Something New and Exciting In The World Of Music

I like it when people think "out of the box" so to speak (thanks to the most excellent TechDirt for calling this to my attention - even though I disagree with Carlo's analysis). What's funny is that it really isn't all that "out of the box." It's more like thinking about music in terms of science or, more specifically, chemistry, or physics (or even I suppose, biology, or genetics) - hmmmm...I guess that pretty much covers all of science - so yeah, think about music in terms of analyzing science. Break down the product into its component parts.

When you buy a CD, you are buying a copyrighted work. Actually you are buying a number of copyrighted works (songs - each of which has multiple copyrighted elements, the music and the lyrics) bundled together into a copyrighted work (a compilation that is a separate copyright) and packaged with some copyrighted artwork on front (and probably on the back and inside the booklet, too). The law traditionally thinks of copyright in terms of "bundles of rights." A "copyright" gives the author the exclusive right to do a number of things for a number of years (life of the author plus 70 years, or 120 years if an anonymous work - or something very similar to that, in any event). The author is given the right to control among other things, copying and distributing. (note: copyright does not cover the right to control "use" that's a right you freely give up when you buy a file from iTunes or some other place that sells DRM'd files; just one way that industry practice and norms are changing substantive laws without all the hassles of actually legislating the changes and putting it up for public opinion. But I digress.)

The proposal linked separates out these component parts and lets you purchase the rights you want. Instead of purchasing a .aac file of Gwen Stefani's "Hollaback Girl" you can just purchase various component parts for "Hollaback Girl" and you can get them in any file type you want. Want the right to distribute, you can buy that; want the right to make copies, you can buy that; want the right to play on your internet radio station, you can buy that; just want the karaoke (non lyrics) version, you can just buy the rights to the music and not buy the rights to the lyrics; want to buy the album art, they're yours for the paying, what type and how big do you want them. If you lose the file, no problem, you own the rights, just go download the filetype you want. In theory it's fantastic idea - pricing at its best - you can buy what you want and only what you want - the more rights you want, the more you pay, but you can get them.

Business-to-business transactions work like this all the time; a business will pay more or less for more or less contractual protection. Presumably consumer transactions don't work like this because of the high transaction costs involved. However, if there is a central rights aggregation and retail center, the transaction costs can be spread out over the entirety of the offerings making the per-piece transaction costs pretty low.

The devil is in the detail, so to speak, and the biggest problems aren't theoretical, but rather practical implementation problems with keeping each component part distinct and preventing tampering such that the consumer can pay for the lowest cost right and still reap the higher reward. The first practical problem I can think of is actually more concerned with the rights that the consumer purchases, what do you do when the copyright term expires?? Contrary to the music industry's (or movie industry's, or Disney's) wishes, copyright is not infinite - it does end. Of course, this is fairly easy to account for because the copyright duration calculation is fairly heuristic and just entering the 'date of authorship' and the type of author (work-for-hire, individual, anonymous, etc.) would make the calculation simple.

More importantly though, how do you discern regular copying (me making a copy for Brian) from backups that are legally protected by the Copyright Act? Of course, the initial argument is: what do you need the backup for? If you lose the file, you own the rights in perpetuity, just go download it again. But there you run into another problem. How do tell if a person has 'lost' the file, or just transferred it to someone else against the terms of the agreement? One answer is hardware authentication - every piece of electronics you own can be 'registered' with your own personal id (perhaps a swipe of your driver's license, or other state or [enter diabolical laugh here] national id) and when you buy the file, you enter your personal id and it will only play on devices that are authenticated with your own personal id; if you buy "copying" or "distribution" rights, you would swipe your own id and the id of the person to whom you are transferring and it will only play on devices registered to that person.

Actually, not a bad idea now that I think of it, except for the obvious "privacy" issues that may be implicated. The hardware registration process would have to be fairly rigorous - though maybe not, because the hardware will only work with files that are registered to you anyway. Hardware registration could work in a whole slew of areas - computer security, home security, cell phone (or even "regular" phone) usage. In some instances the hardware would be 'locked' so that someone who steals the device can't just swipe their own id - maybe a two step process that requires two swipes (one for each person's card in the transaction) to transfer title to physical item.

Well, this got kind of far afield. But, the point I suppose is that I'm not sure we, as a society, are quite there yet in terms of implementing micro-rights-management that would be truly useful instead of just crippling. And, unfortunately, I don't really trust the record companies with it. In fact I'm not really sure who I would trust to implement it properly. I, honestly, think it would be good idea. But, as with anything that involves firmware/software, it would be easily hacked and thus would be rendered impotent anyway.