Advocacy or PR from the EFF?

Two posts ago, I helped ruffle many feathers — and awaken a few trolls — when I accused the EFF in general, and attorney/blogger Mitch Stoltz in particular, of producing scare-mongering hyperbole by never passing up an opportunity to ring the pavlovian SOPA bell.  Regular readers of this blog know that I have often been critical of this organization because I believe its communications too often vacillate between public advocacy (its stated mission) and PR/policy work on behalf of the Internet industry.  And the apparent correspondence between these interests is admittedly a bit confusing from time to time. Because the Internet is so thoroughly integrated into most of our lives, it is easy to believe that, for instance, what’s good for Google or Twitter or Pandora, is inherently good for those of us who rely on the flow of digital data for business, entertainment, news, relationships, and even expressions of identity and purpose.  I’ve said it before.  No other industry — not medicine, not petroleum, not even food — has ever enjoyed so much latitude in the ability to associate its motives with the public’s defense of its civil liberties. This is a potent political cocktail, which is why I advocate vigilant skepticism.

So, two days ago, Mr. Stoltz posted an opinion piece written in a dispassionate, lawyerly tone that I had just recently accused the EFF of adopting only rarely.  In this article, Stoltz offers a frank analysis as to why he believes a pre-1972 public performance right, granted in the Flo & Eddie case and now being appealed, will “squelch competition in new music services” if upheld.   Music licensing can be mind-boggling for attorneys, so I won’t be the one to parse any of Stoltz’s legal statements, but will point readers, as usual, to Terry Hart’s historically contextualized summary of this same matter.

But regardless of the legal merits on either side of this issue, the main reason I’m bothering to cite Stoltz’s new post here is that I’m unclear as to why the EFF even views this case as relevant to the general public’s rights in the digital age.  This kind of legal/financial wrangling among business interests has been going on forever, and it is rare that the outcomes set precedents that have much to do with the rights of the rest of us citizens.  As such, this particular story about public performance rights and streaming and satellite services seems much more appropriately the purview of either business reporters or PR agents for one industry or the other.  (So, you see what I’m driving at.)

I like music streaming and hope it evolves into a model that works for both consumers and creators — because right now it does not — but I certainly don’t consider Pandora’s or Spotify’s financial interests as having anything to do with my civil liberties in the digital age.   So, why does the EFF?  I suppose the closest thing to a rights issue would be Stoltz’s thesis that this ruling is harmful to competition, but even that is a stretch vis a vis civil liberties.  Moreover, as I’ve said in the past, and as any observer can can see, the Internet, by its very nature, doesn’t tend to produce multiple competitors in spaces like music streaming.  To the contrary, the Web tends to foster monopsonies (e.g. Amazon, YouTube) that are able to dictate, rather than negotiate, terms with suppliers and creators.  And that’s not the fault of rights holders, that’s just the nature of the technology in its present form.

To be clear, I don’t think there’s anything automatically wrong with vested interests organizing around policy.  It’s how most policy gets done, whether we want to admit it or not.  And often, there are mutual interests and alliances between big and small, between a corporate interest and the everyday citizen or entrepreneur.  For instance, I strongly believe that independent film will not thrive in a market that fails to mitigate piracy, and so independent filmmakers share this common ground with the big studios, which are the only entities with the resources to address piracy in either policy or legal arenas.  By the same token, I guess it is not inconceivable that the interests of music streaming companies can’t be aligned with our civil rights, but it is not readily apparent as to how this might be the case.  Instead, it seems that what the EFF opposes most of all is any policy that looks like an expansion of rights for creators ever. And this is interesting in itself because it implies that the millions of creators in this country are not part of the “your” in the motto Defending your rights in the digital world.

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