RIAA Chief Needs Better Understanding of Fairness

Some people will use every single under-handed tactic in the book to win—and then, if they lose anyway, complain that the game was rigged.

In a New York Times op-ed yesterday, RIAA head Cary H. Sherman whines that his side lost the latest round of the copyright wars because, in his eyes, the opponents of SOPA and PIPA acted unfairly.

For those who have been following the copyright debate for longer, this claim is so laughably ironic as to need no rebuttal. That the Times ran it, however, suggests that a broader historical context is needed.

Among other groans, Sherman rails against the anti-SOPA crowd for describing the bills as “censorship,” which he describes as “a loaded and inflammatory term.” He says he would rather have “respectful fact-based conversations” using “reason, not rhetoric.”

Yet in the same essay, Sherman continues the content industry’s decades-long history of using every loaded and inflammatory term they can think of in describing infringement.

Sherman repeatedly eschews the more accurate term “infringement,” choosing the morally loaded (and inaccurate) term “theft” instead. He compares sites accused of online infringement to “stores fencing stolen goods.” He accuses SOPA opponents of “supporting foreign criminals,” “misinformation,” and “demagoguery.” He even wonders how many of the bill’s opponents may be among the members of Anonymous who engaged in retaliatory online attacks against his group.

These accusations against the moral rectitude of their opponents are a tried-and-true pattern for the content industries. Now Sherman is upset that SOPA opponents used a morally loaded term? Anybody who has paid any attention to the debate over copyright should laugh out loud.

In addition to being on the wrong end of the accusation of rhetorical hyperbole, Sherman is also on the side that has a far less sound record of making accurate factual claims and of including all relevant details.

In this very essay, Sherman plays fast and loose with the truth. He claims that the bills were “carefully devised” and were proceeding after policymakers had “studied the problem in all its dimensions, through multiple hearings.” This could hardly be farther from the truth.

The bills were written in blatant disregard of a veritable library worth of skeptical input and proposed amendments from the tech sector, civil society groups, internet engineers, legal scholars, and the public. Rep. Lamar Smith, the lead sponsor and Judiciary Committee chair, was trying to ram the bill through on the House side after a single hearing in November that was so stacked in favor of the bill—five supporters to just one opponent—that the very even-handed group Open Congress described this sham of a hearing as a “lovefest”.

During the markup in December, the bill’s House opponents practically begged Smith to hold more hearings to hear more of the technology and civil society sectors’ concerns about the bill. Smith was unmoved and tried to move forward anyway. That is hardly studying the problem “in all its dimensions,” to say the least.

Next, Sherman defends the legislation’s proposals to shutter accused infringers, saying it wouldn’t be censorship because these sites would only be shut down after a court had undertaken “a thorough review of evidence.” First, the claim that these one-sided hearings would be “thorough” is, um, generous; the operator of the accused website would not only not have any right to contest the charges in court, they would not even be notified until after it was over! In nearly all cases, the site would be shuttered before the operator knew what happened.

Further, this misleadingly implies that sites would only be affected based on a court proceeding, which is patently untrue. Under Section 103 of SOPA, a letter from a coypright holder would be sufficient to compel payment processors and advertisers to stop doing business with a site. This sets up a more extreme version of the DMCA’s notice-and-takedown provisions, except rather than nudging behavior by creating a safe harbor for sites that comply (and thus creating such strong incentives to comply that a takedown notice is almost compulsory), it actually compels companies to obey these letters from the content industry that have never seen the inside of a courtroom.

Of course such a system will be subject to both human error and genuine malfeasance. We know this for a fact because of the many examples of fraudulent, mistaken, and abusive takedown notices under the DMCA.

Of course, these are just the inaccuracies in the article itself. In general, on the count of circulating misleading information, the content industry and their allies in the government are so guilty as to have few peers in DC.

Their estimates of how much infringement costs the US economy are an especially rich source of whoppers. These estimates have varied wildly, but they have consistently been so high as to be laughable. You may have heard the figures of $250 billion and 750,000 US jobs bandied about on a regular basis (though, granted, this is an estimate for all IP infringement). It turns out this figure is literally made up out of thin air, but it has been cited endlessly by IP zealots of all stripes.

When will Sherman begin admitting what the Government Accountability Office found in its 2010 report (pdf), which describes all of the major problems in all of the industry-funded studies of copyright infringement? (The GAO concluded that it is “difficult, if not impossible, to quantify the economy-wide impacts” of infringement.)

