EFF Comments on the ASCAP Letter

Ever since the story broke that ASCAP was accusing organizations like Creative Commons, EFF and Public Knowledge, of undermining copyright, it set off a firestorm both in creative circles, copyright observation circles and even amongst ASCAP members. Now, the EFF (Electronic Frontier Foundation) has weighed in.

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

We reported last week on how ASCAP sent a letter to its members urging them to contribute to a lobbying fund. If it was just asking members to contribute to their fund, it wouldn’t really be much of a story. It’s what ASCAP said to encourage members that has caused so much controversy:

“At this moment,” the letter said, “we are facing our biggest challenge ever. Many forces including Creative Commons, Public Knowledge, Electronic Frontier Foundation and technology companies with deep pockets are mobilizing to promote “Copyleft” in order to undermine our “Copyright.” They say they are advocates of consumer rights, but the truth in these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.”

The letter also said, “This is why your help now is vital. We fear that our opponents are influencing Congress against the interests of music creators. If their views are allowed to gain strength, music creators will find it harder and harder to make a living as traditional media shifts to online and wireless services. We all know what will happen next: the music will dry up, and the ultimate loser will be the music consumer.”

The language has already did not sit well with many including original recipients. Creative Commons, one of the organizations that was singled out in the letter already responded through ZeroPaid on Friday.

“It’s very sad that ASCAP is falsely claiming that Creative Commons works to undermine copyright” Steuer told ZeroPaid. He explained, “Creative Commons licenses are copyright licenses — plain and simple, without copyright, these tools don’t even work.”

Stueuer also told ZeroPaid that tens of thousands of creators “including acts like Nine Inch Nails, the Beastie Boys, David Byrne, Radiohead, and Snoop Dogg” use Creative Commons licenses.

The EFFs Response

Rebecca Jeschke, a spokesperson from the EFF today spoke to ZeroPaid on the letter.

Jescke told ZeroPaid, “we don’t think that ASCAP characterized EFF and its work accurately. We believe that artists should be compensated for their work, and one proposal we have for that is Voluntary Collective Licensing.”

The EFF’s proposed Voluntary Collective Licensing is an interesting proposal. From their page:

The concept is simple: the music industry forms several “collecting societies,” which then offer file-sharing music fans the opportunity to “get legit” in exchange for a reasonable regular payment, say a total of $5-10 per month (after all, services like Rhapsody sell all-you-can-eat music for around $10 per month, so we know the rate should be below that). So long as they pay, the fans are free to keep doing what they are going to do anyway—share the music they love using whatever software they like on whatever computer platform they prefer—without fear of lawsuits. The money collected gets divided among rights-holders based on the popularity of their music.

In exchange, file-sharing music fans will be free to download and share whatever they like, using whatever software works best for them. The more people share, the more money goes to rights-holders. The more competition in applications, the more rapid the innovation and improvement. The more freedom to fans to publish what they care about, the deeper the catalog

Jeschke also told ZeroPaid, “At EFF our goal is to preserve balance and ensure that the Internet and digital technologies continue to empower people as consumers and creators. We’re gratified that so many ASCAP members understand this.”

In addition, Jeschke forwarded us a paper by an EFF member, L Peter Deutsch entitled “Music Copyrights: Cui Bono?” (Creative Commons BY-SA 3.0 license) which made numerous interesting points about all of this. One particularly interesting point was some comments on a Pew Survey of artists:

The larger of the two surveys, by the Pew Foundation, polled approximately 2,800 selfselected American musicians (Madden 2004). The Pew surveys (a group of 3) claim to be “the first largescale study that looks at artists’ and musicians’ use of the [I]nternet and their views on copyright” (ibid., 11). The specific survey relevant to the present paper queried 2,755 musicians “recruited via email notices sent to members of various music organizations, through announcements on those organizations’ Web sites and through flyers distributed at several musicians’ conferences” (ibid., 33). (While this is a predominantly selfselected group, there is no evidence that this skewed the results in any particular direction.) Of these musicians, “94% say they are songwriters, 90% say they are musical performers and 46% say they consider themselves music publishers (in addition to being either a songwriter, performer or both)” (ibid.).

