Guest post by David C. Lowery of The Trichordist
Sen Rony Wyden has just posted a medium blog in which he makes the rather astonishing claim he is helping artists.
Let’s look at how Ron Wyden has tried to “help” artists in the past:
- He sponsored the Orwellian-named “Internet Radio Fairness Act” that would have slashed artists pay from digital services. In some cases would have slashed artist royalties 70%. The bill never got out of committee as it was so obviously a give away to Google, Pandora, Spotify and other digital services.
- Ron Wyden opposed anti-piracy protections in the SOPA bill. Most people don’t understand SOPA. They fell for the “don’t break the internet” bumper sticker slogan rather than looked at the details of the bill. Since the SOPA act failed in 2012, many countries including the UK have enacted similar but much stronger anti-piracy provisions. None of the dire consequences predicted by Wyden and his google funded anti-copyright fellow travelers ever emerged. Wyden has never acknowledged he was demonstrably wrong on the SOPA provisions that would have helped artists.
- Ron Wyden has consistently opposed all sensible and bipartisan reforms to the whac-a-mole DMCA takedown notice routine that companies like Google exploit. Whac-a-mole because they allow infringing files to repopulate their servers within minutes. Basically Google makes hundreds of millions if not billions of dollars by exploiting this loophole. (Remember Ron Wyden’s home state of Oregon hosts vast data centers for Google).
- Although he will deny it, Ron Wyden tanked TPP because it’s intellectual property rights provisions didn’t weaken copyright sufficiently. There is no other reasonable conclusion. Ron Wyden will say he opposed TPP because it would hurt American workers, but if you look at the timeline, Wyden was a proponent of TPP until Google didn’t get what they wanted on copyright. Under mock pressure from astroturf Fight For The Future (an anti-copyright group led by a Google lobbyist) Wyden changed his position.
- Ron Wyden opposes the Classics Act which would fix the Pre-1972 loophole which allows digital services and billionaire owners to avoid paying the royalties to performers that had the misfortune to record before Feb 15 1972. Unequal protection under the law.
- On top of that the “progressive” Senator has not acknowledged what is a pretty ugly and obvious truth: the pre-1972 loophole disproportionately harms African American artists. Sad artifact of history, but a disproportionate share of songs were developed and popularized by African-American artists but the biggest hits were performances by white artists. The pre-1972 loophole freezes these unfair biases in place. For instance: Percy Sledge’s Sea of Love doesn’t get royalties; but Michael Bolton’s Sea of Love does. How can anyone with a conscience live with this?
- Ron Wyden just proposed a bill called ACCESS (clever right?) It is essentially the Classics Act but it is laden with loopholes that would allow services like Google and likely even The Pirate Bay, to continue to exploit artists without pay. One clause requires the rights holder to notify the service they are infringing (like they don’t already know), and then allows the service 180 days to correct their behavior. 6 months of royalty free use? WTF? There are also impossible to fulfill recordation and notification requirements that create holes that again would disproportionately harm African American artists because they were more likely to record on small specialty labels without the legal and economic resources that the major labels enjoyed. There is a reason international treaties on copyright discourage registration formalities. Onerous formalities (like Wyden’s) end up disenfranchising independent and less sophisticated artists. Do you think those are white kids in the suburbs of Portland?
But even all this doesn’t really give you a sense of the deceit Wyden is willing to engage in to protect companies that have data centers in his state.
So let’s take a closer look at his blog post “A Better Way to Protect Artists”
The deceit starts with Wyden not explaining to the reader that all the protections he supposedly provides in his bill (ACCESS) are also in the Classics Act which he opposes.
“For absolutely every living artist who recorded before 1972, my bill would give you new rights and new revenue from digital streaming, while also creating a uniform copyright law across the whole country.”
This is what the Classics does. What Wyden is not telling you is that he has basically cloned the bill and inserted a billion dollars worth of loopholes into the act. ACCESS to legacy artists wallets is more like it.
But Wyden continues. Next he makes the spurious claim that the genuinely pro-artist Classics Act somehow “locks away” ideas.
