Larry Lessig responds to my comments on his statements about the Copyright Office's proposed reforms of 17 USC 115 (Wow -- I Said That?). My original response here: Lessig on the Proposed 17 USC 115 Reform. Another follow-up incorporting Joe Gratz's thoughts here: Gratz on Lessig on 17 USC 115 Reform.

Larry argues that neither Joe nor myself respond directly to the point he was making:

But my criticism was quite local and specific, and not really addressed by either Joe or Ernie. My criticism was about the potential for discrimination. The Register is almost exactly right to say "But in determining public policy and legislative change, it is the author - and not the middlemen - whose interests should be protected." Almost exactly right, because in my view, we should be determining not just "the author" but "the authors" -- the ecology of creativity enabled by copyright's rules. The wonderful and powerful claim in the 1967 testimony is that granting fewer derivative rights to composers than we grant to, say, book authors, produces a wider range of music creativity. I find this argument to be compelling. [emphasis, links in original]

I'm not quite sure that I didn't address this issue, though perhaps not explicitly. It may very well be that limiting the derivative work right produces a wider range of music creativity. But as I said in my reply, this comes at the expense of those whose creativity is in tools for distribution not to mention the social networks that through those tools.

One of the problems with 115 is that it creates a mandatory license for the composition, but no corresponding requirement for the sound recording to be similarly licensed. As I noted, the recording companies get the best of both worlds. Complete access to any composition and the ability to exclude similar use of their sound recordings. I would probably have a much different take on 115 reform if the record labels had a "share-alike" requirement to take advantage of the compulsory.

The consequence of this is that the artists and creators who want to make further use of sound recordings have to get permission from the record label and the rights holder for the composition. These creators face the potential for discrimination from two sources. More musical creativity comes at the cost of less potential creativity in other realms. These aren't simply transaction costs.

How do we weigh these issues? What is more important? Covers or new distribution communities or derivative works that can't use the compulsory? I don't think we really can determine this, and even if we could, technology and society change over time rendering old laws not well suited to new situations. After all, the compulsory was originally for the creation of player piano rolls, not sound recordings. I imagine that Congress believed one player piano roll was probably as good as the next. And limited to player piano technology, the legislation probably worked well. But the technology changed. And what is good for player piano rolls may not be good for digital sound recordings in the age of the internet.

Due to these issues, I believe that the ecology of copyright should remain neutral as possible with regard to technology and to medium. We should treat authors and composers the same.

Now the Register's proposal doesn't do that exactly. However, by moving the law closer towards unification of rights, it is an improvement over 115.

Larry anticipates this objection:

That will of course invite the question -- "why should composers have fewer rights than authors"? (Joe criticizes the "massive and ongoing wealth transfer from song writers to record companies.") My answer -- which I've blathered on about elsewhere -- is that this has it backwards. The restriction on speech -- which every derivative right is -- should have to justify itself. And that "justification for private rights," as libertarian law professor Richard Epstein puts it, "has to be social." The particular difficult justification presented by this extremely odd "private right" is framed well by Professor Rubenfeld. That work, and of course the work of many others, should lead us to ask again and always: how broadly should the law secure "derivative rights" — remembering again that copyright was born with no derivative rights.

To a certain extent, I've already answered this. But I want to note that I couldn't agree more that we should further limit derivative rights. In my view, they are far too broad. I believe that the First Amendment does have something more to say about copyright law then is current doctrine. I've also considered the notion (for a number of reasons, including the First Amendment, I won't go into here) that what I call the public distribution right should be limited to non-discriminatory terms. Not necessarily reasonable, but non-discriminatory.

But I also think that we have to justify why performing musicians get their rights at the expense other creators, and the social communities that they create and of which they are a part. If as policy, or constitutional interpretation, we should limit derivative rights, I don't think we should do so simply for one group of artists, particularly at the expense of another.