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Could Eminent Domain Break The RIAA Stranglehold?

Hemos posted more than 13 years ago | from the interesting-concept dept.

News 265

Thales_of_Miletus writes "Findlaw has an editorial today on fashioning a compulsory licensing scheme (the IP version of the real property eminent domain takings power)to allow third-party online music distribution to proceed without the RIAA's permission. Thoughtful arguments are made about the role of IP in a free society and restoring the public benefit function of copyright."

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Ick (1)

Anonymous Coward | more than 13 years ago | (#2182898)

To me this is like saying the government using Eminent Domain to take people's property is a good thing.

Re:Why have we let ourselves get into this mess? (1)

Anonymous Coward | more than 13 years ago | (#2182899)

We only need one reform: incredibly short terms for patents and copyright. Although any decision is arbitrary, I think that 3 years is more than generous enough in the case of copyright these days, and that 7-10 years is more than generous enough in the case of patent.

7-10 years for a patent is insufficient for some industries. Take pharmasudical companies for instance. It often takes 10 years to get a new drug approved for use on humans by the FDA. This 10 years is after the patenet has been acquired. 3 years for copyright sounds good, though.

Ayn Rand isn't objective (1)

Anonymous Coward | more than 13 years ago | (#2182900)

As good as her ideas may be, she makes a big goof when she says that her values are based on "objective" truth. Objectivism is based first in value judgements.

Re:A particularly interesting quote (5)

Anonymous Coward | more than 13 years ago | (#2182905)

There have always been holes in history. There always will be holes in history.

A photographer friend of mine a few years back told me of a drunken party he took place in back in the late 50's. A collection of original glass plates of photographs of American Indians had been found, and people were having fun by throwing them to the floor and smashing them. (this is a real story, not flamebait). Shit like that happens all the time. Beautiful buildings are torn down. Big archives of magazines or books are cleared away for recycling.

That's life. The day we decide all of everything has to be 'preserved' for historical purposes is the day history stops. They pour in the formaldehyde and we all die.

Deal with it.

Re:this makes no sense... (2)

phil reed (626) | more than 13 years ago | (#2182907)

if this is going to be argued, can't the riaa and they're group say that much of this music is freely available on the airwaves, mtv (when they play music), etc?

Where it's paid for, on a per-play basis. The music may be "freely" available TO YOU, but the radio station or MTV paid for the right to play it. And YOU are paying, indirectly, by being exposed to advertising.

Everything free is worth what you paid for it.


...phil

Re:How can this be eminent domain (1)

cpt kangarooski (3773) | more than 13 years ago | (#2182920)

Great public need? Heh.

Eminent domain is simply the civil power of government to sieze property, provided that the original owner is justly compensated. (with the amount of money determined by mutual agreement, or set by the courts) Property may also be siezed through exercise of police powers, but that's not immediately relevant.

At any rate, the government can take anything, at any time, for any purpose. It doesn't have to be important. It's most commonly associated with road widenings since people own property that abuts the road right-of-way. But it isn't exclusive to that by any means.

Getting the rights (2)

laertes (4218) | more than 13 years ago | (#2182929)

One thing which is not specifically mentioned in this article is how one gets the copyright. The New York Times can obviously get the electronic copyright via a suit, but it already has the paper copyright.

My question is, does the Tasini ruling give parties with no existing copyrights the ability to sue to get electronic copyrights? That is, would Napster (or mp3.com, etc.) simply be able to sue the RIAA for the rights, or would they have to have physical rights, too? I sincerely hope for the former, as the latter would be little improvement over the status quo.

For too long, the favor has swung toward the copyright holders. We can only hope that this signals an end to the debacle that has resulted from attempts to get music on the internet.

How can this be eminent domain (4)

Archfeld (6757) | more than 13 years ago | (#2182932)

That applies to great public need, freeways, bridges, infrastructure to support society. This is just music. I love music, but in no way does napsters existence promote, or threaten societies' structure. While it would be great if the RIAA board all died of a horrible disease and some HUMANS took over the job, I'd even settle for a reasonable payment scheme for online music, provided it was not a pay per listen and the quality was CD level. Half the MP3's out there sound like crap anyways.

Re:How can this be eminent domain (2)

nathanm (12287) | more than 13 years ago | (#2182938)

That [eminent domain] applies to great public need, freeways, bridges, infrastructure to support society.
Eminent domain applies to more than just infrastructure projects. It's one of the most abused laws by local governments nowadays, mostly used as corporate subsidies.

The city of Richfield, MN in the Twin Cities, condemned several properties, residential & commercial, to let Best Buy build a new HQ campus there. The reason they did it was for the increased tax revenue. One of the businesses, a car dealership, sued the city, but to no avail. Here's the court decision [google.com] (google cache).

The city of Columbia Heights, MN condemned a property that was being used as a charity for unemployed & homeless people because it didn't present the right "image" the city wanted for its downtown.

Re:Compulsory Licensing is not like eminent domain (1)

ethereal (13958) | more than 13 years ago | (#2182939)

Yes, compulsory licensing is already a fact. Interestingly enough, webcast licenses are just now coming up for negotiation [cnet.com] . See JWZ's writeup [dnalounge.com] for more good info on the issue.

Remember: it's a "Microsoft virus", not an "email virus",

Re:What's Fair Compensation? (4)

Quikah (14419) | more than 13 years ago | (#2182940)

It is up to the courts and congress to set a fair price scheme in place for any compulsory licensing. As the article says, if the two sides cannot come to agreement on a fair price then they go to arbitration. The arbitration panel then sets the price.

This is the same thing that happens when the government takes your land for public use. They must compensate you at a fair price. When the two sides cannot agree on a price they go to arbitration.

Wether this works in reality I have no idea, but that is the basic idea.

Re:A particularly interesting quote (1)

PieceMaker (16268) | more than 13 years ago | (#2182942)

I wonder if the NY Times has to separately license content for inclusion into their microfiche archives? If not, why should the format of the achive dictate the need for additional licensing? It looks like there is now legal standing for freelancers to seek compensation for being included in any type of repository that is not a warehouse of old newspapers.

Re:Why have we let ourselves get into this mess? (1)

Anm (18575) | more than 13 years ago | (#2182947)

I think there are enough reasonable uses for copyright longer than 3 years. A three year copyright only promotes the rapidly changing 'pop medias', but not the media in more esoteric domains such as research papers and such (where it may take longer than three years to produce a new work). And those are the people we need to support the most.

On idea I've thought about it a copyright renewal fee, particularly one that grows expotentially with each renewal. It is those kind of changes that would make Disney et al rethink the cost of renewing all of their older media, which I doubt would get a return on the investment of renewal. Such money might go the the library of congress's digitation efforts or the like.

Anm

Re:No freedom here. (1)

Anm (18575) | more than 13 years ago | (#2182948)

Would someone please mod this guy's misinformation down. At least until he decides to read the freakin' article. sheesh.

Anm

Eminent Domain (5)

Arandir (19206) | more than 13 years ago | (#2182951)

Eminent Domain is a process whereby the *government* pays the property holder for forced takings. "We're building a freeway through your yard, you can't do anything about it because we own the cops, but the Constitution does require us to at least pay you for it."

The New York Times and other publishers are NOT the government. They should not get the benefit of Eminent Domain. The consequences would turn all of property law on its head.

