A Real Solution to the Piracy Problem

Given that I recently went off on a bit of a rant about Cory Doctorow and his repeated failure to propose a workable solution for the problem of online piracy, I thought I would take a few minutes and suggest a possible solution that I think makes a bit of sense and wouldn't be that hard to institute. It has the benefit of also being a solution that fits with Bono's criticism of piracy that Doctorow used as his jumping off point on Twitter for his usual mindlessly didactic self-repetition.

The fact of the matter is that copyright of certain kinds of intellectual property is complicated. It is particularly complicated for music and with the rise of DVD sales and streaming video on the internet is poised to become much more complicated for visual media as well.

Take for example the MP3. Any MP3 which is not in the public domain is protected by not one, but two copyrights. The first is the "recording" copyright, which is the copyright of the master recording from which the MP3 is ultimately derived. Secondly, the content of the recording, whether it be a song as it usually is, or a spoken text of some kind, is protected by the "publishing" copyright. Complicating this potentially simple issue is the fact that oftentimes the two different copyrights are owned by different people. This is the case when, for example, Miley Cyrus releases a record with her performing the Nine Inch Nails song "Closer." Cyrus would own the recording and most likely license exclusively to her record label to make and distribute derivative copies of that master. In return the label would pay her performance royalties for their use of the phono copyright. If you look at the liner notes you'll see a little p with a circle around it. This is the notice that it is a protected sound recording. The song itself, however, is owned by Trent Reznor, and the label would also have to pay him what is called a mechanical royalty for the sale of the recording which "contains" his intellectual property. This mechanical royalty is actually fixed by statute and gets paid to every songwriter everytime a recording of one of their songs is sold. At least in theory. This could get quite complicated which is why there's a company in the US that handles all of this for everybody. It's called the Harry Fox Agency, and it's the source of all the money that the richest rockstars take in.

Now here's where it gets interesting. The song, but not the recording, is also protected against public performance without a license. What this means is that whenever a radio station, for example, wanted to broadcast this recording of Miley Cyrus performing, they are required by law to pay Trent Reznor (but not Miley Cyrus) a performance royalty. Think for a second about all the millions of songs that get played on different radio stations and in jukeboxes in bars and nightclubs all over the world. How on earth would they ever manage to pay all those royalties? The paperwork alone would be crippling. Enter Performing Rights Organizations.

Performing Rights Organizations are non-profit corporations that track the performance of the copyrighted works of their members and charge licensing fees to broadcasters, live music venues, jukebox distributors, and really any body who is performing copyrighted works. They then look at what was played most and then divide their takings less their overhead among their members depending on the proportion of each members work as represented in the whole of the total licenses collected. Man that sentence sucked. But this is real. You've heard of these agencies. They're called ASCAP, BMI, and SECAM in the united states, and you'll see their names on the liner notes of your records next to the song copyright notice.

What I think ought to happen in order to deal with piracy is just to start treating ISPs as record labels. They are in fact functioning as distributors of this stuff, so it makes sense that they be charged like them. In turn they would pass along those charges to subscribers. People who wanted to download more from non-pay sites or through certain filesharing protocols that the ISPs could establish in sockets specifically dedicated for this purpose would pay a different subscription price or a price per megabyte on the specific socket or whatever. All of the money from the ISPs could then be aggregated by a Digital ASCAP or Digital Harry Fox Agency of some kind, depending on whether the model of mechanical or performance royalties was used, and this non-profit group could then be tasked with accounting for what got transferred around and what didn't and divide the licenses from the ISPs accordingly. I think this is similar to what Bono was suggesting in his article given the fact that he's no doubt gotten millions of dollars in checks from Harry Fox and BMI over the years and knows how efficient that system is. And he's right that the ISPs are the ones who are really getting away with something for nothing here. Broadband adoption has been driven by the demand for faster downloads of larger files, and Broadband companies have been making a fortune off of that expansion without passing on any of those profits to the people who own a lot of the content they've been distributing.

