Lessig & Co Miss the Point that Bait and Switch on MMA Will Burn Down the Cornfield

In case you’ve missed it, Lester Lawrence Lessig III is reprising his role as Copyright’s Biggest Loser with an op-ed in Wired about the mythical interpretation of the copyright term in the CLASSICS Act that has been taken apart by David Lowery and Neil Turkewitz.  Corey Doctorow (that well known pre-#metoo x-ray poster of minor redaction fame) also got it completely backwards as illustrated in David Newhoff’s excellent post.

It is the motivation that is most interesting about Lessig’s preening, the 40 members of the professoriate (that includes a liberal sprinkling of Google Academics) following each other right off the bandwagon and Doctorow’s whinging.   They all seem to believe that somehow there will still be a “Music Modernization Act” if the pre-72 fix in CLASSICS is stripped out.  Doctorow blames Senator Hatch, Lessig blames the usual suspects (the phantom Mickey Mouse, of course), and the IP professors are just proving that lawyers can’t do math–yet again.

For example, Doctorow tells us:

Back in March, the House passed the Music Modernization Act, a welcome bill made it easier for musicians to get paid reliably for digital streaming.

So that is quite a sentence–the bill actually passed the House “back” in April, April 25, 2018 to be precise.  So that’s wrong.  I gather that since he’s objecting to the only part of the bill (the former CLASSICS Act) that addresses “musicians”, he meant to say “songwriters.”  So that’s wrong, too.  And of course, the bill does a whole lot more that one would think would warm Doctorow’s heart (and hips, presumably), like get rid of statutory damages and attorneys fees to stop litigants like David Lowery, Melissa Ferrick, Bob Gaudio and Bluewater Music.

Both Lessig and Doctorow seem to make the assumption that CLASSICS can be stripped out of both the Senate version and the House version of the bill.  (It seems to have escaped Doctorow that Senator Hatch actually introduced the House version in the Senate and that the bill he likes that passed the House includes the pre-72 fix in CLASSICS.)  And without getting into who is right or wrong in their interpretation of the effect on the copyright term of pre-72 sound recordings, there is one thing that is the clear motivation for all this effort by the professoriate and the Google spin machine.

They intend to pass the safe harbors in the Music Modernization Act and get rid of the pre-72 loophole fix.  And they think the we will all go along with that.

They are, as usual, NUTS.

Stark raving mad.  The kind of people who see Mickey Mouse under the bed and post pictures of their pelvis dedicated to a woman they are in a flame war with.  (Move over Harvey Weinstein.)

Let me say it clearly–if they try to do this, if Google sends its shills up to Capitol Hill in hopes of a bait and switch in the Senate, the entire package will fail and it will be class action city.  But stripping out the pre-72 fix for the bait and switch is clearly what they are up to.

While you think about that, have a listen to a pre-72 recording of my friend John Baldry singing the Randy Newman classic “Let’s Burn Down the Cornfield” produced by Elton John.

We can listen to it burn…