Past Music Columns

Criminalizing Culture

The new federal intellectual property act promises to do for music what Homeland Security did for air travel.

By Miles Raymer

October 23, 2008

As I lamented on the Reader’s music blog Crickets last week, on October 13, Dubya popped out of his burrow to sign into law the Prioritizing Resources and Organization for Intellectual Property Act of 2008. Among other things, it creates the position of “IP czar,” or more formally the United States Intellectual Property Enforcement Representative, whose office will coordinate prosecution of IP-related crimes at the local, national, and international levels. It’s the second new cabinet post of Bush’s tenure; the first was Secretary of the Department of Homeland Security.

Much of the bill concerns industrial counterfeiting—knockoff prescription drugs, fake brand-name auto parts—but of course there’s plenty about music piracy too. If you had any hope that the bill would “prioritize” things like fair use and the public domain—concepts that have traditionally helped limit the extent to which intellectual property rights can be enforced—perish the thought. The act’s initials spell “PRO-IP,” and it’s squarely in Big Content’s corner.

Most congresspeople don’t seem to know much about technology or IP law, and major media companies are more than happy to fill in the blanks with self-serving spin. The RIAA and MPAA guided the hands that wrote the Digital Millennium Copyright Act of 1998, which made it illegal to crack DRM schemes and thus turned countless consumers into criminals for insisting on backing up music they’d paid for—something that clearly falls under the legal umbrella of fair use. Those trade groups’ fingerprints are all over PRO-IP too—not surprising if you know that the RIAA alone spent more than $2 million last year lobbying for tougher IP laws.

An early draft of the bill would’ve enlisted the Department of Justice to prosecute major copyright infringement cases on behalf of private rights holders, then turned over any monetary award—effectively pressing the DoJ into service as a free legal department for Big Content, at taxpayer expense. The fact that the Bush administration—hardly an anticorporate regime—was sufficiently grossed out by this proposition to demand its removal says a lot about PRO-IP’s baseline level of awfulness.

The need for some sort of intellectual property regime isn’t really under dispute; rights owners ought to be able to insist that their intellectual property be paid for, not simply taken. Big Content got the regime it wanted in large part because it was the only player at the table. Not even the most progressive activists imagined that Congress would ask to hear from, say, a pro-open-source group like the Electronic Frontier Foundation. But that doesn’t mean I’m not disappointed they didn’t.

For a brief moment this summer it was starting to look like the RIAA, chastened by its failure to get the “making available” argument to stick in its suits against alleged pirates, was backing away from pitbull-style lawyering and accepting file sharing as a fact of life, maybe even something that could drive sales. But for the PRO-IP campaign it assumed its customary the-sky-is-falling posture. The government frequently recycles claims that piracy of all kinds costs the U.S. economy $250 billion a year and has resulted in the loss of 750,000 jobs—baseless and wildly inflated numbers, according to a thorough investigation by the news site Ars Technica, but the RIAA says that its share of those totals comes to $58 billion and 370,000 jobs. The RIAA also trotted out the stale, badly supported allegation that piracy enriches the haters of freedom, and when Bush signed the bill, the White House dutifully commented, “Terrorist networks use counterfeit sales to finance their operations.”

By using its clout to frame the debate, Big Content ensured the passage of a bill that gives it an even bigger stick to swing in its fight against consumers. Under PRO-IP the caps on many existing fines are doubled and authorities are given broader power to seize property (like computers) allegedly used in copyright infringement. We’re one step closer to Big Content’s dream world, where unambiguous laws give rights holders complete and everlasting control over intellectual property and fair use simply doesn’t exist.

