Conservatives Have A “You Didn’t Write That” Moment: Collectivize Music, Books and Film.

There is a curious and profound difference between how Americans and the rest of the world (ROTW) define the term “liberal”. In the US “liberal” is identified with the left and progressive movement. In the rest of the world it’s identified with the center right and especially those that embrace free markets and market mechanisms. Indeed in the ROTW liberals and libertarians claim many of the same thinkers and philosophers as their own.

If I had to put a label on my political views it would be as a ROTW liberal. Not an American liberal. Yes my views on social issues generally match the Democrats and American liberals (and also genuine libertarians) but I’ve often found myself at odds with other musicians and the music business establishment on economic issues and the role of government. I came to these views gradually over my 30 years in the music business. Not in spite of being in the music business but because I’m in the music business. The overwhelming evidence is that free markets for cultural goods have been spectacularly successful. Countries that do not have market based cultural industries have faired far worse. Yes people bitch and moan that our for-profit market incentivized culture business has produced a lot of pop fluff like Justin Bieber, Avengers movies, Danielle Steele and the Real Housewives franchise. But it also produced Captain Beefheart, Jimmy Hendrix, Black Metal, NWA, The Sex Pistols, Ornette Coleman, David Foster Wallace, Thomas Pynchon, Cormac McCarthy, Eraser Head, The Big Lebowski, The Wire and a host of other profound, edgy or just plain weird cultural goods. The only other nations that can compete with us on quantity and quality also have capitalist market based cultural economies. Meanwhile countries that should have vibrant culture businesses have fallen far behind. Brazil’s once vibrant recording industry has been crushed. Most of Brazil’s stars now rely on music sales outside their own countries. Recently China’s largest record label decided not to release any more albums. In the face of officially sanctioned piracy they gave up. Meanwhile the tiny but very market oriented South Korea has developed the dominant music industry in Asia, right in China’s own backyard.

So it’s a mystery to me why a certain strain of conservative and libertarian is suddenly arguing that we must move away from our wildly successful market based cultural goods system to a “you didn’t write that” sharing economy. Specifically by weakening copyright even further; by pushing works into the (collectivized) public domain very quickly; and to grant exceptions to copyright that essentially collectivize what has been regarded as personal property for hundreds of years.

Most disturbing is many are arguing its all for some sort of ill defined common good. In this case “to spur innovation.” Never mind that by it’s very definition we can’t know what future “innovation” looks like. Once again another example of Washington DC’s would-be policy makers intervening and trying to pick winners. In this case choosing to adjust copyright to help a certain sub-sector of the technology industry, at the expense of another sector of the economy.

I first encountered this notion at the libertarian think tank the Cato Institute in December of 2012 when the affable but wrong Jerry Brito presented his book Copyright Unbalanced: From Incentive to Excess. Brito invited Mitch Glazier of the RIAA and Tom Bell a law professor from Chapman University to speak and debate the issues.

The whole experience was surreal, partly because I had injured my neck a few days before while playing football with my kids and I’d taken a painkiller so I could comfortably sit for the 90 minutes. As a result I had a weird urge to get up and walk around the room hugging people. “I know we’ll never agree, but come on let’s hug it out.”

Fortunately I didn’t as it would have interrupted what seemed like a bit of well planned Kabuki theatre. For instance, seated in the front row was the young RSC (Republican Study Committee) staffer who had “coincidentally” stirred controversy the week before when he released a paper calling for reform of copyright to spur innovation in the DJ remix scene (not joking). And scattered about the room were various other members of the copyleft politburo. The whole thing was about as unscripted as a North Korean May Day parade.

Tom Bell – who I find to be bizarre – held forth on his ideas about copyright for a while, which I thought came off like a Stephen Colbert type parody of a Libertarian. A particular highlight was when he referred to everything that wasn’t books or nautical charts as “Frippery” and undeserving of protection by copyright.

I had to look that up to make sure he really was using a 18th century descriptor and not somehow talking about guitarist Robert Fripp’s solo work. Remember, I’d taken a painkiller.

Regardless every liberal(ROTW) should pay close attention to what Bell is saying. Ultimately he is saying some official somewhere should arbitrarily decide what is deserving of copyright. That is non-frippery. Not whether something is of sufficient originality or the highly specific expression of a creator. Never mind that massive markets exist for these “fripperies.” Never mind that consumers seem to value fripperies over nautical charts. And as far as consumers are concerned the more frippish the frippery the better! (Gangnam Style anyone?) Ultimately Bell asks us to ignore all this and let a bureaucrat somewhere decide whether something is frippery or not. Sounds very un-liberal to me.

