EFF (cautiously) optimistic at record labels' offering of a blanket license to universities

The Electronic Frontier Foundation's Fred von Lohmann is cautiously optimistic at the news that the record labels are considering offering a blanket license to college campuses that will legalize their students' file-swapping. Fred's glad to see the record-saurs finally declaring a truce in their war on the Internet. But, he warns, we have to make sure the universities and the artists are getting a fair deal for their money:
Universities would pay Choruss, a new nonprofit collecting society, in exchange for an end to the "John Doe" subpoenas seeking student identities, DMCA notices, lawsuits against students, and legislation mandating copyright surveillance of campus networks. Students who pay will be free to download whatever they like, using whatever software they like, in whatever format they like (and presumably keep it all when they graduate, since there would be no way to claw back DRM-free MP3s). The monies collected would be divided up among artists and rightsholders, based on relative popularity. The rest of the details are still to be determined, including whether it would be a mandatory fee for all students, or an opt-in fee (complete with continued lawsuits for those who fail to pay?). It's also not clear what the fee would be, although those familiar with the talks suggest less than $5 per student per month...

So we are cautiously optimistic. There are lots of hard issues that will need to be addressed. How will a collective licensing approach protect user privacy? What will universities do to stop "leakage" to ISPs whose users have not opted in? Will independent artists get a fair shake from Choruss? But it sounds like the labels are, for the first time, interested in having the right discussion.

Labels Open to Collective Licensing on Campus


  1. Even if this turns out to be horrible, and flops completely, it’s still a huge nod to the EFF and everyone else who has been advocating such a solution for years.

    Love the phrase “nonprofit collecting society” :)

  2. Ugh. Every time I think I should send EFF some support, they embrace something mind-numbingly stupid like this.

  3. I’m glad the EFF is optimistic, but I’m not. Given the past history of the industry & RIAA, this will quite rapidly move from a blanket license to a propriety, DRMd, Windows-only application framework that will only ‘share’ the music that RIAA wants to cram down the throats of college students while making them pay money for crap they don’t want. Then, RIAA will start filing breach-of-contract suits against the universities when students continue to swap files using non-RIAA approved applications. It’s a lot more efficient to sue 1 target for 100 million dollars than 10000 targets for 1000 each!

  4. Students who pay will be free to download whatever they like, using whatever software they like

    I thought the RIAA suits targeted people who were uploading music. (Unless they’re offering Brittney Spears songs in a honeypot scheme.) Will this let students who pay share whatever they like using whatever software they like?

  5. So basically the record companies got tired of forcefully squeezing money out of students and decided to convince the colleges do it in their names. That’s delightful.

  6. Sounds like extortion. Pay us a fee or we will make your life a legal hell.

    Extortion: Most states define extortion as the gaining of property or money by almost any kind of force, or threat of 1) violence, 2) property damage, 3) harm to reputation, or 4) unfavorable government action.

    I got that from some legal web site. If this happens it will mean hundreds of millions of dollars a year for the labels, and some spare change for artists.

  7. Ummm.. I don’t think this is a good thing. Folks really need to go read the related posts on TechDirt


  8. Yep protection racket.

    Also this is what the MAFIAA have been advocating all along — in Canada alone, the “strong suggestions” were:

    $1 a blank CD
    $5 a month surcharge from your ISP (look familiar?)
    $25 surcharge on an iPod or other mp3 player

    One might recognize the increasingly desperate negotiating position here…

  9. I’m glad they’re at least doing something other than suing everyone they can find. Hopefully, they’ll stop baiting people into incriminating themselves, too. I doubt any of this will work, but I’m hoping it will.

  10. If done properly, this could be a great system, especially if it made it out of just university settings. A blanket copying-of-recordings fee, similar to the blanket performance fees at venues. Although not perfect by any measure, BMI, ASCAP, etc. do significantly facilitate the legalities of playing whatever music you want at a venue.

