While the White House has been asking the tech/internet world to come up with their own “best ideas” concerning legislative solutions for copyright issues, it’s a question that rubs many the wrong way. As folks like Tim O’Reilly have noted, this seems to be starting from a pre-determined outcome without evidence. Furthermore, as Nat Torkington has pointed out, the tech industry has been offering tons of solutions for years, in the form of new and useful tools and services that create new business models.

I will say that I tend to agree wholeheartedly with O’Reilly and Torkington. Before rushing in to a “legislative solution,” I’d sure like to see some evidence that a legislative solution (1) is needed and (2) would actually work. Nearly all the evidence suggests neither condition is true.

However, are there more creative legislative solutions that come from thinking out of the box? Ian Rogers, the CEO of TopSpin, who has been a vocal opponent of SOPA/PIPA, (despite his close relatioinship with many in the recording industry) has an interesting proposal that he’s put forth that’s worth thinking about. It starts from a different perspective. Rather than using the opportunity to directly tackle this undefined “problem,” he looks at solving a different problem: the fact that it’s difficult (to impossible) and expensive to license music for an online service. So his suggestion is really based on dealing with that issue by creating a giant registry whereby copyright holders could indicate what they’re willing to license and at what price. He notes that this is an idea that doesn’t directly need a legislative solution — and, in fact, notes that he’s tried to build something like that in the past. However, multiple attempts to build this haven’t gone very far. He suggests a more official version might be able to really go somewhere.

As a part of this, then, he’d offer up a “quid pro quo” to the SOPA/PIPA supporters of the world. Basically, online services — streaming sites, cyberlockers, etc. — would have to make use of a fingerprinting system to run checks back to this registry — such that if someone uploaded a song, the site could quickly determine if it was “okay” to stream/download, and if not, kick it back to the uploader to deal with it.

In thinking about this, there are some things I like, and some I don’t. I do like the fact that this solution isn’t really just focused on “stopping piracy,” but rather in building a tool that would actually be useful in expanding businesses. This is a key thing that many of us on this side of the debate keep asking copyright maximalists:

Which is more important? Making more money or stopping piracy?

I think the only rational answer is that making more money should be the focus. What good is “stopping piracy” if it doesn’t lead to greater sales? Obviously, many maximalists believe that “stopping piracy” automatically leads to greater sales. I’d argue that the jury is still out on that point. Either way, if a proposal is just focused on “stopping piracy,” without any actual effort to make sure that the real focus is on maximizing revenue, then I think it’s dead in the water.

This proposal, however, has as its key part, a tool — the registry — that is much more focused on solving a business problem, rather than an enforcement one. That it also has, almost as a side effect, the ability to have an impact on the enforcement side, certainly makes it pretty interesting.

That said, there are reasons why I’m not convinced that this would actually work. As Rogers notes, the work to build this is non-trivial, but doable. I agree, but that non-trivial problem means that certain “choices” are going to be inherent to the design, and that worries me. We’d be building a central registry really on pure assumptions both of how it would be used and what the coders think. That’s almost certainly going to lead to unintended consequences — and it’s those consequences that I fear. How do you predict exactly how this works? How do you program in every option that doesn’t lock you into a paradigm that might not make sense? What if someone — either content provider or service provider — who wants to do something unique, innovative and wonderful, but for which the registry doesn’t have an “entry?” Then what? The fear is that it ends up locking in the business models issues programmed into it… and I’m not sure we know enough about the market to try to define those issues yet.

Second, we already have some pieces of this kind of thing in place already. Things like machine readable licenses, for example, is something that Creative Commons has done, and there are probably plenty of lessons to be learned there. However, even Creative Commons has run into issues at times, and has had to regularly adjust its actual licenses when they realize that current licenses don’t really match a need. That’s easier to do when you’re just issuing licenses. When you’re talking about the entire structure of a very large database, the challenges to change features to accomodate innovation and new business models becomes increasingly difficult.

In the end, though, I’m happy to see more creative proposals coming out that don’t just take the same old path. I’m not sure I’d fully support any such legislation (it may depend heavily on the details). But I do appreciate that as a starting point, this is something different that truly does seem to focus on a particular and known issue (the difficulty of licensing) and tries to use that as a starting point for a more reasonable solution. It’s certainly worth thinking about.

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