Mitch Glazier of the RIAA looked mightily relieved after Bell’s weird performance. And why shouldn’t he? If Bell is the new libertarian face of the collectivize Intellectual Property crowd his job just got considerably easier. For his big hollywood backers now look positively down-to-earth compared to Bell.

But unfortunately the Kool Aid™ drinking is not confined to 18th century powdered wig loving academics. The usually reasonable Jeff John Roberts has apparently joined the Cultural Revolution. In his article “Can Conservatives Break the Copyright Stalemate” he lists as reasonable voices Cory Doctorow and Lawrence Lessig. These are two guys that are barely to the right of Stalin in my opinion.

The copyright debate is not entirely controlled by the ideologues, of course. In the last decade, scholars and journalists (Lawrence Lessig, Bill Patry, Cory Doctorow and Mike Masnick to name a few) have made eloquent arguments about reforming the law.

I had to check to make sure Gigaom wasn’t some  like parody news site after reading this.  Masnick is a sometime-consultant for CCIA and found himself on what Roberts himself described and defended as the “Google Shill” list. Patry is Google’s senior copyright counsel and looks to me to be a distinguished hatchet man for the copyleft. Also it’s unclear in which universe Doctorow (especially) is considered “reasonable” on any matter. This is the guy that harassed a female journalist by posting X-rays of his nether regions simply because he disagreed with her column. (On Flickr with the caption “My hips, for Helienne”—with a small…very small…blacked out spot in the right place.)

But here’s where Roberts really begins to lose it:

To justify this behavior, pirates point to the mendacity of the entertainment industry to say, in effect, that content owners have it coming to them.  There is some validity to this (especially as the industry often shortchanges the artists it purports to stand for) but it doesn’t address the underlying issue: how should we pay content creators?

Really? And which artist asked pirates to go to bat for them? Or Roberts for that matter?

There is some validity to this? So we should dispense with the rule of law and instead start going extra-legal on private companies based on hearsay and speculation? We are gonna start licensing the cyber-mob to go after companies we don’t like because of the rumored details of private contracts they signed with a willing party? Are we gonna start dictating the details of these private contracts under threat of extra-legal punishment? Further I’d like to see Roberts explain his definition of often; cite evidence to back  up the use of the term; and then explain why artists continue to freely line up to be “shortchanged” by record labels.

And why work out a new way to pay content creators when we can objectively conclude the market based copyright system has worked spectacularly well? Think it through: all other solutions rely on non-market based subsidies, government interventions, taxes  or patronage. Do we really want to go down that road? What happens to free speech and creativity when governments or George Soros choose which artists get subsidized? The real liberal (ROTW) solution is to correct the market failure created by piracy not to dispense with the entire market.

Roberts continues to dig the hole deeper:

It’s worth recalling just why the copyright system is so troubled in the first place and and who is responsible. For starters, note that U.S. copyright has ballooned from its original term of 28 years* to the life of the author plus 70 years — meaning a young novelist or songwriter’s work is now likely to stay locked up until the year 2143 or beyond.

The length of copyright is a red herring. If the copyright system is broken, it will remain broken no matter the length of copyright. Companies like Youtube and ad funded pirate sites like won’t suddenly change their illegal business models because they now don’t have to pay royalties on Cab Calloway recordings from the 1930’s. This is a joke and should be treated accordingly. However I would love to see what “stronger enforcement” looks like and I’d love to hear the justifications for why we can’t have that now?

But what I find most disturbing in this paragraph is Roberts use of the term “locked up”. These songs are not locked up. Anyone is free to use these songs under a compulsory mechanical license under the terms of existing copyright law. As long as the proper royalties are paid these songs are easily re-recorded. Permission is required to license for film, television commercials, or samples, but last time I looked, the world is not falling apart and lots of audiovisual licenses and sample licenses are obtained every day. If this is “locked up” then Roberts might as well argue the false outrage that my Chevrolet Crew Cab 2500 is “locked up”. For people can’t use it without my permission or without compensating me.

Liberals (ROTW) Beware! This is a “you didn’t build that” argument. It is collectivist at heart.

*Ahem. I don’t know what “original term” Roberts refers to, but one 28 year term Roberts could be referring to was under the 1909 Copyright Act which had an initial term of 28 years and could be—and usually was—extended for a second 28 year term. Total 56 years, not 28. Surely Roberts knows this. So he is misleading for starters. And the copyright term didn’t “balloon”—the US adopted the international standard of life plus 50 in the 1976 copyright act and in 1988 signed up (finally) to international copyright treaties so US authors got the same protections as creators from Albania or Zimbabwe (life plus 50 among other things).  The US term was extended in 1998 to life plus 70 in the Bono Act which followed the rule in the EU adopted in 1993.  If the US term “ballooned,” so did the rest of the world.

