More Poobahisms from the Pukka Sahib

For those of you who don’t know him, Fred von Lohmann is the very smart lawyer who gave a stellar performance of the losing argument in the Grokster case before the U.S. 9th Circuit Court of Appeals representing one of the defendants who the U.S. Supreme Court found had an “unmistakable” unlawful objective. (This is the lower court ruling that was overturned by the U.S. Supreme Court in the landmark copyright case MGM Studios, Inc. et al v. Grokster et al, 545 U.S. 913 (2005).)

To give you an idea of how Fred views the creative class, he told me once doing his best “let them eat cake” impression, “Well, artists will just have to learn to get along on less money” given the crippling losses in the music business. (I wish I could convey the tone he used, but the next time you’re at an airport, listen up for the recording that says “the white zone is for the immediate loading and unloading of passengers” and you’ll get the idea.)

Fred is also one of the leading riders of white horses for the Electronic Frontier Foundation, the self-appointed “consumer” group—partly true as they are pretty clearly backed by the “consumer” electronics industry.

I do enjoy reading Fred’s editorializing, because I think he clearly would like to lump all creators under the heading of “Hollywood”, and it’s kind of fun to watch him try to squirm his way through arguments that he wants to make against big companies but which inevitably also apply to small business and independent artists. For there is one copyright law and it applies to all.

And this is where the analysis begins to have all the clarity of Professor Lessig’s conflict of interest statement and the Single Bullet Theory. Fred now is all bunched up about ASCAP getting paid on ringtones and—naturally enough given the source—goes to the same kind of argumentation that would allow one to believe the essential argument of the Grokster defendants–that “sharing” with 60 million of your closest friends doesn’t violate the law (the kind of thinking that got bounced out of the U.S. Supreme Court).

I had the same reaction to Fred’s “deep thoughts” blog about ASCAP as I did about his Grokster argument—of course he’s right, if you believe that the Sun rises in the West or that the Mossad bombed New York and Washington.

It seems that the important thing for Fred is that artists must lose economic rights and tech companies must be able to free ride on their work. This is where he always seems to end up.

“X” use is outside the copyright act, so big tech companies get to profit at the expense of artists. And that is because the benefits to consumers under the Copyright Act also flow to companies. So on the one hand he wants to mask his hostility to artists and songwriters by railing against “Hollywood”, and on the other hand he masks his sympathies to big tech companies by railing for “consumers”. And I mean BIG tech companies, companies whose market cap is bigger than the entire music industry (especially after a decade of assult from people like the Grokster defendants).

This is “false innovation” in bold. (It would also make sense that he would promote Choruss, the songwriter’s roach motel–the money goes in but it does not come out.)

Fred just doesn’t seem to want to admit the obvious–that ASCAP only acts as an agent for its songwriters—if ASCAP loses a licensing stream, it’s the thousands of ASCAP songwriters who lose. Why doesn’t he substitute “songwriters” for every time he uses “ASCAP”?

So instead of reaching a fair resolution of a share of revenues going to songwriters whose song is the reason the whole value chain exists in the first place, Fred does what he always does, not just regarding the ASCAP rate court—argues that a for profit businesses should keep all the money from the sale of copies of songs based on some tortured interpretation of the Copyright Act. Why limit this argument just to songs?

Why would anyone ever pay for video on demand on YouTube? Why would anyone ever pay for a conditional download off of Rhapsody? Are ringtones different because they a short clip of the most recognizable part of a song? What’s the difference, exactly?

So here’s a solution—if it’s all so noncommercial, then don’t sell the music in the first place. Otherwise, it’s like the old restaurant joke—the food was terrible and such small portions.

I heard one of Fred’s colleagues at EFF try to roil up a crowd once by saying “Is Silicon Valley going to let Hollywood tell it what to do?” This is what we call the “flying wedge” or the “outside agitator”. Of course, the statement begs the question–is Silicon Valley going to let San Francisco tell it what to do? Seattle? Austin? Chicago? Bollywood? London? Toronto? Paris? Anyone? For these are all creative capitals, too, and they have all been harmed by the efforts of the EFF in general and Fred in particular.

I guess in the Fred Story, we can all just eat cake.

But very small slices.

2 thoughts on “More Poobahisms from the Pukka Sahib

  1. Chris,My understanding of the ASCAP ringtone rate is that it is both a business and a legal issue. ASCAP believes that it is a better agency than record labels to collect ringtone royalties and distribute them to artists. As far as I am aware the current situations calls for the record labels to get 40% of ringtone sales and the publisher to get 10%. Thus artists are getting paid for licensing just not for public performance. ASCAP is trying to secure more money for songwriters and to exert its influence over the ringtone market. By enforcing a public performance right, ASCAP can ensure songwriters are paid and represent songwriter's interests in future ringtone royalty rate negotiations. While I have not re-read the EFF post which inspired your post, I believe the definition in 17 USC 101 supports a legal case for ringtone public performance royalty rates. However as the EFF points out consumers do not view a ringtone as a public performance. Furthermore there is a legal question of commercial advantage and third party liability. As you point out Fred uses the rhetoric of the public perception to rally sentiment against the royalty without looking at the real substance of the issue. This is the same disconnect between law and public perception that ASCAP has faced in enforcing copyright provisions against small businesses. In my opinion ASCAP would have more success if they spent more time explaining their business and legal reasons for the royalty to the public rather than to courts. As the rampant piracy in the music industry indicates, public perception of a law can be more important than any potential enforcement remedy or judgment (as far as I am aware there have been no reports of a widespread drop in US piracy after the Jamie Thomas verdict was announced.)


  2. I tend to agree with you generally that artists need better press agents but for different reasons.I would remind again the difference between songwriters (represented in part by ASCAP) and artists (who may also be songwriters but also who may not be). ASCAP has been issuing ringtone licenses and collecting ringtone royalties for a long time, over a decade I believe.First, just because Google…sorry…EFF…says with no evidence that the public believes X doesn't mean that they do believe X. It means that is feathers someone's nest to get people to believe that the public believes X. I have no idea what the public believes–if anything–about a very fine legal distinction regarding ringtones. I do believe that it's a safe bet that people would rather not pay for anything they can get for free.I would suggest to you that a utilitarian argument for punishment would seem to fail to stop many crimes, including copyright infringement. Saying that punishment should only apply if the spectacle of the punishment actually deters crimes IN FACT would suggest that murder, rape, burglary, theft, many other crimes should not be punished because all the punishments in the history of the world do not deter these crimes.If you want to say that only punishment for the crime of copyright infringement–as opposed to, say, perjury–must be utilitarian in nature, then I think that's a rather heavy burden of explanation.I also think that if there is a pro-consumer argument for not charging a royalty for ringtones, then there is also a pro-consumer argument for not charging at all for ringtones. But that would mean that somebody's benefactors would have to forego a lucrative income stream.


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