Mr. Lowery’s Speaking Tour: Interview with @davidclowery after Columbia Law School, George Mason University and CMJ Keynote

David Lowery just concluded a whistlestop tour of academic panels at George Mason University and the Columbia Law School, finishing with a keynote at the Continuing Legal Education program at CMJ.  We caught up to him for a recap of his brush with academia:

MTP: What were these conferences about? How did you bring your academic experience to bear on your participation?

Lowery: Ha. My academic experience is relatively limited at this point. Yes this is my fourth year teaching “business fundamentals of the music business” and “publishing and licensing” at University of Georgia, but compared to many of the folks at these panels I’m a relative newcomer. Most of the folks on these panels have been teaching law for quite some time and often have extensive industry experience in entertainment and/or technology.    I think though I’m much closer to the younger students, the young and aspiring artists than many of the Law Academics (no offense). Further I have closely observed how these 18-22 year old college students are consuming music the last few years.

So all of these conferences focused generally on copyright and it’s role in fostering creativity.  But I am quite pleased that instead of just seeing academics making purely economic arguments we are starting to see people talk more about a songwriters copyright as an individual right, even moral rights although we don’t explicitly recognize them here.   The GMU CPIP conference and Nashville roundtable explicitly addressed this.

I mean it’s fairly ridiculous that authors have to justify economically why they should have a right to control their own work?  Economic incentive is not all there is to copyright.  If I don’t want certain corporations using my songs I don’t have to let them. Since when do we have to justify our individual choices in economic terms?

MTP: Did you discuss your DOJ fling in the public comments for the DOJ’s review of the ASCAP and BMI consent decrees where you raised the Constitutionality of the consent decrees as the US government’s denial of due process to songwriters?

Lowery: Yes I did.  But at the CMJ ASCAP event I addressed two things concerning the DOJ. I wanted to show how unfairly the federal government was treating songwriters.  Apparently to protect the profits of a few politically connected industries.

First the failure of the DOJ to address ad funded piracy by companies like Google and AOL is an outrage. Despite the fact that mass copyright infringement is a RICO predicate there has been no serious effort by the DOJ to look at how these sites are funded.  They are largely funded by advertising served by some of the biggest and most politically connected companies in the US.  Swiss bankers have been thrown in jail in the US for being less involved in a criminal conspiracy.  It boggles the mind the DOJ sits on its hands on this.  These companies have apparently sold a lie to law enforcement:  “we don’t know where these ads end up”.   This is a lie and they should be prosecuted for this lie alone.  If a moderately successful middle-aged alternative rocker like me can trace these ads using a simple iPhone app, multi billion dollar companies can do it. (I actually demonstrated this on a panel at Columbia Law School using the iPhone app SourceCode).   These companies don’t want to stop the practice  cause they profit from it.  But they can’t keep playing sergeant Shultz  ” I see nothing” Artists are sick of it and now that The Turtles have shown us the light. If the DOJ doesn’t do anything expect lawsuits. In multiple jurisdictions, against brands, Madison Avenue and the ad exchanges.  Maybe congress should investigate the DOJ.  Smells like “agency capture” to me. Or as we used to call it “political corruption.”

Secondly I noted that while the DOJ doesn’t seem to think it’s obligated to protect us from piracy, they don’t think that we are dangerous enough that we need to be placed under a consent decree.    And please don’t give me the fiction, “It’s the PRO’s that are under the consent decree, not artists!”  That is absolute and total horseshit.  Once you have 97% of the songs under a consent decree, the US government in effect moves the entire marketplace to a courtroom in Manhattan. There is no other marketplace for songwriters.  So in effect all songwriters are under the consent decree.

So consider this in what I would call a constitutional framework.

How did I end up being subject to a consent decree that was first put in place 20 years before I was born?

Is this some sort of DOJ-imposed songwriter original sin?   As soon as I write and publish in my first song I am guilty. I’m now subject to the consent decree and in effect I have my rights to participate in the free marketplace limited. Where was my trial?  Where was my due process?

Further consider that the consent decrees have become a permanent feature governing song licensing and pricing, yet no elected legislative body created what is in effect a 73-year-old law.  If this country deems it needs to govern the song licensing process in this way it should pass laws, not assign the process to single appointed for life judges in Manhattan.   This is in effect a writ of attainder.  It feels unconstitutional to me.

Finally since you can objectively establish that the value of a song is depressed by the consent decrees (compare it to markets without consent decrees) this amounts to a “taking” by the government. Where is my compensation for the loss of my property?   There is also a “taking” on the piracy side.  The US government decided with the DMCA act that in order to encourage the development of these “new” Internet industries that a single class of Americans-copyright holders- should bear the burden.

The federal government effectively “eminent domained” us and gave our personal goods the fruit of our labor to private companies. Without compensation.

