Some People Will Say Anything to Hurt Creators

You know how it’s offensive when a certain president uses a trope like “Do Nothing Democrats” to sling mud in lieu of articulating some kind of coherent, let alone moral, policy on any issue? Well, this same tactic is even more offensive when it’s used by people who should know better, especially people who believe they’re standing up for something. I try not to get personal about some of the copyright arguments, but this time it’s impossible. Mike Masnick is full of shit. And he should know better. In fact, I suspect he does know better.

Masnick doesn’t like copyright. Fine. Whatever. If he wants to advocate for the status quo of the DMCA, let him make a merit-based argument. Instead, his latest post criticizing congressional review of the DMCA (which began in February), he uses America’s overlapping, heartbreaking crises, and divisive politics, to justify this title:

In The Midst Of A Pandemic And Widespread Unrest, Senate Republicans Think It’s Time To Use Copyright To Make The Richest Musicians Richer

Perfect. That is ideally designed to generate maximum social media virality and teeth-gritting outrage. Except for one tiny problem: it ain’t true. For one thing, DMCA review is just one of many bipartisan, legislative processes, already underway, that were slowed but not entirely stopped by the pandemic. Next, and more importantly, it is not Republicans who suddenly put this on the agenda ahead of more pressing matters. Republican Senator Tillis is leading the Senate Judiciary Committee DMCA review, but in collaboration with Democrats you might know like Senators Coons and Leahy. They both support copyright and creators, but why mention that in a time when we can sow more discord?

Believe me, I’m pissed at Republicans right now for a whole lot of things. But that does not excuse Masnick, or anyone else, for trying to frame a solidly bipartisan issue as a “Republican” agenda, let alone to use national tragedies as a smokescreen. But in this case, Masnick tore a big ol’ page from the Trumpian playbook and led off his post by citing a statement of Senator McConnell’s from two weeks ago, when he said that he didn’t any see urgency in responding to the pandemic. Now, I would not give Mitch McConnell the time of day, but that statement is only connected to DMCA review in Masnick’s imagination. Only that isn’t even true. Mike isn’t stupid. He knows exactly what he’s doing and why it’s effective. And it’s immoral.

By a similar sleight of hand, Masnick wants everyone to feel that it’s wrong that Don Henley of the Eagles is set to testify tomorrow. He writes, “…this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.”

Again. Masnick should feel free to articulate why he thinks Henley’s views are incorrect and why he thinks he shouldn’t be testifying, but he doesn’t do that. It’s just more personality politics because that’s what we need more of right now.  And let’s not pretend that if a less well-known singer/songwriter had the same set of issues with YouTube (and they do!) that Masnick would give those complaints any more consideration.

Two days ago, I said I was concerned that Silicon Valley, and its network of well-financed mouthpieces, would leverage Trump’s fight with Twitter to push back on any proposed review of the liability shields enjoyed by internet platforms. Well, interestingly enough, Section 512 of the DMCA is another liability shield Silicon Valley will fight tooth-and-nail to keep intact (as though it was perfect in 1998). It’s the part of the DMCA that nearly all rightsholders do not like about the current application of the law—especially creators who are way smaller than Don Henley. And unless I miss my guess, based on some of the comments appearing on Twitter, and a Washington Post article that’s basically a longer version of Masnick’s post, this is looking a bit like a coordinated effort to stymie DMCA review by framing it as a “Republican” initiative in a time when that message just might work.

In truth, the protection of copyright has long enjoyed bipartisan support in Congress, even before there was a Congress! So, let’s get in a lather about some other issues. We have plenty. At the same time, I might point out that the shoe doesn’t look so good on the other foot. In a time of pandemic and gut-wrenching scenes in our city streets, Silicon Valley’s minions want to make sure that Google & Co. get to keep screwing over artists and creators? Nice.

© 2020, David Newhoff. All rights reserved.

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