Report on "Future of Music" Presentation at Stanford Law School

Fri Oct 26th, 2001 02:27:35 AM EST

Diary Entry 55
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Tonight I attended a presentation and panel discussion at Stanford Law School sponsored by the Future of Music Coalition (FMC). The panel discussion had a couple of big names: Prof. Lawrence Lessig of Stanford's Center for Internet and Society and John Perry Barlow of the Electronic Frontier Foundation. The result managed to be inspiring and discouraging at the same time.

Before we get started: you should consider this whole report as prefaced by a big "As I Understand It". I'm trying to represent opinions as accurately as possible, but I'm biased and working from brief notes and sketchy memory. I apologize in advance to any panelist whose opinions or statements are misrepresented here.

The goal of the presentation, as I understood it, was to inform Stanford law students and community members about the most important policy issues in the digital music arena, revolving around the clash among the interests of artists, citizens, and media conglomerates.

The first hour was a presentation by Jenny Toomey, the FMC's executive director. She introduced herself as a touring musician, former head of an independent record label, and former Washington Post writer. She spent her hour talking about the monopoly conditions in the music industry that force artists to sign with major labels if they wish to obtain distribution and promotion for their music and thereby lose control over their own works by being stuck with unfair contracts. If you've kept up with online news sources for the last few years, you already know what she talked about; very little of it was new to me, although she presented it very well. If you haven't kept up, then I can't help you in a few paragraphs, so go read the CFM website and elsewhere.

The audience seemed to be mostly Stanford law students, based on the typical age and style of dress. I wore my EFF t-shirt and shorts but almost everyone else was in nice shirts and slacks. Not a geek event, I guess; I wonder why? I don't think most of them were as well-informed as I was, based on the audience's reaction to parts of the presentation and discussion. This surprises me a bit, don't law students keep up with current events?

One minor point came as a surprise to me. It turns out that a law that came into effect in 1979 (?) says that copyright assigned by authors revert to the authors after 35 years, and that this right cannot be waived or contracted away. This is in effect except when the copyright in question was for a work made for hire. The recent music industry attempt to grab rights on sound recordings as works made for hire makes a lot more sense in this context. We'll see what happens when the RIAA's catalog starts to expire under this law.

After that, the panel discussion began. The panel was composed of Toomey, Prof. Lessig, Barlow, and Prof. John Shaeffer of Santa Clara University. They began with individual introductory remarks and moved into a discussion and questions.

I'll point out some interesting parts of the introductory remarks, starting with Prof. Lessig. One of his big points was that, historically, when a new technology moves in on the territory of an established industry, the legal and judicial systems give the new tech a chance to establish itself before attempting to regulate it. For example, when cable systems first started up in the United States, they simply grabbed the signals of broadcast TV and retransmitted them over their wires without any sort of permission being asked or granted. The cable companies were allowed to do this for 20 years before the law stepped in and forced a compromise: the cable companies had to pay for the signals, but the broadcasters weren't allowed to deny them permission. In other words, there was a compulsory license and control was separated from compensation.

This is not what's going on in the digital music arena. The RIAA moved in extremely quickly, and digital music never had a chance to really get going before it was stifled by business interests. The judiciary has been making historically surprising decisions. Prof. Lessig points out that these decisions treat the Internet like it's some kind of completely new area, when, in his view, it's similar to half a dozen other regulatory areas that have emerged over the last 100 years: telephone, records, radio, TV, ...

Prof. Shaeffer spoke next. He was the odd one out of this group, more optimistic about the industry and the law than any of the others. He thinks that antitrust law is good enough to stop or to remedy the ill effects of the RIAA monopoly. He is encouraged by a recent Department of Justice subpoena to the RIAA member companies seeking information on pricing practices, despite their recent setbacks in the Microsoft case. He says that all major labels have the same artist contract, no negotation is allowed about the content of the contract, and that this clear evidence of collusion.

According to Prof. Shaeffer, the real revolution is not the Internet, it is digital sound. It is now cheap enough to produce sound at a professional level without a huge amount of money, and even to promote and distribute. He says that one of the big problems with Internet radio and is the large number of choices with no way to easily find what you like.

But Prof. Shaeffer does not think the RIAA knows what it's doing, either. He quoted one Jeff Burg (sp?) as saying, of the major labels, ``They're going to be late, they're going to be wrong,'' and agreed with the sentiment.

I was not taking notes during John Barlow's initial remarks, but I did write down some of his later comments. According to him, the EFF has a hard time lobbying because they don't have enormous amounts of funds to donate to political campaigns. He can call up a politician and talk him out of some horrible bill, and then Jack Valenti will call and remind him of the big RIAA campaign contribution. John stopped short of calling politicians corrupt scumbags, but that's the gist of what I got from his remarks.

The most discouraging comment of the whole night also came from John. In response to a question asking how non-lawyers could help out in the fight for artists' and citizens' rights, he replied that he didn't know of any way for ordinary citizens to help, except to join the EFF or other organizations, or massive civil disobedience. ``If civil disobedience is necessary, that is what we will do.''

John pointed out the stark contrast between the Grateful Dead and Metallica on copying of music. As you may know, John is a former Grateful Dead lyricist: ``The best thing that could have happend for a song of mine was to have a lot of illegal reproduction of it.''

The final question from the audience was ``What would you do if your monopoly was cracking?'' Prof. Lessig's response was the best: ``Exactly what they're doing... [But why should we, the public, support them?]... The old dinosaurs need to die.''

After the panel discussion ended, I went up and spoke to Prof. Lessig and John Barlow in person. I asked Prof. Lessig what I could do to help, as a programmer and a computer science student. He suggested that I get involved with the Stanford Center for Internet and Society. I also asked about the dangers of pointing out security problems, related to Alan Cox's recent decision to not disclose Linux kernel security bugs fixed in kernel releases as a response to the DMCA. He said that indeed it was frightening and that I should be scared, but that the best thing to do was to continue working for more secure systems and speaking out against the DMCA.

I spoke to John Barlow at greater length. I asked him about his comment that there is not much that an individual can do, except to join an organization, and told him that it was frustrating. He confirmed what he'd said and told me that he was frustrated too. In particular I asked him whether it was worthwhile to continue writing letters to Congress, as I do from time to time; his opinion was that this was worthless, that my Senators and Representatives never even saw them.

In parting, John said that just disseminating my views among my friends and colleagues is one of the most valuable things I can do, even if I don't see those people as important. ``You don't know how important they are, or how important they will be... Just keep doing the things you do.'' On my way out, I replied, ``Thanks. I know you'll keep doing the things you do.'' He responded, as I headed to the door, ``By now, I don't even have a choice,'' and we both smiled.

Last updated 03 Apr 2004 21:17. Copyright © 2004 Ben Pfaff.
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