In part one of this two-part series, I pointed out that QTrax — a P2P service — is continuing its quest to be the first legal ad-supported P2P service for music, and while I remain skeptical I applaud their ongoing efforts and progress. But simultaneous to that news is word of two developments that actually take creators and their rights backward — a new LimeWire service and the proposed Choruss collective licensing regime for universities.

LimeWire, a Distributed Computing Industry Association member like QTrax, likes to pretend it would like to go legitimate but has shown its true stripes again by adding private file-sharing. This of course means that file sharers could operate “off the grid,” if you will, operating in a closed network isolated from LimeWire’s main network and isolated from, presumably, rightsholders and ISPs looking for infringement.

What’s disturbing here isn’t just the fact that LimeWire is making it easier for lawbreakers to break the law without detection. In fact, private networks have existed since the birth of the Internet, and here LimeWire is cynically trying to prevent an erosion of its customer base by allowing savvy infringers who like private networks to stay in the LimeWire fold.

The concern is that it helps make private networks mainstream, because infringers who otherwise wouldn’t know how to set up such a network can now do so with ease. And this is critically important when it comes to the so-called collective licensing regimes being proposed right now, including the so-called Choruss model to allow college students to file-share with impunity.

This model, created by Jim Griffin and backed by groups not considered friendly to creators, allegedly also has support of three major labels (it clearly has the support of Warner, for which Mr. Griffin is a consultant). I’ll give Mr. Griffin some credit by saying he is pursuing a solution he feels is best for songwriters and musicians, as he has stated publicly the system is too broken to fix with existing tools. One could also make the argument that piracy is so rampant on college campuses that any revenue that comes to creators out of that environment is better than anything I’ve seen to date.

But I’ve had the privilege of seeing the Choruss presentation, and it gives me pause. It makes it clear this licensing model isn’t meant just for universities and music, but that “Our approach leads other media and makes music the canary in the mine — music sets a precedent that video, text, graphics and others can and will follow.” Come up with a licensing solution that fairly compensates photographers, graphic artists, filmmakers, authors and journalists for infringement on the Internet and I’ll recommend you to President-elect Obama to be the TARP czar.

The key trouble spot is in another part of the Choruss pitch, where it states that universities should “make a reasonable effort to estimate the number of downloads per song.” This is almost doable on a campus network if the IT department significantly moderates traffic. But let’s not forget that when public-interest groups were fighting creators on having language included in the Higher Education Reauthorization Act addressing piracy, they said that fewer than 10% of college students actually use the campus network. So how will the 90%+ be tracked?

I bring you back to private networks. Absolutely no traffic on a private network — they are popular with college students — will be tracked. Every single traded song on those networks will be invisible to the administrators of the tax-funded pot universities would collect. By the way, the pitch is vague on that front too, saying only “Institutions collect/fund/amass a pot of money (e.g. per student per month).” There are innumerable ways that collection will fall insultingly short of accurate, and private networks is just one.

And please stop comparing this to ASCAP and BMI. Those organizations have decades of experience in collection, they only collect for a certain set of rightsholders, and the targets are by and large known (there are only so many radio stations, clubs and restaurants in the U.S., and their online collection sites are clearly defined and monitored, in other words, closed). Internet traffic is increasing exponentially, and new methods of file distribution pop up daily. There is no comparison.

One would think EFF, a longtime supporter of collective licensing and a backer of Choruss, would be wary of the privacy implications of truly, accurately tracking file transfers online. Even Lawrence Lessig raised the issue in Remix, although he then quickly dismissed it as saying it should more properly be the subject of another book. I must assume that EFF has spent far more time focusing on the joys of its individual supporters being able to infringe without fear than it has in ensuring that artists and creators are properly paid. Nothing wrong with that, I suppose, in that they’re fighting for their side in this fight. We just need to remember that EFF doesn’t speak for artists and creators in this fight.

Every day brings good news and bad news on the emerging rights market. Neither QTrax nor Choruss appeal to me on one level, namely that individual artists and creators lose their ability to negotiate directly. There is precedent for collective action in the free market, though, as unions demonstrate, and often that collective action can bring strength to those participating. And I will always prefer licensing regimes existing through market deals as opposed to ones imposed by the government or converted from private to public operation.

QTrax in theory will be a closed system, despite the P2P technology, and thus it should be transparent which files are being downloaded. In that sense, apportioning payments shouldn’t be any different from iTunes; I just suspect there will be a lot less to distribute.

Choruss, however, doesn’t pretend to know what traffic will really look like or who will deserve to be paid. This is a system that hurts all songwriters and performing artists, but particularly those who will be seeing less traffic and thus will be less likely to be spotted, namely emerging artists. Those artists can now forget the idea of any college student buying their songs from their MySpace page or eMusic. The very artists and creators we want to encourage will see their motivation to create decrease. Is that an acceptable sacrifice to allow a few college infringers to feel better about themselves?

This entry was posted on Tuesday, December 16th, 2008 at 11:35 am by Patrick Ross and is filed under Obama, advertising, copyright opponents, creators, internet, licensing, market forces, p2p, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.