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June 25, 2005
Gratz on Lessig on 17 USC 115 Reform
Posted by Ernest Miller
Joe Gratz takes Larry Lessig to task for his critical statement regarding the Copyright Office's proposed reform of 17 USC 115 (Lessig Gets It Wrong On Register’s 115 Reform Proposal). I was similarly critical yesterday, though my comments focused on the benefits of elimination of Section 115 (Lessig on the Proposed 17 USC 115 Reform). Joe, instead, focuses on the positive aspects of the proposed reforms:
The practical effect of the Register’s proposal is to force ASCAP, BMI, and SESAC (now referred to as “Music Licensing Organizations” or MROs) to offer blanket licenses for reproduction and distribution along with the blanket licenses they already offer for public performance. Access to all works licensed by the three MROs remains unhampered, and even becomes easier. ....
So, the practical effect of the Register’s proposal would be to institute a system of unified blanket licensing for the public performance, reproduction, and distribution of substantially all non-orphan musical works, especially by digital means. That’s what the Register is trying to do, I believe. The proposal also appears to be motivated by a feeling that the 115 compulsory enacts a massive and ongoing wealth transfer from songwriters to record companies — a feeling I share.
This is the right way to fight piracy — by making it as easy as possible for digital music services to license the rights they need. The collateral damage to small-time users of musical works will be minimal, and the benefit to consumers will be enormous.
I'm still not ready to endorse the reform, but this is what it looks like to me too.
Part of this, of course, is my belief that there should be only three aspects to copyright: scope (what qualifies for copyright and derivative works), term and the right of public distribution. I don't believe in reproduction as a right, something I've said time and time again. By forcing the MROs to license reproduction, distribution and public performance together, you begin to see the outlines of what a right of public distribution might look like. After all, "performance" and "display" are just means of "distribution".
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Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
