distinctions in the context of books-on-MP3. That is, we wouldn’t necessarily have an audio CL – we could have just a music CL. So I was taking this opportunity of talking about pornography to flesh out that idea and look at another context where it MIGHT apply.Also, what do you mean when you say “If one of the first examples that comes to your mind is of ways that the system can be weighted against pornography….”? Who said that the CL would be weighted against it? Treating it differently doesn’t mean that it’s treated worse.
I thought an implication that pornography would get less money than action films was fairly clear. I believe it highly improbable that any system would be deliberately designed such that it rewarded pornography better than action films.
We have to avoid the possibility that such distinctions which MIGHT occur DO occur. We need to ensure that disfavored, minority and marginalized content is not abused by any compulsory license system.