The good old days weren't always good, and tomorrow ain't as bad as it seems

So apparently we are now to be treated to another reconsideration of copyright law (my life has been so busy of late that I completely missed this announcement last month). The basic question facing Representative Goodlatte and the Judiciary Committee, I presume, will be whether current copyright law (much of which is still fairly new) is well suited for the (rest of the?) digital age. Here’s my prediction of how things will go: the RIAA, MPAA, and other rights holding institutions will argue that copyright is not strong enough. Google, Pandora, Spotify, and other new technology companies will argue that it is too strong. Artists and audiences will be caught in the middle, while prominent commentators (professional and otherwise) will have a new chance to vent, sometimes childishly. Someone somewhere will be unhappy when the whole thing is over.

Change happens fast; faster, perhaps, than anyone expects. How easy it is to lose sight of the ways things were. It is one thing to be annoyed by the occasional glibness and snark of the Free Culture folks (which I am, even though I find myself in philosophical agreement with that movement, most of the time)—but how much more frustrating it is to have to deal with the revisionism of the other side. Consider writer and filmmaker David Newhoff, who runs the blog The Illusion of More. In a recent post on the abovementioned hearings, Newhoff castigates Google and its peers, who have betrayed a mania for consolidating their own ridiculous power. It’s a mostly valid critique. Still, Newhoff’s framing of the issue is woefully incomplete. In taking on big technology, Newhoff argues that the “copyright system” (a phrase that comes close to reifying a body of law that has in fact been revised numerous times since its inception) produced “more than two centuries of tremendous social and economic benefit.” That generalization nearly took my breath away. Elsewhere, Newhoff insists that though the powers that be, acting under the imprimatur of said system, may have made mistakes in the recent past (e.g. the “RIAA lawsuits of the aughts”), those are to be taken off the table when considering what to do about copyright law going forward.

How easily we forget. The RIAA lawsuits of the aughts were not an accidental moral detour in an otherwise honest journey. They were, rather, symptomatic of a chronic commercial psychopathology: the bitter and predictable result of a long history of power tripping by recording industry elites. Evidence falls to the ground like overripe fruit: from the in-your-face pushiness of Tin Pan Alley song pluggers (see for instance David Suisman’s Selling Sounds), to the industry’s mob-inflected golden years (see for instance Frederic Dannen’s Hit Men), to the genre of anti-music-business music that emerged in the 1960s (see for instance the Byrds’ “So You Want to Be a Rock and Roll Star”), to the BPI’s paranoid anti-home-taping campaign of the 1980s (see for instance the scathing parodies it inspired), to the scare tactics meant to demonize bootleg culture (see for instance Clinton Heylin’s Bootleg: The Secret History of the Other Recording Industry), to the strain of mediocre, pre-fabricated “product” that came to a head in the nineties, and was a strong incentive for the many kids who flocked to Napster in the first place. (I remember that last argument very clearly: Who wants to get stuck buying an entire album, when the popular bands mostly seemed to care about producing songs, only a few of which were any good?)

I don’t mean to single out Newhoff (whose blog I actually enjoy, even though I disagree with much of what he writes). In his selective sense of history, he is by no means alone among those who would see copyright strengthened. Last year, David Lowery included a similarly naïve vision of the past in his much-circulated open letter to an NPR intern. Lowery made some pretty fishy claims in that piece, not the least of which concerned the standard recording industry contract, which, in his telling, had suddenly morphed into a benign, artist-friendly document. According to the typical deal, Lowery wrote, “if there are no or insufficient record sales,” an artist’s advance “is written off by the record company.” Really? Colin Frangel, in a trenchant response, turned this fantasy right way round by reminding us of how many rich doo-wop musicians there are (“That’s right, none”). The sad truth is that most doo-wop artists, most blues artists, most jazz artists, most country artists, most pop artists—most of the great musicians in all genres—ended up as economic casualties of the twentieth century culture machine that Lowery was defending, victims of creative accounting and underhanded legalese. A mere decade and a half into the new century, and all we want to remember are the old system’s success stories?

Now, I know the Internet is supposed to be a rough place, but I’m prepared to give both Lowery and Newhoff the benefit of the doubt. They do fall into the trap of revisionism, but both men are artists themselves, and I suspect their intentions are good—driven by a keen awareness of the current situation on the ground, which is undeniably dicey for anyone trying to make a living in the arts. RIAA attorney Steven Marks, on the other hand, ends up in the same trap, but not by falling; he jumps. In a recent Wisconsin Law Review article critiquing the idea that copyright limits innovation, Marks claims that record companies have been “a critical part of the creative process,” because “record company employees scout hundreds of thousands of artists, help develop repertoire for recordings, and actively participate in the recording process.” 

That is certainly an ideal vision of how things could work. But it is not a vision that exactly aligns with the experience of those who have gone on record to complain about the industry. Would Marks say that testimony was delusional? Is Steve Albini (cited also by Frangel) talking nonsense in the opening paragraph of his well-known 1990s screed?

Whenever I talk to a band who are about to sign with a major label, I always end up thinking of them in a particular context. I imagine a trench, about four feet wide and five feet deep, maybe sixty yards long, filled with runny, decaying shit. I imagine these people, some of them good friends, some of them barely acquaintances, at one end of this trench. I also imagine a faceless industry lackey at the other end holding a fountain pen and a contract waiting to be signed. Nobody can see what’s printed on the contract. It’s too far away, and besides, the shit stench is making everybody’s eyes water. The lackey shouts to everybody that the first one to swim the trench gets to sign the contract. Everybody dives in the trench and they struggle furiously to get to the other end. Two people arrive simultaneously and begin wrestling furiously, clawing each other and dunking each other under the shit. Eventually, one of them capitulates, and there’s only one contestant left. He reaches for the pen, but the Lackey says “Actually, I think you need a little more development. Swim again, please. Backstroke.” And he does of course.

What about Hunter S. Thompson, who also described the culture industry as a trench? Granted, Thompson was not talking about the music business, as is usually assumed. But in a way it hardly matters. The viral adaptability of that telling phrase—"a long plastic hallway where thieves and pimps runs free," indeed—says something about its relevance.

As we evaluate copyright law, we should push back against attempts to portray the musical culture of the past as one big happy family of endless aesthetic bliss. With any luck, that pushback can remind us of something else, something about which I am in agreement with Newhoff and Lowery: any discussion of the future of copyright should include the input of artists, not just the giant corporations who have a financial stake in the matter. And that inclusion should be honest and complete, taking into account more than the material impact of piracy, problematic as that impact is. We need to think carefully about where art comes from in the first place, and what sort of system best “promotes” its “progress” (to cite the language of the original copyright clause). That's a subject for another post, but the bottom line is that people who define themselves as creative professionals are in a unique position to testify about the time-honored artistic value of sharing art—the very activity copyright is increasingly concerned with restricting. That too is an important form of remembering.