Compulsory Sampling License
From Wikipedia, the free encyclopedia
In U.S. Copyright Law there currently is no Compulsory Sampling License. Within the community of musicians who sample, create audio collages, etc. there is a growing interest in creating such a statute similar to the compulsory license for covering a song. Other viewpoints suggest that artists should continue to control and negotiate fees for sampling.
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[edit] Sampling Issues
To begin, the definition of sampling is taking a portion of a prior composed selection and incorporating that sampling in a new selection. In hip-hop music, this technique is used heavily; often used without receiving permission from the original creator. According to www.music-law.com, “Sampling without permission violates two copyrights-the sound recording copyright (usually owned by the record company) and the copyright in the song itself (usually owned by the songwriter or the publishing company).”Sampling is something that artists have been doing since the first musical artist (eventually referred to in popular music as a "Disc Jockey") figured out that she or he could take pieces (i.e. "samples") from another's music and utilize them to create something rather original. However, in recent years big corporations have begun to have problems with this musical phenomenon.
Initially, if you sampled music you just reproduced it live and/or as close to the original as possible. However, creative individuals who did not have the musical, financial, or technical means of their predecessors found that they could contribute to the music world by remixing and spinning the good parts of old beats to create amazing "new" tracks. One of hip hop's most paramount and progressive records was The Adventures of Grandmaster Flash on the Wheels of Steel. The record not only exemplified one of hip hop's founding DJ's at his best, but the record demonstrated complexity in scratches, cuts, and various samples of different genres, creating good music! Break dance derives from the meaning of dancing during the break down or break beat of certain instrumentals. These 30 second or 1 minute break beats would be looped for 5 to 7 minutes, and break dancers (better known as b-boys and b-girls) would creatively express themselves through dance moves.
According to Thomas Goetz, “Culture isn't just art - culture is also commerce. That's what makes the system so powerful; it gives creators incentives to create, the chance to make a living doing this stuff.” He also says that impulse to create and the impulse to own don’t always see eye to eye. The one main conflict is that it encourages artists to be influenced by others and mainly to protect what is theirs. Now, with the ease of digital reproduction, many people overreact and take any infringers to court. Culture isn’t free anymore; it comes with a price tag and often a lawsuit.
One can find examples of this within the hip-hop community that grew into the pop culture phenomenon in the 1980s. In fact, some musicologists would go so far as to say that hip-hop was built on sampling. In fact hip-hop was built on the basis of sampling a different genre of music. It all started with Clive Campbell better known as DJ Kool Herc. Initially Herc was with a writing crew (graffiti group). He was always inspired by the sounds and culture of his Jamaican roots, which were toasting and dubbing (emceeing and DJing) from the DJ's in his original birthplace, Kingston, Jamaica. He eventually got a system of his own and began DJing locally to help make money to buy his little sister some school clothes. He began to throw parties there for the predominantly African American and Hispanic crowd. At the parties, Kool Herc noticed and developed his love for the break sections of all of his records. Most of his parties would be at the park in the Bronx, where he and his crew would hook up his equipment to light post for power. Through his knowledge that every Jamaican record had an instrumental or 'dub' side to it, he focused on the break downs of the instrumentals and drum solos. Herc became aware that although he knew which records would keep the crowd moving, he was more interested in the break section of the song. At this point in a song, the vocals would stop and the beat would just play for a short period. His desire to capture this moment for a longer period of time would be a very important one for hip hop. Herc would purchase two copies of the same record and play them on separate turntables next to each other. He would play the break beat on one record then throw it over to the other turntable and play the same part. Doing this over and over, he could please or 'rock' any house in New York (not to mention it being an early form of looping that would be made easier through electronic sampling). He would dig in crates and look everywhere to find the perfect break beat for his parties. He didn't care what type of music, because he only needed a small section of a song for his purposes. Emcee's would rap over these sampled breaks to get the crowds hyped and show appreciation to DJ Kool Herc producing the sound.
