Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Turning Down the Noise

Photo by Dmitry Rukhlenko

One of the things I truly love about the Internet’s influence on human psychology is that there seems to be something about the act of typing publicly in real-time that makes so many of us into armchair experts on just about any subject we choose.  This is particularly striking when it comes to complex legal matters, and if you are unfortunate enough to find yourself engaged in a “discussion” about copyright, you will invariably encounter invocations of the Constitution and proclamations of reason from people who are not legal professionals of any kind, let alone intellectual property law.  Whenever I hear someone use the terms “copyright maximalist” or “copyright monopoly,” it reminds me of social conservatives who use the term “activist judges” to sweep away some  legal principle that doesn’t square with their personal agendas.

Several months ago, Registrar of Copyrights Maria Pallante made a statement in an interview that was not only innocuous, but also happened to be correct. She said that “Copyright is for the author first and the nation second.”  Silicon Valley’s Representative Zoe Lofgren, however, decided to take Pallante to task in a Congressional hearing; and TechDirt editor Mike Masnick got his righteous knickers in a twist over the whole non-issue.  Masnick posted several articles blasting Pallante and provoking reader comments from some of the great armchair, Constitutional scholars of our times (no doubt, you’d know them by their avatars).  One of these experts posed the following question, which is probably more telling than any of the ham-handed legal opinions put forth:  “In this climate, is it still a realistic expectation to ask the public to allow artists to be full time artists?”  If I read that statement out of context, I’d assume it came from a conservative politician who transparently disapproves of the NEA, and opaquely hates all us wierdo, liberal, artsy elitists.  In other words, “Get a real job.  You can write books, make movies, compose music as a hobby.”  And, yes, this is the vision of technocrats and their supporters.

I try very hard not to presume any more legal expertise than the average citizen who hasn’t been to law school.  As an exercise in logic, however, I find it impossible to see how the one-sentence clause in the Constitution on copyright could function in any other way than that described by Pallante — i.e. that creative work won’t benefit the public until it first benefits the creator(s); and both history and the rulings of numerous courts bear this out.  But don’t take my word for it.

For anyone who is truly interested in dispassionate, professional, and well-written analysis of copyright fundamentals, it is hard to find a better source than Terry Hart, a young lawyer with a specialty in intellectual property law, who hosts the blog Copyhype, named by the ABA Journal as one of the top 100 legal blogs in the U.S.  For example, I recommend Terry’s recent post on this this no-so-controversial statement by Maria Pallante.

People like Representative Lofgren and Mike Masnick have an axe to grind for a specific industry, and people like me and others who speak out from the point of view of creators can get more than a little emotional, especially when we encounter sentiments like the one above asking whether the “public should allow” us to make creative work a profession. So, I think it’s important, and frankly calming, to step away from the shouting and read the work of someone like Terry from time to time.

Newsweek Goes Digital Only

This week, Newsweek announced that the final print edition of the 80 year-old magazine would appear this coming December 31.  This site launched with an interview with Newsweek veteran Christopher Dickey, who writes this morning, “Digital does not mean dead.  Far from it.” Read his post on Shadowland Journal.

I remember the proclamation “paper is dead” being echoed almost immediately after we tried email for the first time.  While that prediction didn’t exactly hold true, one could imagine that the print component of news organizations would inevitably become a cost that was out of synch with the way most people would consume news.  My hope is that readers continue to place value on the real investment these organizations make in experienced professionals who do the investigation and reporting. Above all, as the digital world has exploded the notion how we define news, these professionals, regardless of the tools they employ, maintain traditional standards that must be preserved.

Best of luck to the men and women of Newsweek and The Daily Beast.

What’s the deal with the IRFA?

Photo by JGroup

Musician David Lowery, founder of Cracker and Camper Van Beethoven, has become one of the most vocal defendants of artists’ rights in the digital age. A co-founder of The Trichordist, Lowery and his colleagues write some very detailed, professional assessments of the state of the music industry since digital file sharing, streaming, and purchasing have become a reality.

Presently under fire by Lowery and others is a bill called the Internet Radio Fairness Act, which appears, for now, to benefit one company — Pandora.  I haven’t had a chance to read the bill yet, but analysis from a few sources sounds an awful lot like new-era business seeking a very old-school model for profitability — free labor.  To the generalist glancing at some post about the IRFA on social media, it sounds progressive and reasonable, namely the headline that states “the Internet Radio company wants to pay the same rates as terrestrial radio.”  No surprise, it ain’t that simple. In addition to Lowery’s piece, I would read some of the analysis by Chris Castle, who has been following the details fairly closely.

The most disconcerting criticisms I’ve read is that the bill is a union buster, designed to weaken or destroy the collective bargaining rights of artists. One paragraph in the bill is particularly troubling:

 “Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings [including artists who own their own sound recordings] in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).’.  [For which there are both civil and criminal penalties.]”

Like I say, I haven’t had a chance to read the bill in full yet, and I’m not a lawyer.  What I do know is that Internet companies do not deserve a free pass when it comes to the question of influence peddling. If Pandora cannot turn a profit without a law that strips artists of collective bargaining rights, then so long Pandora.  It wasn’t that long ago when industrialists claimed they could not build important infrastructure without treating American workers like virtual slaves.  The right to bargain for the value of one’s work cannot be recast in this technological era as a barrier to the innovation of entertainment any more than it ought to have been claimed as a barrier to building a railroad over a century ago.  And considering how often the Internet industries cry foul every time a member of the creative community goes to Washington, this bill sounds more hypocritical and lopsided than it does “fair.”