Consider the implications if this were extended to other non-governmental organizations, or even individuals. "We want to build a hotel on your beachfront property, which has been in your family for five generations, and you must sell to us by law." "We want to take over your company, and your stockholders refuse to sell, tough shit!" "Sorry Bob, I'm going to move your fence three feet closer to your house, and you can't stop me."

Or the really scary one if you're an Open Souce fan: "We will use your kernel in our OS despite your objections, but we will pay you market price for it."

Re:Why have we let ourselves get into this mess? (2)

MindStalker (22827) | more than 13 years ago | (#2182954)

I would say, less than five years for software patent, fifteen for normal patent, life of the artist for copyright and 20 years for corporate copyright.

20 years for corporate copyrights? First thats kinda discriminitory, and second the copywrite would then just be held by and employee, who would be contactialy bound to give up all rights to such copywrite, while it still being in the guys name.

You seem to have forgotten the purpose of copywrite when you say it should be lifetime of the creator, our founding fathers envisioned copywrite to be a very limited monopoly, just long enough to encourage people to create artistic works, not to insure that the artist gets as much money as he can from the work. And indie artist is not less likly to create a work if the copywrite was 20 years. Actually that person is more encouraged to create more works, as he cannot assume, that he can make money off such work for eternity. The only problem I see, is a corporation being more hesitant on funding a project that would receive money slowly overtime even past the 20 years. Creative works that can easily be copied rarly make much money past 20 years, and eventually corporations will just have to get used to the idea, that they can't feed of something forever.

Hrrmmm, interesting. (2)

The Iconoclast (24795) | more than 13 years ago | (#2182956)

I find the author's arguments compelling, and IANAL, but he is! Anyway, my somewhat cynical side can't help but think that it would be extremely unlinkely that the Government would enforce "emminant domain" over music.

For one, the Music/Media companies, have been VERY succesfull in lobbying all branches of government to seeing their side. (Executive branch: restrictive FCC regs/FBI holding Sklyrov, Courts: DeCSS/Napster rulings, Legislative: DMCA)

Secondly, I would venture to think that the extensive _private_ music collections of many people would give the courts the impression that an emminant domain is not needed. An online emminant domain might be sutible for newspapers, since most people do not recieve or archive all newspapers, but not for musics, because people personally archive their music into collections.

However, i'm also unsure as to whether music would be as quick to be proclaimed emminant domain, since i'm not sure if musics is as an essential "protected speech" as the press.

What do I get? (4)

Shotgun (30919) | more than 13 years ago | (#2182958)

Go with me for just a second here.

Say record company A produces a record that becomes hugely popular. I'd like to dissect exactly how it becomes popular.

Part of that increase in popularity comes from using public airwaves to broadcast the song on radio. Part of the increase comes from me telling my friends what a great song it is. Part of it is just from the general sheep mentality of the population.

My question to /.:

How much of the value of a popular work is derived from no effort of the publisher and should be returned to the public at large, and how long after a work becomes part of our culture (like the Happy Birthday song) must we continue to be indebted to someone?

Re:Why have we let ourselves get into this mess? (1)

catfood (40112) | more than 13 years ago | (#2182961)

What exactly do you mean by "more than generous enough" when talking about (say) someone's copyrights to their music or writing ? Is there some greater public function served by forcing someone to relinquish their copyrights to a song or artwork ? Does society NEED free unfettered 3rd party distribution of the latest Metallica CD (or the 3-year old Metallica CD) that badly ?

The Constitution justifies copyrights and patents only because they "promote progress." It does not recognize intellectual property as a good thing in itself.

On Constitutional grounds, you're asking the wrong question. You should be asking whether there is some greater public function being served by granting a longer term of copyright than a few years. If the answer is no, then only the shorter term of copyright is Constitutionally justified.

Remember, intellectual property is not a fundamental right like free speech or trial by jury, which exist in law because we feel we're morally entitled to them. It's a manufactured right, created because the Framers felt that granting "limited monopolies" would be useful to society. When the cost to society of IP laws exceeds their benefit, they should be changed.

Re:Eminem's domain?? (1)

brianvan (42539) | more than 13 years ago | (#2182963)

Good one. That's the first thing I thought when looking at the story.

Besides, you never know who's side Eminem is on. He's nutty like that. But, if anyone serves a good challenge to the industry, it's his finger-flippin psychopathic self...

No freedom here. (2)

IPFreely (47576) | more than 13 years ago | (#2182965)

This is not that big a deal. It calls in the recent Freelance writers victory over publishers, giving them the right to negotiate separately publication formats.

All it means to the RIAA is:

1. They must negotiate the right to publish online separately. They'll just add another clause to the existing contracts and continue as usual.

2. Older content that was not licensed under the newer contracts must be renegotiated for electronic format with the artist. That just means that older content is not likely to make it into newer distribution channels if the artist doesn't agree or can't be found.

So less music makes it into the channel. And we all lose more of our history and old favorites becuase RIAA chooses not to redistribute or can't.

Putting further restrictions on content flow is not a good thing, even if it is limiting the RIAA.

Re:this makes no sense... (1)

Monte (48723) | more than 13 years ago | (#2182966)

" how does this apply to any of the music that was ever traded on napster?

It doesn't, but then that's not the point of the article. The idea here is that this ruling could force the IP holders (in this case the music labels) into allowing their material to be distributed over the net as long as the distributor pays a fair price (agreed to either by negotiation or binding arbitration).

So this does not mean FREE MUSIC NAPSTER!!!! is coming back - but it might mean you can pay a buck or two and download the music you want. Napster for pay.

Re:What's Fair Compensation? (1)

Monte (48723) | more than 13 years ago | (#2182967)

Point taken though, the arbitration will be a nightmare. Consider how you'd calculate the value of any given song traded on Son of Napster. Number of trades (easy to rig)? Chart position? (easy to buy, and screws independent artists and actual real music) User feedback? (easy to rig and buy with enough MTV time).

You're making this way too complicated. Here's an example, data from Amazon:

CD: Madonna, "Music". List price: $18.97

Number of tracks: 10

Price per song: $1.90.

Alternative: divide price of CD by # of minutes of audio, that's the per-minute price for any given song on the disc.

Re:Great then.... (2)

Monte (48723) | more than 13 years ago | (#2182968)

So instead of Napster users paying the RIAA an RIAA set per-song price, they'll be paying the RIAA a court arbitrated per-song price.

No... the end user will be paying the record label (I don't know why the RIAA would be involved at all).

Stop thinking about Napster, start thinking about CD-Now (or Amazon, or B&N or whatever) where you can pay and download any given track from their libary, instead of buying a whole CD and waiting for it to land in your mailbox. This decision would (if I understand it correctly) allow CD-Now/et al to do this as long as they give a cut to the label that owns the copyright. That cut has to be negotiated, of course.

Re:What's Fair Compensation? (1)

jyuter (48936) | more than 13 years ago | (#2182969)

My apologies...missed it.

My bad.

What's Fair Compensation? (4)

jyuter (48936) | more than 13 years ago | (#2182970)

Assuming this argument works - that Napster could force music labels to license their music - this would just lead to numerous other lawsuits as to how much this licensing should cost. If the RIAA determines the licensing, it could in theory set "compensation" so high that Napster still can't do anything. Also, it can easily vary how much each song is worth. It's a good idea in theory, but in practice, it's just going to cause more aggravation IMHO.