If the sampling laws (or lack thereof) had not allowed these artists to produce this music through new technological means, then this culture would not have developed in the manner in which it did. Some might contend that this is not a problem, as the artists would simply have had to develop their own music from scratch. However, even "from scratch" often means borrowing substantially from predecessors, as is the case in any art form. So many chords, note patterns, percussion tone, tempos, melodies, and harmonies have been used over and over again with a composition from scratch. This is the reason the aspect of a genre even exist. Certain types of music can be put in different categories and genres for the simple fact of having similar sounds. A person can listen to ten different and "original" songs in rock & roll, but know that all ten of those songs come from the rock & roll genre. The concept of "from scratch" is almost void, considering the large number of production tools, producers, and the number of years since the first musical production.
Thomas Goetz at Wired Magazine put it better than most, saying "By nature, musicians are thieves. Nicking a bit of this song and a lick from that one, shaping their style on the riffs of those who came before, musicians are experts in the art of acquisition. Woody Guthrie knew this; he pinched melodies from Leadbelly - and let anybody pinch him in return. But what some call theft, others call sharing. Thanks to sharing, there are genre-bending artists like Beck and Prince, the mash-up legacy of Jay Z's Black Album, and the sublime delight of Walter Murphy's "A Fifth of Beethoven."
Currently, methods for sampling music can be categorized into four groups. There is unlicensed sampling, ad-hoc licensing, public domain sampling and fair use sampling.
Unlicensed sampling is where a sample is lifted from a song without the knowledge or consent of the copyright holder. An example of this would be the Grey Album by DJ Danger Mouse. Copyright holders need to be extremely cautious of their works because they essentially grant approval to the sampler by not filing a lawsuit or sending cease-and-desist papers to the sampler. With this kind of negligence, the copyright holder does not receive compensation for the sampled work.
Ad-hoc licensing is the most accepted way to sample the music of another copyright holder. An artist will actively seek out the copyright holder of a work and obtain the rights to sample from the copyrighted work. It gives the copyright holder control over their work and how it is used. Problems with this method are that it is expensive and time consuming. Since the current fees for sampling vary depending on the copyright holder’s perceived value of the work, the cost involved for artists wishing to sample is inconsistent. In some cases, the fees involved can absorb a large chunk of the budget an artist is willing to spend on production. Producers such as Kanye West, Just Blaze, and 9th Wonder are fully aware of the aspect of ad-hoc licensing. Kanye West even has a sampling coordinator, who arranges for clearance of a sample, once Kanye has chosen a particular sample.
Public domain sampling leaves the artist finding adequate samples to lift from works in the public domain. However, due to the Sonny Bono Copyright Term Extension Act of 1998, the artist is left most clearly with recordings prior to 1923, which are obviously quite limited in scope, quality, and availability. Other recordings (such as ones on which copyright was not renewed during the days when renewal was required) may be technically available, but greater effort is needed to ascertain their public domain status.
Fair use sampling would be used in parody or “de minimis” sampling. As one can see, sticking strictly to fair use sampling can limit the tools available to the creative artist. A sampler who relies on fair use sampling might be forced to defend him/herself against a copyright holder who does not agree that the use is indeed "fair use". In addition, an artist would receive no royalties from a work that was incorporated into the work of another using the fair use sampling method.
Currently in the hip hop community, the two aspects of unlicensed sampling and fair use are playing a major role in the new mixtape genre. In the early 2000, the concept of mixtapes initiated (not confused with a house party mixtape) to advertise a new and upcoming artist by displaying their skills and talents over other artist instrumentals. This was a promotional tool that gave the artist(s) more exposure thus making the public anticipate their albums, giving them more record sells. 50 Cent was one of the first artist to use the mixtapes as a promotional tool helping him sell over a million records. DJ's have used the mixtape hype to give themselves more exposure also. DJ Drama has been one the most successful DJs with his mixtape series, Gangsta Grillz. Having popular artist rap over old and current instrumentals owned and copyrighted by different companies and artist, has been deemed ok because of the label "mixtape."
The current copyright laws dealing with sampling are very hazy, making it difficult for sampling artists to understand the limits and boundaries of the law. One point of view is that a compulsory license for sampling may be a win-win situation for both sides. We often hear about artists getting their intellectual property stolen and that they have to sue the artist responsible for the infringement to recoup their losses. This is because these artist or large corporate labels can use their wealth to stop the sampling artists from performing their art form or at least stop the distribution of their work. This limits the creative output of sampling artists who, without hefty licensing issues, would be producing more art. The concept is not helpful to those creative "low-income" artists, who can only afford certain software. Most artist have to start with a certain software, which allows them to do only so much. The artist must then learn how to manipulate and use the software to the best of their ability; this is referred to as getting the best sound from the worst quality. Many low income or underground artist find it hard and almost impossible to compete with the corporations without bending some of the rules. The concept of sampling music in an illegal manner is not the concern for these artist, but the means doing what is needed to make their music is the concern.
