Don Henley Tells Senators: We Must Change Copyright Law… Because The People Like TikTok?

from the what-are-you-saying-now-old-man? dept

As we noted, last Tuesday, in the midst of a pandemic and nationwide protests about police brutality, the Senate Judiciary Committee’s IP Subcommittee (well, three members of it, at least, one of whom seemed to think that Section 512 of the DMCA was actually Section 230 of the CDA) decided it was a priority to host a hearing on copyright law. Specifically, the hearing was in response to the Copyright Office’s bizarre, ahistorical take on Section 512 of the DMCA that ignores the public as a stakeholder. It seemed particularly bizarre to have as the first speaker on the panel, Don Henley, who is one of the most successful recording artists of all time — his albums are literally the 1st and 3rd best selling albums of all time — with a history of being wrong about the internet.

Henley seemed to recognize that it was a bad look for a super successful, aging rocker to be the voice of musicians on the panel (good for him) and insisted that he was really there to speak up for less well known musicians who didn’t have his reach.

I am present, today, not to be contrary, not to advance a personal agenda (at age 73, and indefinitely homebound by the Covid?19 pandemic, I am in the final chapter of my career), but I come here out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us. It is truly unfortunate ? and patently unfair ? that the music industry is perceived only in terms of its most successful and wealthy celebrities, when in fact there are millions of people working in the industry, struggling in relative obscurity; people whose voices would never be heard were it not for hearings such as this one being held, today. So, I am compelled to seize this rare opportunity to discuss aspects of the fundamental issues that are foremost in the national conversation, at this anxious moment ? fairness, rights, mutual respect and ? in this case, economic justice and equal opportunity.

Of course, in the paragraph immediately after calling for a “national conversation” and “mutual respect” he trashed the entire tech sector and anyone who criticized him as a shill:

But, the smear campaign has already begun. I have been targeted by the digital gatekeepers and their many shills and surrogates. It began last Friday in the newspaper that belongs to Mr. Bezos, and it continues, today. Big Tech was probably hoping that this hearing would be canceled, or that I would be intimidated to the extent that I would not testify. But, I will not be silent on this issue. I want to do everything in my power to strengthen the property rights of music creators of all ages, races and creeds; all styles, from hip?hop to honky?tonk, from rock, to rap, to rhythm & blues. From jazz to folk, to heavy metal. To change or improve outdated laws and regulations that have been abused for over 20 years by Big Tech ? the enormous digital platforms that facilitate millions of copyright infringements, monthly.

From there he gave a bunch of strained and mostly debunked talking points about the notice-and-takedown provisions of the DMCA which he finds (of course) to be inadequate. Having discussed all of those in the past, I don’t really want to revisit those silly talking points all over again. But I did want to point out, yet again, how Henley’s “those darn kids these days” attitudes, undermines his claims of wishing to support up and coming artists. In particular, he attacks TikTok:

In a world where more than 500 hours of video are uploaded to YouTube every minute, more than 1 billion videos are viewed on TikTok per day, and there are over 500 million daily active users on Instagram, it is clear that the massive online services are flourishing while artists have no ability to combat the rampant infringement that occurs on these platforms

That’s an odd choice to pick on. While the labels and publishers have been fighting over licensing on TikTok, this line of argument — that TikTok is just some den of piracy — seems completely at odds with its cultural impact.

Indeed, TikTok has become the new music discovery platform of the younger generation, and some argue it has taken over the music industry because of that. It’s also created a bunch of new music superstars, most notably in the persona of Lil Nas X, the hugely successful young, black, LGBTQ role model.

So, it becomes difficult to square the idea — put forth by an aging white rocker claiming to represent those “struggling in relative obscurity” — that TikTok is some damaging tool to up-and-coming musicians, when we see how it has enabled a young, black, LGBTQ star to rise from that obscurity.

And, yes, of course there are some legitimate points buried within Henley’s talking points. It’s difficult to make a living as a musician. But that’s not piracy’s fault. It’s always been difficult to make a living as an artist. But the internet and the freedom that it’s created has enabled many, many, many more artists to have a chance — including some who would never have had a chance under the old system. As we’ve discussed for many years, under the old label system, through which Henley grew up, you had record labels acting as gatekeepers. They, and they alone, chose who would be successful and who would not. The internet has obliterated that system. There’s still a place for labels, but they don’t control the gates anymore. There are now new avenues for artists to go direct to their fans — to build followings and fans and supporters, with TikTok just being the latest in a long line of platforms that have brought us new artists, doing an endrun around the old system.

