{"id":3036,"date":"2005-08-19T01:16:16","date_gmt":"2005-08-19T05:16:16","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/cmusings\/2005\/08\/19\/middle-ground\/"},"modified":"2005-08-19T01:16:16","modified_gmt":"2005-08-19T05:16:16","slug":"middle-ground","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/cmusings\/2005\/08\/19\/middle-ground\/","title":{"rendered":"Middle Ground?"},"content":{"rendered":"

<\/a><\/p>\n

James DeLong’s recent<\/a> comment on this article<\/a> from Glenn Reynolds raises an intriguing question for me: where do groups like PFF<\/a> and others who are normally at loggerheads with the EFF<\/a> stand on proposed revisions to Section 115<\/a>?<\/p>\n

Let
\nme back up a step.  Reynolds laments the difficulties in licensing
\npodcasting.  One of the key problems is that podcasters not only
\nneed licenses from holders of the recording copyright (typically record
\nlabels), but also from holders of the composition copyright. 
\nWhat’s more, for a single use of a composition, podcasters are being
\nasked to pay twice – once to those who license performances (PROs),
\nonce for those who grant mechanical licenses (Harry Fox Agency). 
\nThose organizations represent the same artist, but are effectively
\ncompeting with each other for licenses.<\/p>\n

This problem doesn’t just affect podcasters.  As Register of Copyright Marybeth Peters explains<\/a>, problems licensing compositions have held back all online digital music services.  In fact, basically everyone<\/a>
\nin the music industry agrees that some change must be made to licensing
\ncompositions and, more specifically, mechanical licensing, though they
\nhaven’t been able to agree on the particulars.<\/p>\n

Fred von Lohmann also applauded Peters’ reform proposal.  As he explains<\/a>:<\/p>\n

“The proposed legislation would
\n(hopefully) push (but not force) the composition rights holders to
\nconsolidate all of their relevant digital music rights into voluntarily
\nformed collecting societies (known as “music rights organizations,” or
\nMROs), which would then be able to grant blanket licenses for online
\nuses, such as downloads, on-demand streaming, and podcasting.<\/div>\n

Perhaps most importantly, these MROs
\nwould have the power to grant blanket licenses to individual P2P
\nfile-sharers, just as envisioned in EFF’s white paper, A Better Way Forward<\/a>.<\/p>\n

This is an important step in the right
\ndirection, creating the prerequisites for a real, market-based solution
\nto the P2P dilemma.”<\/p>\n

And that brings us back to James DeLong and PFF. They continuously
\nbeat the drum of market-based solutions.  They must recognize that carefully structuring and allocating rights can be crucial to achieving efficienc<\/a>y,
\njust as Peters appears to.  DeLong urges laws in this context that
\nwould reduce transaction costs and ease licensing of novel digital
\nmusic services, without incorporating “compulsory licenses and
\nprice-fixing.”  Peters’ proposal is precisely that sort of
\nproposal; it even eliminates the Section 115 compulsory<\/a>.<\/p>\n

Thus we might have found at least some elusive<\/a> middle ground.<\/a> 
\nAt least I hope we have.  If I’m wrong and this proposal (or other
\nsimilar proposals) isn’t something PFF could get behind, then I’d love
\nto know why.  Hopefully, they will allow an exception to the Everything Fred is False (EFF) axiom<\/a>, which states that the right answer is opposed to whatever Fred von Lohmann avers.<\/p>\n

(For what it’s worth: in the post Patrick Ross cites<\/a>,
\nFred doesn’t say that rights holders should simply “throw up their
\nhands” in the face of the Darknet.  Instead, he lays out the
\noptions we have given that the DMCA is and will be entirely
\ninefficacious in preventing widespread infringing distribution of
\ncopyrighted works online.  Some options do involve heightened
\nenforcement of various kinds.  Fred suggests voluntary “collective licensing”,<\/a>
\nwhich is, of course, what Register Peters is also supporting.  At
\nno point does Fred demand that we “junk the current copyright system”
\nin favor of compulsory licensing.  In fact, EFF’s white paper
\nspecifically says, “Government involvement [through compulsory
\nlicensing], however, should be a last resort.”) <\/p>\n","protected":false},"excerpt":{"rendered":"

James DeLong’s recent comment on this article from Glenn Reynolds raises an intriguing question for me: where do groups like PFF and others who are normally at loggerheads with the EFF stand on proposed revisions to Section 115? Let me back up a step.  Reynolds laments the difficulties in licensing podcasting.  One of the key […]<\/p>\n","protected":false},"author":72,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[85],"tags":[],"class_list":["post-3036","post","type-post","status-publish","format-standard","hentry","category-big-ideas"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/posts\/3036","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/users\/72"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/comments?post=3036"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/posts\/3036\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/media?parent=3036"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/categories?post=3036"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/tags?post=3036"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}