Your rights are in my freedom.

It’s another Independence Day weekend, and I can’t help but notice that we find ourselves this year grappling with some unfortunate consequences of liberty run amok.  We’ve got open-carry nuts sporting assault rifles in department stores and coffee shops to prove how free they are; and we’ve got the supreme court granting business owners the right to discriminate against employees on the grounds that said discrimination can be considered the free exercise of religion.  These real-life manifestations are borne in the logic of narcissism in which the self-righteous individual believes in liberty that is not bound by the limits imposed by the rights of others. It is the same logic that says legalizing a same-sex marriage is an infringement on religious exercise.  And like it or not it is the same logic that attempts to absolve many sins of the digital age in the name of free expression.

It sounds good on paper, but in reality, freedom without limits isn’t freedom for anyone but the powerful, whether that power is derived by wealth, political influence, technological prowess, or violence.  On July 1, a debate was held at the American Enterprise Institute on the matter of intellectual property rights during which Mark Schultz of the Center for the Protection of Intellectual Property at George Mason University said the following:

“If our only understanding of liberty is if I get to do whatever I darn well please, it is a five-year-old’s understanding. A grown-up understanding of liberty is ordered liberty, competing claims that need to be reconciled through a system.”

The underlying question in that debate was whether copyrights are a right or a privilege, but it is instructive that even in this academic forum on intellectual property, Schultz feels the need to affirm a definition of liberty that (he’s right) ought to be obvious to any adult. In short, liberty is not all about what we want.  One of the reasons I began writing about digital age issues and intellectual property is that many of the arguments used to rationalize negative social behaviors (e.g. piracy) are First Amendment arguments; and it seemed to me the right of free expression was being stretched beyond reason in ways that mirror the aberration of free religious exercise we saw this past week with the Hobby Lobby case.

Do women have a right to comprehensive health care, including contraception?  Yes, according to federal law, they do; but the supreme court just said they kinda don’t, that this right has been recast as a privilege to be offered at the discretion of an employer based on his personal moral code.  Many of us are hopping mad about this, and we should be, both in practice and in principle.  It is quite simply a grotesque distortion of the free exercise clause that sets a precedent begging for abuse by people in positions of power over individual workers.

But what about my colleague Mark Schultz debating copyrights with academic libertarians like Jerry Brito of the Mercatus Center at George Mason University, who want to recast this longstanding right as a government granted privilege?  Copyright is less emotionally charged (and ultimately less critical) than the health of American women, but the false logic being applied is very similar, as would be the consequence in that the wealthy and powerful would ultimately win another victory over individual workers.

Central to the arguments made to eliminate or severely weaken copyrights is a claim that the rights of individual authors limit the right of free expression.  This is similar backward reasoning to “your right to contraception violates my right of religious expression,” and again it is an idea based in narcissism and backed by corporate interests.  We all are entitled to the right of free expression and the right of intellectual property protection, if we want the latter; so why give up either right when we can have both?  It’s as much a false dichotomy as religious freedom vs birth control.  It’s what happens when we can’t tell the difference between freedom and a free-for-all.  And in a free-for-all, the biggest bullies usually win.

© 2014, David Newhoff. All rights reserved.

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26 comments

  • I can see how someone might believe that free contraception is a right, but Hobby Lobby was not objecting to providing contraceptives, but abortion inducing drugs. My right to free expression, ownership of creative work and private property against corporate interests and power is no different from my rights against government control and arbitrary rulings. Both are populated by people who are often selfish and short sighted in how they live out their gifts and influence. Thanks for your intelligent essays. Part of the issue from my side of the fence on the contraceptive mandate is that the right for free contraception (although relatively inexpensive in the marketplace) was a mandate from the secretary of the HHS and not an original part of the Affordable care act, which places it outside of the democratic process.

    • There never was a “contraceptive mandate”, in the sense that you weren’t ‘mandated’ to use it. It’s kinda like [name a medical procedure] i hope I’ll never use it, but if i need it some day I’ll be hoping my boss “believes” in that procedure. Take out the question of abortion, now… Can you see how silly that is? The anti-abortion crowd are so desperate for a win that they throw out the baby with the bath water so to speak. And hey, i get it. abortion isn’t something im a cheerleader for, but it seeems to me the anti crowd could have a little more compassion for those babies After they are born..

      YOU dont have to use anything if it conflicts with your beliefs… but at the same time you can’t tell me or anyone else what to believe, just as i cant you.
      Let me ask you this, if the shop owner was , say, Muslim… would you want that owner dictating what medical coverage you could have based on his or her beliefs?

