RIAA: Changing Copyright Term On Recordings Is Unconstitutional (But Only If It's Shorter)
from the double-standards dept
Once again, my coverage is based largely on the excellent coverage from Copycense. I've collated some of the key tweets he made in covering the hearings at the end of this post.
Most of the ridiculousness came in the second session of the day, but there was one comment that deserved mention during the first session, when the RIAA rep on the panel claimed that "Given 'piracy' issues" the last thing that anyone should want is to reduce the terms of copyright. I'm trying to figure out what one has to do with the other. If anything, it seems like you could make a pretty strong argument in the other direction. The rise of widespread infringement suggests that the industry has failed to make works available to the public in a way that properly benefits the public. Thus, shouldn't we be making those works even more available? Either way, the statement from the RIAA here is a red herring. The idea of putting such works under federal copyright law would just bring those works in line with the already ridiculously long copyrights that the RIAA fought for not so long ago.
Then we get to the second panel, which focused on the Constitutional issues of fixing the excessive copyright issues for these works, with one key suggestion being to put those works under federal copyright law. Jennifer Pariser, from the RIAA -- the same woman who the day before had ridiculously and incorrectly insisted that the public domain had no value continued along that path again. She claimed that such a change to copyright law would lead to litigation and would be a violation of the takings clause (part of the Fifth Amendment). Basically, she was claiming that changing the terms of copyright on these works is the equivalent of taking away rights from the copyright holders and giving them to the public. In fact, she specifically claimed that "the less harm" you do to changing the term of copyright, the less of an issue there is. Hmm.
So, here's the question: where was the RIAA and Pariser on the issue of massive copyright extension over the last century? Oh, you guessed it, the RIAA has been totally supportive of it. So, you see, according to them, you can only ratchet copyright law in one direction. If you take away from the public (which copyright is supposed to benefit), that's fine. If you help the public... well, that's just downright unconstitutional!
Pariser also pushed on with the same claim from the day before about the lack of value in anything that goes into the public domain, and thankfully, others pushed back on that, pointing out (1) that copyright law was never intended to be set up so that the copyright holder got all the value out of the work and (2) no one was looking to make the works valueless, they were just talking about removing the monopoly, which from an economic standpoint makes a ton of sense.
Those same folks, usually representing libraries, pushed back on many of Pariser's points, highlighting that many of these works had already been covered by more than 120 years of copyright, and how much more do they realistically need? At that point, someone asked a perfectly relevant question: why should sound recordings get longer protection than any other work... to which Pariser responded (apparently with a straight face, though I'm not sure how), that the RIAA has "developed business models" around the extended length of copyright on pre-1972 sound recordings.
To put it mildly, this is laughable. The works that the RIAA labels are still making money on would still be under copyright for a long, long time (though, as we noted on Friday, perhaps the real fear from the RIAA is that under federal copyright law the actual artists and/or their heirs could reclaim the copyright). But the fact is, the vast majority of these older works are disappearing. To suggest that these copyrights should remain so long because of the record labels' business model is ridiculous.
Copyright law is not, was not, and has never been about protecting the record labels' business model.
If they did set up their business models based on this (and they did not), that should make NO difference. I mean, let's take that to the logical extreme. If we were to use the RIAA's own logic here, then that means the PROTECT IP Act should not pass, because it would impact the business models of other types of sites. And, according to the RIAA, no laws should change that impact someone's business models, right? I'm assuming this also means the RIAA is now against three strikes laws, ACTA, TPP and all sorts of other proposals that would negatively impact the business models of others, right?
And, just to cap off the ridiculousness, at the beginning of the following panel, an RIAA representative had the ridiculous gall to suggest that a change to how these old works are treated might decrease the availability of these old works since there wouldn't be the same incentive to produce sound recordings. I hope you weren't taking a drink when reading that, because it should have made you spit it out. The whole two day event was to discuss the very fact that so many of these works are disappearing, because the RIAA record labels are not making them available. The whole point of moving some of these old works into the public domain is so that others can make them available. And the RIAA is twisting that argument -- again apparently based on its ridiculously confused understanding of the public domain -- to suggest that even fewer works would be available if freed up. Thankfully others quickly pointed out that the issue is the works aren't available now. Hopefully, the Copyright Office properly discounted the RIAA's FUDful claims at the hearing, because they went beyond being just slightly misleading into being flat-out ridiculous.