Monday, October 25, 2004

Considering the DMCA

I see in the news today that John Kerry has made some vaporous comment about "considering" changing the impact of the Digital Millenium Copyright Act (DMCA), the weapon of choice for the Recording Industry Association of America (RIAA) in their fight to keep the river of money flowing into their coffers. Slashdot is carrying coverage of it in their new "Politics" section, and all of Geekdom has risen, flamethrowers in hand, to discuss it.

Whenever I read a discussion on the DMCA or a related topic on the web, I'm always amazed at the number of people that seem to be completely against the idea of any sort of copyright protection on anything. They somehow feel like it's their inalienable right to rent a DVD, make a copy of it, and share the copy on the Internet for anyone to download. The same goes for music. The early MP3-swapping craze showed that people have no respect for producers of the media they consume. The common chant is, "We prefer that money go to the artists, not the record producers." Okay, so how does you trading tracks with your buddy give the drummer for your favorite band the ability to pay his rent?

Having said all that, the majority of Congress, as well as the President, should be embarassed for letting something like the DMCA get passed. I put this admonition most directly on the President, as he is one person with the power of veto and should be considerate enough to see the ramifications of such a law. It ranks right up there with The Patriot Act in removing freedoms from Americans, as well as (evidently) those abroad. What's needed instead is a redressing of the whole core issue of content distribution and licensing that is simple and clear enough for everyone to understand, yet robust enough to address current and future distribution technologies.

A law that truly recognized the coming of a digital millenium (that's a thousand years, people) would separate media (the delivery mechanism) from content (what the consumer sees or hears, though sight and sound are not the only means of consumption or use), and both of those from licensing. Consumers have the responsibility to recognize and honor the fact that, when they consume or use a product that they did not produce, they need to pay for it in some fashion. Content distributors need to get over the idea that consumers should only use their products within the narrow band of options that they've graciously handed down. Content should be licensed for use, and the limitations should be on the order of personal use, broadcast use, or commercial redistribution. At that, the latter two are really only one, though there's enough grey area in the definitions of those to allow abuse, so in the interest of clear definitions, I suggest two categories.

A license for personal use of multimedia content should be just that; a consumer purchases content through some sort of delivery mechanism (media) with a license to use it themselves. The usage license should not include redistribution of any sort through replication, i.e. the purchaser cannot make a copy and give it to their friend. On the other hand, the purchase of the license should be for whatever sort of media the user chooses, and licenses should not have to be purchased twice. For instance, a consumer should not have to purchase music tracks once on cassette tape, then again on the higher quality CD, then again in one of the more convenient portable digital formats like OGG or AAC. Purchase of the license is for, in this case, listening to a music track. If someone can demonstrate that they own a license for content (such as by possession of a commercial CD), they should be able to use that content in any way they like on any device so long as it doesn't extend beyond the boundaries of personal use. In much the same way as I can have a bunch of friends over to the house to watch one of my DVDs, it's outside of the usage permissions to charge for tickets at the door. But if I want to rip the movie track to a DiVX file on a media server and keep the original DVD and its jacket away from my best friend's two year old, I shouldn't have to worry that I'm violating some federal law in doing so.

Broadcast licenses should be just as simple. If a consumer wants to redistribute content to a wide audience without specifically charging for individual pieces of content, they would need a broadcast license. Commercial radio stations or home-cooked DSL streaming media servers, file shares or public broadcasting stations, all would need a broadcast license. Licenses would likely come from the publisher in different "sizes" meant to address projected audience classes, but the base license would be the same; if you're going to broadcast this content, pay an appropriate royalty. Consumption of content from a broadcast-licensed media would confer only a personal usage license unless another type of license was purchased separately.

A commercial redistribution license is the one that is probably best understood and best addressed by today's standards. Record companies like Arista and Sony give licenses to redistributors like K-Tel and Columbia House to repackage and resell music and movies regularly. Apple and others have licensed music from those same producers to resell iTunes tracks to great levels of success. This licensing model is on a fast track for growth, and would probably grow even faster if the above-described personal content licensing scheme was widely adopted.

As with any broad-sweeping change in the way the public consumes things, a short period of chaos would ensue if these standards were put into effect. Everyone with an 8-track tape would be digging them out and using them to prove that, indeed, they have a license for Dylan's It Ain't Me, Babe that's stored on their Rio music player, and I'm sure that the newly-reformed Napster would be inundated with requests to download content without making payment. "I've already got it on vinyl, but I want it in MP3 as well, and I don't want to buy another license." In that case, it should be up to the consumer to "possess at their own risk," and Napster should not be held accountable to verify the veracity of their claims, if in fact they let the user download the tracks in question at all.