"Artists deserve to be compensated for their work, but at the same time, we shouldn’t lock up ideas for decades after the creator has passed away."
This is the #1 bogus argument that every anti-copyright dead ender makes. Seriously Senator, if there is one question you need to answer, this is it: How does paying artists for a stream of their performance lock away that work? Huh? We are waiting. I guarantee you that Wyden won’t answer because nothing is “locked up.” As a general rule when ANYONE in politics says they are doing something to “benefit the public” it almost always turns out that “the public” is a large corporation in their district. Quite progressive right. Really looking out for the little guy there.
The second obfuscation the Senator engages in,is the notion that copyright protects ideas. I only bring this up because Wyden is extremely educated on this matter and he has to know he is engaging in a deception on this point. Copyright does not protect ideas. Copyright only protects unique expression. Huge difference. There are hundreds of court cases and hundreds of years of academic literature that clearly lay this out. Shameless demogoguery designed to whip up hysteria never goes out of fashion.
“That’s why researchers like the Library Copyright Alliance (which includes the American Library Association), the Internet Archive and the Society of American Archivists all have endorsed my ACCESS to Recordings Act.”
All of these orgs are Google funded or rely on Jonathan Band for policy positions. Jonathan Band of course is one of the star academics in Google Academics Inc report. So, a bunch of orgs that effectively act as proxies for Google support your bill. Oh and Google just happens to have large tax exempt data centers in Oregon sucking down cheap electricity subsidized by ordinary Oregon ratepayers. Nothing funny going on here. The Senator might also want to note that the Internet Archive thinks they have some duty to distribute copies of Dabiq the official ISIS propaganda magazine. Brewster Kahle and his fellow Internet maximalist ideologues at Internet Archive are the worst kind of pseudo-intellectual bubble dwellers. They don’t give a fuck what kind of mayhem results from their irresponsible actions. (I’m from San Bernardino County I’d be glad to introduce the Senator to some people…) That’s a real winning coalition Next time maybe the Senator can get slightly more sympathetic astro turfers to support his bill. See if big tobacco has any.
But it doesn’t end there. Wyden continues with his corporatist oligarch friendly propaganda.
Wyden repeats the widely debunked claim that proposed Classics Act creates a 144 year copyright for sound recordings in 1923 that are covered by state copyright law. The 144 year copyright term, which applies to a very narrow class of sound recordings was created by the 1995 copyright legislation. It has nothing to do with the Classics Act. That ship has sailed long ago. Here Wyden seems to be engaging in The Big Lie tactic. Repeat a false claim until people think it’s true. And this is a sitting US Senator. Tellingly this line of attack was first trotted April 26th by Mark A. Lemley who was (is?) outside counsel for Google.
Here are some more howlers:
“To be clear, I support one of the goals of CLASSICS, and the reason it is supported by artists — to open up the revenue from new digital streaming services to older artists. Due to pending litigation, or the threat of litigation, virtually all streaming services are making payments to the copyright owners — often record labels. But, without the safeguards in federal law, we don’t know whether or how distributions are being made to the artists.”
First. Does Wyden really think it’s a good thing that artists had to sue to get their money? It’s not like most artists have a couple hundred thousand dollars sitting around to file a federal lawsuit against Google or Sirius. Does he think they do? Wyden is such a corporate whore now he doesn’t even know when he’s saying completely tin eared shit like this. Dude get out of the bubble once in a while.
Second. Most artists have not received their money because the digital services are still appealing the class action. They won’t get their money for years. I expect that hundred of artists will pass away before the money is ever paid.
But, without the safeguards in federal law, we don’t know whether or how distributions are being made to the artists.
WTF? This is exactly what the Classics Act does. Safeguards to ensure the artists are paid directly via SoundExchange. You get it? He is opposing a bill that does exactly this. It’s total bullshit. He is simply trying to hide the fact his ACCESS Act simply inserts a bunch of safe harbors and loopholes into the Classics Act. And these are loopholes that will absolutely save digital services hundreds of millions if not billions of dollars; will result in artists being paid less; and these artists will be disproportionately African American.
Wyden is absolutely not a friend of artists. The record is clear.