Thanks for commenting on the blog.

I think we’re talking past each other a bit. Where you say I’m “wrong” it depends on focus. You say scale of communication is new; true. I say point-to-point, which was the thrust of your early remarks, is not new; that is also true.

As to the broader point on rights. I hear your focus on “control” (an ugly word but you are defining the semantics here, unfortunately) but of course copyrights are by definition control — control over reproduction, distribution, derivative works, etc. You may favor new funding models for creators, but if they involve a surrender of control then by definition they involve the dissolving of some rights.

Now I guess the key to this debate becomes, what was the point of your presentation? It seemed to be a call to action. You talk about collective licensing. That is hardly new. In your world, music, it is happening all over the place, as labels license entire libraries to download, subscription, streaming with download and/or subscription, etc. You surely know that labels have even experimented with licensing in the P2P space; I’ve spoken on that subject numerous times at conferences, it is a tough nut to crack but they’re trying.

Cable is a dated example of licensing, and involves streaming analog feeds, but there are much better examples of that licensing happening today, online, in the digital space, with individual purchases of copies of works. Look at my Kindle, for example; publishers are licensing broad portions of their lists to Amazon, and I can buy them with a downloading time of seconds any time my Kindle can connect to the Sprint 3G network (I’ve only lost connection once, deep in the Finger Lakes region of upstate New York). As backlists are converted to Kindle format we’ll see more options.

The key here is that rightsholders — publishers — are voluntarily licensing to Kindle. When authors as rightsholders have a role to play, their consent is involved as well.

So if that is the model you’re talking about, your call to action isn’t necessary, because it’s happening every day.

I think the purpose of your speech — and correct me if I’m wrong — is to argue that the ONLY model sustainable in the future is a blanket license for consumers. Amazon has a broad license with publishers, but consumers purchase one book at a time. Even in the proposed Google Book Search, complete access to a full work is only available through purchase. And of course it is an opt-in system for rightsholders.

You seem to be in the same camp as EFF, Jim Griffin, and others arguing that we all pay one flat fee to some impartial fee collector and then we have unlimited access to creative works. You focus on music, but presumably that would apply to movies, TV shows, video games, books, magazine and newspaper articles, photographs, illustrations, anything copyrightable and digitized. Somehow fees would be divvied up among rightsolders and distributed, and somehow downloads would be tracked of all of these works (many of them downloaded in private networks or transactions) and we would calculate proper ratios without violating anyone’s privacy.

Beyond the logistical challenges of this (see Rhapsody or Napster or Spotify, which focus on music), please acknowledge that this system only works if the downloader has full confidence that what they are grabbing from someone else is under the license. That is where your “blanket” license comes from.

With an understanding of music, you know of such a license in the US, the one songwriters live under in which anyone can cover one of their works as long as they pay a statutorily set fee per recording. If I write an amazing song, the only way I can “opt out” of others’ use of my composition is to never allow my song to be released as a performance. Once it’s out there, you can grab it and I can’t stop you (again, you can grab the composition without asking me, not the sound recording). I don’t think it’s any coincidence that the only wealthy songwriters are also recording artists.

Bottom line, if you are advocating a compulsory blanket license, the only kind that provides legal assurances for the downloader, that is by definition not just a loss of control by the artist, it is an abrogation of their rights under copyright. That point is inarguable.

If you are instead advocating that individual rightsholders OPT IN to a quasi-blanket regime, well, knock yourself out, but recognize that they still have the right to ignore your prescient advice and continue to be dullards by expecting to receive some sort of compensation tied to the direct reproduction and distribution of their works.

But I don’t think “voluntary” is truly what you’re talking about here. Your presentation doesn’t suggest that. It would be like showing a nightmare scenario of people dying globally from swine flu solely because there were a few foolish people that were choosing not to wash their hands, and then saying: “So I’d recommend washing your hands but I celebrate your right not to wash your hands.” In the scenario laid out, if everyone washes their hands, swine flu dies, so I’d assume you’d advocate mandatory hand-washing.

