Handing out copyright monopolies in the first place is handing out legal privilege. It's hardly surprising that further interventions are necessary to mitigate the worst damage of original egregious government intervention that is copyright monopoly law.

You don't really spell your solution out, Solveig, so I'm curious as to what you think of these two ideas.

The first would be compulsory registration for all copyrighted works - failure to register means you have no monopoly rights. Combined with a compulsory licensing scheme for transformative use, it would be relatively easy for a musician to license the use of hundreds of samples (or even thousands, as is oftne the case). Relative to the complete nightmare that musicians face today, that is.

The second would be a broadening of fair use to cover all transformative use, carefully defined.

You allude to each but don't really engage with the details of the first solution, nor the exact problems with the latter.

In brief: compulsory licenses run into a slew of other problems (such as price-setting and value of use measurements, the encouragement of what some exsasperated court once described as a "culture of litigiousness, the disconnect in accountability that results from the user's inability to deny payment to the producer) one of which I note above, and that is that it leaves the problem to reoccur for the next new player.

The "broadening of fair use to cover all transformative use, carefully defined," doesn't work very well when unpacked. It isn't possible to "carefully define" fair use; broadening it also broadens uncertainty for producers and creators. Last but not least, if the user is getting value from the product, there is no reason that the creator should not be paid. As the costs of licensing come down, "fair use" as a category should be shrinking, not growing.

Solveig, why do you claim that "if the user is getting value from the product, there is no reason that the creator should not be paid." Why should we always want to attach an exchange value to something that may have some other kind of value, and then force transactions to match that exchange value? That seems like a bizarre way of fetishising one particular kind of value!

Broadening fair use could actually lead to less uncertainty - if the only test was whether or not the derivative work significantly transformed the other then that is much easier to understand than the current mess that is fair use in the US (or indeed fair dealing over here in the UK).

Finally, I see no evidence that the cost of licensing is coming down. In fact, partly because it is increasingly easy to incorporate many other works in your own, more artists are having to negotiate permissions in an environment without any clear licensing processes. With lots of orphan works, increasingly selfish copyright holders who buy into your awful distortion of human nature as always needing to attach an exchange value, with technologies allowing creators (and more often those middlemen who profit from their work) to massively extend their control beyond that afforded by copyright, and with total confusion over fair use and licensing, I'd say the (social & artistic) costs are as high as ever, if not worsening.

"Why should we always want to attach an exchange value to something that may have some other kind of value, and then force transactions to match that exchange value? That seems like a bizarre way of fetishising one particular kind of value!"

Short answer: Exchange value is not separable from "other kinds" of value--it is just how human beings reveal and measure those other kinds of value by their actions. Suppose a mom told you that she placed a high value on her child's safety, but went out and spent her money on new clothes instead buying a car seat. One would surely say that she needed to put her money where her mouth was. It wouldn't make much sense for her to protest that she "really valued" her child's safety more, even though she spent 0$ on that and $300 on her clothes. Likewise, suppose a consumer of music tells you that he "really values" mashups, and a DJ says that he "really values" the process of making one... but when it comes down to it the DJ won't pay for a license, and the consumers won't pay for the mashups... so it doesn't happen. Seems hard to argue that it is much of a loss.

There's a good bit of economic literature on this. About 200 years ago various folks, mostly economists, started seriously exploring the question of value is. They wrote a whole heck of a lot of papers. Mostly in German. Very roughly, about 1950ish, the theoretical debate wrapped up. Answer: value is subjective. exchange value, being the side of subjective value revealed in human action (trades), is the best measurement we can get to of subjective value. No one came up with any good alternatives. Mostly, when alternatives were tried, they failed. Sometimes with the result of a lot of people dying. This lesson was highlighted by the collapse of the Soviet economy; little versions of the lesson repeat daily, whenever a court has to try to decide the amount of damages to be awarded for something that cannot be or has not been traded.

It's worth noting that the album at issue (Girl Talk's "Night Ripper") is incredible. It's not Guernica, but it's very good, and it would not exist if Mr. Gillis had tried to play by the book. The argument of hardcore IP copy-rightists is that Jay-Z would not have made the Black Album if he could not charge Danger Mouse licensing fees to make the Grey Album, but what about the reverse? That is, if the nightmare scenario is some counter-factual world in which good art is not made, mash-ups and re-mixes are also good art, and in your world, their art doesn't get made.

"As the costs of licensing come down, "fair use" as a category should be shrinking, not growing."

Only if you accept the assumption by many copyright maximalists (and some courts) that fair use should only be applied when transaction costs are too high to create a market for rights. There are many other justifications for a flexible fair use regime - even Wendy Gordon, the author of the oft-misquoted "fair use as market failure" theory says so. The most obvious one is there's just no way to create a market for rights to unanticipated new uses of copyrighted material - pricing what you've never seen before is at least as hard as approximating a market price through some compulsory license ratesetting. There's no reason to believe the market will do a better job pricing new uses (like mashups were until recently) - especially for rights held mostly by a mere four corporations. The "safest" course for an oligopoly to take against new uses is to shut them down rather than negotiate - witness the refusal to grant licenses to the original Napster.

*maybe* in a world of perfect competition, fair use can give ground to new markets. In the real world we'll always need fair use or some equivalent.

Solveig, if you think "the theoretical debate [about value] wrapped up" in the 1950s you're hilariously out of touch with the world of academic philosophy. Similarly, stating that "exchange value is not separable from 'other kinds' of value--it is just how human beings reveal and measure those other kinds of value by their actions" demonstrates a particular lack of intellectual curiosity, awareness of other thinkers beyond a very narrow range of Austrian/Chicago theorists, and a total lack of insight into human nature.

I'd suggest you go off and read some other classic liberal writers like Locke, Mill and Berlin, as well as some more radical left libertarians like Rothbard, Van Parijs, and related thinkers like Cohen and Elster.

There's a lot to value beyond exchange value, and there are few domains of human activity where this is more apparent than the arts.