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Law & Disorder / Civilization & Discontents


Cary Sherman, CEO of the RIAA, has read every comment on his recent New York …

"I'm a huge fan of rational thought."

Cary Sherman, CEO of the Recording Industry Association of America (RIAA), must have a mild masochistic streak. On February 8, he penned a badly-received New York Times op-ed in which he invited Stop Online Piracy Act (SOPA) opponents to "respectful, fact-based conversations"—after accusing them of "demagoguery," "misinformation," "dirty tricks," "hyperbolic mistruths," "hypocrisy," and "supporting foreign criminals selling counterfeit pharmaceuticals to Americans."

This will hardly go down as a case study in the Annals of Good PR, but give Sherman credit. He at least went back and read all 281 comments to his post, including the angry ("It is difficult for me to imagine any single person in this country with less credibility than the CEO of the RIAA"), the snarky ("All this time I thought sopapipas were delicious Mexican treats"), and the unintentionally awesome ("Cary H. Sherman, chief executive of the Recording Industry Association of America, which represents music labels, can take her entertainment and lies and blow it out her ear.") A few of the comments were even supportive!

Our own take on Sherman's piece was tough. If he wanted serious dialogue, it was hard to imagine a worse way to achieve it.

Sherman came back last Thursday with a follow-up piece on the RIAA blog in which he addressed his commenters and critics. Kudos for doing it—and the tone and approach on display here are far more likely to spark a useful discussion. Each of Sherman's five points has merit, and the piece is well worth a skim.

Personally, I have no objection to the main points in the new piece. Yes, piracy causes some level of harm to people who make a living selling recorded music, and they should have tools to address unauthorized use if they so choose. Yes, the music industry has given up most DRM and should be commended for doing so. Yes, the industry saw the light about five years back and stopped fighting digital; terrific services like iTunes, Spotify, and Rdio are all testaments to how far we've come. Yes, we should all traffic in facts. And yes, foreign sites that rip off your content wholesale are obnoxious—believe me, we know all about it.

Look familiar? Yes, Chinese-based Technology Change Our Life is ripping us off

But reading the response is to realize what different worlds even content creators can inhabit. As a book author, journalist, and editor, I have a huge stake in getting paid for my work; it provides the money needed to fatten my three-month old son into the cheerfully pudgy wriggler he has become. I care deeply and personally about artists and authors being able, if they're good at what they do and can find an audience, to make a living from it. In many cases, making that living may involve copyright's protections.

Yet Sherman's piece seems simply unable to comprehend the serious criticisms against SOPA. Sure, some were misguided, based only on outdated facts or perhaps overheated rhetoric about future doomsday scenarios. Fair enough. But Mr. Sherman himself oversees a lobby shop dedicated to the task of pitching Congress on its own version of reality. Consider this complaint:

But realistically, did all of the seven million+ people who reportedly signed the Google petition [investigate the facts for themselves]? I suspect that in this case, many simply placed their faith in others.

And I suspect over the last century, Sherman's trade group has bent the ear of thousands of legislators and staffers, many not experts in either music or copyrights, who placed their faith in what they were told. If this is going to become some kind of debate over epistemology in an age of information overload, let's hear from the philosophers—not the lobbyists.


Still, this is mere quibbling; more interesting is what the post doesn't even address. 

The Internet is awash in worldwide fear that this powerful communications platform will soon allow voices to be too easily squelched. Here in the US, the government has mistakenly seized a hip-hop music blog, apparently on the industry's say-so. In craven fashion, Immigration and Customs Enforcement simply handed the domain back a year later without explanation or apology (the case). 

Other mistakes have been made, too. Thousands of domains were unintentionally taken down—and visitors to those sites were redirected to a banner saying the site had trafficked in child porn (the case). The Secret Service just last week worked with GoDaddy to take down a sizable, legitimate Internet startup without warning, explanation, or apparently even a court order (the JotForm case).

This bothers people. Argue about the word being used if you like—was this "censorship"?—but don't deny the current problems with process in this area have enraged people because of the fundamental threat they pose to any company not already large and powerful. Even when a court order is obtained, a one-sided ex parte hearing before a magistrate judge doesn't seem fair to many, especially given how murky copyright law can be. People are demanding what they view as fair process if such tough action is to be taken.

It's hard to overstate how central this concern is to the debate—perhaps some of the issue is generational?—yet it's simply not being addressed. The flat assertions that greatly increased powers either to 1) block sites (the original proposal) or 2) cut off revenue, advertising, and search engine placement with a mere letter don't amount to "censorship" miss the point. Businesses and individuals have already been harmed with the government dipping a tiny toe in these waters; how much more collateral damage will result when the powers ramp up dramatically?

And yet nothing on this key issue.

If only copyright were far, far stronger...

A second major thread in online discussions of these issues is the sheer length and power of copyright law. Most people I have spoken with on these matters aren't for total abolition of the ideas behind copyright, but the current state of affairs has appalled them. It's not just the ridiculous length of copyright terms; it's the fact rightsholders in the US and Europe have sought extensions on already-existing material. It's the fact copyright damages are the $150,000 per infringement bludgeon used by outfits like Righthaven, the current crop of P2P pay-up-or-we'll-sue porn lawyers, and the RIAA itself. It's the fact that a complex piece of international machinery has been set in motion with the sole goal of ratcheting up such laws around the world, always seeking more protection and tougher penalties without exporting the robust exceptions so important to legitimate copyright regimes.

