The Elephant in the Choruss

The Elephant in the Choruss

Chris Castle is Managing Partner of Christian L. Castle Attorneys, a law firm specializing in music industry issues, content based technologies and public policy.

Ever encounter people who think that illegal downloading can be solved by "turning off" the Internet?  That makes about as much sense as "voluntary collective licensing" or "ISP licensing" (used interchangeably).  You could only think it works if you were unaware of what it takes to account to artists and songwriters online.  Rick Carnes and I are very aware of what that takes and take issue with "voluntary collective licensing".  Rick is the President of the Songwriters Guild of America and knows full well how The Man 2.0 has decimated the vitality of the songwriter community.

The hallmark of "voluntary collective licensing" schemes is that users voluntarily pay $5 a month for all the music they use on a network and copyright owners voluntarily register to get their pro-rata share of that $5.  Each ISP creates their own method of estimating usage and somehow a central clearing house, currently called Choruss, figures all this out.  Our piece addresses some of the obvious problems with this approach.

But the elephant in the room is named "Safe Harbor".  When an actor knows they are acting badly and does it anyway, that's what makes them "bad".  Reasonable jurisprudence denies bad actors most legal goodies, such as safe harbors.  This is called "red flag knowledge" in the DMCA cases and bad actors are, of course, denied the DMCA safe harbor. 

So if an actor-say the head of IT for Whitebread U-knew that recordings from a "Clean List" were permitted on their network and that by definition all others were prohibited, Whitebread could either block the prohibited recording or likely waive their red flag and lose the safe harbor.  Losing the safe harbor is important as a matter of public image, if nothing else.  Of course, if Whitebread can distinguish between the Clean List and the Prohibited List, they can count tracks, and if they can count tracks, they don't need to estimate usage.  And if they can count tracks, they can pay the full statutory royalty like everyone else in legitimate business, so there's no need for the paltry $5 a month.

Unless, of course, public policy would permit the university to be indemnified against red flag claims by Choruss-if it's such a great idea, let Choruss executives pledge their homes.  Since Choruss only offers a flimsy "covenant not to sue" in lieu of a proper license, it is unlikely that anyone will take responsibility for potentially infinite claims for copyright infringement from those not on the Clean List.  But The Man 2.0 bets the creator's home, not his own-just like always.

Many Western governments, including the Obama Administration, support ubiquitous broadband as a matter of national policy.  Dissemination of content encourages this policy.  Not surprisingly, ISPs around the world have recently begun working closely with creators to respect their economic freedom and find commercially mature solutions.

Rick Carnes and Chris Castle recently co-wrote an op-ed for Content Agenda, entitled  "Choruss hits a sour note".