    • David Newhoff

      Nevertheless –

      All other issues aside, there’s nothing free about healthcare plans no matter what they cover. Whether premiums are shared, which is common, or paid entirely by an employer, they are part of a compensation package for an employee. Regardless, it’s somewhat tangential to the point of the post, so I won’t belabor it. Thanks for commenting.

  • David–
    I found this to be a rather strange post, as, at least how I read it, you flip-flopped your way through it.

    “Mark Schultz of the Center for the Protection of Intellectual Property at George Mason University said the following:

    ‘If our only understanding of liberty is if I get to do whatever I darn well please, it is a five-year-old’s understanding. A grown-up understanding of liberty is ordered liberty, competing claims that need to be reconciled through a system.’

    Schultz feels the need to affirm a definition of liberty that (he’s right) ought to be obvious to any adult. In short, liberty is not all about what we want.”

    I agree. A society in which everyone does whatever they like, while perfectly natural, is dangerous and likely dysfunctional. It’s perfectly sensible to mutually agree to limits on our behavior and means to enforce those limits for our collective safety and the general welfare. However, that doesn’t mean we must invalidate personal liberty and autonomy. It simply means that we should strive to retain as much of our natural freedom as we can, limiting it only where we must in order to produce a better outcome.

    “many of the arguments used to rationalize negative social behaviors (e.g. piracy) are First Amendment arguments; and it seemed to me the right of free expression”

    No, I think that many of the arguments are free expression arguments. The First Amendment’s free expression clauses, as interpreted, don’t track free expression. The First Amendment is an example of that ordered liberty; it’s a subset of our overall liberty, and the bits we necessarily must have possessed in order to have sacrificed them for some greater benefit, are not protected by the First Amendment.

    Or to put it another way, the First Amendment covers the subset of free expression which the government will not act against. It doesn’t guarantee the protection of speech outside of that, even though there is a natural liberty to engage in such speech. Obscenity is a good example. People are free to make obscene pornographic material, but the government does not hold itself in check when it comes to that. They could — the standard has changed before, and there’s nothing to stop us from changing it to be more permissive. Clearly the mere First Amendment and all its associated caselaw doesn’t define what our natural right to free speech is, or else that wouldn’t be possible.

    “Do women have a right to comprehensive health care, including contraception? Yes, according to federal law, they do; but the supreme court just said they kinda don’t, that this right has been recast as a privilege to be offered at the discretion of an employer based on his personal moral code. Many of us are hopping mad about this, and we should be, both in practice and in principle.”

    And there’s the flip flop. You just had two competing claims of liberty — one for a right to certain health care, one for a right to religious practice that consists in washing one’s hands and refusing to partake in something viewed as offensive — where they are being reconciled through a system. One or the other was going to win, and this is exactly the sort of prioritization you were lauding. But now you seem upset that we should dare to weigh these against one another… if there’s a chance that the side you favor might lose.

    If you had cabined your complaint to just the outcome, ‘the practice’ as you put it, then that’d one thing. But a complaint about “the principle” sounds to me like a complaint against the system that could produce such an outcome. Just because you lost a game doesn’t mean that you’re justified in saying that the game is rigged.

    “It is quite simply a grotesque distortion of the free exercise clause that sets a precedent begging for abuse by people in positions of power over individual workers.”

    I haven’t had time to go through it myself, but my understanding is that the free exercise clause wasn’t even looked at in this case, and that the old standard of Smith, that people may not disobey neutral laws of general applicability, even if they affect religious expression, is still in force, and had it applied, it would’ve caused a different outcome. Rather, the federal government passed a law holding itself to a higher standard, one which is very difficult for them to win on, and one which they did not exclude this mandate from (even though they easily could’ve, since no mere federal statute can prevent the passage or repeal of another federal statute). Of course, at the moment, this might be as difficult to fix politically as it would be to amend the free exercise clause of the Constitution, but that’s not the Court’s problem. Congress ill-advisedly painted themselves into a corner, and it’s up to Congress to paint themselves out.

    “who want to recast this longstanding right as a government granted privilege?”

    More flip-flopping. If copyright does not exist in nature — and it doesn’t, this is obvious — then it must be artificial, a product of that ordering of liberty previously discussed. This makes it subject to change or even abolition, if that would produce a better outcome of ordered liberty. It means that it if it limits natural freedoms — and it does, this too is obvious — then it should limit those freedoms for some greater purpose, and it should do so only to a suitable degree. The operative word in ordered liberty is still liberty; the order is not desirable in its own right. If it were, we could dispense with the liberty entirely.