Of course, whenever that happens, the old guard complains. Not because it’s actually harming music. But because it’s a lessening of their exclusive power. This is the same thing we’ve always seen from the antiquated wing of the legacy copyright industries. Every “new” thing is painted as a den of piracy. Back in the early 20th century, songwriters flipped out at player pianos and the “piracy” they created. The 1909 Copyright Act was literally a response to player pianos. Indeed, in the hearings over that Act, composer John Philip Sousa — the Don Henley of his time — testified before Congress whining that:

?When I was a boy?I was born in this town?in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day. … Last summer and the summer before I was in one of the biggest yacht harbors in the world, and I did not hear a voice the whole summer. Every yacht had a gramophone, a phonograph, an aeolian, or something of the kind.”

The horrors of hearing a gramophone from your giant yacht. I’m sure Don Henley can sympathize. Of course, in retrospect this all looks silly. Here was Sousa complaining about the record player — the very thing that eventually built the entire recording industry. But, really, what he’s hooked into is the nostalgia of how things “used to be.” The nostalgia of “young people together singing the songs of the day or the old songs.”

And of course that trend continued. When radio came on the scene, the makers of records screamed about how it was “piracy.” And when recordable cassettes came on the market, we were told that “home taping is killing music.” Napster was supposed to be the death of industry, as was any number of other services.

Meanwhile, if one spends any time with TikTok, I’d argue that unlike Henley’s view of it, it seems like the perfect example of technology and innovation — including the innovation-promoting setup of the DMCA’s provisions — and brings us right back around to a situation in which “young people today” are “singing the songs of the day or the old songs.” Indeed, some of the most popular parts of TikTok, and those that have helped people like Lil Nas X become superstars, is the fact that TikTok encourages people to copy and sing and dance along with the “songs of the day or the old songs.” And it, and other similar platforms, are helping new artists break through every day — without those artists needing to get the approval of an old has been exec at a record label.

History tells us which path makes sense. Henley is choosing the Sousa path — the successful old musician, complaining about what he’s hearing from the biggest yacht not being to his liking.

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Comments on “Don Henley Tells Senators: We Must Change Copyright Law… Because The People Like TikTok?”

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46 Comments
aerinai (profile) says:

This phenomenon needs a name

This ‘Back in My Day’ idea of people doing things differently now automatically means it is bad needs summarized into a succinct and memorable name; much like the Streisand Effect or santorum.

I’m not good at naming things but I’ll throw a couple out to get this started:

Grandpa-had-polio-but-it-just-gave-him-character Mindset
Non-existent Nostalgia Conundrum
Old-Man-Yells-At-Clouds Effect

Those suck, but you get the point… let’s make it happen!

exixx (profile) says:

Re: This phenomenon needs a name

I’m not good at it either but I think you’re on to something. They’re all Kids Today-isms at their heart though arent’ they?

  • Kids today have vaccines. In my day we had the chicken pox, it only killed the weak ones. (have literally heard this)
  • Kids today all walk around with their heads in their phones, not talking to anyone. (one of my favorites because it’s so wrong)
  • Kids today can just make a movie for a streaming service and want it to be considereed by the Academy like it’s a real movie.
R.H. (profile) says:

Re: Re: This phenomenon needs a name

I like to respond to your second example with the fact that I, on multiple occasions, almost walked into traffic while reading novels walking home from school. My current smartphone, being much smaller than those novels, would have provided a much better reading experience had the technology been available at the time.

This comment has been deemed insightful by the community.
Samuel Abram (profile) says:

Henley doesn't speak for me

Some background:

I make Chiptunes, or Chipmusic. Before the internet, I took piano lessons and guitar lessons. When I started to make music with LSDJ on the Nintendo Game Boy, I used the lessons I learned in reading music and playing with scales from the aforementioned piano and guitar lessons to create my own music, which you can buy on bandcamp here. I also have my music’s performance rights managed by Songtrust, and my collections agency is BMI (I decided not to use ASCAP because they went after Creative Commons which is pro-artist, if anything, so I didn’t see ASCAP as representing the actual interests of songwriters). I licensed all my original music with an Attribution-Noncommercial Creative Commons License. I even have a 20% songwriting credit in the Mega Ran song "O.P." (because I created the game-boy-produced outro to that song). My royalty statements from BMI and Songtrust are usually over $2. While I’m not making a profit off of my music, I am making revenue, and I am having fun. I am also dedicating all my original music to the public domain when I die. I have played the Music And Gaming Festival, or MAGFest in 2017. I have also played Pulsewave, which was a monthly chiptune show in NYC. I am friends with all four members of Anamanaguchi, who are currently signed to artist-friendly label Polyvinyl. I am also friends with Jonathan Coulton, who actually lives near where I live, and I answer questions in my career, er, hobby with "WWJD?", or "What Would Joco Do?"

So basically, the internet made me earning money from my own music possible.

