Steven Levy’s column for Newsweek bemoans the trouble that some fellow has gotten himself into, selling mash-ups of hip-hop songs without licensing. Fair use? Transformative use? Why bother with the technicalities? Levy and a legislator likes the fellow, so they weigh in on the side of legislating (yet another) exception. Maybe jam transformative and fair uses together into a whole new category, “rave” use, with a safe harbor for “hipster” use and for the older set “cool” uses? The principle behind it might be that if you offend only a little, you are liable, but if you offend multiple players a lot, you are home free.
The problem of how to license a whole bunch of stuff (167 artists in this case) all at once for a reasonable fee is a daunting one. Not so daunting that one ought not to try. But is proposing yet another exemption or exception or compulsory license or combination thereof really an intelligent approach to the problem? It is not. It is flatly embarrassing that legislators and experienced commentators on copyright cannot do better than this perpetual handing out of legal privileges to the favorite information cause du jour, simultaneously screwing creators and leaving the next innovative
technology who comes along to face the same administrative problem–how to license a whole bunch of stuff.
A real solution would look like this:
-Diagnose the problem. Music copyright is fragmented into multiple rights–the rights in the musical composition and the sound recording, to start–and this complicates licensing. Legislators should start by addressing this fragmentation. If existing technologies (radio, for example) that have grown up around the old models get in the way, grandfather existing stations that can plead economic hardship and move on.
-Don’t mess with liability. Creators do need to work on developing new ways to license. And they are (for example, this new platform for licensing music in games). But if downstream users of copyrighted material are not liable for infringing uses, they have no reason to negotiate. And thus creators know there is no point in creating institutions to help downstream users them. The extent of exceptions from liability so far and the Congressional willingness to hand them out like candy along with compulsory licenses is a big part of the reason that creators have lagged in making licensing easy.
-Instead of complicating the law with bizarre new exceptions, think about how private institutions could support licensing. The Copyright Clearance Center is a prime example.
We really do need to give up on the argument that we like what so-and-so does, therefore he should be able to do it for free, or for some legislatively dictated price. It doesn’t really solve the problem. Ask the webcasters.