After a first day that was full of panels focused mostly on the business aspects of the music crisis, today the lawyers gave their views on the problems facing the music industry. With cleverly named sessions like “The Current State of Copyright Law,” and “The Future of Copyright Law,” and with preeminent copyright thinkers like Terry Fisher, Larry Lessig, Google’s Fred von Lohmann, and many more taking to the stage, it was a pretty great day to be thinking about copyright law in the digital age.
There were many themes that were repeated by people of all different perspectives, but it became clear to me that the one change in the law that will solve the most problems in the simplest way is reform of statutory damages. As I mentioned in my preview post, I have a strong personal interest in this particular issue, but even I was surprised at how the specter of statutory damages lurked menacingly in the background of almost every discussion. The remedy has to be changed, and it is the one change that is simple enough that it seems genuinely within reach. The best way to see why is for to me to briefly explain the current statutory damages regime, quickly articulate the three most pressing Big Problems that I saw, and then show why statutory damages reform would go a long way to solving many of them.
I took in a pretty full day of panels at Day 1 of the Rethink Music conference (my preview post from last night is here). While tomorrow’s lineup promises lots of great stuff on copyright law and policy, today’s schedule was pretty business-oriented. As such, I’ll hold off my explicitly legal analysis until tomorrow night. For now, I want to answer a question that was asked at pretty much every panel: what’s the value of a song in today’s online environment?
The short answer: zero. A single song is worthless — but that’s not a bad thing. Let me explain.
For the next two days, this Humble Contributor will be attending a conference called “Rethink Music.” It promises two days of fascinating dialogue about the future of the music industry among artists, entrepreneurs, record company executives, lawyers, policymakers, academics, and students. Harvard’s Berkman Center has posted a great briefing book and a nice series of podcasts leading up to the event, and I figured I’d add my two cents about what I’d like to see over the next few days. I’ll be writing entries after the day’s events both Tuesday and Wednesday with my reactions.
I have a dog in this fight. For the last two years, I have had the privilege of being on the team of students that represents Joel Tenenbaum, a Ph.D. student who was sued for copyright infringement for sharing songs on KaZaA, which is a now-defunct but once extremely popular filesharing network. The industry settled with the overwhelming majority of defendants it sued, but Joel refused and became one of only two people to go trial. He lost, but the damages set by the jury were reduced by the trial judge, and his case is now awaiting a decision in the First Circuit. So, legally, I am directly adverse to the interests of America’s largest record companies and their trade group, the Recording Industry Association of America (RIAA).
But, from a long-term perspective, I’d like to think that I am not adverse to their interests at all. I love music. I want lots of people to make a lot of money in the music business — including the record labels. I want as many people as possible to have legal access, from everywhere, to the earth-shattering abundance of recorded music that exists online, and I want artists and engineers and record companies to be reasonably compensated. I really do.