Answering the RIAA

by Karl Fogel

I've never met Hilary Rosen, but I know three things about her: she's smart, she believes sincerely in her cause, and she's willing to compromise on intellectual honesty to help that cause.

Hilary Rosen is the head of the Recording Industry Association of America. Despite its generic-sounding name, the RIAA does not concern itself with most aspects of recording. It exists solely to strengthen intellectual property protection, through lobbying, legal action, and publicity campaigns. Rosen and the RIAA are making headlines lately because of their increasingly militant (or increasingly desperate) efforts to combat illegal copying of music. One of their specialties is high-profile scare suits. For example, they recently collected $1,000,000 in an out-of-court settlement from a company that ran an internal server allowing its employees to trade mp3 files over the corporate network. Note that the company itself was not selling illegally copied CDs; in fact, the company wasn't doing the copying at all. It merely provided network space for its employees to trade information. The settlement money the RIAA collects will no doubt help fund further such probes, but their real gain was the publicity. Every other organization with an internal network must now ask "Are we next?" and take appropriate precautions. It's easy to recognize the two-part strategy here: while the RIAA lobbies relentlessly for increased government policing of potential copyright violations, they simultaneously try to create an atmosphere in which we will all want to police ourselves.

None of this is particularly mendacious as far as it goes. It's aggressive and hard-hitting, yes, but then again the RIAA truly believes it's on the side of right and justice. It would be unrealistic to ask them to be less energetic in pursuit of their goals. We should not expect from them a nuanced exploration of intellectual property's fundamental assumptions, nor would they be capable of it, given that strong intellectual property enforcement is the very axiom of their existence.

But it is too much to ask that they be honest, accurate, and consistent in their portrayal of the issues?

This is where the RIAA really sticks in the craw. Their public statements are full of distortions, misinformation, and unjustified implications. Their web site reveals a weirdly myopic view of music and of human creativity. Were one to take it all at face value, it would be hard to explain how musicians ever managed to survive, let alone flourish, before copyright law existed. It's easy enough to roll one's eyes and laugh at their alarmist nonsense, but unfortunately that won't help. Our laughter is diffuse and ephemeral, while the RIAA is well-organized and permanent. After we move on, they remain, working tirelessly to promote their vision of information ownership. Their propaganda may be indefensible, but that won't matter if they're never asked to defend it.

So let's take a close look at the RIAA. We'll start with their explanation of copyright, from http://www.riaa.org/Copyright-What.cfm. It begins with some gross exaggerations, albeit no real clunkers:

You don't need to be a lawyer to be a musician, but you do need to know one legal term--copyright. To all creative artists -- poets, painters, novelists, dancers, directors, actors, musicians, singers, and songwriters -- the term matters dearly.

To all artists, "copyright" is more than a term of intellectual property law that prohibits the unauthorized duplication, performance or distribution of a creative work. To them, "copyright" means the chance to hone their craft, experiment, create, and thrive. It is a vital right, and over the centuries artists have fought to preserve that right; artists such as John Milton, William Hogarth, Mark Twain, and Charles Dickens. Twain traveled to England to protect his rights, and Dickens came to America to do the same.

Notice how hard it strains to avoid even acknowledging any other point of view. They confidently assert -- twice! -- that copyright is dearly beloved by all artists, not just by some. No dissent is possible in the RIAA universe. All artists without exception need and desire strong copyright protection. Is the RIAA simply denying the existence of the many musicians who publically expressed their support for Napster's free file-sharing service, and who said they felt it was to their advantage to have their songs freely swapped around? I don't know. The web site doesn't mention them. Perhaps the RIAA doesn't consider them real musicians.

And what can one make of the claim that you "need to know" copyright to be a musician? Perhaps they mean that you need to know about copyright if you want to be a musician who makes a living from royalties. But, as the RIAA surely knows, only a small minority of musicians make any significant money from royalties, and of those, only a fraction depend on royalties for their living. For all but the superstar recording artists, record royalties are a small supplement compared to performance income.

Still, those first two paragraphs are more silly than offensive, because they're essentially content-free once you remove the exaggeration. Their main function is to establish a tone. But the next two paragraphs leave one's head spinning. They seem to be a brief -- very brief -- introduction to the origins of copyright law, but addressed to fifth graders and severely misrepresenting history:

Copyright law all started with the "The Statute of Anne," the world's first copyright law passed by the British Parliament in 1709. Yet the principle of protecting the rights of artists predates this. It may sound like dry history at first blush, but since there was precedent to establish and rights to protect, much time, effort, and money has been spent in legal battles over the centuries.