Interesting case... (1)

Jay Maynard (54798) | more than 13 years ago | (#2182974)

The Findlaw editorial makes an interesting case. Given Judge Patel's obvious leaning toward the industry, I'm not at all sure we'll see the idea tried in the Napster case, but someone will raise the issue sometime. If the industry is smart, they'll offer something similar just to avoid having the market yanked out from under them, but then they've not shown themselves to be smart so far...
--

Re:No freedom here. (2)

mjh (57755) | more than 13 years ago | (#2182975)

2. Older content that was not licensed under the newer contracts must be renegotiated for electronic format with the artist. That just means that older content is not likely to make it into newer distribution channels if the artist doesn't agree or can't be found.

What? According to the article, in Tasini, the supreme court specifically addressed removing the content. They seemed to have some amount of concern that "holes" would be created in the historical archive of information, so they required that compulsory licenses be negotiated.

A compulsory license limits the rights of the copyright holder, and prevents them from holding content hostage by refusing to license it at any reasonable fee. What happens is that the copyright holder and the licensee will go into arbitration, which will determine a "reasonable" compensation for the copyright holder.

So the point of the article is that if compulsory licenses are applied to RIAA and napster, then the RIAA loses some of its grip over their copyrights of the songs. Napster users will still have to pay (because compulsory licenses do not alleviate the copyright holders right to compensation) however it would prevent the RIAA from holding songs hostage in order to be able to set prices and force out competition.

Putting further restrictions on content flow is not a good thing, even if it is limiting the RIAA.

This doesn't put restrictions on content flow. It specifically puts restrictions on copyright abuse, which frees content flow. This is a good thing, and I hope it works.

$.02
--

Microsoft APIs (1)

mal3 (59208) | more than 13 years ago | (#2182976)


This sounds like it's a measure to prevent monopoly power. If so could the government rule to put a compulsory license on the Windows APIs to force interoperability? Wine would actually work well with that.

Mal3

Re:Why have we let ourselves get into this mess? (2)

ericfitz (59316) | more than 13 years ago | (#2182977)

As I said, the periods are arbitrary decisions. There will always be some group who can (and will) argue that whatever periods are selected are not long enough in their special case.

Re:Why have we let ourselves get into this mess? (3)

ericfitz (59316) | more than 13 years ago | (#2182978)

If the goal (as explicitly stated) of patent and copyright is to "promote the progress" of the arts, I fail to see how extending the length of time a limited monopoly is granted to the creator, will help.

Reducing the period of the limited monopoly will have the desired effect, because artists/creators/publishers/RIAA/whoever will have to continue to invent new things to sustain a steady income.

Why have we let ourselves get into this mess? (5)

ericfitz (59316) | more than 13 years ago | (#2182979)

As has been stated in numerous posts every time the intellectual property issue comes up on slashdot, the framers of the Constitution were against "Intellectual Property". The idea of an idea being property is as silly now as it was then. Patent and copyright were [rightfully] deemed necessary for SHORT periods of time to help promote the arts. Our legislature has repeatedly failed to exercise due diligence in maintaining the balance between a limited monopoly to promote the arts, and between the rights of the citizenry. Everything is speeding up- books are routinely published overnight- yet for some reason the terms of patents and copyright are going the opposite direction.

We only need one reform: incredibly short terms for patents and copyright. Although any decision is arbitrary, I think that 3 years is more than generous enough in the case of copyright these days, and that 7-10 years is more than generous enough in the case of patent.

True, but... (1)

Kakurenbo Shogun (64436) | more than 13 years ago | (#2182980)

can't help but think that it would be extremely unlinkely that the Government would enforce "emminant domain" over music.

A lot of people seem to be getting hung up on this point. Sure, a song isn't as important as a mass transit system, but neither is the effect on an artist whose music is required to be made available (or a record company whose music...) as serious as the effect on someone who is required to move their home/farm/whatever to make way for a mass transit system.

Note that the Constitution's purpose for authorizing congress to create IP laws was to further the arts for the benefit of society. Just as eminent domain over real property is exercized for the benefit of society, limitations on the monopoly granted on IP through copyright, such as compulory licensing, are implemented for the benefit of society, which is entirely in line with the goals for which IP rights were created in the first place.

However, i'm also unsure as to whether music would be as quick to be proclaimed emminant domain, since i'm not sure if musics is as an essential "protected speech" as the press.

I'm sure you're right that music wouldn't be considered as important to keep available to the public, but as stated in the article, compulsory license already exists for music. I quote:

The Court offered the example of a law that allows noncommercial public broadcasters the right to use music or photos, either by voluntary negotiation or -- importantly -- by compulsory license.

"My Occam's Razor was dull, so I tossed it and got a Mach III."

Yeah right... (4)

camusflage (65105) | more than 13 years ago | (#2182982)

This won't happen.. An argument MIGHT be able to be made if the RIAA/member organizations weren't making efforts, but given the services out there that allow downloaded music for a buck or more per song, compulsory licensing won't happen. Even if it did, the likelihood of it being on terms palatable to the average Napster user is about zilch. Combined with the fact that some of the recording industry is working with Napster already, it's not going to happen.

Re:Why have we let ourselves get into this mess? (2)

karb (66692) | more than 13 years ago | (#2182985)

3 years for copyright?

Do you know how many people won't go see movies in the theatre because they say "Oh, I can just wait six months and rent it."

What would happen to the copyright holders if people said, instead "Oh, I can just wait three years and download it for 10 cents."

Also, this kind of disfavors indie movies ... big hollywood movies (planet of the apes) tend to make most of their money up front, while indie films make much less money consistently over a period of time. Also, in terms of movies, this most disadvantages *good* movies, which are the only movies that continue to make money after four or five years.

Also, short software patents are a good idea, but I can envision patenting something mechanical and it taking ten years to develop the processes need to mass-produce it, by which time you will have lost your patent :P

I would say, less than five years for software patent, fifteen for normal patent, life of the artist for copyright and 20 years for corporate copyright.

Compulsory Licensing is not like eminent domain (2)

rkent (73434) | more than 13 years ago | (#2182990)

Compulsory IP licensing is not like eminent domain, because the copyright holder still has the stuff when it's licensed to someone else. Furthermore, it generally only applies to one medium.

Compulsory licensing is already implemented with regards to music broadcasting, I'm pretty sure. That's what ASCAP and BMI are for; radio stations can play any song they want, and they just pay a bit more to ASCAP or BMI (more like ASCAP _and_ BMI) for the priviledge. So that's the kind of thing we're talking about. Not "taking" the music from the labels.

Furthermore, this seems silly, because napster would still have to pay royalties. At least as much as a radio station, and probably more since it's music-on-demand. So, there would still be usage fees and/or tons and tons of advertising to support it, both of which seem to be death knells for that service.

---

Re:Subscriptions? (1)

RussRoss (74155) | more than 13 years ago | (#2182991)

I suspect that many people will take a similar route and find smaller scale file sharing systems. Many companies have (unofficial and probably illegal) mp3 servers behind their firewalls that the employees use for swapping songs. Simple unadvertised web sites and ftp servers as well as Windows filesharing (or Samba) make it easy to set us similar arrangements for other groups like college buddies. That happens now and will continue to happen no matter what the conclusion is with Napster and similar services.

A legal, public solution is still necessary. Napster was an interesting case because of the legal ambiguities involved. They tried arguments about how they weren't actually trafficing the illegal files but rather providing an infrastructure that others could use either legally or illegally. A nice argument but it didn't hold up in court.