Not all parties involved wants this license to exist, which may be hard for some to understand. Sure, copyright owners can sue for millions of dollars, but if they had this license, even the economically small artist would purchase the license. This would increase the amount of money that copyright owners receive from sampling, if one presumes that the compulsory fee is set high enough to make up for the additional pricing leverage that the licensor gains through their ability to deny license. The issue here is that bedroom-sampling artists sample music without permission and until they are gaining notice, gaining wealth, and succeeding there is no perceived problem. For some artists, the goal of each song is to make a hit. So, if the artist thinks that their work is going to eventually sell well, most would probably rather buy a reasonable license to make it legitimate than to not buy one. This is certainly preferable to having to pull the recording from distribution or to hand over the rights of their up-and-coming successful work due to infringement issues. This also means more money for the original copyright owner of the sampled music. It may be smaller amounts of money, but there is the potential to receive many more of them. If a sampling artist uses a sample that they purchased for, let's say, a dollar, then they replicate and distribute 1000 copies of that sampled material, the original owner would receive $1000. This is not a lot of money, but at least the sampling artist is able to produce their music and maybe even more importantly, the original copyright owner actually got paid for their content without having to expend time and money on legal proceedings.
[edit] Complications
If a compulsory license were developed, the following complications would need to be worked out:
The most apparent and arduous complication that would arise from a compulsory license on sampling music would be that of determining and settling disputes over appropriate fees. Compulsory licensing is a system that would in one way or another charge users through a fee system. How would this fee system work? Would one pay the copyright holder directly? Also, how would the copyright holder determine an appropriate fee? He/she would have to take into account the actual length of the sample used, the extent to which the sample was altered, and the level of which the finished piece would be distributed (local or national) if at all.
Another issue with compulsory sampling license would be with congress and the courts. As it stands right now, the U.S. Court of Appeals for the Sixth Circuit established a bright-line test on how unlicensed sampling from a copyrighted source would be considered in a court of law. This test stems from the Bridgeport Music Inc. v. Dimension Films case between a song by N.W.A. and a sample lifted from Funkadelic. In a nutshell, they ruled that a sample from another artist's work, without permission, was in complete violation of copyright law.
Some of the more recognized artists who use sampling in their work have changed the way they make music because of the tedious requirements to clear each sampled piece, all the while the Sixth Circuit is confident the bright line rule will have no effect on creativity. According to Andrew Raff [1], “the Beastie Boys pioneered the use of dense sampling on ‘Paul’s Boutique,’ ” which was released in 1989. However, Beastie Boys albums since then have not followed this same sampling technique, because of the high costs required for a label to clear the work for release. ‘We can’t just go crazy and sample everything and anything... It’s limiting the sense that if we’re going to grab a two-bar section of something now, we’re going to have to think about how much we really need it.’ In addition to the expense of sampling, these restrictions demand that artists keep records of each sample used in their work which can become very time consuming.
Another artist admitting that sampling changed the way in which he sounds is Chuck D of Public Enemy. Chuck D claims that their music was affected the most because of the way in which they took thousands of sounds and collaged them together; if separated they would be unrecognizable. Not having the means to defend themselves against a claim, Public Enemy was forced to change their whole style.
The Sixth Circuit tried tot redeem themselves of their ruling by throwing in that pre-1971 sound recordings not protected are in abundance and are up for sampling grabs. Before 1972 Copyright law did not protect sound recordings but not all pre-1972 recordings are in the public domain.
If an artist wants to use a sound recording pre-1972 legally, he/she must first determine whether the desired recording falls under state or common copyright law. The public domain provides few practical solutions for samplers trying to avoid high the costs of legal sampling.
In addition, there is a slight generation gap between those who make modern music and those who make the law. To effectively regulate or address the legal issues, courts and elected officials must understand not only the legal issues, but the technology as well. Regulation and case law thus proceeds slowly, and occasionally haphazardly.