    Again, that’s if it’s done properly. If it’s done with DRM, with “We’re not saying it’s legal, we’re just promising not to sue”, etc., then not so much.

    Really, though, imho a much simpler way about this would have been to legitimize Napster 8 years ago with a ~$5/month all-you-can-eat subscription fee. But that apparently isn’t lucrative enough.

  11. This is ridiculous, and makes me want to stop donating to EFF.

    We should not be legitimizing these blanket *AA groups as sole representatives of creative people who wish to make money off of their work.

    More to the point, I went to university to get an education. I am disturbed by the recent trend to use tuition money to pay for cable TV, and now, apparently, protection money. These should be the choices of the individual student.

  12. No, no, no!

    Paying a few big companies for the privilege of using a *medium* is a gigantic step backwards.

    (Unless you also want to make me collector of “oxygen fees,” in which case I’m fine with it all. C’mon, it’ll only be five bucks a month, and you wouldn’t want to stiff the poor tree farmers, would you?)

  13. What about all the good music that’s out there (being swapped and listened to) that’s published on independent labels that are not members of the RIAA? Would they get some of this money? And what does “relative popularity” mean? What’s popular in the society as a whole does not necessarily reflect popularity among college students..

    This sounds like a very unfair system..

  14. Judging by the comments some people view it as good and some people as bad.

    Honestly, from the point of view of a student guilty of file-sharing, I’d view this as a good thing as long as the fee is both reasonable and optional. I’d pay a reasonable amount of money for the peace of mind of not being at risk of having to mount a legal defense I couldn’t afford.

    Then again, I’d never be daft enough to use a university network for piracy. Chances are it would be both slow and frustrating.

  15. Sounds terrible.

    Since when do Universities in the US have any money to spend on stuff like this? They are already talking about hiring freezes in the wake of the new Depression…If schools can’t hire new faculty, and if they increasingly just exploit adjunct faculty to save money, how are they going find the money to pay RIAA protection money fees?

    I think the music companies are the last people that need to be “bailed out” by student tuition payments.

  16. protection racket… pure and simple… pay us the monthly “protection” or something really bad might happen…

  17. ‘Cautiously optimistic’? ‘Cautiously’ I can understand. I’d be cautious too if a pack of dinosaurs was about to fork my donkey. ‘Optimistic’ not so much.

    So *this* is the cosy extortion racket that the EFF has been pushing for since 2003? Remind me again whose side they’re supposed to be on.

    Count me with Techdirt on this one. As for the RIAA and their ilk, que se vayan todos.

  18. This is offering the same deal to colleges that record companies (and collecting societies) offer to radio stations: play (download) any music you like, pay a flat fee, and we’ll disburse it proportionally to the artists.

    The nonprofit collecting society needs to be arms-length, needs to have fair reporting, and needs to be open to indies, but none of those are insurmountable problems.

    The nice thing about this solution is that it pays artists, doesn’t criminalize kids, and doesn’t involve DRM, software mandates, or banning certain protocols.

    Sounds like the right approach to me, *if* we’re sure that the collecting society is honest and transparent, *if* the universities get to choose whether they opt in, and *if* the fees are reasonable (say the $5/month Yahoo Music was charging for the whole catalog, or less).

    If all those conditions are met, just think of the services that students, universities and entrepreneurs could offer: students might pool their HDDs’ worth of music (along with all the archival music in the library and every other university’s students’ HDDs) into huge cheap servers right there on the campus network (one in every dorm?) that can serve as a backup for getting access to every song, no matter who’s online. Keeping all that stuff local will slash network congestion and obviate the program of throttling and spying that prevails on many campuses today.

    Give it a couple years for storage prices to keep dropping and students can be issued a USB stick with the DRM-free high-quality library of, say, every song recorded for the past 50 years. Music studies profs can just put up repositories on the class-pages with links to every song under discussion in the class that semester.

    Signal processing professors could ask students to try to build better algorithms for cleaning up pools of 30-50,000 vintage tracks.