Even if Napster had won or another decentralized service managed to thrive so the RIAA didn't have anyone to sue, we would still have a lot of _illegal_ filesharing going on. We may not like or agree with the laws, but it's pretty clear that the level of music copying going on right now is not legal according to the laws that are on the books. Even if you believe that file sharing helps album sales, you are still faced with the reality that the copyright laws prohibit that copying.

Personally, I would love to see reforms to the copyright laws and see the RIAA recognize that these services actually help them in many ways (I have spent a lot more money buying CDs than before because friends have given me mp3s to listen to and I've ended up buying the album) but even if that doesn't happen we need some way to get a legal public face to the file sharing problem. Something that imposes reasonable royalties is much better than saying that any public service is contraband. Maybe the RIAA would finally stop harassing everyone that way.

- Russ

Re:What's Fair Compensation? (2)

RussRoss (74155) | more than 13 years ago | (#2182992)

The whole point of the article was that if the two parties could not come to an agreement on a fair licensing rate, then the court could call for third party arbitration to determine the licensing fees. Naturally, Napster would want to license everything for free, and the RIAA would want to license everything for some ridiculous price; the option of an arbitrator is what gives the court decision some teeth.

- Russ

wrong (5)

Ender Ryan (79406) | more than 13 years ago | (#2182996)

"Copyrights do not exist to provide works to the "public at large" they exist to protect the works and allow those who created them to garner value from their work without someone else ripping them off."


That is false. Copyright exists solely for the purpose of promoting progress. Read the Constitution.

Re:What's Fair Compensation? (1)

atomic brainslide (87546) | more than 13 years ago | (#2183000)

you don't appear to have read the article at all, and clearly don't understand what these contracts are about. if the parties cannot agree on a fee, then an arbiter decides it for them. end of story.

cheers,
twkonefal

Freedom of Association (5)

briancarnell (94247) | more than 13 years ago | (#2183006)

But this violates my right to choose who I associate with.

For example, a few years ago an essay I wrote about rape was stolen and put on a porn site, because it did well in search engine searches on "rape."

Now even if the porn site were willing to pay me $1,000 for that short article, I would not be interested in granting them a license to publish.

But once you get into compulsory licensing, this sort of discretion goes completely out the Window, and creative types can no longer choose for themselves who they will associate with.

One small and essential detail missing... (2)

drnomad (99183) | more than 13 years ago | (#2183007)

I'm a bit skeptical. IANAL, but one thing in his story struck me: The Tasini case is about a (legal) person relationships and the rights in the matter. But the Napster comparison is a three (legal) person case, with Napster having not much relationship with the other two parties (except for Bertelsmann).

Suppose John lets Alice to publish his work, and John gets a reward. Then as I understand it, it is Alice who has now the rights to republish John's work and put him for an arbiter in worst case.

In that story, Alice and John had a relationship, but if now somebody called Pete drops in, does Pete *really* have the right to put Alice for an arbiter? Or does Pete need to negotiate with John? Isn't it like this: Alice has the right to republish such that John doesn't get a monopoly?
--

RTA (2)

cybercuzco (100904) | more than 13 years ago | (#2183008)

If you read the article, it clearly states that both sides negotiate with each other to settle on a liscencing fee, and if no agreement can be reached, both sides must accept binding arbitration by an independant panel, which will set a fair value for the property.

Subscriptions? (2)

11thangel (103409) | more than 13 years ago | (#2183011)

It mentions that fees and royalties would be required for this to work. Which means that the RIAA doesnt get to say no, but it does get to have some of our money out if it. I dunno about the rest of you, but I'm sticking with my local trading groups and free things like audiogalaxy for now.

Re:A particularly interesting quote (1)

PaxTech (103481) | more than 13 years ago | (#2183012)

This is undoubtedly one of the worst decisions by the Court in recent years, and certainly one of the most repugnant to the goals of a free society.

Well, they've been [salon.com] on a roll lately [freshangles.com] .
--
PaxTech

Wrong target (1)

Daniel Dvorkin (106857) | more than 13 years ago | (#2183013)

I'm as anti-RIAA and pro-(the-way-it-used-to-be)-Napster as anyone, but I think compulsory licensing in any venue is a terrible idea. This is entirely the wrong target. The right target, of course, would be the RIAA's monopoly power over the music industry. Regulating monopolies just never seems to work -- e.g. Microsoft and its cheerful violation of previous consent decrees. The only way to deal with a monopoly is to break it up.

Re:pay for play? no thanks.... (1)

jo44 (110610) | more than 13 years ago | (#2183014)

That's easy to say if both the free option and the pay option are equal in functionality and usability, but what if because of the couple bucks it gets, the pay option was able to provide better features, greater selection and higher bandwidth. Are you telling me nobody would pay for it?

I think the question is how good does Napster need to be in order to get people to pay for it.

Yowzers (3)

jvmatthe (116058) | more than 13 years ago | (#2183015)

Ok, this is one of the best suggestions I've seen in a long time: use a pre-existing concept of law plus a recent ruling by the Supes to provide a path to breaking the "monopoly" granted by copyright.

At some point, each of us has hated the US legal system and the evils it produces. Then you see something brilliant, simple, and reasonable like this and it all seems worth it. Maybe. :^)

Oh, and free speech ain't too bad either. :^)

Eminem's domain?? (3)

e7 (117450) | more than 13 years ago | (#2183016)

Here you go. But I assume he's on the side of the RIAA, not against them.

Registrant:
Goliath Artists (EMINEM2-DOM)
444 Washington Blvd., #5522
Jersey City, NJ 07310
US

Domain Name: EMINEM.COM

Administrative Contact, Billing Contact:
Paul D. Rosenberg, Esq (EP2695) paulbunyan@MAILEXCITE.COM
Goliath Artists
444 Washington Blvd., #5522
Jersey City , NJ 07310
(201)8760313 (FAX) (212) 935-0554
Technical Contact:
Rogas, Adam (AR1789) adam@PHUTURSOFT.COM
PhutureSoft
3013 La Mesa Dr.
Henderson, NV 89014
702-898-1234

Record last updated on 31-Oct-2000.
Record expires on 22-Nov-2002.
Record created on 22-Nov-1998.
Database last updated on 30-Jul-2001 02:05:00 EDT.

Domain servers in listed order:

NS1.PHUTURESOFT.COM 206.159.180.2
DNS4.REGISTER.COM 209.67.50.254

Re:Let's see now. (3)

Nastard (124180) | more than 13 years ago | (#2183019)

Only if you hold the copyright. A home movie would be private property, and you would discretion over who did or did not see it. If you held the copyright, you could be forced to liscense it out, whether you had any interest in doing so or not.

The problem here is that, while possibly helping napster and screwing the RIAA (which is what we all want, right?), it also takes certain freedoms away from the little guy. If I copyright something personal *just* for the sake of protecting it, I could, theoretically, be screwed into releasing something that I never wanted anyone to see.

Then again, IANAL and all I really know of this is what I read in the article. I could be wrong.

bout time (4)

Nastard (124180) | more than 13 years ago | (#2183020)

Finally, IP freely!

IP will be the Power source of th 21st Century (3)

Morris Schneiderman (132974) | more than 13 years ago | (#2183023)

The smart folks have recognized that the 21st century will be even more unsettling than the 20th century. Computer controlled extraction of natural resources and production (including nanotechnology) can drive manufacturing costs to almost zero. (Go read 'A for Anything' , by Damon Knight) With the Internet, we will be able to distribute the knowledge of how to produce. This will eliminate the challenges associated with distribution, so there will be no money to be made there.

