June 25, 2005

Lessig Gets It Wrong On Register’s 115 Reform Proposal

Larry Lessig has criticized the Register of Copyrights’ proposal to replace the section 115 mechanical compulsory. He argues:

Apparently the Register believes performers no longer “need unhampered access to musical material on nondiscriminatory terms.” What progress.

I think he’s wrong on two accounts — his understanding of the practical effects of the Register’s proposal and his characterization of the Register’s goals. (Ernie Miller thinks so too.)

It’s true that the Register’s proposal does repeal the section 115 compulsory license. The section 115 compulsory is the law that allows any recording artist to record any song for a set rate ($0.085 per copy distributed) without having to get permission from the songwriter. A simple repeal of that compulsory license would indeed mean that recording artists would lose “unhampered access to musical material on nondiscriminatory terms”.

But that’s not what’s happening here.

The practical effect of the Register’s proposal is to force ASCAP, BMI, and SESAC (now referred to as “Music Licensing Organizations” or MROs) to offer blanket licenses for reproduction and distribution along with the blanket licenses they already offer for public performance. Access to all works licensed by the three MROs remains unhampered, and even becomes easier.

Now, there certainly are some works that are not licensed by the MROs. But to get any revenue from a musical work copyright, the copyright owner must make public performance rights available through a MRO; policing public performances on a work-by-work basis is impossible. So every musical-work copyright holder who knows they have rights is likely to be a member of an MRO. And virtually all other musical-work copyrights are probably orphan works. Perhaps there’s a sliver of musical works which are not licensed to an MRO, which are not orphan works, and which the copyright holder will deny a license when asked and sue for infringement if the recording artist goes ahead. But that’s a vanishingly small number of works.

So, the practical effect of the Register’s proposal would be to institute a system of unified blanket licensing for the public performance, reproduction, and distribution of substantially all non-orphan musical works, especially by digital means. That’s what the Register is trying to do, I believe. The proposal also appears to be motivated by a feeling that the 115 compulsory enacts a massive and ongoing wealth transfer from songwriters to record companies — a feeling I share.

This is the right way to fight piracy — by making it as easy as possible for digital music services to license the rights they need. The collateral damage to small-time users of musical works will be minimal, and the benefit to consumers will be enormous.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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