Student Perspectives: Jason Harrow at the Rethink Music Conference

Reposted from JUST ENRICHMENT

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.

To me, then, the most important panel of tomorrow’s schedule, and probably of the entire conference, is one called “Models — Access and ‘in the cloud.’” The panel features participants from technology companies and from the recording industry. What I am desperately hoping for is for someone who represents the interests of the copyright holders to say the following: When it comes to uploading music into the cloud for remote playback (see Amazon’s new cloud player for the prime example of this new and critically important product), our view is that X is clearly legal, and Y is clearly not; in other words, you do not need a license from us to do X, and you do for Y. At this point, I don’t even much care what the content of their legal theory is: I just want them to articulate one in a straightforward way. To this point, as far as I can tell, the industry has provided no public guidance to innovators as to what their view of important and difficult questions of copyright are. This is crucial, because the massive statutory damages provided by the Copyright Act can bankrupt a company if an innovator falls even just slightly on the wrong side of the line.

Unfortunately, there are already ominous signs that no meaningful assistance from the industry is in the offing this week. In a short and somewhat perplexing white paper written for the Conference, RIAA President Cary Sherman and co-author Jonathan Potter provided what amounts to the polar opposite of guidance: a four-page paper that does little more than put people on notice about just how many legal hurdles there may be in implementing a cloud-based service. The heart of the document is a list of fifty (I counted!) difficult legal questions raised by the emergence of cloud-based services. After that lengthy list, the paper concludes abruptly with the near-surreal statement that the “challenge” in developing such services will be to negotiate licenses quickly so that “legal uncertainties do not delay introduction or impede success of exciting new offerings.” Given that the paper goes a long way toward highlighting just how many legal uncertainties there are in this area and gives no hint as to the RIAA’s view on any of these fifty legal questions — and, accordingly, whether they will immediately sue you for engaging in what they view as infringing conduct — that will prove to be a mighty challenge indeed for anyone looking to innovate.

Yet I am optimistic that we will begin to bring certainty to this area and come to consensus around some of these fifty hard questions, for the benefit of everyone. The conference claims that it is “solutions-focused,” so perhaps tomorrow we will move from the realm of raising hard questions to at least the beginnings of a few answers. After all, what’s the point of coming all the way to Boston just to tell everyone how interesting and complicated these issues are?