This is why there's such a fight for intellectual property rights. Only by controlling the knowledge of how and what to produce can power be maintained by those who value it. By the middle of the 21st century, the major cost of any material item will be the 'intellectual property' charge. With production automated, almost everyone who is employed will be working in service jobs by 2050. And then it gets more interesting.

For all the gory details, http://www.consumerrevolution.com/IPR.html [consumerrevolution.com]

Re:What's Fair Compensation? (2)

geekoid (135745) | more than 13 years ago | (#2183024)

the article deals with that issue

interesting, but dangerous (1)

fetta (141344) | more than 13 years ago | (#2183026)

In following the various legal stories surrounding intellectual property these days (Napster, NY Times freelancers, etc), I've been concerned about the "hole in history" problem the article talks about.

The idea of "compulsory licensing" looks like an interesting solution, but I'm leery of letting the government set prices for anybody's work.

Question... (2)

chinton (151403) | more than 13 years ago | (#2183032)

Is there any evidence that the artists actually want their stuff traded for free? Or are we imprinting (that's not the word I'm looking for) our "information wants to be free" mindset on them?

We all know that the RIAA is against this, but what about the artists. There are artists that have come out against it (Metallica), and some indepentants that are for it, but I never got the sense that there was a prevailing opinion either way.

Maybe its something I missed.

Re:The stupidest thing I have ever heard (1)

gamorck (151734) | more than 13 years ago | (#2183033)

Wow - I think you just summed up the GPL, FSF, Napster, and every other socialist hippys mantra in that one remark. Good job.

I suppose you think its okay to copy software as well. I suppose you feel its okay to take a copyrighted book and run copies off in the copy machine.

When you get a job in the real job come back and talk to me. Until then, stop selling crazy here we are all stocked up.

Gam
"Flame at Will"

Re:interesting, but dangerous (1)

caduguid (152224) | more than 13 years ago | (#2183034)

When the government grants monopoly rights of exclusion (copyright, patents) on information goods, (where one person's use of the good does not diminish anyone else's ability to use it, aka: text file or mp3), it is implicitly setting prices already.

If you think about it, it is acknowledged by all sides that the government already "sets the prices" for people's intellectual property work. (or why did Disney lobby for the Mickey Mouse copyright extension? Because Disney knows that the length of copyright materially affects the value of its copyrights.)

The "Fair Use" principle is essentially a compulsory license, too. We're talking about degree here, that's all.

Re:No freedom here. (1)

swinginSwingler (161566) | more than 13 years ago | (#2183037)

Actually, I think this ruling strikes just the right balance needed between IP holders and the public. Napster was flawed from the begining; artists/record companies simply were not compensated, micro-payments or not. What this does allow for is a way to even out the playing field. RIAA gives up some control. No more $20 CD's. A reasonable pricing scheme can be put in place. Now if only the DMCA could be overturned...

Re:A particularly interesting quote (3)

elfkicker (162256) | more than 13 years ago | (#2183038)

I was a bit disturbed that was the main basis for the court's decision. What about a person's freedom not to publish? They can be forced by way of arbitration into selling that which they don't want to? That's a little too much power for anyone to have in my opinion. I can understand it's sparing use in land property or, say, intellectual property which is applicable to a process (eg, a patent), but NOT for creative works under copyright.

There was a post in the forums for the article which I'll reproduce here cause I thought is was intelligent, if a bit right wing...

Robert Brammer - 10:10am Jul 30, 2001 (565. 972/972)

Court to property rights: Drop dead.

You claim compulsory licenses help to avoid abuse of monopoly? WRONG! The only monopoly in this case is the arbitration board, which engages in state sanctioned price fixing, by determining a price at which a copyright holder must sell under penalty of law.

As for the court's concern for "holes in history," this is simply not a concern, and I'll explain why. Suppose a freelance writer will not give permission for the NYT to publish his article online. The Court only seems to be able to think this far through this dilemma, and claims this situation results in a "hole in history." Do they forget that the freelance writer wants money from his articles, and that is, at least in part, why he writes them? Common sense dictates he will eventually sell his article for online publication at the price he desires, even if not to the NYT. So, let's say the Washington Post buys the right to publish his article online. The Court would probably claim that this is still not acceptable, because their is now a "hole in history" if you visit the NYT site, because the article in question is only on the Post site. The Justices, in their arrogance, assume that the free market could not handle this problem. It should come as no surprise that they're wrong. Sheer market demand would quickly bring about the solution to this problem in the form of a search engine for articles, independent of any newspaper, that would be setup to include links to all of the articles on all of the different newspaper sites. Now the "holes in history" concern is a dead issue. It is disturbing that the justices overlook this obvious solution and immediately render a decision which violates an individual's first amendment right to not speak, the right of a person to control the distribution of their product, and the right of an individual to negotiate the sale of their product as a free trader.

This is undoubtedly one of the worst decisions by the Court in recent years, and certainly one of the most repugnant to the goals of a free society.

pay for play? no thanks.... (1)

maniac/dev/null (170211) | more than 13 years ago | (#2183040)

it sounds to me like this helps napster come back, but only as a pay for play service. this doesnt sound like it will go well with most of the music listeners/pirates on napster (or any other service) right now. i doubt anyone would pay even 1$ a year for napster if any free alternative exist, legal or not.

free > pay. always.

Did you read ALL of the article? (1)

chrome koran (177357) | more than 13 years ago | (#2183043)

First of all, record labels already own the copyrights on the majority of the music out there - they don't have to renegotiate anything with anybody. (In case you missed it, that has been one of Courtney Love's recurring themes throughout her tirades on the record labels.) In the case of freelance articles, the writer owns the copyright and the publisher negotiated publication rights -- the writer still holds the copyright. Check your CD collection for copyrights and see who they belong to...

More importantly, the point of the article was that the Supreme Court (remember those guys? final arbiters on the constitutionality of laws, etc.?) recently wrote an opinion that indicates that the copyright holder cannot refuse to make the material available if it might create a hole in the public record. And that is an important point...because it means that those nine people in black robes might say that the big 5 must make their music available in electronic format to a central repository of such material, and that if they are unable to negotiate a proper royalty with that organization, an arbitrator will do it for them. I don't think it's gonna' revive Napster's sorry butt, but it's a very important ruling just the same...

Re:pay for play? no thanks.... (2)

pizen (178182) | more than 13 years ago | (#2183045)

I don't know. If the service was reliable and had the content I wanted, I'd be happy to pay a modest fee for Napster. If it's easier to use than the old alternatives of web searching and irc then it's a service worth paying for. If it sucks and doesn't have any obscure content I want then it's not. People have to be willing to pay for something...it's the way the world works. You can't get everything for free (as much as we might like to).
---

Re:What do I get? (2)

hal200 (181875) | more than 13 years ago | (#2183047)

I've asked it before, and I'll ask it again...how does the life of the author + 75 years protect the works and allow those who created them to garner value from their work without someone else ripping them off?

Color me crazy, it's rather difficult to rip someone off once they're dead...

Also, IIRC, IP was originally introduced as a measure to allow authors to benefit financially from their works for a limited time (I believe it was originally 5 years for copyright), then have the works pass into the public domain. This would provide incentive for artists/scientists to create new works.