As the technology changes, so does the playing field. Ironically, we now have situations like Sony, which not only owns a record label, but also now owns the rights to a software package called ACID Pro. ACID Pro is software that allows users to create loop-based tunes. Although Sony can claim that their software is for legal usage only, and that legal loops can be processed into songs, they still cannot hinder users from illegally lifting samples from music and creating loop-based music. Sony, in an indirect way, is contributing to the digital sampling phenomena.
One of the big problems with the current sampling law is the fact that most small-time artists cannot even contact the appropriate people to get clearance. The sampling artist has to spend lots of time just trying to figure out whom to contact, but this is just the beginning. Once they find out that they need to contact the artist/composer and the recording company that owns the production rights on the recording, they actually have to try to contact them personally. This can be exceedingly difficult for unknown artists. The money that would have to go into hiring a lawyer to look over paperwork is generally out of the question.
The logistics of determining an appropriate fee for the material used is a feat in itself, but that is just the beginning. Something that has to be addressed is who gets the compensation for the uses? Is it the recording artist that developed the material which is being sampled, or would it go to the author of the piece used? A decision here could help make the other issues easier to come to a compromise in the quest for a compulsory sampling license. For example, with radio broadcasts the recording artist is not the one receiving compensation, but rather the composer of the song. The idea here is that the composer should be compensated directly while the recording artist will be compensated through the purchase of their recordings -- recordings sold due to the saturation of the market the radio play is responsible for creating.
[edit] Other Compulsory Licenses
Currently, artists are allowed to record cover songs of copyrighted works at a set rate. When an artist commercially releases a song, that song may legally be re-recorded by anyone. To do so, the artist re-recording a song must pay a royalty fee to the copyright owner. According to the Copyright Royalty Rates, Section 115, the Mechanical License, the current rate is "9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater." [2] The royalty fees must be set up prior to releasing the cover song(s). In addition, no lyrics may be changed. If so, the song may no longer be able to be classified as a cover. The mechanical license is also referred to as "Compulsory License for Making and Distributing Phonorecords" [3]
Use of a set rate structure reduces the complexity of releasing cover songs. In addition, it helps a copyright owner collect fees owed them. Since the procedure to release a cover song generally starts off with an upfront fee based on intended sales of a cover, the copyright owner receives a royalty check from the beginning. As the sales increase over the projected sale of an album, additional royalties are collected on behalf of the copyright owner.
However, one downside to this method is that this use of a mechanical licensing system leaves the copyright owner with little control over who can perform their music. In addition, some artists have found that they may lose their market share of a song if another group re-records the song and it is more popular than the original. An example of this would be "Seasons in the Sun," written by Jacques Brel and translated by Rod McKuen. McKuen, who co wrote with Brel on many occasions, held the copyright for the English version of the song, and recorded the song around 1963. Terry Jacks re-recorded the song and eventually it became known as a Terry Jacks tune, not a McKuen one or even, for that matter, a Jacques Brel one. As far as royalty fees went, McKuen mentioned "He had a big hit with it and I've always appreciated the royalties his recording brought me, they helped pay for a new roof on my house." [4]
Another example of where a re-recording of a song can overshadow the original artist is with "Hound Dog" by Big Mama Thornton. Though written by Jerry Leiber and Mike Stoller, it was originally recorded by Thornton in 1953. Thornton's recording was able to make it to the top of the charts. But, along came a youthful and charismatic singer named Elvis Presley, who re-recorded the song in 1956. Unless one is a true Blues fan, the recording of "Hound Dog" that everyone remembers is the one by Elvis Presley. In addition, his recording of the song helped define the style of Rock and Roll for generations to come.
