Copyright War Escalates With NMPA Joining ASCAPs Attack on Free Culture

The now infamous ASCAP letter, where ASCAP attacked Creative Commons, EFF and Public Knowledge allegedly for undermining their copyright, has generated no shortage of controversy. Was it a one-off incident that was poorly worded? Apparently not.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

There’s apparently a growing war between rights holders and consumer groups in the US. Already, ASCAP sent a letter to its members saying that organizations like Creative Commons, Public Knowledge and EFF is undermining their copyright. Creative Commons, the EFF and Public Knowledge all said that the comments by ASCAP were incorrect and false.

At this point, some might be thinking that maybe the ASCAP comments were a simple misguided comment that went a little too far and somehow managed to see the light of day by accident. After all, it is a little absurd to say that Creative Commons sole purpose is to undermine someone else’s copyright because it’s merely a license creators can use while distributing their work. That shadow of doubt was recently thrown out the window by another organization that shadowed ASCAPs comments.

During our discussion with Public Knowledge, Art Brodsky also informed us of another organization that was attacking consumer groups.

The transcript of a speech by the CEO of the National Music Publishers Association (NMPA), David Israelite, has been posted on BillBoard. In his speech, he basically fired similar shots as seen in the ASCAP letter.

Israelite said, “there is a growing enemy that does not have respect for copyright at all. And this is a very different enemy.”

He said, “When the U.S. Government Accountability Office [GAO] released a study in April on the economic impact of intellectual property piracy, the Electronic Frontier Foundation, Public Knowledge, the Consumer Electronics Assn. and the Computer and Communications Industry Assn. took out a full-page ad in newspapers around Washington, D.C. “Content industry piracy claims are bogus,” the ad read. “For years, claims of huge losses from digital piracy have been used to justify harsh restrictions on innovators and consumers . . . They have harmed our competitiveness, hampered legitimate businesses and impeded innovation.””

“These four groups have an extremist,” Israelite added, “radical anti-copyright agenda. They all have an economic interest in the theft of our music or paying little to nothing for it. [And] they are intellectually dishonest in how they approach these fights.”

Remarkably, he put forth a top ten list of stances he deems as “extreme”:

No. 10: They support changing the law to reduce damages for copyright infringement.

No. 9: They support the elimination of statutory damages for secondary copyright infringement.

No. 8: They favor rolling back copyright extension; in some cases, radically.

No. 7: They favor the elimination of the songwriter and publisher rights for server, cache and buffer copies.

No. 6: They oppose efforts to obtain the identities of individuals engaged in massive copyright infringement.

No. 5: They support extreme versions of orphan works legislation.

No. 4: They have filed legal briefs supporting anti-copyright positions of Grokster, Napster, LimeWire, Cablevision, Google, YouTube and Verizon.

No. 3: They oppose graduated-response protection for copyright owners.

No. 2: They oppose treaties that support copyright enforcement like the Anti-Counterfeiting Trade Agreement.

No. 1: They actually argue that illegal peer-to-peer file-sharing traffic helps the economy and doesn’t hurt songwriters.

It’s amazing how far these comments go. Firstly, the GAO also questioned the validity. Just read this comment for example:

“Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates,” it says in the report. “Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. ”

It wasn’t just the EFF, Public Knowledge and other consumer groups that were questioning the validity of various statistics put forth by organizations like the RIAA and the MPAA, but it was the American government itself questioning these statistics when it came to losses due to piracy because it was very difficult to really quantify any economic impact in the first place. Maybe these groups questioned the 1 download means 1 lost sale theory because it is a legitimately flawed way of looking at this – and the NMPA had the nerve to call these consumer groups dishonest in all of this. Added to this, how can one simply ignore all the press releases and “education campaigns” organizations like the MPAA and RIAA have done over the years and decry consumer groups for taking a full-page ad anyway? Isn’t that a case of pot calling the kettle black in that respect or is this a case of these organizations being upset that the tables have turned on them?

There is, however, one important distinction between the ASCAP letter and the NMPA remarks: the NMPA remarks does not roll in Creative Commons with the other groups according to the transcript. Does that mean they do or do not feel the same way towards Creative Commons? Impossible to say definitively speaking.

Public Knowledge (PK), unsurprisingly, took exception to being called a radical anti-copyright extremist and commented on this development on their blog.

PK says on their blog, “anybody who has spent more than 5 minutes on our website or talking to our staff knows that these things are not true – Public Knowledge advocates for balanced copyright and an open Internet that empowers creators and the public. What we oppose are overreaching policies proposed by large corporate copyright holders that punish lawful users of technology and copyrighted works. We have taken artist-centric positions on a number of critical copyright issues which have put us at odds with some of our copyright reform colleagues.”

PK also says, “I’d like to highlight what I have been hearing from artists big and small over the past several months (including during two trips to Los Angeles) and what ASCAP most certainly knows by now as many of its members rebel against its appeal: despite artists’ legitimate concerns about how much easier it is for their works to be infringed in an Internet age, they are uncomfortable with the constant drive by the movie studios, record studios and music publishers to find new and better ways to punish people and limit their access to copyrighted works. Artists just want to be compensated. Period. They want an open Internet, and believe (as we do) that network-level copyright filtering and throwing people off the Internet based on 3 allegations of copyright infringement (“3 strikes”) are antithetical to this goal. They don’t like digital rights management or other technological locks, either in software or hardware, that limit their fans enjoyment of their works.”

“But despite the clear preference for compensation over punishment, groups that claim to represent artists like ASCAP continue, like their big corporate colleagues, to advocate for the latter, and seem completely bereft of ideas for promoting the former. Why? Probably because the old business model suits them just fine: they collect millions of dollars of royalties on behalf of captive musicians and (mostly) pay them. In a digital world, Do It Yourself is the mantra, with Creative Commons being one of the tools that allows artists to do so. Where does that leave middlemen like ASCAP? Nowhere.”

It’s absolutely surreal that this war is even happening, let alone escalating to this point. It seems that consumer groups are doing a better job of looking out for artists than organizations that claim to be doing the same. How did we get to the point where consumer rights group now have to also defend the artists interests against the interests of organizations that are suppose to collect royalties for rights holders? Is this the peak of this stunning war or is it going to escalate from here?

Drew Wilson on Twitter: @icecube85 and Google+.

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