Up on Downloading, continued

Taxes for Artists and Producers

Fisher's tax scheme, he acknowledges, is the most radical of the proposals. For that reason, it has gotten the most attention--and may also be the hardest to sell.

Under his plan, it would no longer be illegal to copy digital entertainment without permission. The owner or owners of a copyrighted work--including artists and producers--could choose to register the work with the U.S. Copyright Office, which would provide a unique file name. That file name would be used to track how often the work was downloaded or copied, and the owners would be compensated from a fund administered by the Copyright Office. Funding would come from a tax on ISPs or devices used to gain access to digital entertainment. This system makes room for artists to "rip" and mix from existing works to create new songs, films or other works; both the owner of the original work and the creator of the new one would be compensated on a percentage basis.

Other than lawyers, Fisher notes, "pretty much everyone would benefit." Consumers could download freely and legally with access to a much greater choice of entertainment. Artists and producers would get paid. ISPs and other intermediaries such as electronic manufacturers would not be obliged to police consumer use, something they are strongly resisting. Even recording companies would benefit, at least in the short run, although their long-range fortunes are more difficult to forecast, Fisher says.

Perhaps as important, the ability to create new art through ripping and sharing existing works would be preserved. "The opportunity for consumers to take materials and rewrite and redistribute them would be much enhanced," Fisher says. "This is one of the most rapidly developing innovative uses of the new technology. Instead of accepting film and music, you can edit and modify it." The academic term for this "creative explosion," as he puts it, is "semiotic democracy."

Jonathan Zittrain
Assistant Professor Jonathan Zittrain '95 has been working with Fisher and Nesson to hone their proposals.

In that regard, Zittrain shares Fisher's enthusiasm. "I think an understated benefit to Terry's proposal is the idea that consumers have the capacity to produce new works based on old works, without displacing the old works," says Zittrain. "The mixing and production tools on the average PC from Best Buy exceed the most sophisticated recording equipment of the late '70s. It would be a shame if the law could not evolve to account for the vast new opportunities of content production offered by having these tools in consumers' hands. Terry's model allows for it because it suggests formulas by which people can say how much of their work is theirs versus how much they drew from existing works. It is quickly looking forward to a time when consumers can be producers, can be paid and can share. That's at least a first cut at having the law respect and even provide an economic engine for creation of new works in digital media without economically cannibalizing old ones."

However, within the entertainment industry, at least, Fisher's plan is a tough sell. "It seems pretty far out to [the entertainment industry]," says Nesson. "Instead of making money selling things, they'll be recipients of money from a government agency." That's something that also gives Nesson pause. "I'm not disposed to it because, at the biggest level, the end result of the Internet revolution is we wind up with a mega-government agency that's in control of entertainment. That seems to me a net loss," he says.

"I can't see how anyone could give assurances that such a government agency would not discriminate," he adds. For example, "I can't see an agency paying out money to porn." And, he says, "If there is some other major competitor for funds--like a war or plague--and a big pot of money is sitting there to be paid for entertainment, I don't see what would keep the government hands-off."

"That's a legitimate worry," concedes Fisher. "You're placing a fair amount of discretionary power in a government agency." However, the agency would not choose which artists are paid, he insists, because compensation would be based simply on numbers--which works are downloaded the most often. "The principle of consumer sovereignty would remain," he says. However, he adds, "The total amount of money distributed through the system would be subject to some degree of government discretion. That's an invitation for lobbying," he acknowledges.

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