TeleRead: Bring the E-Books Home

Jessica Litman on digital music, file-sharing–and copyright lobbyists

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In Sharing and Stealing, a copyright paper now in draft for comment, Wayne State law professor Jessica Litman favors a more efficient way of compensating musicians.

Litman, author of Digital Copyright and one of the country’s most respected authorities on digital intellectual property, compares the vibrancy of fact-exchange on the Net (facts per se aren’t copyright protected) with the barriers inhibiting mass enjoyment of digital music (protected).

She would like the law to require copyright owners to identify their works in special ways if they wanted copyright protection under a traditional approach rather than through payment via an otherwise compulsory licensing plan.

Not that she is anti-creator. Just the reverse! Among other things, she notes that current laws and the rigid practices of the recording studios already limit the options available to creators. Quite correctly she observes:

The proposals to enact a new license to permit peer-to-peer file sharing and compensate creators through a levy, tax, or uniform royalty have inspired heated philosophical and economic debates over the flaws in any compulsory or collective licensing system. The objections tend to ignore the fact that composers and performers of music currently receive most of their income through a combination of standardized, compulsory and collective licenses administered by intermediaries (music publishers, record companies, performing rights societies) in return for payment. From the vantage point of music creators, replacing the theoretical control they enjoy under the copyright law with an enforceable promise of payment makes them no worse off, and makes most of them better off.

The intermediaries who hold control over musical works and recordings are also in it for the money, and one might expect them to be delighted to hand over their control in return for more cash. Not a bit of it. The current dominant forces in the music and recording business may no longer need record pressing plants, CD burning plants, warehouses and trucks to distribute music, but they have a huge stake in ensuring that digital distributors be limited to those who used to rely on record pressing plants, CD burning plants, warehouses and trucks. They rest of us, however, don’t share that stake. Indeed, new distributors who never assumed those expenses may be in a position to experiment with new variations on digital distribution and still pay a larger percentage of proceeds to the creators of the material.

As is already obvious, Litman appreciates the glories of file sharing. So does TeleRead. Under TeleRead, people could share files of books and other items effortlessly and access the protected parts, not just samples, if creators qualified for compensation through a National Digital Library Fund. Net users could also enjoy the entire files if their local library districts had bought rights to the material, or if the users subscribed to an applicable service or paid for the items directly. The last two possibilities could cover people accessing the material from abroad. Indeed a TeleRead-style national digital library system, not just commercial services, could offer subscription options for those outside the States. In addition, foreign governments could arrange through an American TeleRead, or through direct dealings with U.S. publishers, for their own citizens to access TeleRead works. What’s more, both in the States and abroad, normally compulsory licensing plans with opt-out clauses would be a possible way to finance books in whole or in part and allow file sharing. The same ideas could apply to TeleReads in other countries, from which we in the States might want to enjoy books and other items. Also, to address the question of making TeleRead palatable to the entrenched interests here and abroad, we’ve proposed the possibility of large content owners gambling money up front and along the way to get around possible budget-related caps on revenues from file-sharing and direct access to library nodes. This approach could work with or without the element of compulsory licensing.

But back to the Litman paper on copyright and the music industry. My friend Jon Noring, founder of Project Gramophone, which would put online fine old recordings from the past, will surely nod when he reads the following in the Litman paper:

…in many if not most cases, it can be difficult and sometimes impossible to discover who the copyright owners of all of those rights are. One of the more disturbing revelations of the Napster litigation was that record companies insisted that they were unable to generate a list of the copyrighted works they claimed to own. (This is particularly disquieting because one would assume they kept records in order to send out those royalty checks they’re supposed to be sending out, but apparently not.)

Exactly! I hope that Jon catches up with Litman to compare notes on the complexities here, not just at the federal level but also the state one. As Jon discovered, a Web of state laws “protects” old recordings. Only with reluctance do I use the term “protect” since the practical effect of this is to keep the recordings off the Net and to allow them to fade into oblivion since they are not attractive enough commercially for the big studios to release.

Concluding her paper, Litman writes:

The recording industry appears poised to accept a world in which we agree to allow consumer downloading (either for free or for a price) but not what the recording industry is calling “uploading”–which is the state of having on your hard disk a music file that someone else can search for and copy from you. Just as the idiosyncratic interests of large numbers of individuals who want to share is directly responsible for the wealth and incredible variety of information we can find when we go looking for it, I think that consumer-to-consumer file trading has the potential to make it economically feasible to distribute a much broader variety of music to a much larger audience. I’d hate to lose that potential just because it’s strange, new, unproven, and not yet well represented by lobbyists.

Earlier, referring to pressures against a sensible solution, Litman says: “If I’m persuaded that politics would prevent the adoption of a Netanel/Fisher/Ku/Lunney solution, why am I bothering to articulate my own variation?” Among other things, she suggests that perhaps the music business would be open to compromises that “left current recording and music industry distributors in their market dominant position.” Ideally her legal writings can influence that debate. And who knows: maybe TeleRead’s concept of letting the megaconglomerates glamble–to qualify for the very biggest payments for books and the rest–could also help win over the entertainment giants that have outbid the rest of us in DC.

Whatever you do, Professor, don’t forget the campaign donations angle in explaining the cause of the problem. You might be interested in TeleRead’s findings on John Edwards (at least $900K from one Hollywood contributor alone) and other Presidential candidates (Howard Dean is doing just fine on the copyright-industries front). Rich campaign donors own or at least rent them, directly or through payments–er, I mean donations–encouraged by trade associations. Interestingly, however, I don’t think we should give up. Financier George Soros would be a good prospect to approach, and even in Hollywood there might be some hope. Lobby the owners, not just the politicians. Copyright law isn’t just illogical; it’s corrupt and at odds with the social causes that so many top Democratic donors favor. Activists would do well to go directly to the people involved, point out the grotesque contradictions and suggest that the donors tell Edwards and the rest to stop pandering to the worst of the copyright zealots. Even by Hollywood and Washington standards we’re talking “sleazy”; for example, the Bono extension act was passed by voice vote when the nation was preoccupied with the Clinton impeachment. So, yes, it’s possible that some of the donors would have a sense of shame.

Meanwhile it also would help to follow Jon Noring’s excellent suggestion and create a Digital Media Users Association to balance out the power of the movie and recording studios. Who knows–some of the more enlightened big-money campaign donors just might want to chip in to fill up the DMUA’s kitty once they knew the truth, including some findings from a Soros-funded project. It would be the right thing to do. As Litman herself has observed: “The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table.”

Related: Comments in Copyfight as well as those in the Legal Theory Blog from Lawrence Solum. Also see Prof. Litman’s 1997 paper New Copyright Paradigms, where she includes TeleRead among the examples of “how digital technology could transform the ways we read, write, gain access to, learn from and use information.”