    But where earlier the idea of ginning up a system to handle competing claims had appeal, and implicitly presented innumerable options for how we might do so, now you treat copyright as immutable; a sacred cow which we may not tinker with, lest it produce an outcome which isn’t wholly to your liking. (In fact, I suspect you’d be okay with changing copyright, so long as it was to make it more expansive, longer, and powerful, but never to make it narrower, shorter, or weaker)

    “as would be the consequence in that the wealthy and powerful would ultimately win another victory over individual workers”

    Yes, because the wealthy and powerful have never ultimately won victories over individual workers by employing copyrights.

    The wealthy and powerful win fights not because of copyright policy being one thing or the other, but because they’re wealthy and powerful. If you’re wealthy, and powerful, and there are strong copyrights, they’ll buy the copyrights and use them as a source of wealth and power. If you’re wealthy and powerful, and there are weak copyrights, they’ll route around the copyrights and use the works, to the extent copyright doesn’t apply, (in conjunction with expensive instrumentalities that they can afford but others can’t) as a source of wealth and power.

    If you’re worried about concentrations of wealth and power — and you should be — then attack it directly. Anything else will inevitably just get turned against you because you’re not addressing the actual problem. Of course, to do this right means sacrificing the idea that an artist could ever become wealthy and powerful; if it’s dangerous, it’s too dangerous to be trusted to anyone. To me, this suggests weak copyrights, to undermine the power of artists, along with other checks to undermine the power of others, e.g. publishers, telecommunications companies, etc.

    “Central to the arguments made to eliminate or severely weaken copyrights is a claim that the rights of individual authors limit the right of free expression.”

    They do. Hence, “competing claims that need to be reconciled through a system.” If copyrights didn’t limit free expression, there would be no competing claims; the competing claims are those of free expression!

    “This is similar backward reasoning to ‘your right to contraception violates my right of religious expression,'”

    Not at all. For starters, you’re misstating the argument there. Hobby Lobby did not argue that a right to contraception violated their right of religious expression. They argued that compelling Hobby Lobby to participate in realizing the former right was the violation; if the right to contraception is satisfied without Hobby Lobby being involved, they’d literally have no case. And because that’s more or less the standard that the federal government imposed on themselves by statute back in the 90’s, even though they weren’t obligated to, the Court could point out that there were ways of making both groups happy that the government hadn’t tried, such as providing contraception directly from the government, rather than via employers.

    Similarly, if you proposed a form of copyright that did not burden free speech, I think that everyone on the free speech side would be fine with that, and would even have a hard time making any more arguments against copyright. Of course it would mean that copyright could not stop unauthorized third parties from making copies, distributing copies, making derivative works, or publicly performing or displaying works, so I’m not too sure what it would accomplish to make the copyright side happy. But if you can swing it, then I’d literally no longer have any cause for complaint.

    “so why give up either right when we can have both”

    Literally not possible. Restricting free speech is the sine qua non of copyright, as I think I made clear, above. And again, remember that the compatibility between copyright and the First Amendment doesn’t indicate otherwise; the First Amendment doesn’t protect the full extent of the right of free speech. It’s ordered liberty, not absolute liberty.

    • David Newhoff

      Anonymous, you should see the thoughts I don’t post. 🙂

      You’re right that SCOTUS only looked at the 1993 RFRA in ruling on Hobby Lobby and not at the free exercise clause; but it seems to me RFRA is an attempt to clarify free exercise, so my statement isn’t that far off. Honestly, I have not looked at that bill closely enough to understand why anybody thought we needed it, and I certainly don’t remember. Even if the majority opinion ruled solidly based on RFRA, I believe the functional flaw in the case (perhaps based on Citizens United) is that a corporation as an entity, no matter what size, can have civil rights identical to an individual person. This contradicts many of the reasons we allow incorporation in the first place. Nevertheless, the ruling has the effect of informing individual persons (business owners) that their religious views take precedent over a newly passed federal law. This has the same social ring to it as “Forcing me to accept same-sex marriage is a violation of my right of free exercise.” You’re quoting my shorthand, which is purposely colloquial, but I don’t misunderstand the argument that was made by Hobby Lobby. And it’s not simply because I despise these people (and religion) that the ruling is disconcerting. The “free exercise” of religion can and has been used to justify the most horrendous crimes in human history. In a democratic and civilized society, such exercise must be limited by secular laws that take precedence. Hobby Lobby’s claim of an undue burden only works if we agree that Hobby Lobby, Inc. can have a religion, which I think is insane. So do the dissenting justices and the author of the 1993 RFRA Sen. Schumer.