  19. I probably spend about $150 on music per year, and pirate much more. But 90% of the music I listen to is music that I’ve purchased in some physical medium.

    As long as I have to pay a mandatory fee to research albums for future purchase I won’t buy any music. Good luck, record companies, but this kind of “compromise” doesn’t appeal to me.

  20. Cory, that’s pretty much exactly what I was thinking.

    This is better than what’s being forced down their throats now, as long as they’re made to create it as an equitable deal. At the very least this keeps people from having to fear disproportionate punishment if caught and at the same time obviates the p2p interference that doesn’t discriminate between piracy and, say, your p2p-structured software patching program which deserves to be unhindered.

    My only nitpick: those high-capacity sticks probably shouldn’t be USB, they’d definitely call for a faster interface than that. Maybe eSATA will catch on by then.

    Also, folks, think: This creates a precedent for these people to potentially be offered a service to BUY songs, legally, without DRM, for a flat monthly fee. Wouldn’t that just make this whole scenario much less sucky?

  21. “students can be issued a USB stick with the DRM-free high-quality library of, say, every song recorded for the past 50 years. ”

    This, with young people at their creative peak? I foresee an explosion of new music. Oh, the pie will be higher. Culturally wonderful. I wonder though, have the RIAA types realized this and fear it since they couldn’t control and meter it? Are they so tiny minded they can’t see they would still be rich even if they only captured a fraction of it?

  22. For some context here — universities often opt in to database subscriptions that guarantee students access to large archives of scholarly writing. Nothing in those deals prohibits students from sourcing the same material elsewhere, and no one forces universities to opt into the database subscriptions. And if students engaged in mass, unlicensed copying of the journals, they’d probably end up getting sued.

    I’m no fan of the record industry, but this is materially similar to one of those database subscriptions, and superior in two important respects:

    1. A university that subscribes to the database can’t keep copies of the articles in its subscription if it terminates the arrangement (students can keep their music even if the uni opts out, and even once they’ve graduated)

    2. A university that subscribes to a database doesn’t automatically get immunity from prosecution for the student body in the event that they engage in unlicensed copying of the articles in the database

    These are two pretty big plusses. No one accuses West or LexisNexis of engaging in a protection racket when they offer a subscription to universities. This is a better deal than either of them will give any uni.

  23. How is the ‘popularity’ of artists going to be determined? Will they be monitoring transfers or hard drives? (Why do I suspect that, e.g., mc chris isn’t going to get his fair cut?)

    And isn’t this exactly the wrong time to add fees to the cost of a college education (who do you think will really be paying for that license?)

    Speaking of, isn’t there an elitist component here? The guy in college can download music but the poor bastard working for a living can’t?

    No, this stinks like old fish.

  24. This deal is politically problematic, because it acknowledges as its basis that the RIAA has a legitimate right to grant or deny access to the music they “own”. In fact, it goes even further than that and implies that the RIAA can in effect grant access to /all/ music.

    Practically, however, I think this is a good deal. The reason is that it sets us up for the next culture change. Youth already live in a world where copying is commonplace, but it’s also a world where every institution is officially opposed to it – even if it’s just to cover its ass.

    A deal like this in effect creates an environment where students can experience a free information utopia for 4 years. After that experience, it’ll be very hard to explain to them why things don’t work that way in the rest of the world.

    Personally, however, I would never submit to such an arrangement, because it is paying money to the RIAA for something which is not theirs to sell.

  25. How is the popularity of music to be determined? Terry Fisher and others have written reams on the subject, but it boils down to statistically relevant sampling using a combination of “Nielsen Family” volunteers, network analysis, etc. It’s comparable to the systems used to count live performance for disbursing royalties to composers in blanket-license schemes used in live venues.

  26. Zikzak, the way that other collecting societies work is that they disburse funds to artists on the basis of actual plays. If you paid for a blanket license and didn’t listen to any of the labels’ music, your fees would be paid to (or escrowed for) the artists to whom you listened.

