Derek Slater at cMusings (now at its spiffy new blogs.law.harvard.edu location) takes issue with my suggestion of basing what artists earn on what their audience actually does with what they create. He writes:
... Alex argues that we should "base pay on what we do with music: listen, mix, and derive new music" rather than copying.
Basing pay on precisely how something is consumed has some drawbacks, though. Monitoring use could be seen as an invasion of privacy. Someone might not want their MP3 player sending statistics back to a server telling it exactly how many times s/he listened to a particular song, for example.
While this is true, I am not sure it is the end of the story for a few reasons. First, the privacy problem is here anyway. As the Verizon case makes clear, your privacy in sharing music is by no means currently guaranteed (actually, since most of the current file sharing products allow users to see what other users are sharing, the only reason I need a subpoena is to find out who you are -- and I may be able to figure that out without a subpoena depending on how much I know about you and how good of a sleuth I am.) Second, the sampling of copying proposals are no less privacy intrusive, they just shift the information that becomes "known": copying v. use. Third, there is no reason to have the data be personally identifiable, or even to need to sample everyone: just as the Neilsen's do television, so too could we have a sample set of music consumers who did not mind the privacy problem. As I and others have suggested elsewhere, this voluntary monitoring may work.
Still, Derek has a point in that monitoring use is a step in controlling use. The more fine grained a monitoring system, the more fine grained the potential for use management. Lack of privacy and control are intimately linked. (This is the personal autonomy type of privacy that runs throughout the constitutional jurisprudence of privacy -- including abortion-rights).
He also makes the good point that I had read too much of my own views into Fisher's proposal. Derek reports that Fisher's proposes sampling downloading, not sampling use.
Later: Derek responded. Good points, raises the problem of being paid for derivative works.