Call me a scofflaw, but I don’t think you deserve to be on the hook for thousands of dollars for every single 99-cent song you share or download, even if you are stealing. The reason we’re seeing such disproportionate fines is because rights owners, allowed to determine the value of their own intellectual property, write down the biggest number they think legislators will swallow. What’s more, the question of whether copied music was actually stolen isn’t as clear-cut as Big Content wants everyone to think. Civilians have certain limited rights to reproduce content they’ve purchased and to move it between platforms, and the DRM schemes Big Content insists on often interfere with these rights. Consumers can be stuck with hard drives full of legally purchased but unplayable DRM-wrapped songs if the company that sold them decides to stop supporting that flavor of DRM. So far the likes of Wal-Mart, Microsoft, and Yahoo! have pulled stunts like this, or tried to—usually public outcry has forced companies to backpedal or offer some sort of compensation.

It’s not just consumers who suffer when the prevailing climate prioritizes corporate control of IP above the free circulation of content and ideas. Earlier this month in the Wall Street Journal, Lawrence Lessig called artists the “collateral damage” in the war on piracy. Art is never made in a vacuum, and music maybe even more than other forms evolves by artists building on, tweaking, or outright ripping off their predecessors. And I’m not just talking about Vanilla Ice jacking “Under Pressure.” Led Zeppelin and the Rolling Stones built their careers on the backs of old black bluesmen, and some Bob Dylan’s best early work was based on melodies lifted whole from traditional American and British folk.

The life cycle of a good song doesn’t end when it’s recorded and sold for the first time. It gets borrowed, recycled, copied, covered, sampled from, and absorbed as an influence. For some of a song’s life span, it costs money to use more than a snippet of it, and it should—when Dylan dropped a batch of tunes that everybody and his dog felt compelled to cover, for instance, he deserved to be compensated. But eventually a song becomes part of the public domain and everyone is free to do whatever he wants with it. The songs that 60s folk revivalists resuscitated were almost all public domain tunes, decades or centuries old, and they provided part of the foundation for the next half-century of Western pop. Traditionally American copyright regulations have respected the public domain, but a few decades’ worth of so-called Disney laws have extended the length of copyright, slowing both the growth of the public domain and our own cultural evolution.

As technology opens up new ways to interact with and expand on the big pool of music out there, Big Content fights to push those doors closed. A series of lawsuits has whittled away at the right to sample, so that incorporating even a fraction of a second of someone else’s music—so short it would take a trained ear or special equipment to confirm its origin—can now leave an artist exposed to litigation. Copyright trolls, who acquire the rights to music for no other reason than to sue people for using it, have become a scourge in part because of precedents like this.

Older generations still don’t tend to see sampling as a legitimate art form, but works like Danger Mouse’s Grey Album make an argument for it that’s as powerful as the one the Beatles’ evolution made for rock ’n’ roll. The explosion of remixing and recontextualizing on the Internet suggests that these processes might be one way pop music evolves, so it’s hardly sensible for companies that exist principally to sell music to work so hard to criminalize those activities. You could even argue that they help sales—when a rapper samples a song or a DJ works it into a mix, for instance, that can make old music that’s declined into valuelessness suddenly worth something again. Lately a couple tracks from Paul McCartney’s 1980 solo album, McCartney II, became unlikely staples for tastemaking DJs on several continents—I heard them played by folks from LA, Chicago, Sweden, and Japan. It’s technically illegal to include a copyrighted song in a mix without compensating the rights holder, but somehow I doubt the rights holder is gonna refuse the money from the resulting bump in sales of McCartney II on iTunes.

All the amateur music-related content on YouTube—dance routines to pop songs, covers of rock staples, and original videos—says to me that our culture is moving toward a postmodern, post-hip-hop worldview where every piece of art is potential raw material for even more art. But not everybody is aware of that groundswell, and not everybody who is aware of it thinks it’s a good thing. Our political leaders clearly don’t figure IP issues are on too many people’s radar, because they were pretty brazen about siding with the big guy this time—the PRO-IP Act, introduced by House Democrat John Conyers, passed 410 to 11 in the House and unanimously in the Senate. If we think our musical culture deserves the freedom to move in whatever direction we want to take it in, we can’t keep letting the likes of the RIAA decide whether we’ve got the right to do it.   

For more on music, visit our blogs Crickets and Post No Bills.

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