Beginning with his second point, he and a btempleton begin developing a compulsory licensing system that will ostensibly avoid the flaws I've pointed out. However, this simply moves the question of fungibility to another level or layer. We can't easily define what music is. How easy will it be to define what "use" of an arbitrary audio file is? Such a definition is itself fungible ... certainly a computer has no way of knowing whether one "use" of an audio file is legitimate and another illegitimate. If I double click on an MP3 file, my computer launches a file player. If I double click another file, my computer launches another application. Each is a "use." Just as you can change one file type into another, arbitrary file type, just so you can convert any "use" into another arbitrary "use." Tell me what the "use" is and I'll tell you how to arbitrarily convert one use of a file to the "use" that counts. As usual, there are even good reasons to justify such shifts - such as showing that any such definitions are, in fact, arbitrary.

It is good, however, that Derek makes his proposal more concrete. However, every compulsory licensing system has trade offs. Monitoring usage sounds good, but then you begin running into problems.

I'm not going to go into all the potential problems right now (I'll save that for another post), but as you begin choosing particular paths to avoid, your options for dealing with other problems grows more limited. For example, it is potentially much easier to game the system by faking how many times a song is played, then to download a song multiple times. However, having chosen to follow the path of monitoring "use" - the increased vulnerability to gaming is inevitable. This is not to say you cannot solve the gaming problem, but your options for dealing with gaming have been limited in certain ways by the previous decisions you have made.

As the proposals for compulsory licensing become more concrete these are some the details that we will need to begin to discuss. It really isn't an option to assume the difficulties away - which is Derek's third point. Advertising bans sound easy, but heavily implicate the First Amendment. You might be able to craft such a law, but it won't be simple and you shouldn't just assume the problem away. After all, how do you clearly articulate the claim that this is an illicit abuse of the system? Any compulsory licensing scheme is going to result in the increased creation of works that more effectively adhere to the rules of the incentive system. Do you arbitrarily punish the works that adhere to the rules, but that you don't like? Of course not. However, just as it isn't easy to define what is music, it will be difficult to define what is an abuse of the system. Scott Matthews says that his conversions are to be enjoyed both as audio and executable. Why should he not be compensated for the audio? Why is this illicit? Why is this "gaming"?

Derek's next issue is that many content creators won't take advantage of this because they won't want their materials to be shared in the first place. He notes that one of my main examples is shareware. Proving one of the points of my earlier post (in compulsory licensing schemes there usually isn't any discussion devoted to pornography), Derek doesn't discuss my other main example, which was pornography. Granted, many content producers won't try to take advantage of this because they don't want their files shared. However, there is an awful lot of shareware out there that can take advantage of this ... as there will be pornography. How much is too much? I can imagine that much pornography and many shareware programs will be far more popular than many, many musicians. It would be a strange musician compensation scheme indeed that rewarded many pornographers more than many musicians. I doubt such a result would please musicians.

Note also, that we now have another concrete element of Derek's proposed compulsory licensing system - it is music only (I'd say audio, but he raises the issue of "music-only" at the bottom of his post). Again, there is nothing wrong with advocating this, but it raises new issues. Indeed, if we aren't going to define "music" for toilet flushings then why define Books-on-MP3 as non-music?

Some Uses Are More Equal Than Others

Derek discusses another related issue, brought up by Scott Matthews, which is how do you compensate music that is automatically streamed by visiting a website, for example? Imagine if everytime you visit Google a 4 second music clip plays. Derek says this "wouldn't really constitute gaming." Glad we have the definition of gaming straightened out. I speculate that Derek doesn't consider this gaming because he can see the value of these intro clips, but has a harder time seeing the value of mixed bmp/wav files. His intuitions may very well be correct (and they may not be), but they don't provide us with the rules necessary for a non-arbitrary legal system. Admittedly, these comments of his are "off the cuff" but they are issues that need to eventually be addressed

Derek further has the intuition that these intro clips should not necessarily get the same compensation as music that is heard in other ways. He basis his analysis on "agency," what the user did to generate a stream. If you deliberately selected a clip to play, that would count more than if a clip were automatically streamed when you visited a website. Which raises the question of how much agency you have with regard to a webcast. Should a webcast be compensated somewhat between a deliberate action to play a particular song and a website that streams music?

Derek admits that distinguishing between songs people actually wanted to hear from songs that just occurred based on another action would be difficult. He suggests distinguishing between a "song" and "the sound when Windows boots up" or "the [hypothetical] Google welcome noise." He actually picked a couple of good examples.

That boot up sound for Windows 95 many of us are quite familiar with was the work of Brian Eno. He is a famous musician and producer, having worked with U2, David Bowie, and his music has been in such movies as Trainspotting, Velvet Goldmine and Heat. His work has been classified as "1. Songs. 2. Instrumental or ambient pieces. 3. Unclassifiable."

Here is what Brian had to say about that boot up sound:

The idea came up at the time when I was completely bereft of ideas. I'd been working on my own music for a while and was quite lost, actually. And I really appreciated someone coming along and saying, 'Here's a specific problem -- solve it.' The thing from the agency said, 'We want a piece of music that is inspiring, universal, blah-blah, da-da-da, optimistic, futuristic, sentimental, emotional,' this whole list of adjectives, and then at the bottom it said 'and it must be 3¼ seconds long.' I thought this was so funny and an amazing thought to actually try to make a little piece of music. It's like making a tiny little jewel. In fact, I made 84 pieces. I got completely into this world of tiny, tiny little pieces of music. I was so sensitive to microseconds at the end of this that it really broke a logjam in my own work. Then when I'd finished that and I went back to working with pieces that were like three minutes long, it seemed like oceans of time.

Interestingly, Brian Eno is behind a concept album distributed on floppy disk in 1996 that can generate hours of music and still take up only 1 to 25 kilobytes (Brian Eno's generation game).

As for the "Google welcome noise," I'm reminded of NBC News. In 1985, famed movie composer John Williams was commissioned to write the theme song for the NBC Nightly News. John Williams gets a lot of money for composing. Presumably he also gets royalties every time the theme is played (must be nice to be John Williams). Why would NBC spend so much money? Perhaps it is because they realize that music is an important element of attracting the audience they want. Undoubtedly, people choose NBC for their news because of the stirring theme music. Indeed, as this Slate article notes, news theme music is highly competitive (The Sounds of War), and Williams' work has set the standard:

In the mid-'80s, it [NBC] commissioned a grand symphonic work called "The Mission" from Hollywood composer John Williams (better-known for his Star Wars and Indiana Jones themes). The other organizations have been trying to match its success ever since. Williams still rules NBC, and for good reason. The everyday theme for Nightly News (which you've heard for nearly 20 years) is both symphonically and structurally sophisticated. The composer draws on the music of late-Romantic Richard Strauss, whose work includes "A Hero's Life" and "Also Sprach Zarathustra." Its French horns (the instrument used in hunts) blast a syncopated stutter-step rhythm that cadences with a descending major triad, mimicking Aaron Copland's American paean "Fanfare for the Common Man." There's a searching violin line, a dash of fantastical harps; by the time the victorious trumpet fanfares enter, you feel that you've been asked to join an exciting journey for truth.