      I don’t think of copyright as sacrosanct, and you’re actually wrong that my views are restricted to longer terms and stronger enforcements. In general, though, I do not trust the powerful interests behind many of the arguments against copyright. Sure copyrights have been used and misused by powerful corporations, but I strongly believe (as do many others including Jaron Lanier) that removing or weakening such systems puts the market at the mercy of corporate interests far more insidious than anything we have seen since the age of the robber barons. The economic evidence is on my side of this argument; it’s not theory. So, if you can show how weakening copyrights doesn’t pluck the creative industries out of the frying pan and chuck them into the fire, I would have fewer complaints.

      Regardless, your point is that I appear to be contradicting myself, which is a fair enough criticism. And if I failed to make myself clear at least in my opinion, that’s my failing. The observation I am offering, for what it’s worth, is that we seem to be regressing toward a less nuanced and less civilized society that wants to tear down laws that limit broad rights as interpreted by each individual. Because we don’t all agree on what speech or religion ought to look like, we enact secular laws that trump an individual’s personal opinion on the matter, lest he use religion to justify stoning or enslaving someone. That’s why it’s illegal to refuse to serve a gay couple in a restaurant even if you’re a born-again Christian. But there appears to be a trend in certain sectors of society (among liberals, too) that wants to reverse these boundaries. You’re right that Hobby Lobby was reconciled through a system, but the ruling may have done great harm to other systems — some of them hard-won — designed to protect individuals from the caprice of people in positions of power. Justice Ginsburg seems to think so, too.

      • D.N. “Anonymous, you should see the thoughts I don’t post. :)”

        He’s not familiar with that concept 🙂

  • David–
    “but it seems to me RFRA is an attempt to clarify free exercise, so my statement isn’t that far off.”

    Well, it’s no 11th Amendment, which is the authoritative example of clarifying Constitutional language where everyone disagrees with the Court’s decision.

    It is an attempt to return to the pre-Smith standard of Sherbert, which was stronger. (Smith came about because the Court wasn’t about to let people use illegal substances in religious rituals) But due to separation of powers, it can’t clarify the interpretation of the Constitution. Smith still stands, just not against the federal government when the RFRA is play.

    It’s a small point in practice, but not something that should be overlooked, I feel.

    “Honestly, I have not looked at that bill closely enough to understand why anybody thought we needed it, and I certainly don’t remember.”

    The federal government was building on sacred Indian land, and thanks to Smith, the fact that it had a harmful effect on Indian religions could be ignored. RFRA had a lot of support, and got a unanimous vote in the House and a 97-3 vote in the Senate.

    “Even if the majority opinion ruled solidly based on RFRA, I believe the functional flaw in the case (perhaps based on Citizens United) is that a corporation as an entity, no matter what size, can have civil rights identical to an individual person.”

    Well, having taken a peek at the relevant part of the opinion, no that’s not what it was based on. By its own language, RFRA protects “a person’s” religious practices, and the most applicable definition of ‘person’ available in the law includes corporate entities. It didn’t have to; RFRA could’ve been narrower (e.g. “natural persons”), and the ACA could’ve exempted itself from RFRA or could’ve imposed a narrower definition for the RFRA to use when in conjunction with the ACA.

    So having established that corporations do have that right granted to them, the arguments had to change to addressing why corporations might not have such beliefs in the first place, which would make protection of them moot. Long story short, this also failed, except for the argument that corporations with diverse ownership (including but not limited to publicly traded corporations) might suffer from different owners having different religious beliefs that they want to hold the corporation to, which would make it impossible to determine the sincerely held beliefs attributable to the corporation.

    That’s why the holding protects closely held corporations, where all the shareholders completely agree as to the religious beliefs that will be used in operating the firm. So Hobby Lobby is protected, but something like WalMart wouldn’t be.

    Again, it looks to me as though Congress dropped the ball on this one. It’s easy to fix this specific issue legislatively; add one word to RFRA, and it’s sorted. Politically, of course, it would be a hell of a fight. There’s a broader problem, though:

    “Hobby Lobby’s claim of an undue burden only works if we agree that Hobby Lobby, Inc. can have a religion, which I think is insane.”

    I agree, but that doesn’t really solve the problem. It just means that instead of having to deal with corporations whose owners uniformly aver a common religious belief, you’d have to deal with the same argument when it came to partnerships and sole proprietors, who are definitely acting in their own capacities when operating their businesses.

    “The ‘free exercise’ of religion can and has been used to justify the most horrendous crimes in human history. In a democratic and civilized society, such exercise must be limited by secular laws that take precedence.”