Now that that’s out of the way, in no way does Don Henley represent me. It reminds me of those times when Krist Novoselic or Bono were claiming to speak for people like me when in fact they are–or were–the top 1% of musicians. I work for a living and make music for fun. While I would like to earn more money on my music, I do not–I repeat, I do NOT want to do so at the expense of ordinary kids and people expressing themselves. That’s the part Don Henley misses: he thinks he’s going after Google and TikTok and Facebook, but he’s really saying "Fuck You!" to the users of the web sites more so than the employees or even the bosses thereof.

This comment has been deemed insightful by the community.
Anonymous Coward says:

In a world where more than 500 hours of video are uploaded to YouTube every minute, more than 1 billion videos are viewed on TikTok per day, and there are over 500 million daily active users on Instagram,

It is clear that creativity and publishing is flourishing without the old gate keepers being able to control it.

This comment has been deemed insightful by the community.
Koby (profile) says:

Addicted to Royalties

The superstar music artists of yesteryear have done nothing innovative recently. They didn’t create the meme with the short clip of music in the background. They didn’t produce the 6 second tiktok video. They didn’t make the internet platform, or the phone app.

But they remember the big payday that they used to receive, and wonder how these billions of views don’t result in a royalty cut? The only thing they can do is get mad at Fair Use and demand a return to the old consumption model.

Anonymous Coward says:

Old man yells at cloud, Henley does, nt get the Internet,
Yes some artists don’t make much money , YouTube tik tok soundcloud are platforms they enable new singers to spread their music for free and to allow young people to discover Old and new music , why is the senate not talking to young people who make music on the Web or an average musician say on 20k per year instead of a multimillionaire a member of the 1 per cent
Because money talks the laws in America or made for the 1 per cent, big corporations
Tik tok is a free service it promotes new music and is loved by young people why would the music industry want to clamp down on it,
Every new device and service has been sued or
Criticised by the old legacy music corporations
I think the problem is people like Henley or legacy
Music execs want more control
I pick out who the next bono lady gaga pop star is
They want to go back to the 80s or 90s
before the Internet was invented and young
people started to use new apps or programs to
discover new music
Making the dmca stronger will only make the
situation worse and result in more legal fair use
content being removed from YouTube or websites
and enable trolls to claim ad revenue on music or video content they do not own
they do not own

This comment has been deemed insightful by the community.
Samuel Abram (profile) says:

Re: Gramophones indeed.

It’s like [the big stars] are so gullible that they just take the talking-points from their record label and run with them.

I don’t think it’s that. I think it’s because the big stars felt that the label has been good to them and they don’t see that their fate was luck more so than skill. It’s more naïvité from privilege than gullibility.

PaulT (profile) says:

Re: Re: Gramophones indeed.

It’s just a classic inability for some people to change with the world around them. At some point, the world changes so much that it becomes scary and incomprehensible, so they demand that the world be changed back to something they do understand. The only difference between Henley and the average doddering old fool yelling at clouds during retirement is that the old way of things made him a lot of money for a brief moment in time.

Bloof (profile) says:

Are TikTok users really using Eagles music to the point it would have any noticeable effect on his income if he did get royalties? He’s probably the last person who should appoint themselves as the spokesperson for all of music these days, and definitely not the voice of artists who have any sort of claim to financial losses via TikTok. He’s there because major labels need someone to parrot the party line written by music labels, someone that’s old enough the the average senator may have heard of them, not because he’s actually losing money or the voice of the people.

Guys like Henley won’t be happy until we live in a world without music, where there are no public performances of any size without someone getting paid even if the artist is singing original compositions. Whistling in the street? Need a license for that. Playing a radio by a window? License please, even though the radio station is paying them already!

This comment has been deemed insightful by the community.
MathFox says:

Re:

The answer is: All those alternative channels compete with the traditional publishers over the attention of the consumer. And there’s only so many hours to compete over.
It’s not piracy pro se, it’s the competition they can not handle. Each minute a pair of ears is listening to tiktok is a lost opportunity to force-feed an Eagles song.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

It is a funny bit of insistent loserdom we have seen before like the Spanish newspapers – they froth angrily at the competition as the root of all evil, yet if they got what they think they wanted it wouldn’t help them at all. Because thr problem isn’t that people want something else more than them, it is that people don’t want them period and they keep on trying to change consumer demands instead of changing what they are selling.

If TikTok videoes by complete amateurs are beating them then well they aren’t exactly providing better content. Which is the same thing with newspapers who fail in both popular appeal and fact checking to bloggers.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:2 Re:

He was referring to a specific incident, and a specific law. "Spanish" enables us all to understand that. He might have equally well said "German", and in a year or three he might say "French". Specific instances are always more persuasive than broad generalities backed up by who-could-possibly-imagine-how-little evidence. And they provide a starting point for people who want to research for further information, or fact-check, or do all those other things the thought-police don’t like.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

'Since I'm already at the top no need for that ladder...'

