November 27, 2020

Compulsory Licensing: Responses

I have gotten several interesting responses to my posting on compulsory licensing of music.

Ernest Miller at LawMeme offers a tongue-in-cheek response. (At least I think it’s tongue-in-cheek.) He says that the same logic that supports compulsory licensing of music would also support compulsory licensing of pornography (requiring everybody to pay a tax to support pornographers).

Adam Shostack offers some good criticisms of compulsory licensing. He writes

The first [criticism] boils down to the ugly details of compulsory licenses. What do those who connection share do? Net cafes? In Pakistan? Do they pay $5USD a month? What can I then do with my music? What if I don’t keep any music that I don’t buy; do I still pay the tax?

Good point. All of these issues would have to be negotiated, and we know the result would be non-ideal. The strongest claim that can be made here is that the existing system has serious problems with compliance and enforcement, and the compliance issues with compulsory licensing, while real, aren’t any worse and might actually be better.

Adam also argues that DRM-style technology regulation, as in the Hollings CBDTPA, would be required to enforce a compulsory license. (He even makes a sharp but good-natured wisecrack about starting up “Ed’s Hit List.”) I disagree with him here. The plan would require collecting a tax on technology devices (or Internet service) but once you paid your tax you would be home free, to do whatever you want with your technology. In my view there would be less call for technology mandates in a world of compulsory licensing.

Finally, Adam writes

The second reason that compulsory licensing is a bad idea is that it freezes progress. In a fairly few years, the labels have moved from no negotiation to PressPlay. We’ve had fascinating ideas about how to reformulate copyright from Jessica Litman. We’re likely to have more. But a compulsory licensing scheme will freeze progress way too early.

Another good point. If we keep blundering along on the current path, we might eventually discover a better solution. A compulsory license would lock us into a poor solution, whose only possible virtue is that it isn’t quite as bad as the current state.

In response to these suggestions, let me just reiterate that I am not advocating compulsory licensing. I wasn’t just being ironic when I said it was a “bad idea” and “hard to stomach.” The fact that it is getting any serious consideration says a lot about the magnitude of our current problems.