Sometimes, you just can't win.
A proposal to speed up the clearance of mechanical copyright for broadcasters and digital media services has been met with hysteria from lobby groups who complain that copyright clearance today is too cumbersome and slow.
It's an issue that's been intensely discussed since it was first proposed two years ago by the US Copyright Office's Register of Copyrights, Marybeth Peters. The changes, designed to help download services such as Apple's iTunes as well as digital broadcasters, propose a blanket license for mechanical copyright clearance.
As we know, the distinction between 'streaming radio' and 'discrete physical copy' has become so blurred as to be almost meaningless, so reform is overdue. And today, getting a song in digital format from the record company vaults to your PC involves a lengthy bureaucratic process full of uncertainties. As the Register (that's her, not us) describes it, this minefield is "a highly complex architecture supported in part by relationships, split rights, side agreements and historical antiquities."
The Copyright Office's answer scythes through this mess in time honored fashion by proposing a compulsory, or statutory license - an elegant and time proven mechanism first introduced in the United States for the player piano in 1909. In place of the historical cruft is a simple blanket license, with digital copies considered zero rated. It was published two weeks ago as an amendment to Section 115 of the Copyright Act (SIRA) and makes its way for a vote this week.
So far so good? No, wait.
The EFF has swung into action, with hysterical campaigners calling it "the worst bill you've never heard of". Congressmen tonight were being deluged with faxes and emails from angry nerds.
But Section 115 reform is only "the worst bill you've never heard of" if you don't understand mechanical copyright or compulsory licenses, insist on taking words and phrases out of context and garnishing them with heaps of paranoia. And most of all, forget the fact that it's an opt-in arrangement for a specific kind of digital media distributor - not for you or me. That's some Oops.
The fact that the Section 115 reform amendment is opposed by the Recording Industry Ass. of America president Cary Sherman should demolish the belief that it's a dark and terrible conspiracy by large copyright holders. In fact Sherman is opposing 115 reform precisely because it brings the EFF's desired solution much closer to reality. The EFF proposes a statutory license in all but name - the same flat fee model, but one that comes about through a miraculous epiphany of voluntary agreement. Through kumbaya, rather than Congress, if you like.
The RIAA (and here we must caution against a monolithic view of the lobbyist, as this covers a lot of internal tensions and contradictions) opposes compulsory licenses for digital media because it really quite likes the "relationships, split rights, side agreements and historical antiquities" as they are. Zero priced licenses mean the large labels lose control over pricing - control they've built up over a century. Rather than historical institutions, they simply become one end of a bit stream, and in such a situation, the economics don't favor them.
So watching the EFF swing into action against a bill that weakens the RIAA and paves the way to seeing the EFF's lofty goals realized is rather like watching a dog fruitlessly hump a table. The table too may have four legs, but nothing productive will result from this union.
"This [is] about the existing recording industry cutting off the oxygen to competing forms of media distribution," screams the EFF's activist co-ordinator Danny O'Brien. A crash course for the "digital rights" lobby in how the music business works, and the role mechanical copyright works, is long overdue. Then again, we don't remember ever once hearing a song played in the O'Brien household - a hospitable, but music-free zone.
The pity of it is that this morning, well-intentioned people are besieging Congressmen with Chicken Little tales of impending doom - based entirely on fear and ignorance. The next time they receive such missives it may be important - and they'll be all the more inclined to ignore us.
For the music to flow freely, we need more legislation like 115 SIRA.
We'll continue the inquest tomorrow.®