August 18, 2010

Rackets and Relocalization, Case Study (RIAA and Copyrights)

Filed under: Internet Democracy, Reformism Can't Work, Relocalization — Russ @ 2:46 am


I just wanted to jot down some musings on a smaller issue, but which still seems to fall into place according to the big picture. More and more it seems every question, however small, receives its answer this way.
The question is whether or not the existing copyright/royalty regime for music is outdated. As the author of this post at Public Knowledge admits, you would think a site dedicated to Internet freedom, the Creative Commons and so on, would take a dim view of something so seemingly sclerotic.
But instead the author seems to lapse into subjectivity, removing the issue from its historical context and treating it according to absolute morality.

But a “balanced” copyright law needs to be fair to all parties, and it is simply unfair to performers that broadcasters commercially exploit their copyrighted works without paying.
But this position isn’t universally accepted among people who are generally correct about copyright law. For example, Mike Masnick asked,

In what world does the government make someone pay to promote someone else?

Well, in this world. In the world where we have copyright law. You don’t do a cost/benefit analysis to see if legal rights apply in a specific case. You could frame many commercial uses of music as “promotional.” If you use some band’s music in a car commercial, there’s no doubt that you’d increase their exposure. You might even increase sales of their new album. But this is totally irrelevant: at the very least, the sole right to commercially exploit a copyrighted work should belong to the copyright holder. If you’re making a movie or a commercial, you don’t get to use someone’s music for free just because you can tell a story about how “promotional” it is. Yes, in some circumstances, the copyright owner of a sound recording might even pay to have its music played on the air. Who cares? In some circumstances a band might want to pay Apple to use its music in an iPod commercial. That doesn’t mean that Apple thereby gets to use anyone’s music for free. If a band wants to let radio stations use its music for free, it can; but there’s no reason to apply that to everyone.

We can argue all day about the details of what copyright reform should be. Not everyone agrees that “commercial use” should be treated differently than other uses. Even if you accept that framework, does making a mix CD for your friends count as a “commercial” use if it might theoretically displace a sale? Should there be robust safe harbors for online service providers? These are contentious issues. But I can’t imagine that there’s serious debate about whether playing someone else’s copyrighted works in their entirely, and running commercials against them, counts as a fair use.

I’ll say it again: Unless your use fits into a limitation or exception to copyright law (fair use applies to money-making activities as well), you shouldn’t get to use other people’s music for free in your for-profit endeavors.

Moreover, it has always been unfair that performing artists get nothing when broadcasters make money off their works. The only reason they don’t is politics: the broadcast industry is very powerful and tends to get what it wants. (Internet radio stations are not as politically influential, of course, which is why they pay performance royalties when their spectrum-wasting colleagues don’t.)……………

So, you can call performance royalties a “tax” if you want to—of course, by that logic, all copyright royalties are taxes. And the RIAA and SoundExchange have so far been very stupid in the rates they charge Internet broadcasters. But the basic question at the heart of the dispute is whether the owners of copyrights in sound recordings deserve to be treated differently than the owners of copyrights in other kinds of work. They never should have been, and they shouldn’t be today.

(BTW, the occasion for the post is to shred one of the more absurd pieces of racketeering you’ll ever see. They want to get a law passed to force every cell phone and other kind of gadget to include an FM radio.) 
So here’s my quick reflections on the copyright issue:
1. This is subjectively “right”, and in a perfect world I’d agree with it. But we live in a world where rackets currently control all system money flows. We must classify ideas like this about making something more “fair” for a party subordinate to the racket as at best reformist, not transformative, and therefore as counterrevolutionary. By now, under these conditions of racketeering, “reformism” can only validate the criminal status quo. The goal has to always be to relocalize and desystematize the economy and eradicate the racket, first through evasion and subversion.
2. If the model going forward (and as it’s mostly been for some years now) is that obscure bands market themselves online, run off their own CDs, sell their songs online, self-promote their shows, sell CDs and posters and stuff out of the back of a car, eke out a living that way, then we don’t need the record companies for that.
3. And if the only way an act gets big, becomes rich and famous, is as a prefabricated corporate concoction, and the only way a large audience hears a song is directly through a TV commercial, we don’t need that either. We’re better off without it. So we don’t need the record rackets for that either.
4. So going forward, what benefit does the existing copyright/royalty regime have for the bands? None, only for the rackets. And we don’t need the rackets to exist at all, so we can and should obliterate all institutions and practices which are overwhelmingly to their advantage. We can maintain copyright restrictions for any for-profit use; as always, commercial “speech” must be held to the most restrictive standard. But otherwise we should relinquish the old strictures and institute a new, more open regime.
The post discussed the way things were in the old days. Well, in every sector we’re headed back for the old days regardless. In many ways Peak Oil dictates this, while in every way the system intends to reimpose medieval feudalism. So our method at every point should be to seek to adapt the pre-modern practice to (what should be) our mature sense of economic justice. This usually won’t mean some stellar ideal of “fairness”, but rather that in accepting natural limits and the practices afforded by those limits we strive to make them as fair as possible while having zero tolerance for anyone who would try to maintain racketeering and rents.
5. As always, we should recognize no top-down system rights to any monopoly of any information.