7 thoughts on “Conservatives Have A “You Didn’t Write That” Moment: Collectivize Music, Books and Film.

  1. The “original term” Jeff is referring to is the term of 28-years (14 years + a 14 year renewal) under the Copyright Act of 1790. Or perhaps to the English Statute of Anne, the original copyright statute, which also had a 14+14=28-year term.

    1. right it’s ambiguous in the writers original. could have also been 1909 28 year term without extension.

      But regardless whether the length of copyright is 700 years or 5 minutes, it requires enforcement mechanisms to have any value and for the system to work. Length is a red herring. My points still stand. Every other method of compensating involves, taxes, levies, subsidies or patronage. All dangerous to free expression.

      So looking at your website it looks like you are pretty pro technology and anti creator. Have you ever had a conversation with one of the non-hobbyist artists that actually are making new albums that sell? specifically the 2000 or so artists that put out new releases that sold more than 5000 copies last year? this is the rank and file of the music business. most of these albums are on independent labels or self released. these artists have been crushed by loss of control over their constitutionally protected copyrights. You write as if it’s an emergency that a handful of very successful very profitable silicon valley firms have problems behaving lawfully and civilly by asking permission to exploit artists works.

  2. Nice article! Just started following the blog.

    One troubling, related trend I have noticed is how Google gets behind one or two “Indie” “artists” and gives them the equivalent of million upon millions of dollars of publicity and traffic, just as long as the “indie artists” come out against DRM and speak out in favor of piracy. Such “artists” benefit in a private manner at the expense of all the rest of the unconnected artists of the world, while eroding and destroying opportunities for future artists. For it is now a known fact, as reported on this blog, that there are less professional musicians than there were ten years ago.

    Google heavily promoted Trey Ratcliff, and by making him a prominent “Suggested to follow” in google+, they have given him over 4,000,000 followers.

    Trey writes: “As this future becomes more and more plain to me, I see a rapture of sorts, where old-school photographers (musicians/filmmakers/writers/reporters/etc.) clinging to the old-fashioned ways of doing things will be “left behind.” So much of the irrational behavior and anger is usually based in fear (fear-of-change, specifically), but it doesn’t have to be that way.
    When it comes to sharing your photographs online, you can go in two directions. You can put small images online, watermark them and then spend some or all of the week chasing down people that have used them inappropriately.
    Or, you can be like me.
    Offer up all your creations (music/photos/films/books/words) in maximum and beautiful resolution to the will of the web. The web, and the universe, has a certain flow to it. You can become one with that flow and enjoy the ride. You can let the opportunity of what-can-be motivate you rather than the more poisonous fear-of-loss.”


    Trey writes, “Or, you can be like me,” but in reality, not every artist will be chosen to hang out with google founder Sergy Brin:

    Nor will every artist be given “an hour with said artist” at a google conference:

    Pinterest also has a similar “Users to follow,” whereby a select few gain a corporate patronage to the tune of millions of dollars of free publicity. In his cool book Social Media is Bullshit, B.J. Mendelson talks about how social media is more often a front for major corporations than it is a level playing field, whence billion-dollar companies selectively give certain users millions of followers. The author points out that while the millions of indie users provide content for free, social media is anything but a level playing field. In many ways Trey has been chosen, and very well compensated, for being the pied piper leading all the indie artists to upload, share, upload, share, and upload some more. While overall opportunities for indie musicians decline, Trey profits immensely from never cirticizing google nor pinterest.

    Trey states that he actually doesn’t mind/ likes/favors piracy, and by doing so he gains tons of positive publicity in the multi-billion-dollar corporate tech hipster community:

    Trey Ratcliff: “All of my stuff is pirated. Everything from my HDR Video Tutorial to eBooks to Apps. Fine. It’s all there on PirateBay and MegaUpload and all that stuff. Here are the reasons why I don’t mind. Theft of bits are like the Tic Tacs that get stolen from the 7-11. It’s the cost of doing business on the Internet. Many people that pirate stuff now from me just don’t have any money. But, they like me and want my stuff. . . Last, and most important, as soon as I opened everything up, our business has grown and grown.”

    So to all you indie musicians out there, all that you have to do is say that illegal downloads of your songs are akin to but trifling thefts of Tic Tacs at the 7-11, and you too will be given millions of social media followers and keynote spots at major conferences, and your business will grow and grow and grow!

