August 26, 2003  ·  Lessig

The recording industry has been strongly opposed to a statutory or compulsory license for digital music (not the Internet radio kind, but a reasonable kind that would enable the spread of digital content). They object that “the market” should set the rate for music, not a federal statute. (Of course, they have no hesitation appealing to the statutory rate for damages, as opposed to the ordinary market measure for damages, when it comes to a breach, but that’s a separate matter).

But the history here is fun. Here’s a quote from a 1967 House Judiciary Report, considering a modification to the law as it existed then:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967).

“The result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.”

Nicely put.

(Thanks to Glenn Brown for drawing my attention to this report).

  • David Touve

    Recorded and released music fully relies upon a statutory market for songwriter/publisher mechanicals. These rates (for the most part) set an upper bound on the price paid for any composition, as long as it is released in a certain manner (and often pre-paid). And this rate is measured in the pennies per CD (7-8cents), per track.

    This rate relationship one of the subtle aspects of the compulsory discussion which seems to go overlooked in the public debate. Even if you disagree with the idea of a fixed price for a creative works (book authors do not face a compulsory), more noise should be made about the record industry’s ability to enjoy a fixed price from one of its key suppliers (songwriters), yet work so hard to avoid facing a similar circumstance (for sound recordings). Good luck.

  • Lazlo Toth

    The recording industry is starting to resemble a pushme/pullyou. Wasn’t the justification for compulsory licenses something along the lines of “songs are meant to be sung?” Just because the medium and distribution are better today doesn’t change that philosophy.

  • Richard G

    The level of Deja Vu in this is astounding; the cited cases / hearings / Laws from 1909 were in response to Player Pianos, and the innumerable illegal copies that were being made of the rolls.

    Sounds just like rampant CD / DVD / MP3 copying…..

  • Rob

    Seeing Lazlo Toth’s name up there reminded me of the famous quote from Nixon Press Secretary Ronald Ziegler when questioned whether one of his statements contradicted an earlier statement:

    “This is the operative statement. All other statements are inoperative.”

    Like all corporate positions, whatever maximizes potential profits is what they are in favor of. It doesn’t matter if it goes against what they said they supported earlier. Compulsory licenses are great, as long as they only apply to their competition.

  • George Ziemann

    I find it highly amusing that the record industry would suggest that the market should set the prices, especially in light of its refusal to reduce prices in light of falling sales and current activity to litigate against consumer who, after decades of listening to music for free on the radio now find themselves the subject of lawsuits for expecting that they can do the same thing over the Internet.

    Lower prices? Improved quality? Better choice? Only if you’re willing to be sued.

  • Rob

    Amusing and sad. “Now that we control the market, we should let the market decide the pricing structure.” I grope for words. Laughable? Tragi-comical? Poignant?

  • Bruce

    Amusing. The very concept of copyright is to artificially create a market by putting a cost (infringement punishment/fines) on taking it for free. Supply and demand, not federal threats, should create a market. Without copyright the supply is infinite. As, of course, it should be and truly is. There are other ways they can make money. Selling music is not one of them.

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