Napster Judge Calls for Major Copyright Reform

Judge Marilyn Hall Patel, who presided over the case that killed off original Napster, proposed a bold plan Monday to reform copyright for the digital age bycreating a new public/private organization with authority over thelicensing and enforcement of copyright.

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"There needs to be a comprehensiverevision of the provisions that relate to the administration ofcopyright licensing, royalties and enforcement," Patel said in a speech at her Fordham Law alma mater. "I propose that a joint public/private administrative body made upof representatives of all competing interest, including the public, beestablished and authorized to, among other powers, issue licenses;
negotiate, set and administer royalties; and adopt rules andregulations to carry out these purposes."

While Utopian in nature — and with no discernible constituency beyond Patel — the proposal is hardly on anyone's docket right now. But anyone looking for a diplomatic way forward that would protect rights holders without punishing their customers could do much worse that heed the advice of this particular jurist.

Patel has had seven years to think about what's wrong with the music business and the digital landscape  she helped create with her landmark Napster decision, in which she ruled that the peer-to-peer service "knowingly encourage[ed] and assist[ed]" the exchange of copyrighted music to the economic detriment of the record industry, a finding which ultimately spelled its doom as a free and free-wheeling service.

Part of the problem just won't go away, like the ease with which any recording can be digitized and shared with an infinite number of others — like Patel's speech, which I bootlegged and saved as an MP3.

"It was not surprising that the notion of free music caught on," Patel said at Fordham.
"What is surprising is how the industry seemed to be caught so short.
While it was fumbling the new ways to distribute digital music at aprofit in the new age, savvy innovators were moving full speed ahead.
Sadly, it is the artists and composers who have been the most neglectedin this matter."

But legislation is not the answer, she has concluded. "Our copyright laws have become a patchwork ofamendments that are adopted as emergencies arise" and as lobbyistsrepresenting various interests push legislation. Simply put, the systemis too complex and doesn't properly address music's present —
let alone its future.

Judge Patel's recommendations:

  • The new body needs to be a mix of public and private entities with all parties represented. It cannot be a purely governmental body because that is not likely to instill confidence in the public.
  • All copyrighted music would be part of this system and subject to acompulsory license, with possible opt-out provisions for certain rightsholders.
  • Congress should abolish all current compulsory licenses andadopt a blanket licensing system. (Such a system may have allowedNapster to continue operating, assuming it could afford to pay labelsunder the compulsory licensing scheme.)
  • The body would administer all royalty payments and would replace all current systems for doing so.
  • An independent arm would arbitrate royalty disputesusing music databases that allow arbitration to be done withspeed and precision lacking in the current system.
  • Manufacturers and developers would need approval from this bodybefore introducing an application or device capable of recording,
    distributing or copying music to consumers.
    The body would include technology experts to aid in making thosedecisions quickly — Patel described this as "sort of like the FDA, butmuch faster."

That last item could be cause for concern. Developers and manufacturerswon't cotton to an administrative body deliberating overtheir feature sets. On the other hand, it sure beats getting sued bythe RIAA, as XM Radio found out last year when it tried to sell a portable satellite radio receiver with a song-saving feature.

Patel wasn't all business on Monday night. In addition to these bold recommendations, she also revealed that during the Napster trial she joined the Napster network under the user name "Ima Judge." The audience also learned that Judge Patel likes to entertain colleagues at judicial conferences with her rendition of "Momma" from the hit musical Chicago.

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