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11.1.2004
P2P & Creative Commons
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Two recent articles discuss a budding partnership between P2P services and the founders of the Creative Commons.
On Oct. 30, the LA Times (registration required) wrote about a new push by Streamcast/Morpheus to encourage lesser-known musicians to make music available on-line, using a Creative Commons license. Downloaders could search specifically for the permissioned files.
At first, this seems like a, "Well, Duh!" announcement. Of course, exposing an unknown product (including a band) to potential customers can be a good thing because people might like it and buy it. Consumer goods companies give out free samples continually, and for decades the music industry has hinged on begging and bribing DJs to play music on the radio. If the Internet allows the record companies to stop groveling to the radio jocks, there will be dancing on the desks at the RIAA.
But there is another game going on here. A petition for certiorari has been filed in the Grokster case, and a major issue is the existence of non-infringing uses for P2P services. At the moment, the proportion of traffic passing over P2P networks that consists of unauthorized distributions of copyrighted material is up around 97%. The P2P sponsors would very much like to get this down before any Supreme Court consideration of the Grokster affair.
The second article is that the hard copy of the November Wired contains a CD with 16 tracks that use Creative Commons licenses to allow creators to sample from the works to create mixes. Three of the songs are under a "noncommercial" license -- the resultant mix cannot be sold. The other 13 are under the "commercial" license -- the result can be sold as long as it is "highly transformative" and not just a knock-off, and is not used for advertising.
Wired follows its usual breathless style as the glossiest anti-establishment rag around, hyping the revolutionary nature of the enterprise. But it is hard to see why.
Mixing is fine, if artists want to allow such actions. Furthermore, these license terms may be anticipating the direction in which fair use doctrine will evolve. Property rights do alter as technology changes; fair use has always had a huge component of transaction cost avoidance; and the transaction costs of getting permissions for mixing can be formidable.
Or fair use doctrine may develop differently -- if the creative community develops ways to allow easy payment for snippets to be used in mixes, then transaction cost avoidance will become a trivial factor. It could go either way, but it should be a product of what the creators -- who are both givers and takers here -- think is fair.
Whatever, it seems inevitable that mixing will grow, whether under contract and payment (certainly my preference) or through fair use changes, simply because the technology is there.
As to the use of the Creative Commons license, these musicians are going to have the same enforcement problems as any other licensor. Once the material is available, how do they enforce any restrictions against someone who chooses to ignore them? Are battalions of Creative Commons lawyers going to litigate the meaning of the term "highly transformative of the original, as appropriate to the medium, genre, and market niche"?
In any event, this seems to me a logical and laudable evolution of the current copyright system rather than a repudiation of it.
posted by James DeLong : 11/1/2004 01:04:01 PM
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