In the current system, an author can concievably release a few pieces of work, then sit back, relax, and collect the royalty cheques...until they die...in which case, their children have 75 years to find a new source of income...where is the incentive to create new works?

One comment which I read about a year ago here on slashdot, which really struck home for me (and I wish I could remember to whom it belonged) was that no DVDs would ever enter the public domain. CDs/DVDs have a lifetime of about 15-20 years before they begin to breakdown, IIRC. Very few, if any will survive to see their copyrights expire.

Re:No freedom here. (1)

bricriu (184334) | more than 13 years ago | (#2183050)

Regarding #2, I think the point is that they can't balk like that... the RIAA doesn't own all the rights, the artists do. So the artists would be the ones that would have to go into talks with Napster (or whoever)? That might be nice: get them a fair cut for once, since they're dealing more directly.

The only thing I could see crippling this is the increating frequency of "work for hire"-style contracts, where the artist has no rights to his work whatsoever... but even so, I think the ultimate point would be that the artist would get a bigger piece of the pie. Might even be able to wield the gov't mandate like a club to get really really good percentages of online music.

Re:Eminem's domain?? (1)

sulli (195030) | more than 13 years ago | (#2183064)

Wasn't he hired by Napster to do a concert series last year? (Good use of VC guys)

the largest pocket books always wins.. (1)

mark_lybarger (199098) | more than 13 years ago | (#2183065)

this really reinforces the argument that the largest pocket book (most expensive lawyers) will win in a court case. the little guy has no chance. napster lost to the unlimited checkbook of the RIAA, and the freelance writers ultimately lost to the New York Times.

creating a "hole in history".. please. aren't we creating a hole in history already by not allowing digital music to be freely traded online? 6 of 1, 1/2 doz. of the other.

it sounds more like - "hey, they offered me a month's vacation at their caribean resort, and you're not giving me jack, sorry pal"

Re:Great then.... (1)

Blitherakt! (199326) | more than 13 years ago | (#2183068)

Also, how does this prevent the RIAA from shutting down <insert favorite music trading post> for not being able to track 100% of the transfers?
I believe that Napster can't be accountable for unauthorized transfers conducted on their network. Open Source or cloned clients wouldn't be an authorized source of traffic on the network. Granted, they'd have to prove that they're doing everything they can to prevent unauthorized access, but that's fairly trivial.

I do seem to remember reading several stories about AOL not being responsible for the child pr0n that is somewhat pervasive in their service. Please correct me if I'm wrong, but a provider like AOL, Earthlink or even the phone company is not responsible for illegal activities conducted on their networks as long as they're not complicit in the commission of the activity.

Standard IANAL fine print included standard on all legalish-sounding posts.

Re:Did you read ALL of the article? (1)

Blitherakt! (199326) | more than 13 years ago | (#2183069)

So to push the question... If the record company "owns" the work, why does sariest (like Wierd Al) have to get the orginal writer's promission first?

I seem to remember seeing a Weird Al "Behind The Music" episode on VH1 where he addressed this, albeit very hazily.

Extrapolating and paraphrasing the points, I understood his reasons for going to the artist for permission to parody to be

  1. It is most times easier to get the artists to talk to their own record companies;
  2. It tends to prevent the bad feelings on deals like Amish Paradise.
That being said, somebody seriously dropped the ball on the whole Gangster Paradise/Amish Paradise deal.

Inter-library loan example (1)

maddogsparky (202296) | more than 13 years ago | (#2183070)

I used to work in the inter-library loan department at a university library. Each article (or was it page) cost something like $.15 that was paid by the school, unless some other licensing scheme was agreed too. I think this was a legislated amount, but I could be wrong.

I think this is a great idea. If it could be applied to any patent or copyright, that would be great. Unfortunately, the argument that it is out of print doesn't really apply to digital media :-(

I guess I'm starting to ramble, but compulsary licensing is a good thing; otherwise greed is just causing waste.

this makes no sense... (2)

caseydk (203763) | more than 13 years ago | (#2183071)

come on... "Under the doctrine of eminent domain, the government may declare a piece of land necessary for public use and then simply take the land -- as long as it pays the landlord a reasonable price" how does this apply to any of the music that was ever traded on napster? if this is going to be argued, can't the riaa and they're group say that much of this music is freely available on the airwaves, mtv (when they play music), etc?

Re:Did you read ALL of the article? (1)

jackb_guppy (204733) | more than 13 years ago | (#2183072)

But that is point "the writer owns the copyright".

If in the case of NY Times...

- if the paper bought only the right to publish, then more money is due.

- if the paper did a work for hire in - for use in paper form - then again money is due. -- i believe that is what the lawsuit was about.

- if the paper did a work for hire - and they own it outright in all forms, then no money is due.

With that being said... in the record business when a sound writer writes a song under what contract was it written.

Here are a few questions to ask...

- was the song written by some one then sold? Was the sale complete with all rights or only rights in a limited space - said records and not CDs - then again the writers own the work. Simular to a book sale?

- was the sond writing by a staff writer or work for hire. Then the person with check book wins.

So to push the question... If the record company "owns" the work, why does sariest (like Wierd Al) have to get the orginal writer's promission first?

Brilliant, simple and reasonable (2)

abe ferlman (205607) | more than 13 years ago | (#2183073)

At some point, each of us has hated the US legal system and the evils it produces. Then you see something brilliant, simple, and reasonable like this and it all seems worth it. Maybe. :^)

I kind of agree. I've been thinking more and more that law is like code. But think about this: this is sort of like garbage collection (removing copyright monopoly allocations) by a process with higher priority (The New York Times) than yours (citizen).

When you find an injustice without a higher priority process to take up the argument, you have a serious memory leak that is undetected by litigative garbage collection initiated by your weak citizen process. Which leads some of us to think it would be better to carefully manage the allocation of copyright monopolies (memory) in the first place.

Bryon

How's this for an example (2)

Blind RMS Groupie (218389) | more than 13 years ago | (#2183079)

This may seem off-topic at first, but please read through it and you'll see what I mean.

I would like to present you with a song about George W. Bush. I didn't write it, of course, and the RIAA owns the rights to it, but I present it as an act of drawing upon the popular culture in order to make a political statement:

---------

He's a real nowhere man
Sitting in his nowhere land
Making all his Nowhere Plans For Nobody.

Doesn't have a point of view
Knows not where he's going to
Isn't he a bit like you and me

Nowhere man, please listen
You don't know what you're missing
Nowhere man, the world is at your command

He's as blind as he can be
Just sees what he wants to see
Nowhere man can you see me at all

Nowhere man, don't worry
Take your time, don't hurry
Leave it all, 'till somebody else
Lends you a hand

Doesn't have a point of view
Knows not where he's going to
Isn't he a bit like you and me

Nowhere man, please listen
You don't know what you're missing
Nowhere man, the world is at your command

He's a real nowhere man
Sitting in his nowhere land
Making all his Nowhere Plans For Nobody.
Making all his Nowhere Plans For Nobody.
Making all his Nowhere Plans For Nobody.

---------

Now, what the article is saying is that the Supreme Court's ruling on the freelance publisher case could be interpreted to mean that the recording industry could be compelled to license its material to Napster by a court ruling at a price to be determined by a court. What I'd like to know is if I use RIAA material as I have just done to make a political statement would the same apply? And if so, what amount would the court set as an appropriate fee for the compulsory licence?