Blanket licenses only work when mandatory.

The compulsory license chimera is one of the top ten copyright canards (#6, actually), which I dismissed last year here. http://www.copyrightalliance.org/files/userfiles/file/10myths.pdf

Thanks again for posting.

1) You say: “Specifically, please understand that our digital world is not entirely “new,” and as a result we don’t need to discard well-established principles of rights and ownership for creators”. You are wrong there, on part 1, Patrick: a connected world of 2Billion+ digital natives IS a new world – just look at your own kids (if you have any). You are right on part 2: no need to discard ownership etc – the need is to EXPAND it and license the web just like we licensed Radio or TV. Just like CableTV was illegal until the Supreme Court made it legal – by mandating a license fee, the same must happen for content online, starting with music. Please take a look at some of my essays on this topic at http://www.musiclikewater.com or look at my “Compensation Not Control” video at http://www.gerdtube.net. This message is crucial: COMPENSATION NOT CONTROL. What you seem to be suggesting in your comment on my Google video is that Control is needed to get compensation – and that is an illusion, in my opinion, and only leads to further loss of compensation. Read my essays at http://www.endofcontrol.com

2) You say: “But it is also important to keep to a minimum the hyperbole of point-to-point communications. In nearly all communication we refer to as point-to-point, there are actually facilitators, distributors….What does this mean for copyright? It means that futurists are absolutely correct that the 20th Century model of a few large distributors directly providing us most of our creative works is becoming less and less of a reality. But it also means there will still be distributors, just more of them operating on smaller scales. This will make more challenging the licensing of rights, but in no way means rights don’t remain important”

Patrick, please tell me where in my Google speech see http://www.youtube.com/watch?v=aUrj7CJ0CUs I mention that rights aren’t important. Tell me where I say there won’t be distributors, or that copyright is dead. I just say that Distribution is NOT A BUSINESS on its own any longer, and that selling copies is giving way to selling (or rather, bundling access) that USAGE RIGHTS can probably make creators more $$ than insisting on copyright mechanisms from 50 years ago. Yes, that’s the law, now – but do you want revenues, do you want a future, or do you want to chase the horses back into the barn? There IS a solution, and it’s a new blanket license for the use of content (starting with music) on the web. Just give PERMISSION and you will receive PAYMENT.

Patrick I do wish you would look at my writings and videos with an open mind, without the assumptions that surface again and again, above – I am trying to solve a problem for creators, here, not put your holy cows on the grill. Read my stuff with that in mind, and THEN tell me where the absurdness is, ok? Happy to talk.

Cheerio from Switzerland
Gerd Leonhard
http://www.twitter.com/gleonhard

Brian, P2P is a community, and some do contribute, but by sharing when they do not have the authority to do so. (A defender of illicit file-sharing told me awhile back that risking legal harm by offering files to others was a charitable act, an interesting moral pretzel.) Communities in the long term need internally produced contributions; without that, we have the tragedy of the commons.

Leigh, thanks for your encouragement. I think you’d be surprised how many digital utopians (as I like to call them) read this blog; the question is, do they actually absorb anything they read? They are likely receiving far more reinforcement for other points of view elsewhere in their own echo chambers, or digital hollows, as I wrote here once — http://blog.copyrightalliance.org/2009/05/journalism-and-the-digital-hollows/ . Thank you for doing your part to spread the word.

I believe one point that may yet be left out of the conversation is that we think of music distribution to be entirely the thing of industry, and perhaps we need to envision, rather, developing quality communities instead. Is P2P a community? Yes, a huge one. Is P2P a quality community? No, because it doesn’t nurture it only leaches. I think our best way to counter the negative effects of P2P, and similarly harmful community behavior, is by educating and actively assembling supportive, nurturing communities that believe in feeding the well, not just taking from it. I think that we’re ready for this, as evidenced by the recent effect the environmental movement has had on society. The consequences are different, and certainly may seem trivial in comparison to mass exctinction, but it is perhaps a model, nonetheless.