    Only to a point. It’s that ordered liberty again; if free exercise of religion is harmful, it is acceptable to limit it slightly to remove the harm. Where it no longer causes harm (or where the cure would do more damage than the harm itself), the interest in liberty prevails. At around the same time in the early 90’s that the RFRA was passed, an unrelated case went to the Supreme Court challenging a municipal ban on ritual animal sacrifice. The Court found that the ban was unconstitutional.

    “So, if you can show how weakening copyrights doesn’t pluck the creative industries out of the frying pan and chuck them into the fire, I would have fewer complaints.”

    As I said earlier, why should we only weaken copyrights? Let’s break up large businesses, heavily regulate any monopolies that are too useful to eliminate, place limits on the uses of the corporate form, increase progressive taxes on income, substantially increase taxes on wealth, and weaken everything across the board. I see no reason to have an entity the size of Amazon that can bully a publisher, but I also see no reason to have an entity the size of Lagardère (Hachette’s parent company) that can bully a retailer. A pox on both their houses!

    • “Long story short, this also failed, except for the argument that corporations with diverse ownership (including but not limited to publicly traded corporations) might suffer from different owners having different religious beliefs that they want to hold the corporation to, which would make it impossible to determine the sincerely held beliefs attributable to the corporation.”

      While I understand these issues, I find the entire discussion to be one of our characteristic national psychoses. Yes, I have issues with religion, but setting that aside, I believe the solution ought to be sharper even than amending RFRA. Once a principal or principals incorporate, the entity is bound by laws regardless of the personal beliefs of the principals. The primary function of incorporation is to create a liability shield that establishes the business as an entity separate from the individuals who own or manage it. In order for the principals to take advantage of this veil, the incorporated entity should not be capable of claiming the same civil liberties granted to the principals. The courts should not be burdened with the farce of determining the sincerity of the principals’ beliefs. Rather, those beliefs should be entirely beside the point with regard to the corporate entity’s adherence to both state and federal laws.

      A sole proprietorship does not offer the principal the same shield as a corporation and, therefore, could theoretically operate according to the individual owner(s) and his/her/their beliefs.

  • I feel this is a bit out of order. This author has used a widespread publication to banter political ideology. My expectation is that the rights and privileges have to do with authorship on this forum. ASCAP has nothing to do with gun rights or contraception rights, unless maybe supporting an author that writes a song, book, or publication about the subject. I feel the same about the Grammy Awards staging a marriage ceremony. The Grammy Awards are not about political agendas. The Grammy awards are about songs, songwriters, and production of songs. Let’s not use a bully pulpit for political agendas that are not related to the foundation of this organization. Tell me about the laws and politics that affect me as a songwriter and music producer and leave the other discussions for the media that is concerned about those issues on forums related to those subjects. I am not saying that those issues are not important; I am saying this is not the forum to discuss those issues.

    • David Newhoff

      Roger, I appreciate your thoughts. While this site does frequently address arts/creator-realted issues, its larger editorial scope is meant to kick the tires on the digital age from a cultural perspective. As such, the issues aren’t guns or contraception per se. Instead, the issue that does affect you as a songwriter is one in which someone else’s sense of their rights fails to recognize that the boundaries on those rights occur when they conflict with your rights. Thus, we get piracy = free speech as a strongly-held belief among some. I happen to see this as analogous with attempting to use religious views to justify encroaching on someone else’s rights.

  • Usually love reading this blog, but today is a perfect example of why songwriters and copyright owners are in big trouble – most folks have a “progressive ceiling” on their thinking and then try to argue for liberty. This is why this article really flip flops around and the main problems all copyright creators face – political philosophy and correct definitions of words. That word you keep saying, right, I don’t think it means what you think it means?

    I agree that streamers are having a free-for-all with all our songs if that’s what you mean by free-for-all. However, when you say that healthcare is a right, like copyright, then you have lost me. Copyright is a natural right just like free speech and equal in every way, like all other rights. Healthcare is not a right and copyright is. Food is not a right, or is a job, copyright is a right since it’s the fruits of my stored labor. Spotify has no “right” to use my song without my permission whether or not I’m signed to ASCAP or BMI.
    I’d say that songwriters, music publishers, independent sound recording creators, performers, etc. are now akin to the doctors and nurses that are forced to provide their labor, talent, expertise and profits through a similar Copyright Royalty Board, monopolized, price-fixing, federalized, government system just like Obamacare – except we have had Obamacare for songwriters for over 100 years then went from 2 cents in 1909 to .00000012 in 2014. That doesn’t sound like much progress to me? It’s the future if we continue keep a progressive business model for music royalties and copyright for the next 100 years, it will continue to crumble. – progressive music, great, progressive royalties – we must stop since it’s been a failure for everybody but the 1%.

