With much fanfare, the Recording Industry Association of America, Business
Software Alliance, and Computer Systems Policy Project announced agreement on seven principles that will govern their activities over the next two years. Though cloaked in
the language of consumer benefits, these principles fall far short of demonstrating that the recording industry has heard
any wake-up call. The principles parrot the same old story, asking Congress to
leave them alone as they continue to find ways of selectively voiding the limits of copyright law and avoiding the limits
of competition law. Let’s review them:
1.
Public Awareness. Do
we really need another copyright “education” campaign run by the RIAA? This
is the same RIAA that pretends Section 1008 of the Copyright Act, which specifically authorizes non-commercial copying of
sound recordings, does not exist. This is the same RIAA that believes that the
first sale doctrine codified in Section 109 of the Copyright Act may be voided by technological restraints and “licensing”
agreements. It is the RIAA that needs to learn to respect the bounds of copyright
law.
2.
Consumer Expectations. They
claim to want to meet consumer expectations, but insist that how to do so “is a business decision that should be driven
by the dynamics of the marketplace, and should not be legislated or regulated.”
They should heed their own advice. MusicNet and pressplay, the two joint ventures owned and operated by the RIAA membership, account for 85% of the market, and appear
to have as their primary purpose preventing the dynamics of the marketplace from working freely. Perfectly lawful competitive activity – such as listening to your own copies of sound recordings
as long as you own them, selling or lending used copies that were lawfully made, obtaining legal copies from myriad freely
competing retailers – is being suffocated. No wonder they want the government
to turn a blind eye!
3.
Enforcement. They support
private and government enforcement actions against infringers. That’s fine,
but why not also support enforcement actions against copyright holding companies that infringe upon rights that belong to
the public? Why not agree to stop taking rights away from the public, thereby
enlarging their copyrights beyond the limits established by Congress? The right
to listen to music has never belonged to the copyright owner, but many of the major copyright holding companies are attempting
to use their copyrights as leverage to charge for the exercise of rights that don’t belong to them.
4.
Technical Protection Measures.
They ask that legislation not limit the use or effectiveness of technical measures “that limit unauthorized access,
copying or redistribution.” Their choice of the word “unauthorized”
instead of “unlawful” is telling. It seems clear that the RIAA desires
to continue to use technological measures to interfere with (and perhaps charge for) perfectly lawful access, copying or redistribution
which the Copyright Act gives them no right to control, such as preventing a consumer from accessing their own lawfully made
copies, or preventing consumers from physically redistributing those lawfully made copies to others.
5.
Actions by Rightholders. Here,
they finally got it right. This provision is limited to use of technical measures
that limit “illegal” distribution only. They pledge to do so with
respect for “individuals’” legal rights to privacy “or similar legally protected interests of individuals.” The choice of words in that last clause is pregnant with questions. Does this mean that they will not respect the legally protected interests of companies, such as the many
music retailers online and offline who would love to exercise their rights to resell lawfully made copies?
6.
Mandates. They decry
government “mandates”, oblivious to the fact that the entire Copyright Act is a government mandate. This principle haughtily declares that the government’s role should be limited to “enforcing
compliance with voluntarily developed functional specifications reflecting consensus among affected interests.” (Yeah, let’s do that with, say, marijuana laws!)
But don’t we have a representative form of government, where Congress is expected to be “representative”
of the affected interests? Does the RIAA really believe it is part of a super-legislature
entitled to keep Congress impotent until such time as the RIAA agrees with the proposed legislation? And, if this statement of “principles” is any guide, they apparently believe that the only
“affected interests” that count are those of their respective trade associations.
What about the authors and artists who create these works, including those who create them independent of the RIAA
member companies? What about the retailers, distributors, ISPs, advertisers,
software vendors, Internet sites, and consumers who wish to make lawful use of these works?
What about the millions of Americans who depend upon lawful free access (as in radio, gift, lending) because they lack
the financial means to pay “full price” according to the RIAA member companies’ rules?
7.
Improved Public Dialogue.
You bet! And they should not keep this “public dialogue” to
themselves. Let’s get the real public involved – the public that
wants to make sure that, to the same extent that we protect copyrights from infringement by members of the public community,
we protect the public’s rights from infringement by members of the copyright holding community!
