The Chesterton Fence and the Future of the Copyright Royalty Board

It’s hard to play a gig in this town and keep a straight face.
Seems like everybody’s got a plan.
It’s kind of like Nashville with a tan.

Lullaby, written by Shawn Mullins

You will start hearing a lot in coming days about “CRB reform” speaking of the Copyright Royalty Board.  In order to be credible, this conversation really should start with the proponent of CRB reform acknowledging how much the “reform” proponents themselves have failed to manage the process.  So let me go out on a limb here about how much confessing you’re going to hear from these “reform” proponents.


Why do I think that?  Because in Washington, nobody is ever at fault and every failure is a reason to reform their way to even more power.  And never forget the most terrifying words in the English language—I’m from Washington and I’m here to help. And yes, the sound you are hearing is the braying of the Establishment jockeying for job security in their aspiration to gain or hold seven figure jobs. Accompanied by the amen corner of the legion of lawyers who get paid by the hour drooling over the spoils from the people who get paid by the song.

Which brings us to “Chesterton’s fence”, a heuristic from G.K. Chesterton’s 1929 book, The Thing.  The fence is a simple way to consider second order effects of a decision or…ahem…reform.  This is also the kind of thing you learn if you live in the country.  When you come up on a fence—you know, like a gatekeeper–you have a choice.  Tear it down or ask yourself why is it there in the first place.  People don’t usually take the time to erect gates for no reason.

Chesterton gives the over eager or misanthrope “reformer” a very simple challenge: “If you don’t see the use of [a fence], I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”  

In the case of the CRB, the process has succeeded in the webcasting compulsory license but has failed miserably in the compulsory license for songs.  The success and failure of these separate proceedings cannot be laid at the feet of the Judges.  The Judges are, after all, charged with giving legal effect to the decision of the interested parties participating in the proceedings.  If there is success in one and failure in the other, understanding the results of the proceedings and how they are received by artists or songwriters requires understanding how well these creators are represented in the proceedings.

There is a very large difference between lobbyists on the one hand and authorized agents on the other.  Lobbyists use the term “represent” loosely to mean that they articulate a position on behalf of their clients that may or may not be consistently in the overlap of a multiplicity of views on a Venn diagram of policy.  Bona fide authorized agents like a union on the other hand have been expressly appointed to negotiate on behalf of members who voted for them on a proposal those members voted for.  

Lobbyists who claim to actually represent anyone other than their own boards of directors may play inside a moral hazard. The woman on the street may stand at a physical or virtual speaker’s corner and express views to the delight or dismay of the crowd; yet cheers or groans from members of that crowd does not mean any in her audience have appointed her to negotiate their employment rates and terms that control their livelihood.

So as Chesterton suggests, I do see the use of the CRB as reflected in the webcasting proceedings—the sound recording side.  The problem lies in the use of the CRB as reflected in the phonorecords proceeding—the song side.  And it may even be the case that the problem lies less with the CRB and more with the compulsory license itself, a 100 year old artifact that may no longer be fit for purpose.

Regardless of how you feel about the compulsory license, it is definitely the case that songwriters have been poorly treated by the compulsory license rates in the U.S., and that America casts a long commercial shadow across the world.  The implications of “reforming” the CRB itself are vast and abiding.  Harms from second order effects abound.

Increasing the CRB’s budget or getting them a courtroom with windows may make appearing at the CRB a more enjoyable experience for the dozens of lawyers and lobbyists but it won’t do a thing to improve the lives of songwriters around the world.  Maybe they should have craft services lay out a spread for the lawyers, too?  But that won’t put food on the tables of the families of any songwriters and they pay for all of it one way or another.

I will be posting on recommendations for meaningful CRB reform with all this in mind but believe me on one thing—Washingtonians tend to believe the last person who they took a meeting with.  They assume that if you are in the room, then you must actually represent the interests you claim to speak for.  I don’t claim to represent anyone but myself although you may find my ideas attractive. 

Pay close attention to the “reformers” and what they are up to before they tear down Mr. Chesterton’s fence to suit themselves.