Category: Copyright

Jeers of a Clone: Doctorow Lies About the CLASSICS Act

If Cory Doctorow writes an article about copyright, “it’s only there trying to fool the public.”

For instance, his recent missive about the CLASSICS Act in the venerable Boing Boing (which I assume is the sound inside its editors’ heads) is a fabrication rich in offensive overtones. Not only does he repeat the fiction that this bill extends copyright terms for pre-1972 sound recordings, but he actually invents a legislative process out of thin air.

As explained in more detail in this post, the CLASSICS Act is relatively narrow legislation that would allow musical artists who recorded songs before February 15, 1972—many of them are still living—to receive royalties in the current market for certain types of digital broadcast performances.  Quite simply, an artist with a song recorded after that date is eligible for royalties (e.g. from satellite radio), but the same artist with a song recorded before that date is ineligible for royalties for the same use.  In testimony supporting CLASSICS before the Senate Judiciary Committee, singer/songwriter Smokey Robinson presented the following:

“…some digital radio company lawyers found a loophole.  Those corporate lawyers asked, ‘What if we don’t pay for classic pre-72 recordings under the new federal license because they are covered under state law, and then what if we argued state laws are too old to cover digital radio?’  Then, they figured, they could profit off some of the most valuable recordings of all time, paying legacy artists nothing at all.”

Because a good story needs a good villain, Doctorow enigmatically cast Senator Orrin Hatch in this role and reported that the senator is personally responsible for combining CLASSICS with the otherwise-popular mechanical licensing bill known as the Music Modernization Act. This is imaginative to the point of incoherence. CLASSICS was in fact merged with the MMA and the AMP Act under the aegis of the House Judiciary Committee to form an omnibus music copyright bill, which passed the full House in April with an extraordinary tally of 415 to 0. It then moved to the Senate where it acquired 17 bi-partisan co-sponsors.  If for no other reason than the fact that Hatch is a member of the wrong chamber, he had nothing to do with “adding” CLASSICS to the MMA.

Perhaps Doctorow needs to review the whole House-to-Senate legislative process, but nearly all copyright legislation begins in the House Judiciary Committee.  Meanwhile, Cory’s style of blatant propagandism is especially obnoxious coming from pundits who imagine themselves champions of democratic principles in the digital age.  By “Hatching” this bogus narrative, he obfuscates the real process whereby a bill like CLASSICS emerged after several years worth of hearings held in multiple cities, and after gathering testimony from a variety of stakeholders. Even a rudimentary knowledge of Congress belies the absurdity of claiming that Senator Hatch personally—not to mention belatedly—has been pulling strings on Capitol Hill for his pals Smokey Robinson and Dionne Warwick.

In fact, to emphasize Doctorow’s hypocrisy, readers might notice that the URL for his “article” doesn’t even mention the legislation but is simply titled “orrin-fucking-hatch.” Why? Because Boing Boing isn’t a source of information.  It’s a click-bait site using SEO as a fly-catcher to grab readers already opposed to Senator Hatch on policy unrelated to music copyright.  I don’t have much in common with the senator’s views myself, but Doctorow arrogantly piling garbage on this bonfire of bullshit should be disabused of any notion that he’s doing the Republic any favors.

“The records of the 50s and 60s aren’t called ‘classics’ because of their age.  They’re called classics because of their greatness.  They still resonate today.  They add value to our lives and bring people together.  They define America.”  — Smokey Robinson —

In Doctorow’s version of the CLASSICS Act tale, not only is a senator authoring bills in the House, but he is allegedly also extending copyright to 144 years for all pre-1972 sound recordings.  (This is like saying Cory Doctorow is entirely responsible for that alien attack in Poughkeepsie.)  As addressed in my earlier post—and in considerable detail by Terry Hart on Copyhype—CLASSICS actually leaves in place the same 2067 expiration date that exists right now for this body of sound recordings.

Nothing in the public domain is being re-protected, and no new ambiguity is being introduced that will adversely affect librarians and archivists.  To the contrary, CLASSICS would serve to clarify important protections for these institutions that only exist in the federal statute but which do not apply under state law.