Eric Weisstein's Mathworld (3)

chrisatslashdot (221127) | more than 13 years ago | (#2183082)

Lawyers,

It sounds like the courts are saying that the right to publish a work in print does not carry along the right to publish electronically. If so, is it possible that the court's ruling in this matter will have any bearing on the Mathworld [mathworld.com] lawsuit? Maybe its a pointless question without seeing the contract betweeen CRC and Mr. Weisstein. I think the void left by Mathworld's absense is only slightly less significant than a 'hole' left in history as the editorial describes it.

The right to create "holes in history" (1)

KMitchell (223623) | more than 13 years ago | (#2183085)

The big question is does the IP holder have the right to limit access to their IP? A friend of mine is on a quest to see every episode of "Daria". MTV isn't showing the episodes, so P2P is the only game in town.

Should an IP rights holder be allowed to limit access to media (admittedly the NYT archives is a bit more significant from a historical perspective)? Certainly the case could be (has been) made that limiting access to media could drive up demand for "sanctioned" releases. Someone might potentially have less interest in buying a Daria DVD set (if one were to be released) having seen all the episodes.

Of course what if the aforementioned DVD set is never released? Does the public have a right to that media?

This has already been tossed about (2)

eclectro (227083) | more than 13 years ago | (#2183087)

When Napster made it's case [newsbytes.com] before congress this spring.

It would be good for consumers, but the music industry will fight it to the death. They don't want anything that might harm $25 CD sales.

That also assumes that congress gets behind such an idea. But we already know that music industry 0wn5 congress.

The two sides will never get together.... (2)

canning (228134) | more than 13 years ago | (#2183088)

The Court suggested that such holes might be avoided if the two sides the authors and the publishers could get together and agree contractually on the terms of electronic publication.

It seems that the Internet has turned from a dot-com frenzy into a contest about who can sue in the most unique way. Find a loophole, create a stir publicly about the injustice and then sue.

I agree that people should be compensated fairly for what they produce but come on! There has to be some limits.

Re:Why have we let ourselves get into this mess? (1)

tmark (230091) | more than 13 years ago | (#2183089)

We only need one reform: incredibly short terms for patents and copyright. Although any decision is arbitrary, I think that 3 years is more than generous enough in the case of copyright these days,

I am not concerned here about patents, but about copyright. What exactly do you mean by "more than generous enough" when talking about (say) someone's copyrights to their music or writing ? Is there some greater public function served by forcing someone to relinquish their copyrights to a song or artwork ? Does society NEED free unfettered 3rd party distribution of the latest Metallica CD (or the 3-year old Metallica CD) that badly ? While - arguably -the notion of IP in the patenting certain discoveries and innovation might be "ludicrous" to protect, what makes copyright of artwork so ludicrous ? Is it any more ludicrous then the copyrights attached to GNU software ? Should the latter copyrights expire as well ? And who are you to decide what is or is not "generous enough" ? Arbitrary, indeed.

Re:Subscriptions? (2)

tmark (230091) | more than 13 years ago | (#2183090)

It mentions that fees and royalties would be required for this to work. Which means that the RIAA doesnt get to say no, but it does get to have some of our money out if it. I dunno about the rest of you, but I'm sticking with my local trading groups and free things like audiogalaxy for now.

As will, I'm sure, so many of the people who claim they are willing to pay for music they can download online, if only the record companies would let them. At bottom, despite hyperbole here and elsewhere to the contrary, the reaction against the record companies battle against companies like Napster is less about outdated modes of distribution then it is about whether people are really willing to pay for music.

Re:The right to create "holes in history" (2)

tmark (230091) | more than 13 years ago | (#2183091)

Of course what if the aforementioned DVD set is never released? Does the public have a right to that media?

No.

Position of the framers on Copyright... (2)

hillct (230132) | more than 13 years ago | (#2183092)

There was an article on msnbc.com recently that discussed the history of copyright, from the 1500s to the present. There is particularly nteresting information about Jefferson and Maddison.

Historical view of Copyright [msnbc.com]

--CTH

A particularly interesting quote (5)

hillct (230132) | more than 13 years ago | (#2183094)

It looks like Ginburg was looking to prevent and Orwellian (1984-style) scenerio here:
Why did the Court suggest possible limits on the freelancers' property right? Because the majority was responding to the concern that there would be "holes in history" created by the removal of the freelancers' important work from electronic databases.
This is actually a legitimate point. ALthough we are not operating at this level yet, there will eventually be a time when databases of this sort will replace the microfiche archives of newspapers like the New York Times that libraries pay an arm and a leg for now. If articles which appeared in the newspaper were omitted from the online database, there would indeed be 'holes in history' - presuming that the New York Times is the definitive record of history - which in and of itself is a frightning thought.

--CTH

that's not a solution either (2)

Dr. Awktagon (233360) | more than 13 years ago | (#2183097)

So let me get this straight, the solution to heavy-handed government interference in a free market via the overly-burdensome copyright laws is to create MORE government interference?

How about relaxing copyright law in the interests of the public? How about unravelling the complex mess that the RIAA/MPAA has created over the decades, taking rights away from artists and the public? How about removing the DMCA's anti-circumvention provisions? How about reducing the length of copyright terms?

If society can copy works more freely, there will be no "holes in history".

This argument was destroyed 50 years ago! (1)

Cytotoxic (245301) | more than 13 years ago | (#2183098)

Ayn Rand pretty much decimated this argument over 50 years ago. Give "Atlas Shrugged" a read sometime. For some more contemporary writings on eminent domain, try this opinion piece [aynrand.org] from the Ayn Rand Institute [aynrand.org] .
A synopsis: No one, man or government, has the right to another man's work or property. It doesn't matter how much you "need" it. And don't even think for a second that you can make the argument that the overriding social good demands that Metallica give over control of it's work to "society". Give me a break!

Gosh I hope not... (1)

geekplus (248023) | more than 13 years ago | (#2183099)

People mistakenly seem to think that "reasonable price" somehow has meaning. The problem with this is that if I *don't* have the power to refuse to sell my property (physical or intellectual), then there's no point in my debating price in the first place -- because the purchaser knows they need not go above whatever the arbitrator's will decide on as "reasonable".

As Prof. Elzinga (my Econ Prof. at UVA) said (I paraphrase): "If I have title to a bottle of salad dressing, that means I can put it on my salad, use it as skin cream, water plants with it, sell it to someone else, and most importantly -- the right to simply poor it down the drain." Anything less is just a license to use the dressing according to a predetermined set of proper use regulations -- not nearly as useful as owning the thing outright.

Great then.... (2)

spellcheckur (253528) | more than 13 years ago | (#2183103)

A compulsory license forces a copyright or patent owner to permit someone else to use the work for a predetermined fee...if the parties cannot agree on a royalty for a given copyright license, then an arbitration panel would decide the rate for them...the trial court could require the parties to try to negotiate a royalty and, if they failed to agree, impose a royalty set by binding arbitration.

So instead of Napster users paying the RIAA an RIAA set per-song price, they'll be paying the RIAA a court arbitrated per-song price.

Also, how does this prevent the RIAA from shutting down <insert favorite music trading post> for not being able to track 100% of the transfers?

Re:Yowzers (1)

Maskirovka (255712) | more than 13 years ago | (#2183104)

At some point, each of us has hated the US legal system and the evils it produces. Then you see something brilliant, simple, and reasonable like this and it all seems worth it. Maybe. :^)

Worth it to the hundreds of lawyers who will be further enriched by all the new disputes this will generate.

