Cannes, France — Forgive me if any time I hear the name "Terry Fisher" I fear for the rights of artists.

He is, after all, the Harvard professor whose book, Promises to Keep, essentially made a promise that he would have no regard for the rights of creators. The piracy problem, in his mind, was solely one of price. Devalue the offering price of digital music sufficiently, and do it in a way that the consumer never directly feels the pain (collective licensing through an ISP, for example), and all will be well. This societal welfare model, praised by Stanford Professor Lawrence Lessig and essentially echoed by EFF, is great. EXCEPT FOR ONE THING. It completely strips creators of any rights, and thus any say, in the use of their works. A song is no different from a roll of toilet paper in this model, and worthy of the same respect. The only party worth respecting, it seems, are consumers, when it's clear that both consumers and artists need to be respected for any long-term solution to work.

All of this was going through my mind when I heard Paul Hoffert on a panel here at MidemNet. Paul is founder of Noank Media, a digital music distribution system. Hoffert came from Harvard's Berkman Center, and Noank's chairman is… Berkman's Terry Fisher. Uh oh.

So what are these dangerous characters up to? Well, they're launching a service in three of the hottest piracy spots in the world — China, India and Brazil. The model calls for a fee to be collected by the ISP. Then that ISP customer is given access to Noank's entire music library (to what extent it is truly their library I'll get to shortly). Noank tracks downloads. But it also tracks plays, and even adds up use on an MP3 player when that player is synched with the PC. This monitoring isn't identifiable by person, but it allows Noank to differentiate between a song downloaded and played once vs. a song played repeatedly. This affects how profits (presuming there are some) are shared among rightsholders. This is, of course, a model more akin to performance rights than music sales.

From the audience I asked Paul if the music was licensed, and if so why not launch in developed nations. He was not completely direct in his answer, but I gather while he doesn't have as many licenses as he'd like, he has more than a few. He also made the point that the majority of the music downloaded in these countries is local music, which I believe. Thus, he has licenses for artists local to their markets, and he has some indies, but he doesn't have the major labels. (Wonder if a student in Beijing can still download Universal's U2 library?) Bottom line, they think they can run their test model more efficiently outside of the glare of developed countries. Like the true believers they are, Paul said they believe they will prove the merit of their model and then will bring it to other countries.

In my mind, the problem with all of these services is that in order to work, they need a large volume of songs, and that means licensing whole catalogs at extremely low prices with holdouts discouraged. The labels have taken a hit on some of these panels (for a music conference it's shocking how few label representatives are invited to speak, but that may have something to do with Ted Cohen, a former label guy who for the last few years has seemed far more comfortable with digital entrepreneurs). But the general pattern recently has been that when a new service comes along, if it appears it can be monetized, the labels big and small are licensing, albeit for a short period of time, say two years. This is wise; no one knows if these things will work, so you have to be able to revisit them. But the licensing is happening.

I applaud Paul Hoffert and Terry Fisher for not just bashing the music industry but for trying to put their money where their mouth is, and demonstrate that their socialist model (disempowering the individual in favor of society) can be profitable in a capitalist system. I still don't think their mindset is right when it comes to creators. But this is a far better use of their time than, say, a "public interest" law firm that spends its time repeating broken canards and intervening in litigation on the side opposite of creators.

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This entry was posted on Monday, January 28th, 2008 at 3:16 am by Patrick Ross and is filed under copyright opponents, market forces, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.