The RIAA is right about three things. First, under current copyright law, the behavior of the file swappers is illegal.

This is arguable first because most copyright violations are a civil issue and second because the volume of copying and how the copies are used has a direct impact on how the laws are applied. It is only a criminal issue when the volume exceeds a certain standard or copying is done for profit. If it is not a criminal issue, it is not illegal per se.

Second, partly (although only partly) as a result of the ubiquity of file swapping, the music industry is in crisis. CD sales continue to decline, record company revenue is falling at an accelerating pace, and many music retailers are going out of business.

There has been no conclusive evidence to prove that fileswapping has anything to do with the music industry's problems. Filesharing is more of a scapegoat in the industry's desperate bid for the reassertment of its monopoly of music distribution. Price fixing, bad customer relations [boycott-riaa.com], bad product offerings (think eminem... if you dare), the current economy, and a host of other things can all be resonably suspected of causing the the industry's decline.

Third, among the groups threatened by this crisis are the creators of music--the composers and performers.

This is also not likely. According to Boycott-Riaa.com [boycott-riaa.com]:

... 85% to 90% of all artists signed to the major labels will never receive 1 cent from their label in royalties for the music they created.

The "I" in RIAA stands for "industry" not "artists". You can only be threatened with losing something you have. If copyright does not benefit the artists, what is its purpose?

So, more or less, the RIAA is wrong about three things, but that is okay, they have the money and influence to force their arguments to be right. The basis for the entire argument made by Professor Fisher is flawed, so the rest of his argument is just a solution to a problem that does not exist. Remember, to understand the ultimate answer, one needs the ultimate question (it looks like I have taken a turn at paraphrasing :). It seems as if Professor Fisher has neither.

I did not mean to be unclear about who the quotes came from. This is especially true since I agree with many of your statements and disagree almost entirely with Professor Fisher.

I got stuck on that introductory paragraph, but after reading the rest of the essay, I see that this Professor Fisher is really a communist. Everybody who listens to anything pays a portion of the total volume of songs. How is that fair?

So, if I buy a CD burner to backup my harddrive, will I be paying a tax to subsidize some 12 year old's listening habits? What if I want to boycott the music industry and still backup my harddrive? What do I do then? Carve the data into a rock?

Not only that, but once you get the government involved with this large amount of revenue, how does one avoid graft and theft? Or the inclusion of it into income tax law? Then what happens? Do I go to jail if I did not purchase my quota of music for the year? Can I be audited?

This guy is smoking crack with a fat pipe.

I rarely make the accusation of communism. However, in this case, I think it is warranted for two reasons.

First, his plan requires state control of the copyright royalty tax. This is unfair and dangerous. When the government collects revenues for private businessmen or artists or whoever, the system cannot be called capitalism. Capitalists grow their businesses and collect their revenues without government intervention. Communist governments by contrast do the functions of business, eliminating the need for private enterprise.

Secondly, this system forces people who do not "consume" the music (or entertainment, or whatever) to pay anyway. As I said in the parent: if I buy a CD burner to backup my harddrive, will I be paying a tax to subsidize some 12 year old's listening habits? It is a good question because this is an even tax for uneven use. It also unfairly targets people who use hardware for "other significant non-infringing uses".

Now you of all people are not one I would like to anger. I think your opinions are excellent, and I have learned a great deal from you. I cannot back down from that statement, however, because in addition to the two reasons stated above, you have pointed out that this idea is akin to Sauron's Red Eye, which adds to state control and unfair pricing the loss of privacy. Were we not always taught that the reason Stalin was so scary was that people had to be careful of everything they did and said? How can we be free from that when our purchasing history is logged by the government for the purpose of billing? How far down the road will we be before the Justice Department gets ahold of these records? There is no question "mission creep" would become an issue there.

Dear pho and Mikael,

My name's Derek Slater, long time reader, first time poster.

Mikael's criticisms are clever, but they seem to discuss a different system than Fisher's.

First, Professor Fisher's proposal most certainly does not "monitor my individual transactions and usage of intellectual works." There is no Red Eye. Fisher intends to monitor downloads and streams, but not each individual use of digital media. In his latest draft of the model (see http://cyber.law.harvard.edu/people/tfisher/PTKCha pter6.pdf), he only goes as far as suggesting voluntary surveys to get a sense of how many times a given work is consumed. None of this would be automated or required via any software or media device, and I do not believe he has ever suggested otherwise. (In previous drafts, Fisher had also noted that sampling could be done at the router level, see: http://blogs.law.harvard.edu/cmusings/stories/stor yReader$14)

Certainly, monitoring downloads and streams can be privacy invading, too, but no more privacy invading than accessing webcasts today or typical credit card purchases of CDs. Though all of that can be recorded and attributed to you in some fashion, there is nothing in Fisher's model that would require such recording. All statistics could be completely anonymous.

Second, I'm a little confused by Mikael's misgivings about Fisher's DRM. What DRM? In the conventional sense of the term, Fisher's plan has none - there are no restrictions on use or copying. There is a watermark that allows downloading and streams to be counted, but that's a matter of digital rights expression.

Finally, I am also confused by Mikael's desire for "levies," whatever that may mean. Fisher's plan involves levies on recording devices and ISPs. The difference seems to be that the levies Mikael suggest do not come with any reciprocal reduction in copyright holder's rights. File-sharing would remain infringement, fair use would still be ambiguous - I am unclear as to why a pure levy-based wealth transfer is preferable.

I am glad more people, especially those on pho, are discussing Fisher's plan. To begin to evaluate it, we must first separate the myths from the facts. For more information, check out: http://www.hodder.org/LinkConvCompLic.htm