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.
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 impededirect 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.”
Last week, MPAA CEO Christopher Dodd spoke in San Francisco about fostering better collaboration between the entertainment and Internet industries. Not surprisingly, two voices from the tech industry, TechDirt and the Electronic Frontier Foundation rang out with rebuttal. Mike Masnick, editor of TechDirt, called Dodd a “predictable dissembler” and proceeded to attack him personally for “lacking the vision” for his role. The EFF posted this article, which strikes a more conciliatory tone that only makes for an even more insidious version of the proverbial pot calling the kettle black.
Now, I don’t have any strong feelings about the MPAA or Mr. Dodd per se. I agree with some functions of that body, disagree with others, and am generally neutral on most of its activities. In January, I wrote that I considered the protest against SOPA to be generally dysfunctional and that well-meaning people were being used as puppets by the Web industry, playing on a historic distrust of the media industry. So, let’s clear one thing up right now: as of this moment, the Web industry outspends entertainment on straight-up lobbying and on general PR, including the work of the EFF. As an aside, I feel a little silly using the term Web industry when one company, Google, owns more than 90% of search and advertising worldwide. Is there a U.S. company more monopolistic at this point in history?
Still, the Web folks continue to get away with portraying themselves as the underdog and also as the champions of free speech. Thus, the EFF article states, innocent of the slightest hypocrisy, “But let’s not forget that he [Dodd] serves as the chairman and CEO of one of the most influential lobbying groups in Washington, and that the actions of the industry have yet to back up his rhetoric.” The writers of the article aim to sound open-minded while warning the reader not to trust “Dodd’s influence” despite the fact that the EFF’s Northern California friends enjoy far more influence, if lobbying dollars are the true measure. Let’s also not forget that the Web industry has left more than its fair share of unfulfilled rhetoric on the table.
While Web-centric pundits continue to raise the specter of SOPA’s return as an emotional tug on our senses, we should remember some of the odd dissembling that came from the bill’s opponents on January 18. Remember these slogans? Good intention, bad law. End Piracy, Not Liberty. These reasonable-sounding mantras were designed for general consumption by a public that doesn’t follow these issues on a regular basis; and they imply that the Web industry agrees that online piracy is a problem but that SOPA and PIPA were not the solution. The question remains, though, what solutions has the Web industry offered since declaring victory in the name of liberty over these bills?
So far, this industry has continued to pump out fears regarding any legislative action designed to protect copyright; it has increased its lobbying efforts and expenditures; it has perpetuated the implication that copyright itself is anathema to free speech; and it has continued to insist that the solution to piracy is to embrace it as a business opportunity rather than to confront it as a threat. These are not the actions of an industry looking to collaborate to solve a problem. Perhaps because it’s not their problem.
Both the EFF and TechDirt articles in response to Dodd cite a Congressional Research Service Report (see embed) that they claim makes Dodd out as a liar with regard to the importance of filmed entertainment as a component of GDP as well as the industry’s role as an employer. But, as is often the case with data, truth is in the voice of the interpreter; and it looks to me as though TechDirt and EFF are reading what they want to see in the numbers.
First, the entire report is based on best available information only from the major studios listed on Page 1. Hence, the employment number is meaningless, because anyone who knows the motion picture business, knows that the lion’s share of work is done by people who never receive a paycheck from these companies. The report does not reflect, for instance, the independent production companies who produce most of the filmed entertainment in the U.S. A quick glance at a web page for just one company, Participant, lists 50 projects completed or in production. If we average a conservative but realistic 150 roles per project (not including actors or directors), that’s 7,500 contract jobs ranging from entry-level to high-paying through one production company since 2004.
The report also would not include a four-person, middle-income shop in NYC doing motion graphics this year for a TV network. These people most certainly are employed by the entertainment industry, and so are several hundred shops just like them around the country. Then of course, there are tens of thousands of industry professionals who support themselves, their families, and their communities by working variously on TV shows, documentaries, low-budget features, commercials, and industrials, all of which are affected by the overall health of the motion picture industry, even at the top rungs of the ladder.
In the TechDirt article, Mike Masnick uses the CRS report to simultaneously assert that the movie business is doing just fine (i.e. studio executive salaries) and, by the way, it isn’t really all that important to the economy (i.e. small contribution to GDP). Studio CEO salaries, right or wrong, have very little to do with the overall health of the American film industry, especially in a discussion about the effect of online piracy on filmmakers of every size.
As for the significance of filmed entertainment to the economy, again, the GDP part of the report is narrowly focused on box office sales in the U.S. and Canada for the major studios listed. This leaves out huge segments of economic value in the for-profit, industry as a whole. (It should be noted that this not a flaw in the report itself, only in how the limited data is being used in this context.)
Strangely enough, Masnick sees no irony in the fact that he says, on the one hand, that the film business doesn’t amount to much economically and yet somehow, Hollywood manages to wield tremendous lobbying power. In fact, were we to take this report as the only relevant data, it shows clearly that Disney, News Corp, Viacom, Sony, and Time Warner combined don’t make as much as Google all by itself. So, ask yourself who’s likely throwing whose weight around in Washington?
SOPA and PIPA may well be dead, even in revised forms; but currently on life support, I believe, is the Web industry’s ability to keep playing David to media’s Goliath, all the while crying, “freedom” in order to effect policy in its favor. It won’t take too much longer for the general public to figure out that the members of the newly announced Internet Association are no more deserving of our blind trust than any other wealthy, vested interest. This is just business and politics as usual; and I would ask what wicked and dissembling glass makes the the wizards of Silicon Valley believe they’re always the good guys?
The Illusion of More is my personal blog from December 2011 to December 2025. As of February 2026, I am no longer posting new blogs or other content, but I hope you enjoy this archive. Please do not attribute any of my writings here to my current or previous employers.
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