    Direct licensing is the future for artists, music publishers, major and independent labels, and songwriters. It’s already happening with the majors direct licensing with streamers, bypassing ASCAP and BMI and the rate courts. The “progressive” music royalty and copyright system has proven it’s failure after 100 years and the last thing we need is another “progressive” music royalty system for the next 100 years. Free me means free, not mostly free and a right is a right, not a privilege.

    • David Newhoff

      George, I have my own issues with the ACA itself and happen to think healthcare should be a right, but that’s just my opinion. Regardless, the ACA is presently the law of the land, and SCOTUS effectively told business owners that the entities they own (and blurring that line is a whole other problem) can cherry pick within the law based on their personal moral code (i.e. religion). I will bet the farm that this threatens the rights of workers beyond the matter of contraception coverage, and Justice Ginsburg effectively said the same thing. Compensation is a right of labor, as are non-discriminatory practices by employers. SCOTUS just ruled that a CEO’s right of religious exercise can trump both of those rights, and I think this is part of the same dysfunction that leads certain libertarian academics to proclaim “copyright is a privilege and not a right.” As such, it is these very definitions with which we are now grappling. Either way, I thank you for reading and hope this one post doesn’t put you off permanently.

    • A massive “give” to the already overpowered corporations isn’t a “progressive” thing, imo. In fact it’s quite the opposite.
      The fact that corporate america pretty much runs the country is partly why royalties are so low. And that isnt a democrate or republican thing; as the congress is very much corporatist no matter who you vote for anymore, with only a handful of exceptions.
      Also, even though you or i might be music centric, keep in mind that all creatives are in the same boat. Filmmakers, authors, photographers, painters, sculptors, etc. are facing the same challenges.. we musicians just happen to be the canary in the coalmine.

      • Thanks AudioNomics, I agree with all of that and this shouldn’t be a partisan issue, but the sad reality is the music lobbyists in DC who are supposed to represent us are representing this hyper-progressive wing and that is what I’m saying. They claim the same thing, bipartisanism, and as soon as you turn around they are playing hardcore progressive politics with songwriter’s livelihoods and copyrights.

        In addition, the entire music royalty system was created by the “republican” Teddy Roosevelt progressives and the “democrat” Woodrow Wilson progressives the the early 1900’s and its hasn’t changed a bit. The same people with the same ideas that didn’t work for 100 years scream they want to “fix” the system and are the most political people in the world.

        You add that Sean Parker is a self-proclaimed progressive as most streamers, so I’m only holding folks to their own words of who they say they are. But it’s my copyright, it’s my right and it’s my property, yet they control my song and it’s value, at nothing!

        The problem is when that political philosophy is the ONLY one allowed in Silicon Valley, ONLY a progressive business model is allowed which is: everyone serves and sacrifices for a cause greater than themselves which is always the streamer, lobbyist, or so called music business “non-profit”. No streamer cares about individual copyright owner. To blame it on “corporations” misses the point, it’s political philosophy that is the problem, and that implies economics which don’t work. Plus most corporations are run by progressives these days and the music business is the poster child of it. Thanks! George

  • You lost me the moment you conflated copyright with access to healthcare and to gun ownership. They are not the same. They are hardly relatable. We have a Constitutional right to bear arms. (You and I may disagree as to how far that right goes – but you call anyone carrying a gun a “nut.”) We do not have a Constitutionally mandated right to free healthcare. (Access to health care does not automatically mean it should be paid for by the collective “we.) You accuse any employer that chooses to not offer abortifacients to be “discriminating.” – progressive code for “bigotry.”

    Not every creative person in this country considers themselves to be a progressive. And it galls me to no end whenever that assumption is made – for the defense of copyright requires no such comparative help from unrelated outside issues.

    • Actually from a European perspective access to free or at least affordable health care at the point of use, is considered a right. Frankly when I read of US citizens performing their own dentistry or dosing themselves with drugs only approved for animals, I feel appalled that such things should happen in the 21st century a major economy. When someone like Levon Helms has to go on the road in his final years to pay for cancer treatment, we should all pause for thought. I’m not talking here about copyright or piracy but the fact that anyone has to pay for treatment.

    • David Newhoff

      Thanks for commenting, but you’ll notice first that I only call the Open Carry Patriots “nuts,” and I don’t apologize for doing so. For reference, my own son is a Gunners Mate in the Navy, so I don’t consider everyone who owns or uses firearms to be crazy. I am also fully aware that not all artists are progressives. I can understand your desire to compartmentalize these admittedly distinct issues, but the post itself is about an attitude, which I am confident affects the debate on copyrights.

