RIAA Decries "Digital Freedom," (Suggests "Digital Slavery" Instead?)

RIAA supremo Cary Sherman has a blood-boiling Op-Ed on CNET News right now called "The Farce Behind 'Digital Freedom.'"

Even I didn't think the RIAA was cynical enough to put ironic quotes around the word "freedom."

The target of Big Content's pitbull? The Consumer Electronics Association's CEO, Gary Shapiro. The CEA is one of many organizations (including the EFF) behind the Digital Freedom campaign, which was launched to check Big Content's desire to change copyright laws in the US in ways that restrict people's freedom to enjoy the stuff they buy in ways that are most convenient to them.

Remember how Jack Valenti (now there was a Big Content shill with some flair) claimed "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone?" Well, the same thing seems to happen periodically in the world of digital content, and this is one of those flare-ups.

Like a trademark that becomes generic, the fair use doctrine is in danger of losing its meaning and value if CEA's self-serving claims are taken at face value. CEA has twisted and contorted "fair use" beyond its true intent, turning it into a free pass for those who simply don't want to pay for creative works.

The "Digital Freedom" proponents have consistently staked their case out of the mainstream. CEA president and CEO Gary Shapiro's comment that unauthorized downloading is neither "illegal nor immoral" is illustrative of the extremist position of that group, especially given the U.S. Supreme Court's opinion otherwise in its 2005 Grokster ruling.

Sherman's first nifty rhetorical trick is to try to redefine fair use so narrowly as to be inapplicable to you and I. In truth, there's no place we can turn to in the Copyright Act that actually defines fair use as explicitly or exclusively as Sherman implies. What he avoids saying is that the entire doctrine is grounded ensuring the neither the commons nor individuals are unduly restricted by expansive copyright monopoly that serves only authors and owners.

For example, the transitive and temporary incidental copies of data made during their transmission over digital networks (ie, stuff that's cached or buffered when you download or stream it over the internet) was deemed fair use by the Copyright Office. One of the bills Digital Freedom is trying to fight, the Copyright Modernization Act, would force digital, interactive broadcasters (an on-demand internet radio station, like Pandora) to obtain separate licenses for those incidental copies, in addition to the usual licenses their conventional radio counterparts have to get. The Digital Freedom campaign doesn't want to let these services operate without licenses, but merely to ensure they don't face twice the financial burden of more traditional broadcasters. Shapiro's not exactly advocating "a free pass for those who simply don't want to pay for creative works."

Another example of the legislation Digital Freedom's trying to stop? The Audio Broadcast Flag Licensing Act (or NAMBLA), whose most odious provision explicitly stuffs fair use in a time capsule by allowing product designers and manufacturers (and users) the right only to "customary use." In other words, whatever Big Content has been forced to allow you to do in the past (like record to tape), they'll continue to permit, but no new stuff! In one fell swoop, fair use is no longer a balanced test applied to new situations as required, but a backward-looking, dead thing. It also means that innovation, any new, unforseen uses, are de facto infringing. Fighting this legislation is what it takes to be "out of the mainstream," in Sherman's view.

Not that you'll see Sherman tackle these, or any other substantive arguments, head-on in his op-ed piece. Then again, what do you expect from an industry whose companies feel justified in shaking down individual consumers, the technology industry, and treating their customers like criminals? Billboard magazine had this choice quote from one of the guys who pays Cary Sherman's salary:

"These devices are just repositories for stolen music, and they all know it," UMG chairman/CEO Doug Morris says. "So it's time to get paid for it."

It's true that what we have here is one well-paid lawyer and lobbyist slinging mud at yet another well-paid lawyer lobbyist, each representing huge corporations who, while professing an undyling love for the market, would just as soon have the government legislate their enemies into oblivion in order to guarantee their incomes. No matter who wins, I have a sneaking suspicion we lose. Even so, we have to pick a bastard in this fight, and I'm choosing the one whose client didn't just call me a crook.


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