But with freedom comes responsibility, though, and content consumers should embrace their responsibility to the system as a whole. If, for instance, someone purchases a CD and rips it into OGG Vorbis files to store on their new all-in-one cell phone/PDA/music player, they shouldn't feel free to distribute that file to everyone on their instant messaging "friends" list. When you can get coupons for music tracks on Whopper wrappers and under Pepsi caps, the barriers to entry are extremely low. And, if consumers and producers both respect the system, the digital millenium can proceed with one less ball and chain holding it back in the twentieth century.

41 comments:

Anonymous said...

once information is out, it will be distributed without compensation. this is simply due to the fact that it's impossible to control the medium. now we have multiple mediums - the internet is fragmenting as i can go wireless to local nets without jumping on the backbone.

that said, content creators may have to go back to directly being sponsored by fans. the go-between for such an advance/commission would be some sort of business entity, sure, but artists could do it themselves.

example: LocalBand plays shows and amasses a following. they make enough to record some music (on the cheap). on the distro site for the music (where yes it is downlaoded for free), they ask people to contribute towards the next recording. once enough people pay up, they record. if not enough people pay, that band goes away. while waiting, the band continues to tour, marketing themselves however they can.

if everyone participated in such a system, there'd be instant feedback about which bands were good. popularity alone wouldn't decide, since bands have quite a few levels of production cost they can enter at. if i sing with my guitar and tape recorder, then drop MP3's on the internet, then perhaps if i'm very good, people will pay enough for a better microphone/tape recorder/guitar. if not, i suck and go away - or live on in my own self-funded way.

this is much closer to the original way muscians journeyed around and made a living, and smacks in the face the notion that pre-produced products like pop "artists" are the way to create a legacy.

record companies now simply act as a huge lending program for bands, then market them through saturation of current media channels. There's no need to have bands screened by record producers - the world is waiting to screen them themselves. hundreds of online radion stations have the infrastructure already built to accept opinions about streamed music. these folks pay for the streaming content, which in turn can supply money directly to bands to keeping recording. these online radio stations suffer from a lack of money to start such a system.

The DMCA is just a Old World reaction to a huge shift in how a market works. your concept of people who pay for something are the only ones who get to enjoy it will die; this is also Old World. People need to pay for the creation of content, but once created, it will be free (like it or not). The costs of creating it will go up, and the channels for how creators get funded need to appeal directly to consumers. without that, we have a silly system.

the infrastructure exists now. if you watch a tv show you downloaded from anywhere (paying only for bandwidth usage), and it pleads with you to contribute to a certain account at the end of the show, and you don't...what happens? people end up without any shows to watch. no wait - long before this happens, everyone notices how there's not much new content coming up, so will you throw some money into new content? sure! that's how political campaigns, charities and lots of other systems work now. will creators group together to create packages, pooling their combined income? yes, of course, and voila - you have the rebirth of production companies. but now, they make money on the promise of new exciting content not on the frequency of old content getting consumed.

Artists cannot be paid based on how many times their content is consumed. they is no easy line any more to decide what fair consumption is. Humming a tune? If you're at a girl scout campfire, you owe ASCAP money. yeah, complete bullshit. but today, the some camps obey such a law. If i tell you the spoiler of a movie plot, if i tell you the weather i read, or some news i learned, or the plot of some book, or sing a song - do i owe the creators money? not yet. but the line is slowly moving in that direction.

the distribution on content using the new digital medium to circumvent existing channels is for now, illegal. but through this small act of civil disobedience, hopefully, the markets will shift to streamline to a New Way - perhaps something akin to whats described above. Until then, most of all this DCMA stuff is people just fighting for the status quo, which dies a violent death every time.

J.D. Ray said...

I agree that ultimately content, like information, "wants" to be free. But while our proposed methods clash somewhat, they're not wholly incompatible. For instance, the monetary cost of a license can easily be zero for any license, or zero for a Personal Usage license and some amount for the other types. Furthermore, the licensors may (should) end up being the artists themselves. They should choose how they want their content distributed and handled.

The one thing you forgot to address is the factor of mass apathy. When's the last time you contributed to a political campaign of any sort? Sure, the total dollars collected for the DNC and RNC are incredible, but they're often (Howard Dean's campaign notwithstanding) funded by people with a lot of disposable income. Most people would be content to consume whatever content was available because they wouldn't be ready to gamble their hard-earned dollars on pre-purchasing something they may or may not like. The end state would be that the content that got produced would be what was preferred by people with large sums of disposable income.

