Fred von Lohman of the Electronic Frontier Foundation treats us to the workings of his mind in this post
to the Los Angeles Times opinion blog where he claps on one and three regarding the desire of the creative community to extend the digital performance right to terrestrial radio.
“Copyright is a tax on the audience. As with taxes generally, it is a necessary evil, to be supported only so long as it can be justified as serving the public good. So the question that should be asked here, and in all copyright contexts, is whether a new exclusive right is necessary. Are we suffering from too little creativity, such that we need to increase the incentives to creators?
Plainly, the problem is not that we have too little music being created. As a result, it makes no sense to have the government grant more exclusive rights to copyright owners at the expense of the public (because that’s who ultimately pays for these royalties, one way or another).
If anything, the “digital performance right” that was created by Congress in 1995 should be repealed, not extended to terrestrial radio. After all, so far the track record for the digital performance right has been pretty dismal, impeding new digital music services without generating meaningful new revenues for artists.”
Again with the fallacious reasoning, this time the Faulty Generalization. This is simple: Copyright is not a tax. Copyright is a private property right that allows creators to earn a living.
But, no–copyright, we are told, is a “necessary evil”. Just think about that for a second, for a second of consideration is all that the statement deserves. The rights of a creator are only to be protected if they serve the public good. Ah. The Cultural Revolution has returned. Next he’ll want to get rid of the Four Olds and introduce us to the 16 Points.
You see–we protect creators who do not necessarily serve the public good and the public good is in fact served by virtue of that protection. Let’s see–Robert Mapplethorpe’s photographs, Michael Moore’s movies, James Joyce’s Ulysses, Comedy Central’s “Li’l Bush” and so on. Do you really think that these works came into being because of copyright’s economic incentives? Did the Lascaux cave artists demand an extra bone from the tribe before they did their work? Did Homer give us oral history because he wanted money for it? Is all creativity based on economic incentives? I rather doubt it. But what’s left of the copyright laws helps artists to support themselves.
von Lohman of the EFF exhibits the thinking of the philistine here—he seems to be living under the illusion that the creative community only exists because of the economic incentive of the copyright laws he hates so much. (Of course, it’s much easier for him to argue about money than it is about the morality of file “sharing” as he did in the Grokster case, because he loses that argument in any jurisdiction that is founded on the rule of law.)
The issue is not whether society needs copyright to have a creative community, I would suggest that society needs copyright to protect the creative community from von Lohman of the EFF’s fellow travelers at the National Association of Broadcasters and the Consumer Electronics Association who would free ride on our backs. If our rights are not protected, or at least protectable, the clear beneficiaries of the rollback of artist’s rights that von Lohman of the EFF advocates are NAB and CEA members who continue to get music for free.
Because it’s not like the government is actually going to do anything to protect artists or anything crazy like that. Oh, no. Artists are still going to have to protect their rights through private litigation because God forbid a U.S. Attorney should dirty their skirts on something so uninteresting as protecting our culture. I can safely say that I would easily trade a public performance right on terrestrial radio for a robust protection of copyright by the government because I know that the abject and pathetic failure of our government to protect us from theft while they extract our taxes is never going to change.
But why stop with the rather arcane right of public performance on terrestrial radio. Now they want to get rid of the performance right in digital transmissions altogether. Why should von Lohman of the EFF not argue that “we” should get music for free all the time? Let artists work for tips (or make
artists work for tips more accurately). That’s certainly the clear direction of the litigation he participates in. It’s not like the broadcasters–or Google–are going to stop charging for advertising or anything.
One would have hoped that the utopian socialist would be aligned with artists against The Man, that they would want to help workers keep the product of their labor. I guess that’s not going to happen with this crew. von Lohman of the EFF aligns himself squarely with The Man–in this case, the National Association of Broadcasters.
Artists simply want to leave the world a more beautiful place than they found it. Copyright allows them to earn a living while doing their work, a right that von Lohman of the EFF wants to destroy as best he can. That desire is clear in this post regarding digital sampling (see, e.g., mashups) by von Lohman of the EFF on a radical anticopyright mailing list (“Pho: RE: Copyright Question – MashUp”, March 22, 2007).
“…Fortunately, EFF and the Stanford Fair Use Project [funded in large part by Google] are two resources that *may* be able to help you, assuming yours is the right case to make a precedent for the rest of the world. But you need to engage the enemy early [that is, the creative community], before it erects a ‘licensing market’ and co-opts your new medium into the major label game (see, e.g., sampling in hip hop).”