Criticisms (and Support!) of My Criticisms of Compulsory Licensing

So apparently, though I’m subscribed to their RSS feed, I missed Tech Law Advisor’s favorable linking to my post on compulsory licensing. Derek Slater of “A Copyfighter’s Musings,” blogging at Harvard via their spiffy new Radio system, points out some problems/misconceptions with my criticisms. Indeed, I wasn’t clear that a watermarking approach to tracking music downloads was foremost in the minds of those who support compulsory licensing. Certainly this approach seems to be the most realistic of technological solutions, even if getting the consensus on one watermarking system will be a political nightmare in and of itself. But, I concede that I was unclear on this aspect of the proposal.

However, one issue I remain unclear on, as it remains vague at least in Fred von Lohmann’s editorial, is whether the money for compulsory licensing comes from a Federal tax on individuals, a tax on Internet service providers (that gets passed to their customers, clearly), or an informal collection by ISPs themselves. Admittedly, it is the role of a taxpayer in a liberal government to pay for things they don’t necessarily support, and thusly we could justify a Federal collection. But generally, we pay taxes for (perhaps distasteful) things that are in the public interest or are public goods.

I am, at the very least, skeptical that offering the record industry Federally funded financial protection from piracy is at all in the public interest. Furthermore, I question taxing everyone for the crimes of a few when the means to commit these crimes of piracy are not universally available. As an analogy, we pay taxes for jails and criminal proceedings because we all have the opportunity to live lawfully or unlawfully in our communities, and we thus bear the responsibility of paying for those who choose to live unlawfully. But we do not all have the opportunity to use the Internet, lawfully or unlawfully: save in some wealthier state libraries, there is no pervasive public government-funded Internet access in the US.

Thus a Federal tax on all citizens towards paying for the crimes of Internet users who get their access through private companies is unjustifiable. Taxing ISPs directly would be a more accurate means of collecting revenue from those with the means to abuse copyright, even if law-abiding customers would be penalized. And, were we to actually stop indulging the record industry in its requests for protectionism that is antithetical to the notion of a free market, we could leave the decision to “tax” Internet users up to ISPs.

I appreciate the criticism, and appreciate far more any positive steps towards ending the copyright war that consumers are paying for daily, once in their market purchases and again via taxes. Perhaps I was operating under the “myths” of compulsory licensing. Let’s hope the facts are more encouraging.