[IP] Re: Music industry proposes a piracy surcharge on ISPs

[David Farber <dave@farber.net>]

________________________________________
From: Fred von Lohmann EFF [fred@eff.org]
Sent: Saturday, March 15, 2008 8:46 PM
To: David Farber
Cc: Cindy Cohn
Subject: Fwd: [IP] Re:   Music industry proposes a piracy surcharge on ISPs

Cindy forwarded JZ's message to me from the list.

Just to be clear, EFF does not support a "tax on ISPs" in exchange for
legalizing music file sharing. What we have supported since 2003 is a
voluntary collective licensing solution, similar to the approach used
by ASCAP/BMI for licensing of radio stations, restaurants, and bars.

<http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing
 >

The key distinction is that such a system is not compulsory, either on
consumers or on copyright owners.

We don't have a "tax" on restaurants in favor of musicians -- if a
restaurant doesn't want to play music, or wants to play solely public
domain or CC-licensed music, it doesn't need to pay. The same should
be true for Internet access -- if you want a blanket license for all-
you-can-eat downloading, you pay for it. If you don't, you don't. Same
goes for rightsholders -- no one forces you to be a member of ASCAP or
BMI. You get to choose whether and which.

Of course, this means that some level of enforcement activities will
persist, just as ASCAP hires investigators to catch those who play
music but don't pay. The good news is that these enforcement costs
will ultimately result in a "market price" -- there is some price for
the license that will maximize revenues by minimizing consumer
defections (I'm guessing around $5/month, but let the market decide).
If rightsholder try to charge $50/month, then the defections will
rise, thereby increasing enforcement costs and reducing overall
revenues. A "tax", on the other hand, has no similar self-
equilibrating market mechanism.

But I agree with JZ that the overall goal has to be a system that ties
compensation to abundance and ubiquity, rather than scarcity.
Collective licensing does that, in my view, better than "tax"
approaches. But either seems preferable to the broken system we have
now, where calls to stem "piracy" are putting many more important
public interests (privacy, innovation, creativity) at risk.

Fred
--
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org  +1 (415) 436-9333 x123

Begin forwarded message:
>
>> From: David Farber <dave@farber.net>
>> Date: March 15, 2008 3:13:48 PM PDT
>> To: "ip" <ip@v2.listbox.com>
>> Subject: [IP] Re:   Music industry proposes a piracy surcharge on
>> ISPs
>> Reply-To: dave@farber.net
>>
>> If my memory serves me right EFF, at least the Board, had mixed
>> feelings djf
>>
>> ________________________________________
>> From: Jonathan Zittrain [zittrain@law.harvard.edu]
>> Sent: Saturday, March 15, 2008 11:26 AM
>> To: David Farber
>> Subject: RE: [IP] Music industry proposes a piracy surcharge on ISPs
>>
>> Dave,
>>
>> From what I can tell from Jim Griffin's reply, he supports a tax on
>> ISPs in *exchange* for legalization of music sharing among those
>> ISPs' subscribers.  If that's what he's saying, then it could
>> represent progress -- a good chunk of the pressures to surveill and
>> control users' online behavior will evaporate if content publishers
>> see benefit from abundance rather than scarcity of their work.  A
>> number of scholars, including Terry Fisher and Neil Netanel, have
>> proposed a scheme like this, and EFF has been supportive.  See
>> <http://www.wired.com/entertainment/music/news/2004/05/63474> for a
>> story about it from 2004, and <http://www.tfisher.org/PTK.htm> for
>> chapter 6 of Fisher's chapter, which methodically lays out the case
>> and responds to many of the reasons to be skeptical, including the
>> observation that non-consumers of the music covered would be paying
>> for something they don't use.  See also <http://www.noankmedia.com/>
>> for a venture founded by Fisher that's experimenting with this system
>> in China.  ...JZ
>>
>>
>> -------------------------------------------
>>
>
>
> ********************************************************
> Cindy Cohn                            ---- Cindy@eff.org
> Legal Director                        ---- www.eff.org
> Electronic Frontier Foundation
> 454 Shotwell Street
> San Francisco, CA 94110
> (415) 436-9333 x108
> (415) 436-9993 (fax)
>
>


-------------------------------------------