Protecting Fair Use By Reinventing Copyright (Part 2a in a series)
Let's get down to business with Professor Fisher's plan.
I can't get to everything in one installment, because there's going to be a lot to say.
Let me start with my intuitive responses:
How will this ever become this country's policy? Fisher's plan, while much better than the policy I discussed before
, is much less politically feasible.
Only now are we starting to see the entertainment industry and tech companies start to pursue a more hands-off approach. There's the so-called "truce"
and the ADP.
I can't even believe that these companies have gotten that far away from seeking strong copyright protection (in the case of the tech companies, I sometimes thought they'd never really unite).
And now we want them to do what? To give away their copyrights? To let some government bureaucracy handle it? To roll the dice on an "estimation" of use? TO make it easier for unsigned artists to compete? To tax their industry?
Now, I'm not saying that's what Professor Fisher's plan entails - but that's how other industries will hear it. And that doesn't bode well. It'll take a lot of convincing.
So, what would it take for them to listen? Or, for them to be forced to listen?
Somekind of crisis - more serious than the piracy we've got now, and more serious than the reduction of fair use we have now. I don't know what that would be. What would make the entertainment companies feel completely powerless? What would make consumers feel angry enough to write letters, send money, and protest?
With that out of the way, I should say that I love the plan. I know that there are all sorts of devilish details - but I still love it; I love it in that way where I want to believe it would work. I want to believe that Professor Fisher's got a lot of numbers worked out and will make it an easier sell. I want it to be not so easily dismissed
by The Economist.
Let me now turn to some of the details some have already discussed. Get the links to these at bricoleur
1.Seth Finkelstein wondered how we would get an accurate count. As others have noted, we don't have to. The idea is to do some sampling and extrapolation.
2.Seth also asked if this plan would require a ban on non-watermark compliant devices. As Prof Felten pointed out, we probably wouldn't have to worry about that, because people want their favorite artists to get counted. Then Felten described the potential for messing with the watermarks to create overcounting. Theoretically, the watermarks could be secured in such a way that it would be too hard for MOST people to do this, right?
How about this side of the problem though: What happens when someone, for example, takes a music album and syncs it with a movie, and distributes that as a single file? Would the watermarks for BOTH be retained? Or, if I sample a rock song to make my new rap album? Could watermarks _accidentally_ be removed from products?
I don't know a ton about the tech here, so I'm just guessing.
3. Also, on banning "non-watermark compliant devices" and the counting-as-privacy-invasion that Seth discusses: I don't think the count would happen at that level. It would happen higher up, like at the ISP level or the P2P service provider's level. All of the info of who downloads what could remain perfectly anonymous.
4. Re: taxing currently free Linux players - I don't think this would have to happen either. I guess you could say not having the tax apply to free players gives them an unfair advantage - but the pricing of certain products hasn't stopped people from buying them rather than getting them for free with all software. There are still vendors of DVD players and such.
5. As for the "pay per view" society argument, I'm with Mr. Macgillivray
6. Questions of my own:
When/how long after creating would creators no longer be eligible for payment?
Counting how much each "use" is worth seems tricky. If we "distribute revenue from the taxes in the proportion in which the various products are accessed," we surely have to distinguish between different types of art and how each type is used and how much time was invested into making that art. Each medium (movies, music, literature, et al) will have to be treated separately. Furthermore, we'll have to distinguish between types of art WITHIN each category. We'll have to distinguish between poems and novels, short films and feature films, et al. And, even then, the distinctions would still be rough. How reasonable redistributive rates will be developed is wholly unclear to me. (Note: I should say that I talked with Professor Fisher about this problem, and he tried to talk me through the solution - how the rates could be negotiated and determined by the new government agency meant to handle this operation. But, I'm still not sure I get it exactly how it would work; I'm sure he'll have something to say about this in the book.)
That's just the start of my analysis. I also need to discuss this
, a similar, more politically feasible, less optimal scheme.