The Trichordist

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 www.TheOnion.com  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 http://www.webgalu.com 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.