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.