Maskirovka

Re:No freedom here. (1)

bay43270 (267213) | more than 13 years ago | (#2183108)

The courts weren't simply requiring contracts to be updated for the new media. The court was forcing the writers to allow the Times to leave the articles in the database. That's the whole point. Even though the contracts were clear, the court was saying "screw the contracts, lets do the right thing for the world". The editorial was just pointing out that the Supreme Court might do the same for Napster one day.
-----

Pre-emptive correction (2)

Rogerborg (306625) | more than 13 years ago | (#2183111)

  • the New York Times would not have to negotiate individually with every one of its former freelancers

And bear in mind that the vast majority of music copyrights are owned by five record companies, not by individual artists. Son of Napster won't have to deal with tens of thousands of artists, just to the Big 5 plus to any independent artist who thinks it's worth their while to send them a bill (which would be a Good Thing, but try and list even ten independent artists that you've seen traded on Napster without their consent).

So if this is workable for the NYT, it's probably workable for Son of Napster.

Re:What's Fair Compensation? (2)

Rogerborg (306625) | more than 13 years ago | (#2183112)

  • If the RIAA determines the licensing, it could in theory set "compensation" so high that Napster still can't do anything

Which is why it would almost certainly have to go to binding arbitration and a settlement enforced.

Point taken though, the arbitration will be a nightmare. Consider how you'd calculate the value of any given song traded on Son of Napster. Number of trades (easy to rig)? Chart position? (easy to buy, and screws independent artists and actual real music) User feedback? (easy to rig and buy with enough MTV time).

Also, if you use the same scale to pay independent artists (remember them?) as you use to pay the Big 5 recording companies, either you give a lot of incentive to artists to rig the system, or you give so little to the Big 5 that they'll keep weeping their crocodile tears and buying laws and lawyers to keep making it expensive and difficult for us to buy music.

On balance, I think you're right. This has a long way to go before we get a solution where everyone's happy.

Re:No freedom here. (3)

Rogerborg (306625) | more than 13 years ago | (#2183114)

  • They must negotiate the right to publish online separately. They'll just add another clause to the existing contracts and continue as usual. [...] Older content that was not licensed under the newer contracts must be renegotiated for electronic format with the artist

Way to miss the point. This ruling (might, if sustained and interpreted loosely) give Son of Napster the right to distribute music that has previously been published, regardless of the licensing situation. Did you read the article? There were no digital media clauses in the NYT contracts, but the court decision (if carried through) both allows and requires the NYT to publish in that format anyway and reward fairly the copyright holders.

It's not relevant whether the Big 5 record companies have online media contracts with artists, or whether Son of Napster carries Big 5 tracks and/or independent artist tracks. The only salient points are:

  • The work has previously been published.
  • The copyright owner is compensation for further publication in other formats.

The relevant question is actually whether Son of Napster has any right at all to publish any work owned by third parties with which it has no previous business relationship, and who have given no agreement for Son of Napster to publish their copyrighted work in any form. I can't see why this ruling gives Son of Napster that right. But it's an all-or-nothing question, not one of individual contracts between record companies and artists.

Only on slashdot... (2)

BillyGoatThree (324006) | more than 13 years ago | (#2183133)

...would we see the ultimate concept in fascism, eminent domain, used to combat the relatively minor problem of nude Jessica Rabbit pictures being hard to obtain.
--

If you download MP3s ... (3)

s20451 (410424) | more than 13 years ago | (#2183135)

So you're saying that you would trade the de facto regulation of a business trade group for the de jure regulation of the federal government? Forgive me if I remain suspicious.

In this case, if you download MP3s, you really would be downloading Communism.

Re:How can this be eminent domain (2)

Ldir (411548) | more than 13 years ago | (#2183136)

An individual song isn't a public need, but there is a presumption in our society that the Arts as a whole are vital. Arts and entertainment are a great public need. They fill a void left once man stopped spending 18 hours per day stalking its prey.

The entertainment industry recognizes this need, and crafted a powerful cartel to squeeze every possible dime out of a public hungry for entertainment. Our congress-critters wallow at their trough, and have no inclination to restore balance to the IP issue. If the industry is forced to submit to mandatory licensing, if they can no longer dictate all distribution channels, it will go a long way towards breaking this cartel.

I would also point out that there is precedent for this. Through bulk royalties paid to the RIAA, companies like radio stations are free to play any songs they want. Why couldn't a similar model be used (i.e., required) for Internet entertainment?

Abuse of monopoly powers. (1)

gooberguy (453295) | more than 13 years ago | (#2183146)

I like this quote:
We do not yet know if the recording companies are abusing their monopoly on online distribution...

The DOJ seems to be on our side so far, (after suing MS) maybe they will go after the record companies for abusing their monopoly powers. $25 for a CD? Come on!

D/\ Gooberguy

Re:the largest pocket books always wins.. (1)

l33t3$t_hax0r (457694) | more than 13 years ago | (#2183149)

aren't we creating a hole in history already by not allowing digital music to be freely traded online?

Um, nope.
--

Applications in other fields (1)

jobugeek (466084) | more than 13 years ago | (#2183152)

I can see this being applicable in many different areas. I watched last night a thing on 60 Minutes about biotech companies actually applying for patents on genes(of all things). Then hospitals(and eventually consumers) are being charged to test for that gene.

This would force those companies to allow hospitals to get a "bulk" rate and test people. It would also allow researchers to test cures for those diseases.

Re:What do I get? (2)

Chromonkey (466956) | more than 13 years ago | (#2183158)

Actually, the record companies put in a huge amount of work to promote the musicians in their stable.
"Part of that increase in popularity comes from using public airwaves to broadcast the song on radio."
This isn't as easy as you would think. To get the song into heavy rotation, the music label may pay the radio station to broadcast the song or to place it in a different slot.
Music that is played after midnight and before 6 a.m. generally doesn't get much of a following.
Also, there are CD's to print. Even at at modest .80 per CD at 1,000,000 copies, that's $800,000. Include in that the shipping, packaging, recording, artwork etc. and a CD release is rather expensive.
Sure, you don't have to print one million copies, but if your band hits big you're going to look mighty dumb if you can't get the CD's out to the consumers.
Now you need to promote the band as well. Send them on the road to tour. Contrary to the Napster belief most large bands on tour do not make money from the tour. Even small bands have a hard time on the road because it is EXPENSIVE. How do small bands promote themselves? Here's a good hint..watch "Bands on The Run" on VH-1. Some of the stuff on that show was bogus, but their efforts at promotion and the turnouts they got are a good example of real life. Over 5 weeks the top band made what? $6000 bucks? Not bad if you don't include things like a hotel room, food, etc.
As for "being indebted to someone" you are indebted to them until the copyright expires and the item passes into the public domain. Copyrights do not exist to provide works to the "public at large" they exist to protect the works and allow those who created them to garner value from their work without someone else ripping them off.

Re:pay for play? no thanks.... (1)

gwallen3141 (469203) | more than 13 years ago | (#2183159)

I wouldn't pay $1 a year for Napster either. I would, however, be willing to pay for a service that let me download the music I liked for a per song charge. It's paying $16 for a CD with only 2 or 3 songs that I really like that burns my ass.

Public benefit (1)

agusus (470745) | more than 13 years ago | (#2183162)

Copyrights are supposed to have a public benefit function? That's news to me... Looks like that's one function that everyone's lost the syntax of!

man public_benefit
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