Such a solution would also give us the benefit of allowing record labels to stop hindering online distribution through pay clients like Itunes with obnoxious DRM.

So there you have it, a sensible solution to digital piracy well within the realm of possibility for current technology, and you don't have to go to any copyleft, creative commons, anarcho-libertarian bullshit from the pocket protector ron paul brigade that is geek nobility to do it. Because honestly the sooner we can get past having to listen to Doctorow and the Open Source crowd and just get on with the business of making and selling things digitally, the happier I'll be.


So all of our downloads would

So all of our downloads would be tracked under this system, right? I imagine that would involve tracking most of our internet activity, otherwise too much would be missed and there would be no way to pay the appropriate people the amounts that are due to them.

How would it account for the broadband customer a few doors down that I'm piggybacking off of?

Don't most radio-friendly bands have labels paying for spins, like in the case of Miley Cyrus, Linkin Park, Taylor Swift, U2, etc.?

How would it account for the

How would it account for the broadband customer a few doors down that I'm piggybacking off of?

If you were nicking my wifi, I'd much rather get hit up by my ISP for a higher subscription price in a monthly bill because you're downloading via certain sites or protocols (at which point I'd go "D'oh!" and secure my wifi,) than suddenly have the IRAA demanding one billion billion dollars and my firstborn child (at which point it's too late to do anything but call a lawyer).

Theoretically, the ISP wouldn't even have to track *who* is downloading, just *how much of what* is being downloaded. Consider it in terms of nightclub DJs rather than radio DJs -- because they're also, as I understand it, supposed to take a note of what songs they play and submit this to the relevant folks (in the UK it's MCPA/PRS) who then charge the night club and distribute the royalties. The DJ doesn't have to track who dances to what song. The club doesn't charge the customer per dance. It doesn't even have separate entrance fees for those who want to dance and those who just want to sit and drink. It doesn't care if you don't even listen to the music at all, just spend your time at the bar chatting someone up. Similarly, an ISP could just apply its usual charges for different levels of internet access and not give a fuck what you're downloading as long as those charges cover the cost of the royalties they have to pay. Either way, the onus is on the ISP. And it seems a lot fairer and more workable to put it there. They *are* service providers and in this day and age, a vast part of that service *is* access to downloadable music. They're profiting off it in the same way a nightclub profits by offering access to danceable music, and their profits come from those who're paying for that access, so a system in which those profits are used to pay the artists what they're due seems only sensible.

Don't most radio-friendly bands have labels paying for spins, like in the case of Miley Cyrus, Linkin Park, Taylor Swift, U2, etc.?

As I understand, pay-for-play / payola is a separate kickback scheme the major labels use to promote certain artists (like front of store placement in book publishing). The stations will still have to pay the royalties (like Borders still has to buy the stock).

yep, exactly. also, Payola

yep, exactly.

also, Payola isn't payola anymore. Last I checked it's paid to independent promoters who don't just pay djs and radio stations. Its more like marketing and lobbying than it is straight bribery.

you don't have to track

you don't have to track everything. ASCAP and BMI dont track EVERYTHING. They track a statistically valid sample and use to create a model of the whole universe of performances. This is then used to figure out what percentage of the license fees go to what member artists. Similarly, ISPs could have "opt in" dowloaders, people functioning like nielsen families, whose downloading is slightly subsidized by the ISPs in exchange for access totheir downloading habits.

or alternately, the ISPs can designate certain ports on the network for filesharing, duplicate all the packets going through those ports, strip out the addresses, and use that as a record of everything going over their network without any record of what went where.

altho frankly i find expectations of privacy on the internet to be a bit ridiculous. the internet is a big ball room, a bazaar, a circus, and a fair. None of those places have any particular protection of privacy beyond the usual guarantees of personal bodily integrity that the internet can't access. I see no reason to think that we should have MORE privacy on the web than we should in any other public activity.

which, to get back to Cory Doctorow, is another reason that he's a great big dick, because he thinks there is a right to privacy in there somewhere. Which is ridiculous.