shouting loudly

CNet catfight: Cary Sherman (RIAA) v. Gary Shapiro (CEA)

RIAA President Cary Sherman posted a perspective on CNet today entitled “The farce behind ‘Digital Freedom’“, a savage assault on the Digital Freedom Campaign that has earned an immediate response from Consumer Electronics Association President Gary Shapiro.

Sherman misquotes Shapiro to set up a straw opponent. He also attacks the Digital Freedom Campaign with a misleading ad hominem. Finally, he mischaracterizes fair use.

First, consider Sherman’s representation of Shapiro’s position:

CEA president and CEO Gary Shapiro’s comment that unauthorized downloading is neither “illegal nor immoral” is illustrative of the extremist position of that group, especially given the U.S. Supreme Court’s opinion otherwise in its 2005 Grokster ruling.

Shapiro made his comment in 2002, three years before the Supreme Court’s Grokster decision, but he stakes out a position that is still backed by the courts. (In 2002, the entertainment industries were lobbying for the right to wreck P2P networks with Denial of Service (DoS) attacks. Talk about extremist!) Here are two extended quotes of Shapiro in proper context:

“The entire theme of the copyright community is that downloading off the Web is both illegal and immoral,” Shapiro said, according to the text of his speech. “It is neither.” [...]

“The copyright community has declared war on technology and is using lawsuits, legislatures and clever public relations to restrict the ability to sell and use new technologies,” Shapiro said. “Content providers would be served better by working with technology companies to deploy (anti-piracy technologies) rather than suing everyone and lobbying Congress.”

In other words, downloading per se is not illegal, the tools to do so should be permitted, and the tech and content industries should work together on the problem of infringement. Sounds centrist to me.

Second, Sherman attacks the CEA as representing the electronics industry and not consumers. This is an obvious ad hom and thus irrelevant, but it’s so misleading as to warrant further rebuttal.

Like the RIAA, the CEA is an industry association–a fact Shapiro acknowledges in his rebuttal–but the Digital Freedom Campaign includes a number of bona fide nonprofit public interest groups, including Public Knowledge, the Electronic Frontier Foundation, and the Media Access Project. Collectively, these groups have thousands of members who, as consumers and creators, feel threatened by the RIAA.

What material evidence (hordes of activists and bloggers are my favorite kind) does the recording industry have that it speaks for consumers? That it speaks for ordinary citizens? Fragile nonprofits like libraries and organizations dedicated to helping the blind? All these groups and many more come out cleanly on Shapiro’s side.

Finally, I turn to the fair use debate–the explicit purpose for Sherman’s column. Somewhat to my surprise, Sherman’s interpretation of the fair use doctrine is a bit closer to the courts’ understanding than that presented in much of the recording industry’s public rhetoric. He calls it an “undeniably important plank of copyright law” and provides a brief description of the relevant statute, section 107.

Sherman follows this relatively on-point bit with two statements that sound good but are inaccurate:

[Fair use] is not an all-purpose excuse to make use of someone else’s property for free. And it is certainly not an excuse to boost the sales of electronic devices and services on the backs of hard-working creators.

The inaccurate premise in the first sentence is that a copyright holder is the owner of property. It is not property, at least not in any legal sense of the word. It is a government-granted monopoly to make certain kinds of copies (like a taxi company with a medal that gives them exclusive rights to serve 3rd Ave.), and those are far from the same thing. Among other legal doctrines, fair use limits that monopoly. (The Central Park Taxi Co. can cross 3rd Ave. and even drive down it for a few blocks to make a drop.) The British case, Donaldson v. Becket, settled the question in 1774, ruling that copyright is not a property right, and that ruling has stood on both sides of the pond ever since.

The second statement is fairly inaccurate on both legal and economic grounds. The Sony court ruled that home taping is fair use and is therefore legal, permitting Sony to conduct their business in a way that permitted infringement and boosted their sales.The Grokster decision tempered but did not overturn Sony, permitting P2P and other technologies to grow, thanks in part to the exception granted under fair use. “Hollywood’s main objective [in the Grokster case] thus went unfulfilled.”

Further, new technologies are not built on the backs of the entertainment industry. In 1982, former MPAA chief Jack Valenti insisted that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” Yet the VCR greatly increased the movie industry’s profitability. P2P could have done the same for the music industry if they had tried to monetize it instead of trying to kill it.

To review: Shapiro, not Sherman, is the centrist here. The Digital Freedom Campaign speaks for far more ordinary citizens than the recording industry. Copyright is a government-created monopoly, which is not to be confused with a property right. Fair use does permit me to make new technologies that may be used for infringing purposes. And finally, new technologies are not built on the backs of the content industries.

All the same, I am glad to see that even Cary Sherman has acknowledged the importance of fair use. He is right; fair use is quite important to the recording industry. (Imagine if nobody could recycle an old blues riff; rock music as we know it would die.) If only the recording industry would use business tactics (not to mention legal and political tactics) informed by an understanding that unauthorized but fair uses by consumers are also important to their industry’s success.