I hear your argument, and in a lot of ways agree with it. I think, though, that the current system grew out of the fact that most artists are artists, and not some magical blend of artist/producer/manager/marketing agent. A few of them either excel at all (or many of) those things, or can afford to hire those that can, but the hiring is what turns into consolodation, which begat the system we have today.

I think our content distribution system is going through a period of radical change, and we're going to see a completely different system five years from now from the one we have. But we both know that instant freedom isn't going to happen, and those with current rights to things aren't going to let them go. A change in the way things are licensed would help the tide turn without the need for a typhoon.

JD

Anonymous said...

you seem to ignore the ways that my suggested system already works. are you a member of NPR? MoveOn.org? CableTV? do you know anyone who belong to a church? do you donate to charities?

all of these systems work through the promise of "continuing our good work". If ticket prices for TV show recordings, radio show audiences, or muscians' shows included an extra dollar or two for recording the next originals, wouldn't you pay it?

if you paid it, and the content was free, would you be upset that i had it in my collection, although you paid for it? possibly, but you'd also be enjoying other content based on this practice, so the net result is nil.

this method is the only way to secure funding for artists: pay them before the content exists. afterwards, the infrastructure will never, ever catch up to secure the entire spectrum of transmission and delivery - unless you know of a way to lock someone's senses until they pay you.

the system is simply really. if people found that existing content was free, eventually we wouldn't have folks hording the same music, videos, books, etc. so much wasted space and effort just to ensure "i paid for this, i'm keeping it." perhaps we should think "the artist was paid for this and released it, it is in the public domain."

will artists become rich? sure. if lots of people contribute to the next Peter Gabriel song by sending him money through his web site, he can create a song using equipment he already owns, spending none of the new money on that song, merely copying it to the server when done. If he'd rather retire and just let the ever-dwindling stream of money come in without any more releases, so bit it.

This system is so flat, so simple, that it only suffers from "being heard". A new artist has to make a big splash to be noticed. And thus, we're back to the long hard work of marketing. Nothing does it better than performing. So, they have to win gigs, amass a crowd.

watching TV, wouldn't you like a "thumbs up/down" button on your remote control? if you had to send a production team money before they created a new episode, you have it right there, in concrete terms.

J.D. Ray said...

I see your point. I'm still not sure that I'm so far wrong, but I get what you're saying. By the way, here's an interesting breakdown of what happens to a newly-signed band that has some success but has to pay everyone in town along the way. The summary sheet at the bottom says it all.

Just out of curiosity, what do you expect all those displaced A&R guys to do for a living? Does the multi-billion dollar record industry just dry up because all the profits are now going to (gasp!) the artists? I suppose so, but it doesn't sound likely.

But back to our discussion...

Just using some off-the-cuff math, let's say that the average couple spends $1000 per year on media consumtion (cable bill, music purchase, going to movies, etc.). That seems like a lot, but it's not. With around 250 million people in the U.S., that would be a domestic product for the media industry of $125 billion. I did some checking, and in 2001, "U.S. box office hit $8.4 billion in 2001, a 9.8% increase over the previous year." Figuring an average growth of 10% per year, that makes just over $10 billion last year. The cable industry grossed over $51 billion last year, putting us halfway to my estimate. Add to that the music industry's $11 billion, and we're well on the way.

So, let's just say that each person was willing to throw $500 per year into a pot to pay for media. They can consume all they want for that price, no hassles. At the movies, all they pay for is the popcorn, and buying a CD is only a few bucks to pay for the cost of pressing and packaging. Total industry revenues are up just slightly, because we're basing our numbers on someone who's a little media hungry, but it's a good round number to work with, and the artists and producers are all happy for a few years while the money's good.

But then everyone figures out that they can get prepaid for something they promise to produce. Every rock-star wannabe who ever cut a demo tape will be signing up to dip into the well, even if it's just for a couple hundred bucks. The industry watchdogs (oh, you know they'll be there getting their cut) will cry foul as they watch their newfound pool being filled with pee. But like the song says, it's too late to turn back now.

I realize that the dilution would only be short term as the industry settled into a routine. The pendulum has to swing, after all. Looking through a crystal ball into the far future, it looks like everything's coming up roses. Between now and then, though, there's plenty of manure to be spread.

Anonymous said...

Okay, so how does you trading tracks with your buddy give the drummer for your favorite band the ability to pay his rent?

By making is band known to more people which in turn will make more poeple go to the shows. That were most bands make the bigger part of their money,with shows not records.

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