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Should Copyright Law Go the Way of the Buggie?
EFF Releases the Open Audio License
By Sounni de Fontenay
(more articles from this author)
2001-05-01
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The dot-com crash has not been kind to online entertainment companies. However, the conferences which cater to them have not been immune to the downfall either. Look at some of this year's cancellations or no shows: Internet Entertainment Expo & EAT'M. However, the New York Music & Internet Expo, which was an early pioneer in this space, resiliently pushed forward with their 3rd conference held on April 21st & 22nd at Madison Square Garden. A bevy of some of the most creative minds in the industry were on hand to discuss their experiences and pass on knowledge on what the future 'might' look like. And of course, the Electronic Frontier Foundation (EFF) was present to spread their message: that there is a fork in the road, finally presenting a truly viable alternative to the Corporate Control System.

On Saturday, April 21st, the EFF released its Open Audio License, a project spearheaded by EFF Staff Attorney for Intellectual Property, Robin Gross. The Open Audio License is a means for artists to license their music freely for the enrichment of the community. The works licensed under the Open Audio License, designated as "O," can then be used by other musicians or distributed by consumers freely without royalty compensation. Of course, any works derived from "O" must follow the same guidelines as the Open Audio License. For example, during the panel an audience member cited Billy Joel as an example. What if Billy Joel made a song based on a work under the Open Audio License. Would he be able to derive revenues from this song? "Yes," stated Gross. The only obligation Billy Joel would have is to give proper accreditation to the author of the original work and, this is important, his subsequent song would itself be designated as "O," thus available for others to use freely.

A little confused? Lets give a little backdrop with some key elements brought up by the panel which included: Robin Gross (moderator), John Perry Barlow (Co-Founder, EFF/Grateful Dead Lyricist), Eben Moglen (Professor, Columbia Law School), Patrick Norager (Radio EFF StationManager) and John Marttila, (EFF CAFÉ Director). The always poetic Barlow stated that the Constitution has no place on a global landscape, it is a local ordinance among hundreds of 'local' (national) ordinances. Furthermore, Eben Moglen explained that copyright law is a relic of the 18th century, when such law was needed to guard physical property. Now the word "physical" becomes very important in this discussion. The goods of highest value today are information based, ie., bits. Bits are not property. Each bit can be infinitely copied, making it no longer unique. Property, at least as defined in the 18th century, had unique characteristics, in that it was not easily duplicated (if at all, ie. the Mona Lisa). Thus the inherent value of property was high and laws & rules were needed to protect it. This led to copyright protection of inventions, models, ideas,... So according to EFF's reasoning, copyright law (in its current form) has no role in cyberspace, where the value of a good is not measured by its uniqueness but by its ubiquity. Mr. Moglen took the idea further: rules of property are about excluding people from things (you CANNOT have my Picasso; my car is NOT to be shared,...). Thus, there is no moral or ethical reason to apply such rules to digital information, which has the opposite characteristics of physical property.

Music, since Edison, has been more akin to a digital good than a physical good. Even in analog form, music can still be duplicated, though at relatively prohibitive costs and at a lesser quality, factors that led to the present market structure of the industry. That is, until now. As Barlow stated, "If you have more of something, it is less valuable. That's true for diamonds, but not for music."

Which leads us back to the Open Audio License. As stated by EFF, it is meant to take the original intent of copyright law and extent it to the digital medium. All (EFF panelists) agree that copyright law is about "enabling" the sharing of information among a community for the enrichment of all within the community. Patrick Norager adds that it is about decriminalizing sharing. But again, how do artists get paid? Artists would get the most valuable gift, the true commodity of the web, according to Patrick: attention. It is this attention that can be leveraged into income. "Attention is the real money of the digital marketplace."

But if someone uses your work, how does their attention necessarily filter down to you? Are we talking about voodoo economics for the music industry? Well, not exactly. That's where the Open Audio License clause on credits come in. Artist whose works are used under the license must be credited with all works, not only in name but with an "action attribution." Yes, if there is one thing the Web has done, it is enabling "action attribution" for fans to act upon. That is, where fans can not only identify the source of the original work, but also get more information on the artist... maybe visit their site or buy their music, or how about a donation through Paypal or Fairtunes. Media players are becoming increasingly sophisticated. Adding a hyperlink, or such, is old hat in technological terms. The point, as Barlow says, is to make it easy for consumers to participate. Once you have consumer participation, you have a community. And from this community lies the support for artistic endeavors; case in point, the Napster phenomenon.

Linkography

EFF - www.eff.org
NY Music & Internet Expo - www.newyorkexpo.com


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