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This article is part of a series that describe some ideas for reforming current copyright law. The approach I'm taking is ad-hoc. A specific problem is listed, and a solution is proposed, followed by the rationale.

The act of copying in the digital age becomes ill-defined. When copyrighted work exists in electronic form, any transfer of such work entails: (1) the transmitter creates a transient copy in the electronic medium for transmission, (2) the receiver creates a record of the transmission once the copy is received. A transfer of electronic copy would mean that at least 2 permanent copies and 1 temporary copy can exist during the transfer. The chain of transfer ends when the digital copyrighted work is converted back to analog form for perception. Current DRM scheme seeks to control the whole chain of transfer to ensure that no unauthorized copies are retained.

The proposed reform is to consider the whole chain of electronic transfer as "performance" of the copyright work rather than duplication. We differentiate "performing private use work in public" and "performing copyrighted work without a use license" as two separate types of infringement.

When the chain involves the Internet, the chain could be indefinitely long, so it is impossible to estimate the number of unauthorized performances of the whole chain. We only count "making available" to each entity as one performance. In addition, we penalize the entity who obtains copyrighted "private use" work over the Internet without a private use license.

This proposal is to be refined...

This article is part of a series that describe some ideas for reforming current copyright law. The approach I'm taking is ad-hoc. A specific problem is listed, and a solution is proposed, followed by the rationale.

When a copyright infringement case is brought to court, if the case holds, then the plaintiff may be awarded statutory damage, which serves as a punitive deterrent for infringement. The amount is not based on actual damage. Because of this, the RIAA aggressively engages in lawsuit with people who appear to distribute copyrighted work over peer-to-peer network even when the case may be without merit. Individual defendants lacking the legal resource are forced to settle, and to settle based on the amount of statutory damages which is disproportional to the actual damage caused by the individual.

The proposed reform is to reduce or eliminate statutory damage. The plaintiff is still able to claim actual damage, but it could be contested by the defendant in court.

With statutory damage, the plaintiff does not have to prove the actual damage, so statutory damage makes it more likely to either (1) bring every copyright infringement case to court, no matter how minimal the actual damage is, or (2) increase the amount of out-of-court settlement. By reducing statutory damage, it also reduces incentive for legal powerhouse like RIAA to go after individuals.

However, copyright owners are still protected against organized, large scale copyright infringement, in which case the actual damage is easier to prove.

The current statutory damage of $30,000 (upto $150,000 in the case of willful infringement) should be reduced to less than $3,000 (upto $15,000), i.e. reducing at least by a factor of ten. The rationale is that the statutory damage should be the threshold to distinguish cases that warrant further discovery of damages.

This article is part of a series that describe some ideas for reforming current copyright law. The approach I'm taking is ad-hoc. A specific problem is listed, and a solution is proposed, followed by the rationale.

If a copyrighted work is out of print, its copyright has not expired, and it has not been licensed for distribution, then it ceases to be accessible to the public.

We proposed the following reform for a work that was in print and subsequently went out of print: a compulsory license is automatically granted to any entity who can demonstrate that (1) the work is no longer available for purchase by the distributors authorized by the publisher, and (2) the original publisher lacks incentive to reprint the work. This compulsory license is revoked as soon as the publisher starts reprinting the work.

Here the key phrase is "out of print," where the act of printing is defined based on the quantity of replication. An allowance of 100 copies is given to any work without it being considered "in print."

The rationale is that printing is considered a mechanical process that can only reach economy of scale in mass quantity and can continue indefinitely, subjecting only to available natural resources. On the other hand, replication that requires significant manual effort, such as a sculpture, should not be considered printing. Using economy of scale as the principle, we use the number of copies to threshold the amount of manual effort required for replication.

If a work was never in print, then it might be the case that the copyright owner never intended to distribute the work to the public, so we must respect that intention.

Every once in a while, you see studies showing that P2P piracy hurts music sales, has no effect on music sales, or stimulates music sales, depending on who funded the research, and what interest they have to show in the result. But no matter what your point of view is, it looks like file-sharing piracy of music isn't going away.

One of the observations brought by Seth Godin in “All Marketers are Liars” is that people get their money's worth the moment they spend it. The woman who buys $20 collectible Christmas ornaments at Hallmark in July already gets her money's worth when she thinks about how nice it would look on her Christmas tree in December, how she could talk about it with her Christmas guests, how it can be passed down to her children, etc. Then she puts the ornaments in the attic for the rest of the year. Her money's worth comes not in the utility of Christmas ornaments, but in the gratification of these thoughts.

Furthermore, at Christmas, she tells her friends about the ornaments, and how they will be in store again next July (with new design). Then they could check it out together next July. This free advertisement for a product that is “remarkable” (can be remarked or talked about) completes the “fashion cycle.”

If you want to encourage people to buy music, you need to think about how the purchasing itself brings gratification. The first gratification comes at the moment you listen to music. How do you know there is a song you like that you want to buy? You already listened to it! The first gratification is had before the purchase.

The second gratification that could happen at the purchase is the thought how you can share it with your friends, and if they like the music, they may think you're a cooler person (I think we all agree that music taste defines a person). But the second gratification is “no purchase necessary”—file-sharing can achieve this too. This is fatal to music sales because, after the purchase, the sharing with friends will happen without sales. Your friends will listen to your songs and have the first gratification.

Since music (or any digital media in general) is an intangible good, the “fashion cycle” can and does happen while the distributor—record labels, or even if you're an artist—is completely cut off. This explains why, when Radiohead gave their songs away for free, it was still pirated more than purchased.

So people will continue to share their music illegally, and music piracy will go on, unless the record labels do something clever about it to get involved in the fashion cycle.