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.”

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