August 23, 2000
"This is a culture war, between the powers that were and that will
be." Is he talking about abortion? Gay rights? Hollywood violence?
Illegitimacy? No, the culture war is about ownership and regulation of
the internet, according to John Perry Barlow, Grateful Dead lyricist
and cyber rights activist.
|Brief for Amici Curiae Association of American Physicians & Surgeons, Inc. and Eagle Forum Education and Legal Defense Fund|
PDF document (81 kb)
Barlow may be right. The influence of the internet may be
overflowing into our culture as well as our politics.
The current flashpoint of controversy about the internet is a case
now in the Ninth Circuit Court of Appeals (RIAA v. Napster) where the
five giant music companies are fighting a website called Napster for
facilitating online music. The music cartel wants to stop listening to
music on the internet.
Most music CDs are stamped with a warning that unauthorized
duplication is prohibited by law, but this is not true. It's the same
claim Hollywood made when trying to stop individuals from taping TV
shows with VCRs, but the Supreme Court in 1984 ruled that unauthorized
copying for the purpose of time-shifting is legitimate "fair use."
Furthermore, Congress specifically legalized the noncommercial
consumer copying of digital music in the 1992 Audio Home Recording Act.
The music cartel lobbied for this bill because its main purpose was to
allow the cartel to control and impose a mandatory royalty on Digital
Audio Tape (DAT).
The political power of the music cartel in Washington was also
demonstrated last year when it sneaked a law through Congress making
music a "work for hire," i.e., the property of the recording companies
rather than the musicians. Without any hearings or debate, this
provision was buried in an unrelated bill as a "technical correction"
and signed by President Clinton.
Musicians were outraged that the law no longer considered them
authors of their own music, and Sheryl Crow and other artists testified
at a post-passage hearing of the House Intellectual Property
Subcommittee. Subcommittee chairman Howard Coble (R-NC) was
unsympathetic, grumbling that he hoped rock star Don Henley (of Eagles
fame) "gets carpal tunnel syndrome" from counting his money.
The recording cartel backed down and agreed to the repeal of this
law. The music cartel usually gets what it wants: in recent years it
has gotten Congress to pass a copyright term extension, draconian
criminal penalties on small incidents of copyright infringement, and a
law to criminalize "circumvention" of the wishes of a copyright owner.
For years the music cartel was coercing retailers to sell CDs at
the Manufacturers Suggested Retail Price (MSRP), a violation of
antitrust law. The FTC stopped this price-fixing scheme and 28 states
are now suing for hundreds of millions of dollars in damages.
The music cartel desperately wants to shut down Napster and
similar web sites that facilitate the noncommercial sharing of music.
The big five labels are frightened that online music may upset their
out-of-date business practices.
The U.S. Constitution allows Congress to enact copyright
protections for authors "to promote the progress of science and useful
arts," not to protect the special interests of Hollywood or music
executives. Copyright holders have certain temporary rights but so,
under fair-use applications, do consumers, and that's what the music
cartel and other powerful interests are trying to eliminate through
The internet is a medium for peer-to-peer communication. The phone
company doesn't regulate who we call or what we say on the phone, and
the music industry should not be regulating internet connections.
Nor should anyone be regulating information on how to use products
in a manner that has been traditionally and legally considered fair
use. Unfortunately, the 1998 Digital Millennium Copyright Act (DMCA)
was intended, by Hollywood and others who lobbied for it, to give
copyright owners a measure of control they never had before.
A 16-year-old Norwegian kid figured out a code that allows people
to view legitimately purchased DVD movies on Linux computers, even
though Hollywood rigged these movies to be playable only on Windows
computers and other machines. Now Hollywood is suing everyone who
spreads the word about the DVD code, including a magazine called "2600"
and one guy who put the code on a T-shirt.
Despite scare stories, new technologies have nearly always
expanded markets and created new opportunities for profits. Hollywood
fought VCRs in Congress and all the way to the Supreme Court, and lost
every battle in spite of doom and gloom predictions about how VCRs
would ruin the industry.
It turned out that videotaped movies became a financial bonanza
for Hollywood. We can also tape music over radio, but radio did not
ruin the music market.
I have shelves of CDs I never listen to, but I'd buy a lot more if
I could conveniently and easily find the music I really like. But the
music cartel has blocked the online sale of the music it controls, and
sites such as emusic.com have only fringe music.
Even though new technologies tend to disrupt current business
models, legislative or judicial attempts to protect economically
inefficient distribution channels are misguided.