Sherman understands this complaint exists, but he doesn't engage with its substance. Instead we get this:

Of course, there are some who insist on arguing that existing copyright law has become overbearing. But how can the laws be overbearing when they are utterly incapable of responding to offshore pirate sites that even SOPA/PROTECT IP opponents acknowledge are a problem? In truth, copyright nowadays offers little real protection, particularly when we have no tools at hand to deal with those who operate beyond the reach of our law. This was exactly what the legislation was trying to address.

This is absurd. Sherman seriously doesn't believe that copyright is even capable of being overbearing? His organization went after two young adults, one in Minnesota (three times!) and one in Massachusetts, securing court judgments against them measuring in the hundreds of thousands of dollars. The judgments were so extreme that neither of the two federal judges overseeing the cases have allowed them to stand. Thankfully, the RIAA has made clear it was willing to settle for far, far less in each case, but the result they got was the one the law produced. Citizens should not need to depend on the mercy of trade groups and corporations to avoid life-altering judgments over a few CDs worth of music.

Copyrights still provide enough protection to cause all sorts of problems; it's why the US and European music industries have both argued repeatedly for longer terms of protection and against various "reversion of rights to artists" provisions. If copyright wasn't doing anything, who would care? Copyright matters a lot to businesses, documentary producers, retailers, artists, etc.

What Sherman seems to be getting at is the more limited point that copyright is of little functional value in protecting music from unauthorized consumer use. This is true enough—but it's quite literally an insolvable problem. As even RIAA officials have told me many times, their goal is not the eradication of piracy but its reduction. The Internet and computers in general are basically digital copy machines; you aren't going to halt piracy without destroying much of the Internet along the way. The best solutions involve giving people, globally, easy access to the media they want at fair prices.

A place remains, however, for reasonable measures to enforce copyrights for those companies and individuals who choose to take advantage of them. But we have such measures already. In the view of many, myself included, we passed "reasonable" decades ago and haven't looked back since. My colleague Tim Lee recently reminded us of just how many copyright laws we've seen in the last two decades, and just how many powers these laws have bestowed on rightsholders and on the government.

Each new grant of power moves only in one direction: stronger enforcement, longer terms, broader reach. As Tim put it, this history reflects "a disproportionate focus on the interests of a handful of large companies. It's hard to think of a single example during this twenty-year period of copyright restrictions being repealed, relaxed, or any in any meaningful way liberalized."

Yet Sherman argues he has "no tools at hand to deal with those who operate beyond the reach of our law." The technical term for this is "poppycock." The arm of American law is long indeed. Consider just a few of the ways that private and state power have been used to place pressure on Internet "bad guys" in other jurisdictions:

Taken together, this isn't a foolproof net. It can't be. But "no tools at hand"? This is a toolbox most industries can only dream of possessing. 

"Rogue sites" remain, but the SOPA debate suggests the public has at last reached its limit. Direct attempts to give rightsholders huge new powers of enforcement on the Internet just aren't going to wash. Enforcement eventually hits a point where the cure looks less appealing than the disease.

The path ahead

The rancor over SOPA showed how important copyright's battles have become even to rank-and-file Internet users. Perhaps there's still a grand bargain that can be reached. If groups like the RIAA actually believe copyright offers "little real protection," why don't they support something like a reduction in term lengths? Or limiting the DMCA's DRM provisions to allow for legal uses—like DVD rips to a laptop to watch while traveling—instead of demanding we film movie clips off our TV screens? Or backing orphan works legislation? Or curtailing statutory damages for non-profit-seeking individuals?

At a stroke, such measures would dissipate some of the anti-rightsholder sentiment online by showing that copyright groups actually care about the real problems with the current IP regime and are willing to address those in return for help with their own real problems. "Follow the money" legislation might give rightsholders one more tool to use against foreign sites, for instance (even SOPA's top legislative opponents have professed their willingness to figure out how such a scheme could be made to work fairly).

Sadly, the reality is that the battle will probably shift out of public view, to places like the State Department and USTR and the Copyright Royalty Board and the FCC, etc, etc. Ultimately, legislative solutions may be broken up and shoved into other bills rather than providing a huge sitting target like SOPA. This is likely—but it's unhealthy. The public cares too much about such issues now; much better for all to have the sort of respectful, constructive, and open conversation Sherman calls for instead than to nurture a sense that those with money and access are working out of sight to advance their agenda by any means necessary, and regardless of the public's concerns.

The same piece calling for a "rational" approach shows how unlikely it is to happen. When the "Internet side" looks at online copyright and sees two decades of overreach, they will demand that any path forward bend back towards moderation. But when the rightsholder side looks at the same issue and can't even fathom the possibility of overreach, the gap between the two visions may be too great for respectful discourse to overcome. At some point, you understand the other side perfectly and simply disagree.

Maybe the best we can hope for in the near future is a public conversation leading not to legislation but to a modest amount of empathetic understanding. Rightsholders might spend time contemplating what it feels like to watch copyright used as a bludgeon against young people and against legitimate websites; the "fix copyright" crowd can ponder what it feels like to see every song you've ever financed available for instant unauthorized download, even after your industry has—kicking and screaming, to be sure—finally taken real steps to embrace the future.

But what next? Understanding and rationality can only take us so far; at some point you need to act. Without any sense that copyright and its enforcement have already burst the boundaries of good policy, rightsholders will probably find themselves furious with the unwashed Internet masses once it becomes clear that rational discussion hasn't produced any support for SOPA 2.0. One hopes that, eventually, they'll understand the reasons why.

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