I agree with you that a “bitstream is a bitstream.” I agree that Grooveshark could be forced to take down all its copyrighted music if asked to by the copyright holder under the DMCA. Since Universal v. Veoh, it is uncertain what the result would be if, without any takedown notices, copyright holders attempted to directly sue Grooveshark out of existence.

Nevertheless, all of this distracts from my primary point: Grooveshark's model of compensating each time a song is played provides a model for a future legal regime in which music is freely available to the public, with copyright holders being compensated some small amount for every time their music is played.

It appears obvious to me that any legal regime in which an enormous number of Americans are consciously breaking the law – for example, one study estimated that 25.6 million Americans have downloaded a full-length movie – cannot be sustainable. This paper is a proposal for one way to replace this unsustainable situation.

In addition I wanted to bring this article to your attention. EMI has licensed its music to Grooveshark under undisclosed terms: http://www.wired.com/epicenter/2009/10/emi-drops-suit-against-grooveshark-music-service-licenses-it-instead/ I was aware of this development when I wrote this piece, but I chose not to include it because it distracted from my primary point.

Finally, you mentioned that my proposal is unconstitutional. I assume you are referring to the Takings Clause. You very well may be right on this point, but some form of “taking” will have to occur to remedy the situation in which the country finds itself. My proposal is an attempt to still compensate copyright holders a “fair market value” for their property. Under this proposal, copyright holders would likely receive less than what is currently deemed “fair market value,” but I would contend that changing technology has resulted in a significant depreciation of the monetary value of a music track.