Beyond the key facts being misrepresented, there is another dimension to the recent assault on this bill that is hard to overlook.  Many of the artists who stand to benefit from CLASSICS happen to be people of color because the period between the 50s and the 70s is the same era when artists of color gained wider mainstream acceptance in the market. (Hell, if this were just the Ray Charles Act alone, it would be worth considering.)

When I think about the indispensable music created by artists like Smokey Robinson, The Supremes, Otis Redding, Marvin Gaye et al, and then contrast all those beautiful sounds against the whinging noise of Doctorow and his pals at EFF and Public Knowledge, the duplicity of these privileged, ivory-tower “activists” takes on a whole new shade of offensiveness.  It is truly fascinating to see Doctorow and his friends insist that the quirky history of sound recording copyrights must continue to disenfranchise this particular group of artists from a share in the revenue generated by certain corporations broadcasting their music.

That’s some bizarre logic coming from the same people who love to repeat the refrain that music copyright is irrelevant because the labels “always screw artists anyway.”  Not only is this talking point an oversimplified cliché, but in this context, it’s tantamount to calling the individual artists who have endorsed CLASSICS a bunch of liars about their own careers. Moreover, the critics who portray this bill as just another “gift to labels” fail to mention that the royalty split under the §114 statutory license is 50% to the recording owner, 45% to featured artists, and 2.5% each to non-featured vocalists and non-featured musicians.

I don’t like to insert race where it doesn’t belong, but in this case, the optics are little too blatant to ignore. There are plenty of opportunities for opinion, debate, and theory on the subject of copyright law, but here’s the meat-and-potatoes of the fairly uncomplicated CLASSICS Act as Robinson put it:

“Now, I fully recognize I have been blessed and I’ve been lucky. But for many legacy musicians and their families, this issue is far more urgent. I’m 78 years young, but many artists I came up with are unable to tour or make appearances or record new material to earn a living. They should be able to rely on income from the recordings used by digital radio companies to attract listeners and earn profits. For so many, especially at this point in their careers, this is how they make ends meet. It’s how they pay their mortgage and their medical bills. It’s how they feed their families.”

Are Doctorow and his entitled entourage really comfortable saying Robinson is just wrong? And then further twist this improbable narrative by introducing Orrin Hatch as the legislative knife in Smokey’s hand? I think Cory and Friends should find something else to boing-boing about, and anyone with a basic sense of fairness should “second that emotion.”

National Review Says ALI Oversteps in Areas Other Than Copyright

What is the difference between standing on legal principle and engaging in legal activism? The wry answer, of course, is that the attorney, scholar or judge who agrees with one’s opinion is a champion of legal principle while any of these who disagrees with one’s opinion is a feckless activist. “…there must be a clear line between describing what the law is and seeking to establish new law and policy,” writes John Fund for the National Review in an article about the “activist” character of the American Law Institute’s current agenda in issuing Restatements of Law. As described in this post, ALI traditionally publishes Restatements for the purpose of consolidating and unifying disparate common law opinions into general guidelines that may be cited almost as though they were statutory law.

I agree with Fund in spirit, even though I suspect that policy-for-policy, he and I would not agree as to what constitutes principle vs. activism. National Review is arch conservative and, as such, its editors probably would not find any hypocrisy in Fund’s citing the late Justice Scalia’s critique of recent ALI Restatements as “aspirations for what the law ought to be.” I would personally say the same thing about Scalia’s opinions in Heller and Citizens United, for example, but such is the subjective nature of the issue at hand. The law is always some version of what we want it to be.

Still, I am inclined to give Fund the benefit of the doubt that ALI Restatements are trending toward a more common definition of “activism” if their proposal to issue a Restatement on copyright law is any indication. As multiple copyright attorneys have stated, even considering a Restatement on a body of law that is already statutory is an undertaking that has never occurred in the hundred-year history of the institution. If that general fact emits a whiff of activist smoke, then the fire is in the detail that all the individuals pushing for the copyright Restatement are known to be ideologically critical of copyright.

I cannot comment on Fund’s report that ALI Restatements are also causing havoc in insurance, tort, and contract law, but he does state, “Last month, a group of six governors — from Texas, Maine, South Carolina, Nebraska, Utah, and Iowa — sent the ALI a letter warning that the proposed draft is a usurpation of the law-making authority of their state legislatures.” Again, I can imagine any number of laws in those states that I personally don’t like, but that doesn’t mean legislative authority should be undermined at the state level any more than it should be expropriated at the federal level. And as with the proposed Restatement on copyright, it would be interesting to know if this is the first time state governors have accused the ALI of overstepping its bounds in this way.