The DOJ is protecting some of the most powerful companies on earth and forcing songwriters to subsidize their businesses. [Companies whose combined market caps exceed $1 trillion.]

Lowery Slide

The thing I really stressed to this audience was the fact that they shouldn’t focus on how unfairly songwriters are treated, but instead should focus on what this says about our government and our country?  I asked the audience if they really wanted to live in a country that does this to its fellow citizens to benefit a few very wealthy corporations?

MTP: That’s a novel argument that I don’t think anyone else is making. You were in front of a bunch of lawyers, how did it go over?

Lowery: I feel like I got my point across very well. I got a round of applause and even people who represent industries that benefit from the consent decrees were very sympathetic in their questioning.   After the talk I had multiple litigators volunteer to help me build a legal case against the US government, the online advertising industry and Madison Avenue.  I’m keeping in contact. Who knows where this will go.   I also had an interesting conversation with Prof Richard Epstein the week previous when he spoke at George Mason University.  I asked him his views on the consent decrees that govern songwriters.  Honestly he is an amazing speaker and a brilliant thinker.  I don’t have the legal background to explain his rationale but he seemed to not like the consent decrees.  The lawyers in the room could explain it better.

MTP: You’ve made something of a science of confronting Google with their sale of advertising on pirate sites. How did the audience react to that kind of information?

Lowery: It’s always the same. You hear audible gasps in the audience. Highlighting and explaining the Publisher ID makes people visibly angry.  The bloom is definitely off the rose when it comes to Google.  Before it used to take a lot of convincing.  “It must be a mistake”  “you’re wrong” & “I like Google”.  No more.  Their defenders and apologists are largely silent now (with the exception of Google attorney Joe Gratz who was present at the Columbia Law School panel). If the jig isn’t up it will be soon.  [Joe Gratz is one of the Durie Tangri lawyers who lead the attack on authors and other creators in the Google Books case and who owns the domain name, parked on the EFF’s servers. His partner, Darilyn Durie, represented Goldieblox against the Beastie Boys.]

Google Screen Shot 2014-10-20 at 9.37.22 AM

Look, Google directly and through surrogates is throwing so much money at these midterm elections.  One of two things happens now.  Google wins and no elected official ever dares question them again.  We enter a new era of robber barons and trusts.   Or maybe a couple of fair minded incumbents survive the onslaught and start asking “Are Google and Democracy compatible?”  I want to see that hearing.  Maybe democratic stalwart Representative Mike Honda who Silicon Valley is currently trying to unseat by throwing millions behind his opponent (Ro Khanna) will lead an investigation.  That would be amusing.  I’d pay to see that.

MTP: Do you think that Google’s latest policy of demoting pirate sites if a legitimate service buys a higher ranking confirms or rejects your theories about brand sponsored piracy?

Lowery: It’s the same mob protection racket that Spotify runs.  It relies on selling you protection from broken windows.   “You can pay to have your legitimate site advertised against typical piracy search terms or these crazy pirate kids here are gonna steal your stuff.”  Meanwhile Google is selling advertising on these sites (as I have demonstrated time and time again).

MTP: You’ve also made the argument that these particular consent decrees actually create inefficiencies in the market due to the rate courts involvement with price setting, right?

Lowery: How much did Pandora save by suing ASCAP in rate court? Less than $10 million right?  How much did that lawsuit cost the tax payers? ASCAP and songwriters?  And Pandora stockholders?   Way more than $10 million?  That right there is a legal argument that the consent decrees are misapplied.  They are inefficient and cost society more than they save. Fail.

MTP: Have you given any thought to a solution? Artists complaining of the status quo under the The Man 2.0 are often criticized because you don’t solve the market’s problem for them, so what’s yours?

Lowery: There’s a rather out of fashion theory about how public policy evolves. I happen to think it’s still quite accurate.  It’s called “Punctuated Equilibrium Framework”.  The idea is that you reach this equilibrium where a sort of policy monopoly is formed.  The policy monopoly consists of an ossified class of legislators, committees, technocrats, policy experts, lobbyists, trade groups, academics and even clergy. They all have different interests and power calculations that lock them into a policy monopoly.  The consent decree, DMCA enabled piracy and abusive compulsory licenses are the policy equilibrium.  I won’t name names but we all know the members of the current Washington policy monopoly.  The “punctuation” is when policy suddenly and abruptly  changes.  In order for a punctuation to occur a “change of venue” must be effected. In this theory the change of venue ranges from armed rebellion and civil unrest; to civil court cases.

We need a “change of venue.”  I believe the Turtles have shown us the way in their victorious lawsuit against SiriusXM over Sirius stiffing pre-72 artists on performance royalties.  Except this time we need to sue our own fucking government.  Instead of complaining artists need to get off their asses and sue the people who locked us into the unfair “equilibrium.”