Reihan Salam has a new piece at Slate about voluntary collective licensing of music (which was also the topic of an online symposium organized by our center at Princeton). I’m generally a fan of Reihan’s work, but this time I think he got it wrong. His piece starts like this:

What would you do if a bully—let’s call him “Joey Giggles”—kept snatching your ice-cream cone? OK, now what if Joey Giggles then told you, “If you pay me five bucks a month, I’ll stop snatching your ice cream.” Depending on how much you hate getting beaten up, and how much you love ice-cream cones, you might decide that caving in is the way to go. This is what’s called a protection racket. It’s also potentially the new model for how we’ll buy and listen to music.

[…]

Now Big Music is mulling the Joey Giggles approach. Warner Music Group is trying to rally the rest of the industry behind a plan to charge Internet service providers $5 per customer per month, an amount that would be added to your Internet bill. In exchange, music lovers would get all the online tunes they want, meaning that anyone who spends more than $60 a year on music will come out way ahead. Download whatever you want and pay nothing! No more DRM! Swap files to your heart’s content—we promise, we won’t sue you (or snatch your ice-cream cone)!

This idea, that collective licenses amount to extortion – pay us or we’ll sue you – is often heard, but I don’t think it’s a valid criticism of collective licenses. The reason is pretty simple: if this is extortion, then all of copyright is extortion. The basic mechanism of copyright is that the creator of a work gets certain exclusive rights in the work. Exclusive rights means that there are certain things that nobody else can do with the work, without the creator’s permission. “Nobody else can do X” is another way of saying that if somebody else does X, the creator can sue them. When you buy a licensed copy of a work instead of downloading it illegally, what you’re buying is an enforceable promise that you won’t be sued (plus the knowledge that you’re playing by the rules, but that is intimately connected to the lawsuit protection). So the basic mechanism of copyright involves people paying a copyright owner for a promise not to sue them.

To put it another way, if you accept our current copyright system at all – even if you accept only a streamlined, improved version of it – then you’ve already accepted the kind of “extortion” that would be used to sell voluntary collective licenses. The only alternative is a complete redesign of the system, more complete even than a voluntary collective license.

Reihan does recommend a redesign. He endorses Terry Fisher’s suggestion of a government tax on broadband access, with the revenue used to pay musicians based on the popularity of their songs. This system has its benefits (though on balance I don’t think it’s good policy). But if you start out worried about strong-arm extraction of money from citizens, a mandatory tax scheme is an odd place to end up.

This is the fundamental problem of copyright policy in the digital age. It’s easy for people to get copyrighted works without paying. So either you forgo payment entirely, or you give somebody the mandate to collect payment. Who would you prefer: record companies or the government?