As a non-attorney, I am in no position to comment upon—or even know—the inner-workings of the American Law Institute. Whether Fund’s conspiratorial tone is justified, casting ALI as a near-clandestine organization undermining legal foundations, is hard to say. His short article does not lack conservative rhetoric, even citing the dreaded “political correctness” as motivation behind ALI’s Restatements. Especially in the current political climate, this is a very tough needle to thread. There are plenty of folks who would describe legalized same-sex marriage as judicial “activism,” while I would consider that view euphemistic bigotry. Regardless, the ALI is not a legislature; and to the extent its Restatement process may be seen as supplanting the legislative process, this is certainly grounds for scrutiny from any political perspective.

Public Knowledge Attack on CLASSICS Act Typically Unsound

In my last post on this subject, I asked why an organization like Public Knowledge would criticize the CLASSICS Act when there is no apparent downside for consumers if the bill becomes law. That post suggested PK’s motivation is more marketing for the service providers rather than advocating a public interest; but as promised, I will try to kick the tires on the specific law/policy claims being made against this bill.

To do this in a somewhat concise post, though, I have to concede that CLASSICS is a narrowly-tailored amendment to the copyright law, one designed to allow the majority of relevant (i.e. most likely to be played via commercial platforms) pre-1972 recording artists to participate in the current market. In practical terms, that’s what the act will achieve. In a more theoretical/historical context, CLASSICS is not a complete answer to the oddball history of U.S copyright vis-a-vis sound recordings since at least the 1920s.

So, it’s important to keep in mind that some of the criticisms of CLASSICS rely on more than hypothetical circumstances; they rely on alternate histories for the simple reason that the works we’re talking about have never been part of federal copyright protection. To make matters more complicated, the exclusive right addressed in the bill—public performance of sound recordings—was not part of the federal statute until 1995, and only then established for certain types of digital transmissions.

The CLASSICS Act seeks to harmonize some of the inconsistency in the law for the sole purpose of enabling certain, relatively contemporary, owners of sound recordings to share in the digital streaming market. For instance, it’s simply illogical that the author of a hit from 1970 is not entitled to the same royalties as the author of a hit from 1973. To achieve this goal, CLASSICS eliminates the 1972 threshold while leaving the existing terms and limitations intact. Nevertheless, as the bill moves to the Senate, critics are now responding as though it represents a substantial change that will exacerbate faults they already find lamentable in U.S. copyright law.

Doesn’t CLASSICS Extend Terms?

The claim most likely to get the attention of most people is that CLASSICS creates a major term extension for pre-1972 recordings. This usually comes with the eye-popping bullet point that works are being granted 144 years of protection! But the fact that one cannot extend terms which never existed is a point of more than semantic relevance. While it is true that 2067 minus 1923 does equal 144, Public Knowledge’s own post states that all pre-1972 sound recordings, currently under common law copyright, are already federally mandated to terminate on February 15, 2067.

That’s the same termination date called for in the CLASSICS Act. So, regardless of how one feels about copyright terms in general, this bill leaves the current terms in place for this particular class of sound recordings. At the same time, it is not at all clear that these sound recordings presently enjoy a public performance right under common law copyright (see Stephen Carlisle’s posts on the Flo & Eddie case in Florida as an example). As Terry Hart points out in yesterday’s post on Copyhype, “Say, for example, CLASSICS passes this year and goes into effect at the beginning of 2019, that gives pre-72 sound recording artists and owners an effective digital performance right ‘term’ of 48 years (2067-2019=48).”

It’s also worth noting that common law copyright is theoretically perpetual. But without wandering into the marshlands of potential litigation stemming from that legal bugaboo, suffice to say the CLASSICS Act should mollify critics because at least it establishes an expiration date for these works that is decidedly sooner than never.

Why Not Just Federalize All Pre-1972 Sound Recordings?