    In this regard, it creates a level playing field for earning, effectively smashing the labels’ monopoly on the retail/distribution channel. The “channel” takes all comers: indies, label artists, small labels, etc, and pays proportional shares based on actual listens as audited by statistically valid, mutually agreeable, transparent methods.

    You wouldn’t be paying a dime to the RIAA if you didn’t listen to their music.

  27. @Cory: I appreciate the benefits of a system like that, and like I said: practically speaking I think it’s a good step to take.

    But there are significant problems which work to the RIAA’s advantage. For example: what if I’m an artist who doesn’t agree with the terms of the RIAA-backed collection society? My music is still swapped and listened to for free under the implicit (unofficial) permission of such an arrangement, but I don’t get any money. The only way to get paid is to sign up with the collection society, right?

    So what this leads to is not the undermining of distribution channels, but a new monolithic distribution channel which all artists must participate in to get paid. Because while it might be fine for an individual, it won’t do for a university to have 100 different collection societies which are each due a different monthly subscription fee. Then, as with journals, the uni runs into questions of which ones to subscribe to and which must remain illegal for their students to access – and that’s not what they want. They want a single entity who they can pay for the ability to do filesharing without legal danger. The RIAA is happy to oblige.

    The power of the RIAA’s blanket-license model comes from the idea that one institution can represent the interests of all the artists, that one institution can absolve everyone of their filesharing sins. I can see why the RIAA sees it as an acceptable compromise, because it takes a decentralized system (filesharing) and creates a centralized money stream out of it. The RIAA is much more adept at controlling and pressuring centralized institutions.

  28. You’re describing implementation concerns (important ones) in the as-yet-nonexistent collection scheme. I agree that it should not be tilted to the RIAA (though I note that in radio performance we do have multiple collecting societies, precisely because the mainstream society rejected or gave a bad deal to less-favored [black and hillbilly] artists).

  29. @Cory, I thought it was the collecting societies that gave the bad deals, which in turn spawned other collecting societies. ASCAP is directly responsible for BMI, for example, due to the former’s attempt to extract more money for performances. Seems like a bad road to head down again.

    And what about artists that realize music is not a scarce resource? Is Trent Reznor going to get a cut? What about mashups? Does Girl Talk get any money, or is it split amongst the hundreds of performers he samples?

    No, all this does is give life support to a dying paradigm.

  30. Rather than criticizing further, I’ve been trying to think of a way to implement a blanket license system that doesn’t play into the RIAA’s hands. But so far I got nothing, mainly because the whole deal is predicated on accepting that the RIAA is allowed to grant or deny permission to share music.

    Let’s suppose that the non-profit collection society is democratically run by the students themselves, so corruption isn’t an issue (a big assumption). This institution now has the task of taking a big pot of money and divvying it up among participating record labels (and indie artists). Ideally, everything’s split according to listens, and everyone just gets what they get and live with it.

    But what if the RIAA (as a participant) decides they’re not getting enough revenue? If they’re not making enough money, they can always threaten to pull out and start suing again, and now they’ve got a formal institution they can make that threat to, instead of a cloud of poor students.

    I can think of two demands they could make. The first is to increase the subscription fee, so each student has to put more money in the pot to make sure that the RIAA’s share is big enough. The other more devious demand is to increase their share relative to the other artists. This would probably go down pretty easily with the students since a) the alternative is to get sued for distributing RIAA music and b) it doesn’t cost them any more.

    The problem isn’t that the RIAA is a bully – they’ve always been a bully and always will be. The problem is that rather than having to bully individual students (which they do poorly), they’ll have a centralized institution to bully and extort from (which they do well). But we’ve already beat that bully. He has no power over us. Why would we put ourselves in a position to let him push us around some more?

    I’d prefer to see a “gifting society” organized by students, which collects voluntary donations (and perhaps university grants) and gifts them to artists based on listens whether or not the artist asked for it or gave permission for their music to be listened to. And on the institutional side I’d like to see the universities simply stop cooperating with the RIAA.

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