In today’s Digital Age, with the increasing amount of information available on the Internet, users are provided with additional ease of access to copyrighted media. As the number of people who use audio and video sampling to make derivative work becomes ever more frequent, the boundaries between fair use and copyright infringement becomes more complicated. Most music and film copyright holders view downloading and peer-to-peer networking as a major threat to their sales and are taking action to protect and defend [5] their copyrights at all costs. This is witnessed in the court battles of Newmark, et al., v. Turner Broadcasting System, Inc. et al., [6] CleanFlicks v. Kate Winslet's Breasts, [7] and the Motion Picture Group suing Alabama residents for illegally downloading films. [8]
[edit] Congress at Work
The development of the Digital Performance Right in Sound Recordings Act of 1995 states that the owner has the right to distribute means of digital transmission, which they call digital phonorecord delivery (DPD). They define DPD as, the individual delivery of a phonorecord by digital transmission of a sound recording, which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording.[9] It also discusses CARP (Copyright Arbitration Royalty Panel) proceedings where the party trying to obtain a listen has to write a report for the Librarian of Congress and then CARP determines the appropriate rates and terms. This sounds great for all involved, but the Librarian vacated this and the second schedule for a CARP proceeding at the request of the RIAA, NMPA, and Harry Fox. When BMI, ASCAP and others striving for a set rate during the second phase of the negotiations, the RIAA requested that it adopts unrestricted rates for DPD. The way that CARP looks at the DPD, it seems that this is something that could then easily be adapted to digital sampling. So again, the RIAA has tried to put an end to the freedom of our culture to appropriate and develop through sampling.
With continued petitioning from ASCAP and BMI the Copyright Office gave notice that the Librarian is adopting a set rate for DPDs. The resulting rate developed is 6.95 cents or 1.3 cents per minute of playing time, whichever turns out to be larger. Under the definition of DPDs, a compulsory sampling license should be easily adopted under the same reasoning. Sampling artists are gaining numbers by the hour and should be covered by the Digital Performing Act.
[edit] Arguments Against
More musicians have jobs when artists are forced to re-create music in the studio rather than sample directly. Weird Al Yankovic is one such artist that does this. Many hip-hop artists also do this to avoid hefty fines and litigation.
Some artists believe that it is just as important to have the right to say "no" to someone sampling your work -- just as important as it is to be able to sample. If a Compulsory Sampling License were set up, it would remove a copyright owner's control over their work. This means that their work could be used in a manner for which they do not approve. For example, their work could be used to propel a rival artist, creating an unstable market condition for the copyright owner. In this sense, it could take future revenue from the copyright owner -- both in the lower set sampling fees and the loss in market stability -- due to the competition.
Another possible problem is putting a work, or a sample of a work, into a different and undesirable context. For example, a part of an arguably "wholesome" song might be used in a much more "crude" or explicit song, thus potentially tarnishing the original image of the work. This parallels the problems sometimes encountered in advertising, where the "image" of a particular company has been tarnished due to parody or placing a logo or slogan in a different context. There are laws against this kind of use, and some would argue there needs to be laws covering similar uses of music as well. A Compulsory Sampling License would offer no protection against such uses.
The “crude usage” argument has done considerably well as a defense implemented by proponents of the copyright term extension acts. Walt Disney Studios as well as other companies have used this defense to depict how the Public Domain will harm their investments. Disney illustrated this point by showing that by allowing their characters to fall into public domain would give unsavory artists the legal ability to depict their cartoon characters in positions and in places that they (Disney) considers unfavorable. Imagine that, some of our most beloved cartoon characters in questionable situations. Who would want to see these great characters involved in drug use, in sexual situations, in anti-government situations, or in any other imaginable unseemly act that a “Public Domain Artist” may conceive. Musicians and musical artists should consider this way of reasoning when forming there own opinions, whether they be for or against, on a compulsory sampling license.
When all factors are considered though, one issue remains. The creator and originator of the work being sampled is still the owner of the copyright of the material in question. Federal law provides protection for this form of intellectual property, and it is enforceable through legal channels such as the courts. Since the Federal Government has weighed in on the matter of who owns the copyrights for intellectual property in sound recordings, the owner may choose disallow the work to be sampled. It may just come down to a matter of personal preferences, whether they need justification or not. When an individual owns these types of copyrights, why should that individual be forced to allow others to use their work, even if they are compensated fairly for it or not.
[edit] Proposed Solutions
The solution will come from achieving goals that make all involved satisfied while still promoting the sciences and useful arts. The biggest and most important thing that needs to happen is the development of detailed boundaries for the sampling of music. We also need to find a compromise that will encourage both sides to continue to create and produce work. This can be achieved by making the cost of the license low enough, but still high enough to keep original developers whose work could or will be sampled happy and producing.
