If there is a taking for public use, does compulsory licensing adequately provide for just compensation?
Assuming that compulsory licensing of music on the Internet is a taking that would require just compensation, a statutory royalty payment scheme arguably does not provide just compensation for the music copyright holder. Understanding how just compensation is determined in taking cases is just as confusing as trying to understand the taking analysis itself. In United States v. Cors, Justice Douglas stated that the Court had been careful not to reduce just compensation to a formula. The Fifth Amendment “does not contain any definite standards of fairness by which the measure of just compensation is to be determined The Court in an endeavor to find working rules that will do substantial justice has adopted practical standards, including that of market value But it has refused to make a fetish even of market value, since it may not be the best measure of value in some cases.” In most instances, just compensation will be determined by fair market value of the property taken. Fair market va