    For despite data that proves otherwise, the Techdirt hipsters conclude: “The curious thing is, the same is true of the music and film industries, which continue to thrive despite all the online piracy, as Techdirt has pointed out in the past. In other words, everything that Ratcliff says in his extremely wise post about photography also applies to music and films. But whereas he accepts the need for “A New Way of Thinking” as he puts it, and can even see that piracy is beneficial to him in many ways, the copyright industries cling to their traditional perspectives, and insist on fighting this “scourge” with ever-greater ferocity in the face of their continuing failure to expunge it – with huge collateral damage to the rest of us, as SOPA and PIPA make clear.”

    1. I feel I can translate Trey’s words a bit better from his blog, adding some things he mysteriously left out for some strange reason (in parentheses):

      Trey writes: “As this future becomes more and more plain to me, I see a rapture of sorts, where old-school photographers (musicians/filmmakers/writers/reporters/etc. who are not given millions upon millions of dollars worth of free advertising and promotions from google for celebrating piracy) clinging to the old-fashioned ways of doing things (like obeying the Law and respecting the Contitution) will be “left behind.” (lulz lulz all your music and content are belong to Sergey! lulz) So much of the irrational behavior and anger (talking points creative by a multi-billion dollar corporation to decribe those who it profits off without compensating in the Spirit of the Law) is usually based in fear (fear-of-change (as all change is good and the new is always, always better than the old!), specifically), but it doesn’t have to be that way.

      When it comes to sharing your photographs online, you can go in two directions. You can put small images online, watermark them and then spend some or all of the week chasing down people that have used them inappropriately.

      Or, you can be like me (well, not unless you get the google corporation to give you millions upon millions of followers as the patron of all patrons, millions of dollars in publicity, keynote addresses, and major platforms, so that you can sell t-shirts and tchotchkes to all the traffic Sergey drives to your website).

      (Sergey Brin told me to tell you to) offer up all your creations (music/photos/films/books/words) in maximum and beautiful resolution to the will of the web (Google’s bottom line). The web (Google’s MBAs), and the universe (Sergy Brin and Larry Page), has a certain flow to it. You can become one with that flow (Larry Lessig who has benifited quite handsomely from google) and enjoy the ride (as long as Sergy Brin is driving you personally). (Sergey Brin told me to tell you that) you can let the opportunity of what-can-be motivate you rather than the more poisonous fear-of-loss.”

      1. The above quote comes from: – (parenthetical comments are mostly mine)

  3. Yes, many “consrvatives/libertarians” now argue that it is ok to copy music, as it isn’t really stealing, as the original copy is still there. As libertarians enter the bureaucratic stage, they become more and more Orwellian, where freedom is slavery and property rights are the right of the government/corporation to seize and profit off the artist’s property.

    I always say, “well suppose I copied the digital bits from your bank account representing $10,000 into mine. you will still have your $10,000, and now i will have it too. the wealth of the world has grown via sharing!”

    now the thing is, this makes more sense on a moral level than copying music, as while the money was created from thin air by the Fed, the music was created from years of practice, lessons, hard work, blood, sweat, tears, and talent.

    libertarians do not respond to this argument, but they instead turn away to go hobnob with a google lobbyist.

    as history is written by those who have hung heroes, often it is that the pedantical, professorial proponents of an ideology contradict the heroic founders of the very philosophy they pretend is their own.

    the great Austrian economist Ludwig von Mises (and hero to all true libertarians) stated:

    Ludwig von Mises:Politically there is nothing more advantageous for a government (google) than an attack on property rights, for it is always an easy matter to incite the masses against the owners (talented artists) of land and capital (and music).

    Ludwig von Mises:The truth is that every infringement of property rights (copying/stealing music and the creative arts) and every restriction of free enterprise impairs the productivity (creation of music) of labor.

    Ludwig von Mises: The social system of private property and limited government is the only system that tends to debarbarize all those who have the innate capacity to acquire personal culture.

    Ludwig von Mises The foundation of any and every civilization, including our own, is private ownership of the means of production. Whoever wishes to criticize modern civilization, therefore, begins with private property.

    Ludwig von Mises Freedom, democracy, peace, and private property are deemed good because they are the best means for promoting human happiness and welfare. Liberalism wants to secure to man a life free from fear and want. That is all.

    Ludwig von Mises They and their members (google and its “libertardian” lobbyists) and officials have acquired the power and the right to commit wrongs to person and property, to deprive individuals of the means of earning a livelihood, and to commit many other acts which no one can do with impunity.

    Ludwig von Mises The continued existence of society depends upon private property.

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