      • Thanks David and unfortunately “songwriter” had to bring up guns and why I kept it at free speech.

        My only point to everyone is that the music royalty and copyright system in 1909 – 1914 was designed by well-intentioned progressives in both parties. However, with any political philosophy comes an economic model and the progressive business model is central planning, price fixing, and government approved monopolies like ASCAP was in 1914 – and hasn’t changed in 100 years. The progressive music business model has brought us from 2 cents in 1909 to .00000012 cents in 2014, over 100 years of proven failure, except for the 1% or .0000001%.

        This outdated and bankrupt business model is disintegrating after 100 years of forced collectivism and forced central economic planning while being replaced by a somewhat free market with Universal and Sony publishing leaving BMI this year 100% long enough to sign direct licensing deals with streamers.

        In addition, the current crop of hyper-progressive music lobbyists in Washinton DC have made sure that our musical work copyright and our sound recording copyright are both worth .00000012 or .0005 each and locked in for the next 5 to 100 years by 3 price fixing judges in federal song court. That is why I bring up this point, it’s all progressive politics in DC and where the all the action is on your song and your royalties, or lack thereof. These are the facts.

        Btw, there will be no songwriter bill this year and the consent decree is going nowhere, so songwriters have been delayed another year or 2 at the least, so what do we do in the meantime, keep writing songs for nothing and hope for the best?

        There are good progressives and bad progressives, well-intentioned ones and the current music lobbyist kind, and that’s my point – you can’t use the same broken economic model that failed after 100 years, with the same progressive music lobbyists that got us into this mess the past 15 years and expect them to fix it using progressive economic central planning and price fixing to “fix” songwriting and music publisher royalties, etc. Every songwriter will have tour for the rest of their lives, make no money on their copyrights, and we can all keep Sean Parker in the life he is accustomed to, since he’s a progressive too.

        The progressive business model of 1909 robs me of my RIGHT to my stored labor and the fruits of it – that’s why copyright is a right, otherwise it would be spelled Copywrite. Unfortunately, the phony altruists on the Copyleft are too outraged at anyone challenging their neo-marxist philosophy that has ruined the music royalty system here in America for over 100 years and for the foreseeable future.

        I encourage all the good progressives who actually care about people to consider the bad economics that goes with it this ideology – this is why there are no music royalties, progressive economics. The individual songwriter must learn to serve and sacrifice more. But if you want to get paid for your songs or if you want your favorite artist or band to get paid for their songs and copyrights, you might consider other alternatives like voluntary direct licensing and voluntary collective licensing instead of forcing songwriters who create alleged “art” to accept nothing – all because of an economically bankrupt way of looking at the world. In other words, the reason there are is no money in music is because of progressive political hacks controlling your copyrights and value for the past 100 years – but if folks out there think copyright is not a right, then they only have themselves to blame.

        Thanks, George

      • David Newhoff

        ALL good points, George. Thank you.

  • All of the rights granted in our Constitution are free. We, The People, cannot be charged for exercising those rights. Poll taxes are illegal; you cannot be charged a fee for peaceful, lawful, demonstrations, etc. Health care, like a job or a driver’s license, is NOT a right, because payment must be made. The ACA is the law of the land, but it has been amended over a dozen times by the executive branch of our government, without any input from the people through our elected representatives. I don’t think that is very wise, or legal.

    As a member of ASCAP, I do understand that the rights of artists are under serious and constant attack by the ‘everything should be free’ bunch. Generally, these are the same folks who don’t believe in private property rights, or national borders, etc. They want to live in a bizarre world of kumbaya love and peace. Well, good luck with that. History is crystal clear that that attitude is completely unworkable and even dangerous.

    In the current politically super-charged atmosphere, everything rapidly devolves into 2 warring camps. We can’t let partisan politics stop progress on defending artists’ rights. What we need is an entirely new paradigm for payment in a digital world. The old royalty payment paradigm is virtually unworkable in modern times. Continuing to use it is like beating a dead horse to get it up and galloping again. It won’t work.

    • David Newhoff

      Michael, you’ll see that I’ve addressed what you’re essentially saying about healthcare with my responses to others in this thread. I have issues with the ACA myself, and I don’t want to get dragged into that morass. The point is that insurance policies are part of a compensation package, and compensation for labor is a right. More importantly, though, I strongly believe SCOTUS opened the door to discrimination of workers in the name of “religious exercise” in a dangerously broad way. In this, I think those who work in the creative fields and whose labor is being devalued in the name of “free speech,” might find some cultural parallels.

    • Thanks Michael and agree with all that you said, especially, we need a new paradigm that recognizes the partisan politics currently strangling our music royalty and copyright system, while defending artists copyrights and income.