Creating solutions that satisfy everyone involved will likely be a very difficult feat to accomplish. For example, not everyone involved in the music industry agrees with the Compulsory License for covering songs. Some artists feel that their songs are too personal and do not want someone else who does not fully understand the songs to cover them; other artists simply do not wish to have their song covered for other reasons, or perhaps they feel that the compulsory fee is not high enough for their benefit. On the other side of the fence, many bands and artists covering songs do not feel that they should have to pay to cover a song that has already been heard on the radio, from a recording, or even live by someone else. With this being said, a compromise could be worked out in the form of a Compulsory License for sampling of music. Since the fee for covering a song, a meager "9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater.”, the fee for sampling should not be that great either. For looped or repeated samples, a proposed solution of a fixed fee (probably $.01 or $.005 (one-half to a whole cent)) per second of the sample’s duration may be a fair compromise. Furthermore, this proposed amount could be less for each time it is looped throughout the song -- it could be set at a fixed rate, or a gradually declining rate per time it is used. For fixed samples only being used once; whether from a song or a spoken word sample, should have a separate fixed amount per second worth of sample duration. In addition, if these fixed samples are repeated throughout the song at a minimal use, another fixed amount per repetition should be applied. These rules should be applied to each distinct sample that is used per song.
Remember that this is just a proposal; the cost-per-length ratio can be easily changed to allow all parties involved to compromise on a solution, especially as the popularity of a particular song or sample can have a significant impact on its potential market value. This proposal appears as such because the amount charged per second of use is an easy formula or ratio to follow. This sort of ratio could easily be applied and expanded to cover the many types of samples that are utilized in recording today.
Another possible solution, first proffered by Dr. E. Michael Harrington of Nashville's Belmont University, was recently published in an intellectual property newsletter. See [10] (at page 5). This proposed solution, which has been coined "The 10-10-254 Call" (presumably as a jab at the proliferation of various "10-10" numbers in recent years), sets forth the following framework, from which its name is derived. The compulsory license (which, if employed, would humorously be referred to as "making the 10-10-254 Call") would only apply to sound recordings which had been made publicly available for at least ten years. This is the first "10." The new user--i.e., the party sampling the original sound recording--would only be authorized to use the lesser of ten seconds or ten percent of the original sound recording. This is the second "10." The owner of the copyright in the original sound recording (i.e., the sampled work) would be entitled to 25% of the profits derived from use of the new work (i.e., the work which incorporates the sample). This is the "25." Finally, the owner of the original sound recording would be entitled to quarterly payments, i.e., four payments per year. This is the "4." A primary strength of this approach is that it is very limited and thus would likely be employed infrequently. It leaves intact the current free market licensing infrastructure for all sound recordings which have been publicly available for less than ten years. Thus, since few works have any significant commercial value after they have been publicly available for ten years, the 10-10-254 Call would minimally impact the free market for music licensing. Rather, it may boost derived income from works that have essentially "fallen off the consumer map." A primary weakness of this approach is that the rates and figures are arbitrary and may be the source of contention. Doubtless, these rates and figures would provide fodder for heated debate, but this is true of most compulsory licenses.
Alternatively, the industry could unite for a non-compulsory standardized licensing system. By creating central clearinghouses for sample licensing (much as ASCAP and BMI serve as clearinghouses for recording rights), copyright holders who wish to allow sampling of their music to take place could register their material with the clearinghouse. This could give the sampling artist easy access to convenient listings of what work is available, a standard set of pricing for the use of that material, and a single location to send payments for the various samples used, rather than needing to engage in a series of negotiations and ongoing separate payments for each source sampled. It would also allow copyright holders who would prefer not to have their work sampled the ability to opt out by not opting in, and this could all be achieved without government interference.
The other big issue is to make questions and information about infringement and licensing easier to obtain. If we make this information readily available, people will not be as worried about infringing and can help themselves develop their work without as much time being committed to legal issues. The next issue would be making the negotiations of obtaining the license much easier. If we can create a system that would encompass all of these things then our goal of creating a compulsory sampling license would be a success.
