The Grokster decision will be front page news. And, as thoroughly discussed on The 463, it will have massive ramifications on state and federal legislation to come -- not to mention how people enjoy and use entertainment content.
However, something else happened this week in digital copyright land that could create a chain of events that could be just as big as MGM v. Grokster. Yet, no one has written about it in any mainstream media outlet. For one the issue is arcane (read: boring to some) and even the experts are slightly confounded over what the true implications could be.
The happening? The U.S. Copyright Office (which is part of the Library of Congress and advises Congress on copyright law) announced this week it recommends that a critical piece of the country's copyright scheme be rejiggered to do away with what is known as a compulsory license....
As you may guess, a license that is "compulsory" is inflexible and stringent. It's impact, in a nutshell, is that online music providers need to go through a complex process to get the rights to deliver content from multiple music publishers and other sources. We'll spare you the legal details, but needless to say, this process is the often cited as the reason that legal music services have trouble competing against P2P networks in terms of their cost/benefit ratio.
If we move away from an online world driven by a compulsory license, the question becomes: Where do we go next? Presumably, it could be toward more of a streamlined "blanket" license structure. A single blanket license would be negotiated and paid for by, say iTunes or Yahoo! Music. The service would then have the right to distribute all content that falls under that blanket at a cost that would arguably be more reflective of current market rates.
Given this structure, it's not hard to predict that music distribution over P2P networks could compensated for via a modern licensing system paid for via a low subscription rate charged to users and/or advertising schemes.
This is big because regardless of what comes out of all the sound and fury in the post-Grokster world, we're eventually going to need to come back down to earth and find ways for users to enjoy content and fairly pay for it. The Copyright Office may have started leaving bread crumbs for us to find this end goal.
Before we go any further (or get any more of this wrong), go to Ernest Miller's recap of what this all could mean. He largely pulls early opinions posted by the digital music brainiacs on the Pho List and provides links to commenting blogs. The posting is flavored with guarded optimism and seasoned with confusion over what the Copyright Office quietly shot over the transom this week.
One last thing: As noted here recently (see Music Publishers Leave Dark Age) there may be more room for optimism. The music publishers have a new leader and he has expressed a willingness to look at new compensation mechanisms.
We shall see...
Dear Sir,I see your point; but I think the point where we depart is on the issue of muilplte interpretations because not every interpretation is a plausible one. At this juncture, I should state that I did read your article to understand where you are coming from and while we are on the issue of opening up presumptions, there are a few conclusions in your article which I would like to open up here for discussion. If in the process, we end up concluding that international exhaustion is indeed the sole right conclusion, I don't think I am dead set against it. After all, at the end of the day, I am a consumer too.Let's start with internal page 79 of your article where you discuss Indianising The Law ; you have stated as follows: In other words, was one to interpret law as Indian law, one is faced with an absurd question: Under Indian law, can Beximco produce and distribute the drug in Bangladesh? Therefore, any reasonable construction of section 107A(b) would suggest that law as used in the section has to mean Bangladeshi law. We are on the same page until the point where we agree that Indian law cannot authorize production and sale or distribution in Bangladesh. But from there on is where the departure begins. Since you interpret the law to mean Bangladeshi law , you have had to propose an alternative interpretation to the use of patented product . What I mean is, according to you, if under the law has to be imputed the meaning under the Bangladeshi law or under the foreign law , patented product has to be interpreted as product patented in both countries so as to ensure that India does not violate its obligations under TRIPS.Now the problem with interpreting patented product as a product which is patented in both the exporting and importing countries is that there already exists a definition for patented article and patented process , both of which refer to product/process protected by a patent granted under the Indian Act. In addition to that, as was evidenced in Strix v. Maharaja, it is well-nigh plausible that two unrelated entities/individuals could hold patents in their respective jurisdictions on the same product/process. If this be the case, exhaustion of rights of the foreign patentee on first sale in such foreign country does not lead to international exhaustion because there is no exhaustion of the Indian patentee's foreign patent rights. Therefore, what flows from the above is that, to support international exhaustion, which your article emphasizes is the underlying purpose of the provision, (1) we end up going against an express definition and (2) we have not factored the possibility of the patents over the invention being held by 2 different entities in 2 jurisdictions. Also, since both these points are to be considered as having been within the knowledge of the legislature and therefore as having been taken account of by the legislature when amending Section 107A(b), it appears to be a stretch of an argument when we contend that international exhaustion is the prevailing sentiment of the provision when such a contention ignores both these points.Continued
Posted by: Tanea | July 07, 2012 at 11:58 PM