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Technology Review: Would technological self-help just start an arms race between peer-to-peer programmers and the copyright holders?
Pamela Samuelson:  It seems to suggest a kind of escalation, and we’ve already seen some of that because shortly after the Berman Bill was announced there was a hack of the RIAA [Recording Industry Association of America] Web site and then there have been several others since then. Part of what a real unfortunate thing, and the Berman Bill isn’t going to solve this, is that by being so aggressive against the peer-to-peer file-sharing technologies and bringing so many lawsuits and trying to shut the stuff down, the industry hasn’t won the hearts and minds of the individual users of these networks, and they haven’t won the hearts and minds of the technology community that wants to use peer-to-peer technologies.

What it’s done, I think more than anything, is shunt users who want to file share to more distributed, less centralized systems, which are less vulnerable to Napster-like litigation, and has developed the cadre of committed technology sophisticates who consider the recording industry their enemy. These people feel justified in building stronger attacks because the recording industry is doing stronger attacks. So instead of getting everybody to a place where there is more respect for the law, what we’re doing is kind of breeding a lot of disrespect for the law both by the recording industry, frankly, and also by the technology community and by the public at large.  And it seems to me that given how widespread the use of these networks is, say 40 million people use peer-to-peer technology to file share, it’s really hard to throw them all in jail.
TR: The recording industry would say that’s why they need the self-help, because they can’t win a lawsuit against these new services.
Samuelson:  Yeah, but that’s actually the reason why they ought to be investigating the licensing option.  That would at least get them some money and would stop this kind of punitive war, which I think it’s going to be really tough for them to win.

TR:  So why do you think the copyright holders have rejected the licensing route? 
Samuelson: One of the things to really understand here is that, especially in respect of both the recording industry and the broadcast industry, there have been quite a lot of compulsory licenses. It’s really not as kind of novel and weird an idea as the industry wants to make it seem. The fact that they don’t want it doesn’t mean that it’s not a good idea. One of the things to realize is that when the recording industry first got started, they got sued for copyright infringement too.

TR:  Really?  When?
Samuelson:  This is actually worth knowing. The first sound recordings of music in a mechanical device were actually piano rolls. And there was a lawsuit brought by people who were publishers of music for copyright infringement against makers of piano rolls because the people who were making piano rolls were not paying them any royalties. The case went to the U.S. Supreme Court and the court decided that because the works that were protected were musical compositions-musical notes written on paper-piano rolls were not infringing material. Piano rolls just had punches on paper. 

Shortly thereafter, Congress amended the copyright law and gave copyright owners of music the right to control mechanical reproductions of their musical compositions. But that right was subject to a compulsory license, which benefited the sound recording industry. Compulsory licenses in some sense came about because the first sound recording industry was a set of pirates. There was concern about anti-competitive activity, that the copyrighters wouldn’t allow more than one sound recording to be made of a particular piece of music.  So the sound recording industry essentially got a compulsory license that benefited them. These licenses are part of what courts do and what legislatures do to deal with complicated market situations.

TR:  So why don’t Jack Valente and Hilary Rosen, the faces of RIAA, want it?
Samuelson:  Well, because they want complete control over everything. So they benefit from compulsory licenses themselves but they don’t want anybody else to.

TR:  They want complete control over their content?
Samuelson:  Yep, that’s what they’re going for right now.

TR:  Because they make more money that way?
Samuelson:  That’s what they think. I actually think they won’t. But it’s very difficult to persuade them. They look around and they see digital technology as something that causes them to lose complete control over their work and that scares them a lot.

So let’s say you wanted access to particular songs and you didn’t want to pay this much money on one of the major labels’ digital download service, well then you could get it from the peer-to-peer, kind of “dark net,” as Peter Biddle calls it. Right now, those digital download services are having to compete with “free.”  Even if there’s a compulsory license, they’re still going to be competing with lower-priced stuff, and what they want to be able to do is say, the only way you can get legitimate access is through us, and we’ll charge what we think the market can bear.

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