The big problem is the word “compulsory”

by Mathew on June 27, 2008 · 3 comments

Like my friend Mike Masnick at Techdirt, I came across a long guest post not long ago at William Patry’s blog (Patry is legal counsel for Google and an expert in copyright law) about the need for something approaching a “compulsory license” to solve the problems of rampant digital copyright infringement. A good example of a compulsory license is the legal mechanism by which Internet radio broadcasters are allowed to play music and pay a set rate to artists. A similar process (although it is not compulsory) compensates publishers and songwriters when music is played on the radio — something the music industry was not in favour of when it was first instituted in the 1930s and ’40s, but quickly grew to like and rely on. The record industry is now trying hard to extend that kind of payment to artists as well, something I wrote about recently.

As Mike notes in his post on the topic, lawyer Joshua Wattles spends the better part of his guest post at Patry’s blog describing how terrible most compulsory-licensing approaches are:

“Most, however, have nothing to do with lofty aspirations of balance or with enabling an otherwise impossible market or even with a measured response to benefit a clamoring public. Instead, they have everything to do with power players reaching for commercial advantages within a niche market.”

Unfortunately, his solution needs work — a lot of work. In a nutshell, Wattles thinks it would be much better if the government were to get involved and be an active participant. “The DOJ should be in every compulsory license proceeding with the brief to protect the commercial fairness of the outcome,” he says. Because we all know that when the government gets involved in micro-managing how a specific marketplace should work, that always makes things better, right? As Mike says in his post, a better solution would be to “forget compulsory licensing altogether, and recognize that the supposed “market failures” that required them in the first place don’t really exist.”

Note: For extra credit, go and read William Patry’s excellent post from back in April on the rise of what he calls the music industry’s “reverse value” approach to what customers should be permitted to do with content they have legally acquired — by (for example) arguing that because changing formats “creates value” for the user, they should have to pay for it or shouldn’t be allowed to do it.

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