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.