  1. What ineffable slime. Note how carefully Bergmayer refers to the “copyright holders” and “owners of copyright” again and again, hoping no one will notice the devils that own the copyrights are entirely separate from the angels who actually create the work. The constitution states that exclusive rights are given “to Authors and Inventors”, not to commercial IP rackets, RIAA mafia goons and the corporate confiscators of our common cultural heritage. They are parasites who create nothing of themselves. We don’t even need them for distribution. Citizens gladly review and advertise good art by word of mouth on blogs and other democratic avenues. Copyright has been a tool of elite control from its very origins in state censorship. Milton, whose Areopagitica presented some of the first arguments for freedom of the press, sold the copyright to Paradise Lost to a London printer for £10. One of the greatest poets of the English language and his children died in poverty. If that’s not the devil’s work I don’t know what is. To hell with the copyright thieves.

    Comment by reslez — August 19, 2010 @ 2:03 am

    • Your response is more severe than mine, and I think you’re right.

      On the other hand, how do the creators mainatin control of their creations, even to distribute “on blogs and other democratic avenues”?

      That highlights the critical importance of net neutrality, and provides another insight into the bait and switch the IT rackets pulled vis-a-vis the actual content creators.

      The original “information wants to be free” ideology promised that although the Internet was going to assimilate everyone’s contribution and not directly pay him for it according to the old practices, that in some unspecified way the online community would still see to his remuneration.

      But by now it’s clear that here too the IT conglomerates and telecoms were all just racketeers whose only “innovation” was to be first to the trough, while they’ve expropriated the labor of the real creators, just like the same kind of racketeers have done in every other sector.

      And now they want to pull up the ladder behind them on net neutrality itself…

      Comment by Russ — August 19, 2010 @ 5:01 am

      • What control do creators need? The ability to prevent derivative works? The great works of classical music relied on reinterpretation and derivation of previous masters, activities now forbidden by copyright. You strangle creativity in its cradle. Newton told everyone he stood on the shoulder of giants — who are we to argue with him? People refer to Homer as though the Iliad were composed by a single person! Any artist with an ounce of honesty will tell you that creativity is a function of culture, a communal exercise. Far more borrowing and cross-pollination goes on than IP scamsters and fat-cat artists will ever admit. In the sphere of creativity, control is an illusion that kills.

        I’m certainly more in favor of copyrights passing down to an artist’s descendents than having them confiscated in perpetuity by corporate thieves. But in literature the end result is a pathetic generational franchise wherein the children of a famous writer take up the pen to produce bastardized sequels of their parents’ work. And the conglomerate publishing houses love this because of the built-in brand. Should artists be able to make a living from their work if it is good? Certainly, if they can — and there the onus lies on the audience. Open source programmers seem to manage somehow. And perhaps an activity that seems to require a great many participants simply does not have much inherent exchange or trade value. Participants in a bowling league don’t ask to be paid. You may not even need attribution — medieval European artists didn’t sign their work.

        Ultimately, the intellectual property scam is the same faced by any other worker-producer. Profits go to the corporations while public heritage is destroyed. That one or two dozen musicians or writers manage to become wealthy by this system is hardly in its favor, and as you say it is hardly a reason to pull up the ladder of creativity behind them. Crocodile tears on behalf of the artists is the favorite tactic of IP scamsters. It is NO DEFENSE to this plague. Intellectual property = intellectual tyranny. It can only be enforced if you drape the Internet in chains.

        Comment by reslez — August 19, 2010 @ 9:32 pm

      • Excellent. This clarifies it a lot. Although I’m personally inclined to respect artists in a way I’ve never respected economic “innovators”, still intellectually I agree with you that the Randian lie is basically the same across both cases.

        Comment by Russ — August 20, 2010 @ 3:24 am

  2. This is an excellent post, great blog and clearly articulates what I’ve been trying to explain to friends and family with “record deal” aspirations. Google 360 deals, it’s a nightmare on elm street.

    That’s exactly it, it is a racket and it’s perplexing to hear people screaming about copyright when it’s clear that artists are the last people to fairly benefit from their creative works. They get whatever’s left over.

    I’ve bookmarked this post. Thanks Russ.

    Comment by Nettie — August 21, 2010 @ 12:42 am

    • You’re welcome, Nettie, and thanks.

      Comment by Russ — August 21, 2010 @ 3:09 am

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