Another way to solve the issues of a compulsory license would be to look at compulsory licensing and how it applies to p2p networking. Sampling music and p2p networking are two very closely related topics where people continuously find themselves in hot water. By looking at p2p networking and compulsory licenses, similar actions can follow suit for a compulsory license on sampling music. Fair use lobbyists have supported the idea of compulsory licenses as a solution for p2p networking. The idea is that such a license would establish a “common ground” with major music labels and possibly put an end to file sharing disputes. The compulsory license would charge Internet users a little more for Internet access and their ISPs would forward this fee to a collection agency that would in turn distribute the royalties to the artists. Of course, such a system would have to stay impartial to the artists and stick strictly to benefiting the artists. A compulsory license on p2p networking would be an easy and effective solution that would benefit everyone, bridging the gap between recording labels/artists and pirates. This might be part of a possible solution when approaching compulsory licenses for sampling music, since many samplers use p2p networking as a means of collecting resources for their work. A compulsory license on sampling music would certainly level out the competition, forcing royalties to be divided among artists based upon consumer results.
The biggest problems arising from compulsory licenses placed (more likely FORCED) onto p2p users would be one of tracking which artists’ music is shared and how much or how many times it is shared. This can be broken into two major parts of deliberation.
One part of consideration is how this form of file sharing is to be tracked. What would be the method in which ALL p2p programs are to be outfitted (programmed) with a standard system of tracking the traffic on these networks? There would have to be a standard set so that all costs are incurred equally, and be able to bridge the many different programs used in this manner. In other words, users must be charged the same amount for the same song if they use LimeWire, Morpheus, Zeropaid or any of the other programs available. The big problem with this is there is an enormous hurdle to overcome in convincing ALL p2p users that this is a good idea or that it is beneficial to them in some sort of way. All users must be tracked if this is to be utilized in any viable manner (see next paragraph). Most p2p users prefer to stay below the radar, so to speak, on the subject of their filesharing activities. Tracking the p2p sharing data would not entice many users to do the right thing and submit to these sorts of rules placed on file sharing (No doubt that the RIAA would love to get their hands on something like this).
Furthermore, p2p users are mostly trading files for free at this time. While there are some users out there that would do the right thing and pay for their shared music, many more users would prefer not to pay any fees whatsoever. Thus the old adage of “getting the milk for free…” may be applied to this situation. Most file sharing and p2p programs are open source for a reason; this way, many users may contribute to the code and design to help make it a better program. This helps the program evolve to overcome obstacles and to help streamline the process of sharing betwixt users. Thus, users may just remove the tracking routine from this open source program as a way of defeating the tracking system. Or, if companies that are creating these programs are forced to institute a tracking routine, they will simply be replaced with newer programs that have found a way to circumvent said tracking routine (“…if you build it they will come.”). Lastly, users may just not update to newer versions of the programs if they realize that there are going to be new tracking routines in them.
As stated above, “All users must be tracked if this is to be utilized in any viable manner.” This brings up the question of what the program will track. Are we to track every file that is shared or just the music files? How is the program to tell the difference? Would a user simply be able to change the type extension to fool the program? For example, a user could just change the”.mp3” to “.txt” and this may fool the program on the surface. However, if the program digs deeper into the code to determine the type of file, this may be considered an invasion of privacy. Consider the following scenario: Are we to charge people for using something like Yahoo! Messenger for simply chatting with friends? After all, Yahoo! Messenger has the capabilities of allowing users to share files. I have shared photos quickly and easily with this before. This asks the question: if our shared files are tracked, isn’t that an invasion of privacy? I believe that this would be considered an invasion of privacy if all we are sharing were personal and private files or conversations. In an extreme case (or not so extreme following some companies' latest trends in personal data collection), this personal information could easily be tracked and stored in a database somewhere for some company (-ies) to use at some future point. Such a store of knowledge would have to be stored on a network somewhere and would be enticing for many to try accessing (hacking) the information contained therein. This poses a great security risk that many companies are willing to take if the data will better allow them to target you based on your preferences. Long live the almighty dollar!
The second part of the problem is the fact that without tracking p2p usage there would have to be an umbrella fee placed on all Internet users to make this solution work. This umbrella fee would be a way for a few companies to charge EVERYONE with internet access a fee just for having this access. Needless to say, people that do not use these file sharing and p2p programs would not appreciate the increased Internet access cost that is forced upon them. It would be considered unfair by many internet users that have this fee unjustly thrust upon them. This is a way for the many to be paid for by the many more.