In the United States, the principle took hold during the Constitutional Convention of 1787 when James Madison suggested that the Constitution include language "to secure to literary authors their copyrights for a limited time." The provision passed unanimously. It is found in Article I, Section 8, of the U.S. Constitution. It states...

This breathless summary is the copyright equivalent of "Christopher Columbus sailed to America to prove the earth was round and make friends with the Indians", myth rather than history. The Statute of Anne was the result of a lobbying effort by the Company of Stationers, an organization of publishers who had recently lost their government-granted monopoly on operating printing presses -- a monopoly granted because it minimized the number of presses government censors needed to monitor, and revoked when the government liberalized its policy on freedom of the press. Trying to regain some of what they had lost, the Stationers tried the argument that an author had a "natural right" of ownership in his work, and they went on conspicuously to argue that such ownership was transferable by contract to other parties. There was no grass-roots uprising of authors demanding control over who copied their works -- it simply never happened, the RIAA's misleading implications notwithstanding. Indeed, at that time, authors were far more likely to consider copying a form a flattery than theft (note that copying is distinct from plagiarism: copying leaves the original author's name intact, whereas plagiarism replaces it with some other name to steal credit for the work -- as we'll see later, this is a distinction Rosen and the RIAA have some trouble remembering).

All of this can be found in any history of early copyright law, so I presume the RIAA's writers were aware of it and simply chose to leave out the inconvenient fact that copyright was first proposed and argued for by publishers, not by authors. Ten points for tactics, zero points for integrity. Their history has so many omissions that it's worthless, except as supporting propaganda in their campaign to convince the public that copyright law is as fundamental to civilization as the laws of thermodynamics. (For more details about the history of copyright, two excellent sources are "Copyright And `The Exclusive Right' Of Authors" at http://www.lawsch.uga.edu/jipl/vol1/patterson.html, by Prof. L. Ray Patterson, and "An Unhurried View of Copyright", by Benjamin Kaplan, Columbia University Press, 1967, 142 pages.)

The text then moves on to an odd non sequitur: "Yet the principle of protecting the rights of artists predates this." Oh. It does? How? When, where, by whom? If the principle predates this, then why was the law so tardy in catching up? You won't find any answers here, though, because although the supposed "principle" is asserted once more later in the text, its origin is never elucidated.

What's really going on here is obvious: the RIAA needs to make it seem as though the principle of an author's right to restrict copying was simply out there, waiting to be found, like a new species of flower or an archeological site. The notion that copyright is a creation of the law, rather than a fact of nature, is inherently dangerous for the RIAA, because they know that what the law creates the law can destroy. Thus copyright must always be given roots in an appeal to a pre-existing principle, here left nebulous and unattributed.

The next sentence is even more exasperating in its vagueness: "... since there was precedent to establish and rights to protect, much time, effort, and money has been spent in legal battles over the centuries." The choice of passive voice, as usual, is a giveaway that someone's trying to hide something. The words amount to a backhanded acknowledgement that there were, in the distant and foggy past, some people who didn't completely agree with the new copyright laws, and that their arguments were taken seriously enough that "much time, effort, and money" were spent to counter them (truly, some things never change!). But once again this leaves the RIAA in an uncomfortable position: they need to say that constant struggle is necessary for lawful information owners to triumph against illegal copiers, yet at the same time they must avoid admitting that anyone has ever seriously disagreed with the "principle" of information ownership they allege to exist independently of copyright law. The strain of this semantic schism shows throughout their web site.

The rest of their copyright explanation continues in the same vein. There's no need to continue picking it apart here; it's more repetitive than inventive. Let's move on to the testimony submitted by Hilary Rosen to a U.S. House of Representatives subcommittee on April 23rd. As you read, keep reminding yourself that this isn't the first time she's given testimony to a House subcommittee, and probably won't be the last. It's a sobering thought.

She begins by thanking the committee for hearing her testimony on the issue of illegal copying (which the RIAA is careful always to call "piracy", as though threatening sailors lives on the high seas and stealing their cargo is, basically, the same as making unauthorized copies of songs):

Thank you, Chairman Wolf and Representative Serrano, for holding this hearing and asking me to appear before you today to discuss the issue of piracy, a problem that has threatened the vitality of American creative works for a very long time.

A fairly straightforward statement of position, which she shortly afterwards contradicts with this testimony:

In any event, it should be clear that addressing this large and growing problem has fundamental importance to the US economy and to our overall competitiveness. There may be other countries that produce cheaper wickets, but there is no country that can compete with us in the production of creative materials. We cannot permit our trading partners to openly steal this country's greatest assets.

