Letters from readers about digital rights and Professor Edward Felten

May 17, 2003

Bill Rosenblatt '83 (May 14 letter) makes some good points regarding digital copyright in response to the Feb. 26 article about Ed Felten, but there is rather more to say here.

Rosenblatt calls for a group to advocate for consumer issues in copyrights, rightly pointing out the importance of fair-use considerations. However there are changes afoot that are much further reaching.

As Professor Felten and his team strikingly demonstrated, DRM (digital rights management, especially including encryption) is necessarily imperfect. And then there is always "the analog hole" — you can attach an audio cord from your computer into a stereo system and re-record the audio using many consumer recording devices. With the increasing bandwidth and reach of online networks (especially mobile wireless systems), the product model itself is starting to become technologically obsolete, in favor of the service model.

There are two current suggestions for service models that could well become the future of music (and of other forms of intellectual work): centralized interactive services and the distributed P2P model. Both of these can be monetized so that artists, writers, producers, etc. get paid for the value they bring to a work. This is important to me because I've been a composer and performer myself.

In a central service, all recorded music is included in an integrated catalog for on-demand and personalized-playlist generation (for streaming, more than downloading). A subscription fee is then allocated to copyright holders according to the popularity of their music on the system. Instead of a "record collection" a subscriber would simply have a list of preferences that can be played on demand. This service replaces both CDs and radio simultaneously. It is sometimes referred to as "the celestial jukebox."

In the distributed model, the entire network (perhaps extending to consumer electronics devices) is surcharged, and the traffic is tracked over the entire network by an organization charged to collect and allocate the surcharge fees, also according to popularity. (This is similar to the way blank cassettess and writable CD-ROMs are surcharged with fees that are allocated as royalties to labels according to CD sales data.)

However, both of these models require some sort of blanket licensing in order to be feasible. Two familiar examples of such licensing are: performance rights organizations (ASCAP, BMI, and SESAC) and the so-called "mechanical license" for recording songs written by someone other than the performer. The first one is regulated by a judicial consent decree that makes an exception for antitrust rules, the second one is legislated by Congress and is known as a compulsory or statutory license. There is actually a compulsory license in the DMCA for noninteractive webcasting, but it doesn't cover interactive webcasting or distributed systems.

Typically, major labels are obstructing the full licensing of interactive services or any movement toward compulsory licensing, even though these could ensure fair payment for both artists and labels in conjunction with fluid use by fans. The key here is that labels would lose exclusionary control over a marketplace they currently dominate. Even if they could benefit, they will not allow artists to increase leverage against them. They would rather try to impose artificial scarcity in a market that would be based upon abundance, because their current business model is based on managing the risk in a scarce market (for big-hit stardom).

Rosenblatt's call for a consumer group should be joined by a call for a recording-artists-only group to advocate along with them for blanket or compulsory licensing. Such a group would either issue blanket licenses itself (and collect the fees, track the usage, and allocate the royalties), or else sit at the negotiating table when determining royalty rates for a compulsory license.

Nothing less will ultimately result in The Right Thing for recording artists.

Dan Krimm '78
Los Angeles, Calif.
Music Unbound
www.musicunbound.com

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March 12, 2003

As a parent of a member of the Class of 2006, I have thoroughly enjoyed my subscription to the PAW. I find the magazine informative, interesting, and generally well-written.

However, as a graduate of the California Institute of Technology, I wish to point out an error in Jeffrey Klineman's article "The Tech Protector" about Ed Felten in your February 26 issue. The California Institute of Technology is abbreviated "Caltech," not "Cal Tech." This is unfortunately a common error in the general media, but not one I liked seeing in the PAW.

Thank you!

Jill Mitra p’06

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February 25, 2003

Thanks for the article on Professor Edward Felten in the February 26 issue. I've been a fan of his work.

Professor Felten is fighting for the right to do research that is constrained by laws like the Digital Millennium Copyright Act of 1998 (DMCA). This is an important fight. But the battle over DMCA and other proposed digital copyright legislation relates to a broader issue: the balance of rights to intellectual property between creators and the general public, and how the Internet threatens that balance.

The real issue is that of a set of consumers' rights to use content that is collectively and conveniently called "fair use," ranging from the right to quote from an article in order to criticize it to the right to make a copy of a music CD on one's computer. The problem is that there's no a priori definition of "fair use" — it's decided by judges and juries on a case by case basis. Therefore, it's impossible to design a system that can decide which uses are fair and therefore which uses it will allow — or, as legal scholars like to say, you can't put a judge on a chip.

Instead, both the laws under consideration and the digital media products we buy represent someone's opinion on which kinds of uses should be allowed and which should not. That "someone" is typically either a large media company executive or a product designer for a consumer electronics or software firm — not a member of the general public. Media companies will always favor interpretations of "fair use" that restrict what consumers can do and induce them to buy more copies of media products, while technology vendors will always favor interpretations that allow them to make their products at the lowest possible costs.

Writers, musicians, and other creators should be compensated for their works, and media piracy is justly illegal. But it seems to me that we need a Ralph Nader '55 for the Internet age, in addition to Professor Felten, to help go to bat for consumers' interests in this area.

Bill Rosenblatt ’83
New York, N.Y.
Author of Digital Rights Management: Business and Technology (John Wiley & Sons, 2001)
Publisher of the newsletter DRM Watch (www.drmwatch.com)

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