  • George wrote ” .Unfortunately, the phony altruists on the Copyleft …”

    Now hang on a minute, the ‘CopyLeft’ folk are not affiliated with a political party.
    Imo, they are mostly (spoiled children) people that are being used against their knowledge to fight for some of the biggest most powerful SillyCon Valley companies. …in other words they are dupes. some knowing, mostly not. There is big business interest in devaluing copyrights to the point of ‘firesale’ prices. These giant greedy companies know there is true value there, they are just making one of the biggest land-grabs in history. If that’s not the case, why on earth are Google, Apple, Amazon, Facebook, etc all fighting over the music space? These are not “Marxist” companies, to be sure…

  • David–
    “I believe the solution ought to be sharper even than amending RFRA”

    Well all along I’ve wanted a proper single-payer universal health care system in which employers were cut out of the loop. The Court suggests that a less burdensome method of providing the coverage at issue here would be for the government to provide it directly; they’re not wrong, and that’s the sort of thing that the RFRA requires. It’d be fine with me. That’s the reason that I haven’t gotten too upset about this latest issue. To me it’s just another screwup caused by the unnecessary conservatism of the current administration. If they’d gone further to the left, like they should’ve, this would not have arisen. It’s the whole theme of Obama’s presidency, and I’ve gotten to the point where it doesn’t even surprise me any more.

    “In order for the principals to take advantage of this veil, the incorporated entity should not be capable of claiming the same civil liberties granted to the principals.”

    This is also perfectly fine. However, don’t forget that there would be side effects. If the corporation doesn’t itself possess, and can’t share in, the civil liberties of the natural persons who, at bottom, are in charge of it, this would suggest that an entity like a movie studio, movie theater, tv station, or online video distributor could not assert freedom of speech, and would be subject to restrictions on viewpoint and content which would never fly otherwise.

    You could try picking and choosing some rights and not others, and to some extents and not others, which corporate persons could possess, but this would likely put you back where you started, once the appropriate legislative body decided that religious rights should be included.

    • David Newhoff

      I would argue that the movie production company is merely an entity designed to foster the production of works, the content of which is the speech of specific persons. We have entities designed for the production of religious exercise, and these are granted a whole other status. In short, the religious (or any other) beliefs of the principals have nothing to do with a retail chain that is designed to sell yarn and beads. I think it is common sense and not terribly difficult to show that the personal beliefs of principals are almost always unrelated to a corporation’s purpose. You’re right that when the corporation produces what we call speech, it’s a little grayer, but not much. When the government has tried to go after creators of “indecent” works, they’ve threatened people with jail, not corporations. And if that tide turned again, and I wrote a script deemed indecent that was produced by Warner Brothers, the government would want to indict me and the key filmmakers. You can’t put sound stages in prison.

  • David–
    “I would argue that the movie production company is merely an entity designed to foster the production of works, the content of which is the speech of specific persons. We have entities designed for the production of religious exercise, and these are granted a whole other status.”

    While it sounds as though a non-profit company would fit in nicely with Hollywood accounting practices, it’s not quite the same thing. A little more seriously, I’d bet good money that in any production company’s corporate filings, you’ll find that the purpose of the entity is to conduct any lawful business, just like virtually all corporations. You’d either have to change the law to allow for the creation of a new type of ‘For Profit, Rights-Enabling Corporation’ which doesn’t presently exist, or else get into the murkier business of taking people at their word, or looking to how they practice business.

    “In short, the religious (or any other) beliefs of the principals have nothing to do with a retail chain that is designed to sell yarn and beads.”

    That’s not what they say:

    “The Hahns believe that they are required to run their business ‘in accordance with their religious beliefs and moral principles.’ To that end, the company’s mission, as they see it, is to ‘operate in a professional environment founded upon the highest ethical, moral, and Christian principles.'”

    “Hobby Lobby’s statement of purpose commits the Greens to ‘[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.’ Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to ‘know Jesus as Lord and Savior.’ (internal quotation marks omitted).”

    “When the government has tried to go after creators of “indecent” works, they’ve threatened people with jail, not corporations.”

    No, they’ve gone after businesses (though obviously not with jail, that wouldn’t work). The big Supreme Court case that enabled film censorship about a hundred years ago actually was against the Mutual Film Corporation, a distributor. The well-known quote from the opinion: “It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion.” Which all sounds eerily familiar somehow.

    It’s fairly common really: The famous seven dirty words case was by the FCC against the broadcaster, Pacific, not George Carlin. The stupid stupid Superbowl thing was against CBS, not Justin Timberlake.

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