Where is Sherman’s outrage about the MPAA’s laughable estimate that infringement costs the movie industry $58 billion/year? (For some perspective, that’s a figure larger than the GDPs of 10 different US states.)

Sherman (who, by the way, earns an annual salary of over $3m) has also made incredibly inaccurate and misleading statements on other matters, even doing so in person in Congress. For instance, in a 2004 hearing on proposed DMCA reforms, he contended:

Second, there has been an impression created that the DMCA disallows fair use. In fact, it allows consumers who legally acquire a copy to make a fair use copy and you have a triennial review process to provide even further assurance that fair use rights are not lost.

The DMCA only prohibits companies from selling black boxes to strip away content protection for any purpose.

Not only is this patently untrue, if Sherman was honest with himself, he knew it was untrue as he was saying it. Section 1201(a)(1) of the DMCA actively prohibits circumvention of access-controlling DRM (including, e.g., the protection on DVD discs), which makes it illegal for consumers to make fair use copies of the media they legally acquire. To say the DMCA “only” regulates devices is, ahem, incorrect.

Further, his reference to the Copyright Office-administered triennial review process is also disingenuous at best. In the 2000 and 2003 DMCA hearings, consumers and consumer advocates had twice asked for the right to make fair use personal copies of encrypted media such as DVDs, and twice the Copyright Office had told them no. As Oscar Gandy and I demonstrate, those proceedings were marked by the Copyright Office giving as few exemptions as possible under as narrow a set of terms as possible with little regard to consumer welfare. This has improved a bit in the years since, but Sherman’s claim would still be false today.

I fully support a rational, fact-based discussion about the future of copyright. Unfortunately, the content industries have spent at least the last three plus decades polluting the discursive waters with loaded rhetoric. Remember which technology it was that MPAA chief Jack Valenti invoked the Boston Strangler to damn? That’s right, the VCR, and he did so in 1982. They have also spent at least the last decade trafficking in skewed, inaccurate, and downright-made-up statistics to support their claim that the post-internet sky is falling.

Setting aside Sherman’s radical hypocrisy on loaded and inflammatory terms and misinformation, there’s a deeper critique here: For far too long, copyright law has been decided in a nearly-private discussion between the affected industries and select policymakers with little public input. Jessica Litman makes a very persuasive case that this was true throughout the 20th Century.

Since then, as I show in my forthcoming book, the EFF has gotten heavily involved in copyright advocacy, and Public Knowledge has become a respected on-the-Hill counterweight to the industry’s clamoring for ever-stronger copyright enforcement. These groups have also helped persuade the tech sector to stop acquiescing to the kinds of compromises that let technology-shackling acts like the AHRA and DMCA sail through in the 1990s. Thanks to these changes, it has been much more difficult for Big Content to write new changes to the copyright statutes.

Still, until late 2011, the details of a proposed bit of copyright legislation had never really penetrated into much of the public conversation. In November, over a million citizens expressed their opposition, and even this was not enough to make an impression on Congress. The content industries have been playing the lobbying game to a masterful degree for decades, and when those kinds of relationships and campaign donations are on the line, calls from angry constituents can be ignored—at least until there are so many calls that it melts the phone lines.

Last month, of course, everything changed, and now Big Content is outraged. MPAA chief Chris Dodd, as part of his own personal lashing-out (which as far exceeded that by Sherman), made far too transparent the nature of this game. On January 20, he went on Fox News and said:

Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.

Dodd, a former Senator, may actually have crossed a legal line here, making explicit the implicit exchanges that characterize the systemic corruption that Lessig describes as DC’s “gift economy” of trading favors. Regardless of whether he could be prosecuted, however, is almost immaterial. Rather, it highlights the profoundly unjust and immoral way that copyright law has been made up until this point.

It was an unexpected development, to say the least, that so many of the world’s leading websites chose to act together to bring greater public attention and scrutiny to this important issue. I definitely count it as a blow for democracy and against the way of lawmaking that moves along without even the fear of substantial input from the voting public.

Whenever both RedState and MoveOn think a bill is bullocks, the odds are high that the proposal is not just imprudent, but that it is being advanced in a profoundly anti-democratic way.

If Sherman wants more fairness in policymaking, he should lobby for systemic reforms instead of railing against a genuinely democratic movement.

(10:25 pm: Edited b/c I accidentally posted the whole thing in twice. Whoops.)