Ah the classics, bring in a wildly successful person who got rich from the previous system, unlike the vast number of others in their position, to argue against the current system that offers an open playing field to all rather than just a select few. The idea that someone like him is trying to pretend that he’s there not for those already successful but for all those poor little struggling artists is beyond laughable.

A more accessible system may result in less super-rich superstars but what it does do is allow for many more to reach a modest level of success that would have been impossible before. When anyone can throw their music up and let the community decide who wins and who doesn’t, rather than only a small selection of handpicked musicians it’s almost a given that the hand-picked ones are going to end up worse due to competition, but the gains more than make up for that.

This comment has been deemed funny by the community.
Anonymous Coward says:

How about we perform a test and make it a federal offence to play ANYTHING AT ALL by Don henley on anything but a 1960s gramophone?

50 years in prison per song.

Also we ban his DVDs, CDs, cassette tapes (they’re KILLING music!), posters, adverts etc.

we try this from now upto 70years after Don kicks the bucket and see if it has an effect.

Theoretically his sales should ROCKET!

Anonymous Coward says:

Tik Tok is in the same situation as YouTube was years ago. How long will it take for the music industry to realise its a positive force it promotes
random old songs, it acts as a venue for new singers
to gain fans and make a living,
Don Henley comes the old generation who sold millions of CD, s and albums before the Internet existed , he’s in the one percent he cannot even
pretend to represent the average singer or songwriter

ECA (profile) says:

Lets ask..

Where is the recording industry?
Anyone seen Any recording out in the stores..
Or have they limited themselves to the Internet and selling ONLY thru the internet?
Iv seen a few albums released, as collectibles mostly.
Where are the tapes? CD’s?
Where is the hardware to play any of this?
Has he recomposed Any of his stuff to be released as High def, Blue ray?? Even DVD?

The Hardest part of tech, is keeping up. Joining in..
What are the odds, that he Thinks he should have more money, but hasnt checked his royalties. And the sales to itunes.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Henley’s opening paragraph would be fitting if he had addressed the legacy industry about not paying any artists aside from the big name acts like his former gig.

I seriously hope that the claim of being in the final chapter of his career is true.

This comment has been deemed insightful by the community.
GHB (profile) says:

Just like the betamax case, and then monopolies.

When technology allows both piracy and new avenues for music, the copyright industry and any and all copyright maximalists will try to stop it.

“As we’ve discussed for many years, under the old label system, through which Henley grew up, you had record labels acting as gatekeepers. They, and they alone, chose who would be successful and who would not. The internet has obliterated that system. There’s still a place for labels, but they don’t control the gates anymore.”

“Of course, whenever that happens, the old guard complains. Not because it’s actually harming music. But because it’s a lessening of their exclusive power.”

Yeah, which is why the industry as a whole (not just music, movies (hello disney) and video games (hello EA, also fuck you for killing game studios)) try to buy out indies and small studios to regain this control. They see these works as a “replacement” of their industry and that consumers would rather ditch the gatekeepers and switch over to indies instead.

This comment has been flagged by the community. Click here to show it.

Brian Summerall says:

So should an artist be paid for their work or not?

Put aside his age. Put aside his success. I am just waiting to hear if you think artists should be paid for their work or not.

If you don’t think that when someone creates something they should be compensated when someone else uses it, then could I assume all advertisers on your site taking advantage of what you created are allowed to do so for free? Surely you don’t charge them as this is up on the internet and I should be able to use it in any way I want for my profit for free.

Please send me what I need to to to put up my ads for free on your creation.

And send my your last five year’s tax returns so I can decide if you have made enough money already and that you owe me free stuff.

Thank you.

Anonymous Coward says:

Re: So should an artist be paid for their work or not?

The reality of history is that most artists never make any money from their art. A few got a deal with a label, which enabled them to become excessively rich. Nowadays, many make a living by self publishing, supported by their fans to create new works, rather than being paid repeatedly for an old work, even more receive little, other than the encouragement from their few fans.

Anonymous Coward says:

Re: So should an artist be paid for their work or not?

The RIAA, MPAA, and international brotherhood have on multiple occasions used commercial software and images without proper attribution or payment.

Considering the castle of glass your masters have put up for you, it’s really not a good idea for you to start throwing stones.

PaulT (profile) says:

Re: So should an artist be paid for their work or not?

"I am just waiting to hear if you think artists should be paid for their work or not."

They are. they’re just not entitled to payment for every second their work had ever been listened to, and never have.

"If you don’t think that when someone creates something they should be compensated when someone else uses it"

Not for every use. If I buy his album, then lend it to a friend, he doesn’t get a damn penny. If I resell it, he doesn’t get a damn penny. And so on.,.. This never used to be a problem.

What a shame that after 20 years are arguing about this bullshit, idiots like you still don’t get it.

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