The first theme that emerges from the Pew survey is that musicians are quite tolerant of many activities that the publishing corporations label “piracy” and that fall into gray areas with respect to current understanding of “fair use.” Nearly all feel that making a copy of music for one’s personal use whether from a broadcast, a recording, the Internet, or a book is allowable (ibid., 37), and they split nearly evenly on whether making a copy of a CD or a movie for a friend should be allowed. (However, nearly all feel that selling copies of copyrighted material should be prohibited.) Similarly, strong pluralities feel that making samples of their work available for free downloading has helped their careers; but they are evenly divided on whether filesharing services benefit or hurt them. The most successful of the polled musicians (the “Success Stories”) have more conservative views on these issues, but even they are far more tolerant than the big producers. For example, only 35% of the Success Stories say that filesharing services are generally bad for artists. Similarly, a significant plurality (but not a majority) 9 feel that making even personal copies of copyrighted material should be forbidden.

Despite these generally liberal attitudes, twothirds of the polled musicians say that copyright holders should have “complete control over a piece of art once it is produced” (ibid., 36). We will return to this surprising datum in the final discussion. However, while “61% of those in this sample believe that current copyright laws do a good job of protecting artists’ rights, […] 59% also say that copyright laws do more to protect those who sell art than to protect the artists themselves,” the latter echoing the comments in (Greenfield and Osborn 2004).

Finally, musicians, even the Success Stories, do not generally support the actions by the RIAA, which has been prominent and aggressive in pursuing what it calls illegal copying. 60% of all the musicians polled, and even 43% of the Success Stories, think that the RIAA’s campaign against online music sharers will not ultimately benefit musicians and songwriters (Madden, 48). The only identified group that believe the RIAA’s campaign will benefit music creators are the 138 (5%) of the polled musicians who say that their careers have “only been hurt” by free downloading, and even in this group, only 68% support the RIAA (ibid.).

One of the most interesting aspects of the Pew survey is its direct comparisons between
musicians and the general public on these issues (Madden, 4244). One might expect musicians to be less likely than the public to condone activities such as recording a personal copy of a TV show or burning a copy of a music CD for a friend, but the survey found the opposite. For example, 90% of polled musicians, and 73% of general artists, agree that copying music from a CD you own to your own computer should be legal, but only 66% of the general public agree (Madden, 44). However, the differences were generally not large.

The same author also sent a scathing letter to ASCAP in direct response to the ASCAP letter:


I have been a composer member of ASCAP for several years. I was disgusted by your grossly one-sided letter soliciting my contribution to your “Fund for the Arts.” ASCAP has consistently misrepresented the purpose, the history, and the facts of copyright — not to mention the mission and activities of Creative Commons, Public Knowledge, Electronic Frontier Foundation, and other public-interest organizations — apparently in order to fatten its royalty stream deprive musicians of the ability to use each other’s work, and prevent listeners from enjoying music to which the law and the history of copyright entitle them. I recently completed a research paper on music copyright that backed up my reading of this situation.

I have sent a copy of this letter and your letter, and a contribution of $100 each, to Creative Commons, Public Knowledge, and EFF.


L Peter Deutsch

Extra Thoughts

What was fascinating about this is that it confirms what I’ve always felt about fellow artists opinion on the subject of file-sharing, copying and the tactics by incumbent industries: artists are people too and are going to be, at least at some point or another, going to be on the consumer side of things as well. Artists consume music (it’s very hard to be an artist and not consume music really) just like consumers and are subject to rights any other consumer related issues. While major record labels might like to say that they are merely acting out of the interests of artists, there are many artists who do not share their views 100% of the time. Like consumers, there is varying opinion amongst artists on the subject of copyright as it relates to, for example, music. Not every artist out there, for example, feels that DRM (Digital Rights Management) is beneficial to music.

I, personally, always felt that things like file-sharing are excellent marketing opportunities. I also have always felt that too much copyright (i.e. the excessive term for copyright and keeping valuable assets that artists can build off of out of the public domain) is a hindrance to artists. That is what makes things like Creative Commons so important because artists can choose what restrictions they can put on their work rather than choosing “all rights reserved” and “no rights reserved”. Distribution mechanisms put in place should reflect the wide variety of stances creators have. To take some of those mechanisms away, from the perspective of those artists who choose those mechanisms, is a form of censorship.

Drew Wilson on Twitter: @icecube85 and Google+.

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