Public Knowledge’s argument that CLASSICS is “bad law” seems to rest substantially on the premise that it is inadequate in contrast to bringing all pre-72 sound recordings under federal law. This appears reasonable enough on the surface. All recordings “published” before 2/15/1972 would expire 95 years after their publication dates, and we would know what’s protected, what’s in the public domain, and where the expiration dates are, subject to the terms of the 1909 Copyright Act. This would certainly mean that a lot of sound recordings currently slated to fall into the public domain in 2067 would enter the public domain much sooner, BUT…

Although PK is correct that the Copyright Office in 2011 advocated a path to full federalization of pre-1972 sound recordings, that report also outlined the substantial legislative burden involved in migrating, for instance, state law determinations of ownership over to the federal system. Full federalization of these sound recordings is a monumental task that, at best, would be a very long slog in Congress, if it survived at all. While that played out, the copyright status of the sound recordings would not change—they would remain protected until 2067—and the pre-72 artists would continue to enrich the playlists of subscription services without reaping any of the benefits.

Not to be callous, but the process of legislating full federalization of these recordings could easily last longer than the remaining lifespans of many of the artists CLASSICS is designed to compensate. So, there’s a reasonable and moral argument to be made that effecting a narrow change now to support these artists in the current market is worthwhile. In this regard, it doesn’t seem at all reasonable for PK to label CLASSICS “bad law” (because it doesn’t harm anyone) simply because it happens to be a narrow law.

Does CLASSICS Create Uncertainty for Libraries & Archives?

Public Knowledge states …

“Libraries, archives, and researchers are the ones hit hardest by this situation. Initiatives like the Internet Archive’s Great 78 Project, or the Boston Public Library’s sound recording collections, operate under a legal sword of Damocles; they can keep going only at the mercy of common sense and a benevolent (or apathetic) recording industry.”

This statement is about the status quo and not about the CLASSICS Act. So, even to the extent the declaration is true—and that’s a big discussion—CLASSICS neither ameliorates nor aggravates any legal ambiguity for these institutions. Organizations like Public Knowledge and the EFF do this quite often: they attack a new proposal, which might entrench the status quo, by making it sound like a dramatic change backed by the nefarious “industry” in question. (See EFF on copyright in the TPP.)

One could predict that CLASSICS forecloses the possibility of full federalization of pre-72 sound recordings; but one could just as easily argue the opposite—that it may serve as a prelude to full federalization. In either case, the majority of commercially-viable sound recordings targeted for protection by this bill are—almost by definition—outside the sphere of interest where libraries and archives serve the public. Also, libraries and archives are afforded certain exceptions under copyright that are not available to for-profit entities. Both fair use and the carve-outs for libraries under Section 108 are explicitly stated in the CLASSICS Act.

Why Doesn’t CLASSICS Address Termination Rights?

Finally, Public Knowledge rallies general animosity for the recording industry in order to color its criticism that the CLASSICS Act is silent on the issue of termination rights. In simple terms, these are the conditions by which an author/artist terminates the transfer of copyrights to another party like a label or publisher. PK states the following:

“The sad reality is that the RIAA has exponentially more leverage with Congress than artists do, allowing them to dictate the terms of engagement. Legacy musicians thus face an impossible choice: abandon their push for termination rights in exchange for finally receiving the revenue they’re owed; or advocate for good policy at the expense of the potentially life-saving income.”

PK uses the subject of termination rights to emphasize the notoriously abusive contracts employed by record labels. But the fact is that sorting out the termination rights relative to all the pre-1972 state contracts would be just one component of the aforementioned slog to full federalization of these recordings. Public Knowledge makes this sound simpler than it is by alluding to copyrights reverting to the artist after 35 years, but this actually refers to the current statute, which does not govern these sound recordings. For now, the CLASSICS Act divides the royalties between the recording artist(s) and the sound recording owner, no matter what contracts are in place. So, PK’s implication that the bill is only for labels and not for artists is misleading at best.

Underlying all of that, of course, is the fact that Public Knowledge is exclusively hostile to copyright and has a history of making up all kinds of crazy nonsense rather than, say, providing knowledge to the public. In fact, I was struck by their reference to the wisdom of the Copyright Office on federalization of pre-72 sound recordings since is was Public Knowledge who had orchestrated a hatchet job attacking the credibility of the entire USCO and Register Pallante in the Fall of 2016. Ironically, that whole attack was predicated on accusations of “cultural capture,” which is funny because I wonder what psychological condition explains PK’s assault on this particular bit of legislation.