This is the same industry whose "vitality" has been "threatened" by "piracy" for "a very long time"? This is no mere difference in viewpoint, nor a question of wording. Rosen is claiming that the industry has been under serious threat for a long time, its vitality at stake, and she wants the US government (our government, for US readers) to allocate yet more resources to protecting it. If the recent past is any guide, such protection efforts inevitably lead to the obstruction of legal copying -- witness the demise of Napster, and the many hardware manufacturers who handicap devices to prevent fully digital copying. At the same time, she's just laid out an impressive array of statistics showing an industry whose vitality is clearly so strong that it wouldn't be threatened by an invasion from outer space, let alone by illegal CD copying. So which way is it?

Frankly, I don't think Rosen really means that the industry is threatened. I think what she means is that recording companies might not make as much money as they think they should. But what she can't say is that recording companies (like many industries) make some portion of their profits thanks to a government-granted right of exclusivity. Price-supported farmers or the tariff-protected steel industry are in the same position, and also have teams of lobbyists in Washington to argue that the protections should continue. The difference is that the steel industry doesn't pretend that the rights are anything but what they are: a legal condition created by the government, and revokable by the government. The copyright industry alone refers to its right as "property", and calls people who circumvent that right "thieves" and "pirates".

Rosen not only can't distinguish between physical property (I steal your bicycle, you no longer have a bicycle) and information (I copy your song, now we both have it), she's also confused about the difference between copying and plagiarism. She speaks at schools and colleges, urging the students to take the RIAA's point of view about information ownership. Here is how she describes her presentation of the issue:

"Analogies are what really work best. I ask them, `What have you done last week?' They may say they wrote a paper on this or that. So I tell them, `Oh, you wrote a paper, and you got an A? Would it bother you if somebody could just take that paper and get an A too? Would that bug you?' So this sense of personal investment does ring true with people."

Perhaps analogies really do work best when they're completely inapplicable, but somehow I suspect most students are smarter than that. She certainly gets a B for brazenness, though. Since people who copy CDs are not in the habit of replacing the artist's name with their own name, let's ask the question Hilary Rosen should have asked: "Would it bother you if somebody could just show your paper around, so other people could also see what you wrote and that you got an A?". Of course, the students' answer would have been "No, we aren't bothered by that at all," which isn't the answer Rosen wanted.

There's plenty more like this on the RIAA web site, and in Hilary Rosen's public statements, for those who want to go looking for it. Here's another one of my favorites, http://www.riaa.org/Protect-Campaign-1.cfm, which really needs no comment:

Old as the Barbary Coast--New as the Internet

No black flags with skull and crossbones, no cutlasses, cannons, or daggers identify today's pirates. You can't see them coming; there's no warning shot across your bow. Yet rest assured the pirates are out there because today there is plenty of gold (and platinum and diamonds) to be had. Today's pirates operate not on the high seas but on the Internet, in illegal CD factories, distribution centers, and on the street. The pirate's credo is still the same--why pay for it when it's so easy to steal? The credo is as wrong as it ever was. Stealing is still illegal, unethical, and all too frequent in today's digital age. That is why RIAA continues to fight music piracy.

And so forth.

Let's stop here and take stock. What is so objectionable about the RIAA? Certainly not their position that intellectual property is good for society. You may or may not agree with them, but the idea at least has some pedigree behind it -- a lot of creativity, and a lot of distribution of creative works, has taken place within this system. The claim that we should preserve it should receive at least reasoned refutation, not ridicule.

No, the problem with the RIAA is precisely that they don't place any value on reasoned debate, to the point of refusing to recognize that a debate exists. They are willing to distort history, distort or misremember current events, and distort language and logic itself in order to make their case seem stronger than it really is. This is a shame, because they could probably make a pretty good case without resorting to such tactics. It's also an irony, because the RIAA is not even an advocate for all intellectual property holders, but only for one subgroup: recording musicians, surely the creative artists least threatened by illegal copying. Authors, say, and movie makers have far more to worry about from digital technology, because their major source of income is through copy-based royalties. But musicians? Musicians perform, and for most of them performing is what it's all about. Good but obscure musicians would be helped by a free, frictionless distribution mechanism that allows their reputation to spread with their music. Good and already famous musicians... Well, perhaps it's just the incipient socialist in me, but should we really design our copying laws around the idea of creating concentrations of wealth in the arts?

I'm not expecting Hilary Rosen to answer that, but I wouldn't mind if once in a while she acknowledged that the question exists.