Allegro

Three copyright myths that nobody should believe

Volume 116, No. 10October, 2016

Christopher Carroll with David Newoff

Music and the arts are often the ultimate manifestation of a society’s values. Throughout history, the arts have stood the test of time, providing the thread that connects a community’s unique fabric of priorities while also addressing its challenges. It is our culture that puts the rest of our values into context.

But today, the vital contributions that artists and art make to our communities are under attack. As a result of technological innovation, modern economic trends and political polarization, musicians and the music industry are experiencing extremely disruptive and destructive changes.

Our contribution to society is still vital, both economically and socially, but copyright policy in the digital market no longer supports the value of that contribution. Outdated regulations like the Digital Millennium Copyright Act unintentionally incentivize online service providers to earn revenue on traffic driven by mass infringement of our work. At the same time, these companies use public relations campaigns to promote misunderstanding about copyright as a means to protect their interests at the expense of working artists.

Writer and copyright advocate David Newhoff responds below to three popular myths about copyright.

Myth #1: Copyright is in conflict with free speech

This old saw makes a great talking point for the internet industry, but Americans have about 230 years of experience balancing the values of copyright and free speech. Many judges, legislators, attorneys and scholars have actually argued that the two principles strengthen one another by combining the right of speech with the market incentive to produce unique expressions. There’s a reason artists have usually been the people who push the boundaries of free speech.

The “stifling free speech” argument has been recycled by Silicon Valley companies that want to use our works without permission or compensation to make money for themselves. Both outright piracy and the “gray market” infringement on sites like YouTube have devastated investment in the music industry. And few people consider how this divestment itself can stifle speech.

Not only does infringement remove the right of the creators to choose the manner in which their expression is used (which is a form of speech), but diminishing the prospects for commercial investment in creative works actually stifles speech as well. As Register of Copyrights David Ladd said in 1983, “The glory of copyright is that it sustains independent, idiosyncratic, and iconoclastic authors, but also fosters daring, innovative, and risk-taking publishers. Without such publishers, authors are as mute as if they did not speak at all.”

Myth #2: Copyright is “broken”

This theme is usually repeated on social media in response to anecdotal “evidence” of flaws in the copyright system. Every time there’s controversial litigation or a misuse of DMCA or the subject of term length comes up – or somebody sings “Happy Birthday to You”! – some vested interest declares that copyright is “broken.” But this is like saying the traffic laws are broken every time there’s an accident. The legal principles are still sound. Some people are just bad drivers.

In general, copyright works without anyone noticing at all. It’s easy to take for granted the negotiations, agreements, licensing deals, union rights and ancillary benefits that are all supported by copyright, because when things are functioning, there is no story and, thus, nothing to complain about on Twitter. Then, some dope sends an abusive DMCA takedown notice (one out of hundreds of millions of valid notices sent every month), and copyright skeptics shout, “See? Broken!”

Myth #3: Copyright enforcement is incompatible with the internet

Consumers are being presented with a false choice – either an internet that allows for the free flow of information, or an internet that allows for copyright protection, but not both. This doesn’t make any sense and is not a premise that is well-supported by the history of copyright.

We do have to remember that this dichotomy is promoted by corporations with a financial stake in the “free flow of information.” This sounds good and progressive and idealistic, but the people making the claim overlook the fact that infringing creative works rarely has anything to do with information. When somebody uploads music to YouTube without the creators’ permission, and Google monetizes the traffic, that’s not about information flow. That’s just a large corporation stealing listener traffic that rightfully belongs to the music makers. Meanwhile, online copyright enforcement has happened repeatedly in the U.S. and abroad without stifling speech or the free flow of information. For example, if infringing music tracks were removed from a corporate site like YouTube but the same music tracks are available on the artists’ website, how has anyone or anything been harmed other than, perhaps, Google’s interest in owning all the data it can acquire?

THE BIG PICTURE

Copyright protection has always been part of America, and it aligns with many fundamental American values, including rewarding hard work, encouraging innovative and creative thinking, and preserving the individual’s right to protect his or her property.
Today, these values and the value of intellectual property are being torn apart, leaving copyright vulnerable to efforts to weaken or dissolve it altogether.

In order to begin reversing the destructive social environment that risks shattering our cultural vibrancy and ability to create art for our future generations, we must find ways to protect our intellectual property. This isn’t selfish. This isn’t opportunistic. This is essential for artists’ ability to thrive and to contribute to society’s long-term vitality.


Christopher Carroll is the political and  communications director for Local 802. For this column, he tells readers, “The issue of digital copyright is among the most important challenges facing artists today, and I was thrilled to invite David Newhoff to share his analysis with us.” Chris can be reached at (212) 245-4802, ext. 176 or ccarroll@local802afm.org.

David Newhoff is a writer, copyright advocate and blogger for The Illusion of More, a blog that is part original editorial, part investigation into the world of copyright protection and the digital ecosystem. The blog is essential reading for people particularly interested in copyright and intellectual property, and can be found at
www.IllusionOfMore.com.