A Reuters story quotes RIAA head Hilary Rosen as saying that ISPs should be held responsible for their users’ file sharing:

“We will hold ISPs more accountable,” said Hillary Rosen, chairman and CEO the Recording Industry Association of America (RIAA), in her keynote speech at the Midem music conference on the French Riviera.

“Let’s face it. They know there’s a lot of demand for broadband simply because of the availability (of file-sharing),” Rosen said.

[…]

Rosen suggested one possible scenario for recouping lost sales from online piracy would be to impose a type of fee on ISPs that could be passed on to their customers who frequent these file-swapping services.

Perhaps she is suggesting a compulsory license (users pay a flat fee, then get free access to copyrighted music), as others have suggested before. If the RIAA were supporting a compulsory license, that would be big news.

More likely, her plan is a lopsided one in which users pay a fee but don’t get free access to music, or anything else, in return. If so, the plan would probably only increase the number of users of file sharing systems. Many users already find ways to rationalize their use of file sharing. Imagine the user who, unlike many of his peers, has resisted the temptation to use file sharing; and then he learns that he is being forced to pay the RIAA anyway on the assumption that he is a file sharer. What are the odds that he’ll start using file sharing, since he’s paying for it whether he uses it or not? Pretty good, I’d say.

The RIAA’s biggest problem is the public’s fading respect for the legal limits on file sharing. A step that erodes that respect even further is exactly what the RIAA doesn’t need.

Siva Vaidhyanathan offers a post-Eldred perspective over at Salon.

He’s on television tonight too, talking about copyright, on “NOW with Bill Moyers,” airing on most PBS stations at 9:00 PM.

Also check out his new blog.

The Supreme Court has ruled in the Eldred case, upholding the copyright term extension by a 7-2 vote.

More later, once I get a chance to read the opinions.

majority opinion by Justice Ginsburg;
dissent by Justice Stevens;
dissent by Justice Breyer

At this week’s Future of Music conference, Terry Fisher of Harvard suggested yet another variation of compulsory licensing for online music. The basic idea is to slap a tax on computers, or on Net access, or on something else you need to get music online. Then the taxpayers can listen to all of the online music they want.

Seth Finkelstein points out, correctly, that the devil is in the details. These schemes don’t seem nearly so elegant when you flesh them out fully. Still, as I have written before, the compulsory licensing meme is so persistent that it deserves serious analysis.

Nearly all compulsory license plans split up the revenue among different copyrighted works, according to the size of the audience for each work. The audience sizes are estimated by random sampling. Fisher’s plan, for example, would embed a watermark in each work, and then use the watermarks to tabulate usage.

Finkelstein objects that this kind of scheme would require a ban on non-watermark-compliant music players, to make sure that usage is properly counted. I’m not sure this is right. As Neil Netanel has pointed out, most people are likely to want their usage counted, so that the artists they listen to get a bigger share of the pie. Because of this, most users won’t want noncompliant players. And if the watermark doesn’t try to be nonremovable, the engineering cost of reading it will be low. So it seems that most players will participate in the counting process, even if it isn’t required.

There are at least two problems relating to this kind of measurement, though. First, users will have an incentive to over-report or mis-report what they listen to. Sure, I would like to see money go to my favorite artists. But I would like even more to see it go to my brother, so I have an incentive to claim that I listened fifty times to my brother’s off-key rendition of “Feelings.” Worse yet, I have an incentive to erase the watermark from a Britney Spears song, replace it with the Peter-Felten-sings-Feelings watermark, and then distribute the Britney song like crazy, so that Britney-lovers boost my brother’s income.

In some ways, music usage data would resemble TV ratings, which also try to estimate home media-usage habits of ordinary people.

Back when the Nielsen TV rating service asked homes to keep TV-watching diaries on paper, there were persistent reports of people writing down what they wished they had watched instead of what they did watch. They might claim to have watched their favorite show every week, even when they didn’t; or they might omit lowbrow or unfashionable shows. They might claim to have watched a show if their friends liked it and it was in danger of being cancelled. (You might argue that these biases improved the overall quality of TV. That may be true, but there is no doubt that they caused the ratings to reflect something other than the actual audience size of the shows.)

I realize that some existing compulsory license regimes rely on sampling. But it’s one thing to sample what is played in a public setting, and another thing entirely to sample what happens in people’s homes. The measurement problem for compulsory net-music licenses is not insurmountable, but I think it needs more thought than it has gotten so far.

On Thursday I critiqued a New York Times story (which appeared in the print edition on Friday) about the expiration of some European copyrights on recorded music. Joe Liu points out that the Times has changed the story to address one of the issues I raised.

The original story said:

Defenders of the copyright laws, like Mr. Turkewitz, argue that, if anything, American laws are still too lax and that the European laws are totally inadequate.

This was a strange way to put it, since, far from defending the copyright laws, Mr. Turkewitz was offering fairly harsh criticism of them. The Times subsequently changed the story to read

Defenders of extended copyright terms, like Mr. Turkewitz, argue that, if anything, American laws are still too lax and that the European laws are totally inadequate.

It seems clear from the context that the laxity and inadequacy that Mr. Turkewitz sees are in the length of the copyright term. If so, then the modified sentence is accurate but vacuous, akin to saying, “Defenders of tax cuts argue that, if anything, taxes are too high,” or, “Defenders of increased exercise argue that, if anything, people don’t exercise enough.”

The original version, though, more accurately describes the record industry’s self-image. They seem to see themselves as defenders of the copyright laws, as opposed to advocates of a particular version of copyright law. Further, they tend to view people with different views about copyright law – even those who view the current copyright laws as just about right – as opponents of the copyright laws and even of the basic principle of copyright.

The first time I had a private conversation with a record company (not RIAA) executive, he seemed very surprised to learn that I was not totally opposed to copyright. The only public positions I had taken at that time were (a) opposition to the DMCA, and (b) skepticism about the feasibility of DRM. To him, it was just obvious that anyone with those views must oppose copyright altogether. His first question to me, in fact, was whether I could envision any situation where copying was wrong.

So I’m not surprised to see that an RIAA honcho would think that any defender of the copyright laws would necessarily support arbitrary extensions of copyright. I’m glad that the Times ultimately saw the error of that view.

[By the way, does anyone know which version of the story appeared in the paper version of the Times on Friday? I don’t have a copy.]