Legislation vs. Innovation: Part One

by Alan Graham

I happened to catch the Sen. Subcmte. Hearing on File Sharing & the Entertainment Industry on C-Span the other day, where I heard the following quote from Senator Barbara Boxer's opening statement:

"Downloading copyrighted works is theft, and I think if there's anything else coming out of this hearing other than that, it's a real problem."

And then it dawned on me: What lawmakers don't know about the Internet, could fill the Internet.

On any given day, stashed deep within the Technology section of any major newspaper, you'll find a boring little article opposing the efforts of the RIAA and similar organizations. Within all the techno-babble of the piece, you'll find the author defending the consumer's fair use rights.

I must admit, based on the contrived sound bites released by organizations like the RIAA, who wouldn't side with them? If I were to set my beliefs only by what I've read of their press releases, I would not only agree that consumers are thieves, but that artists and their families are begging in the streets because of the MP3. I might even turn myself in for sharing music with my wife.

No one will deny that artists should be compensated for their work, however, while the RIAA is wrapping itself in the noble flag of artistic altruism, they don't actually represent artists, but music labels. In fact, if you were to visit the RIAA's home page, you'd probably be surprised to find that they like to fashion themselves as defenders and champions of free speech. The ACLU of the music industry. Their hipocrisy goes so far as to quote the First Amendment of the Constitution while backing it up with the following statement:

"The Recording Industry Association of America (RIAA) takes an uncompromising stand against censorship and for the First Amendment rights of all artists to create freely. From the nation's capital to state capitals across the country, RIAA works to stop unconstitutional action against the people who make the music of our times--and those who enjoy it."

...and those who enjoy it...the RIAA, defenders of liberty. Protecting the rights of the consumer, like the 12 year old and the grandfather they recently sued.

On the same page that the RIAA extols the virtues of free speech, you'll find a press release discussing the RIAA's new campaign to promote Parental Advisory Labels. These are the same warning labels that musicians fought so hard to keep off of their work in the 80's, because of their belief that it violated their First Amendment Rights. No self-respecting artist should side with the RIAA, and yet, they have Quincy Jones making Public Service Announcements on their behalf. Does anyone else find all of this absurd? Somewhere, Frank Zappa is spinning in his grave.

Running Scared

Media companies are running scared these days. Their failure to embrace technology has put them in a delicate position. For the first time in history, the bread and butter of the media enterprises like music, film, and television are faced with the fact that they may no longer be in control of their business. They've been confronted with the terrifying fact that artists and consumers could actually perform direct transactions without their help. I've personally supported many independent artists without a label ever coming between us. When I buy an album online from Prince, I buy it directly from him, not Warner Brothers.

And although many technology firms have tried to work with the RIAA towards a positive solution, the RIAA feels they can legislate and prosecute technical innovation back 10 years. Stifling technology through legislation is a small price for them to pay, if it secures their profit margins. Though historically, the creation of new technology has always created new markets and increased sales, this time the media companies have been the last to jump on the bandwagon. This time they got caught with their e-pants down. Instead of following the trend, they ignored it. Now the only way they believe they can catch up is to stop technology dead in its tracks while they figure out what to do.

The sad fact is that we, the consumer, are not only beginning to see the erosion of our current digital rights, but our future rights as well. So why has the tech community been unable to rally the consumer behind our cause? Three reasons:

1. Those who understand technology, don't have the political clout, financial backing, or experience on Capital Hill that our opponents have. For all our technical prowess and supposed intelligence, we've failed to get organized.

2. The tech community continuously fails to explain to the general public in clear and concise "real-world" metaphors, the damage that would incur if the RIAA were to get their way.

3. The media, outside of many tech publications, is biased towards the RIAA because they get a large portion of their revenue from the industries the RIAA represents.

Political Know-How

For all of its technical savvy, one thing sorely missing from the tech segment is political savvy. While technology is what drives media, no one within the tech community, with any political clout, has emerged as a voice for the consumer. No one has been able to resonate with the public in a way that matters or garnishes attention. Most people simply don't relate to people from the tech community. Let's face it, while Steve Jobs looks pretty ordinary in blue jeans and turtlenecks, he's still a geek to the general public, and it's hard to relate to a man with a $600 $90 million dollar jet.

While the tech community struggles to preserve our rights and get the consumer rights movement to a higher level, the RIAA continues to push it's agenda forward at breakneck speed. They have emerged as the undisputed voice for the music industry, yet their reach extends far beyond music. It doesn't hurt that they happen to be funded by some of the largest media companies on the planet, whose financial interests bleed into many forms of media. The most interesting of all their backers would have to be Sony, who walks a fine line between encouraging technical innovation and stifling it at the same time.

Because of large backers like Sony, the RIAA has all the funds necessary to grease the halls of Congress. They've been able to get hearings into online piracy, trudging out such heavy hitters (and commercial sell-outs) like Metallica and LL Cool J. The irony of having a metal band that made millions telling kids to fuck the system, tell Congress their livelihoods are at stake (while wearing $2,000 suits), is comical.

In addition to the RIAA's non-stop lobbying, they've been able to back up their sales pitch with a number of studies that show file swapping and MP3s are destroying their business. Of course no one seems to recognize the RIAA paid for most of these studies. There have been some independent studies that have shown music downloads help to increase sales. Those rarely appear on the front page of newspapers.

And although we have gained a few political ears and allies, we have failed to explain the importance of our ideals to what amounts to a roomful of people who are so old, they think Peer to Peer is a fundraising cocktail party. Whether we are talking about the extinction of Internet radio, file swapping, decoding DVDs, ripping MP3 files, DVR, etc., we in the industry all know the underlying fact is age-old. People that steal, will steal, regardless of legislation or Gestapo technologies enforced on the average consumer.

Media piracy was not something Napster invented. It did exist before the CD-ROM. This idea they want us to believe that all the woes of the music industry stem from file sharing is ludicrous. I mean if you really want to talk about theft, look no further than the record companies and the way they've gouged artists and consumers the past 20 years. And in what other industry do you see a product (like a movie), gross 100 times more than it was made for, and yet there's no profit to be found?

Without a clear and organized voice in Washington representing, and more importantly, educating lawmakers, we are facing the demise of the digital realm.


A giant problem we face in protecting our rights isn't just our lack of political hob-knobbing, but educating the public and our legislators. The members of Congress aren't ripping MP3 files for their portable music machines. They aren't buying new CD players based on their ability to play MP3 CD's. The entire Supreme Court is closer to 80 than 30. So how do we expect them to understand the importance of today's (and more importantly tomorrow's) technology? Do we believe that men like Jesse Helms and Strom Thurman could ever have understood the intricacies of digital technology? I never saw Strom ripping MP3s of Scott Joplin's ragtime hits for his iPod, or Jesse burning a CD of his favorite Stephen Foster tracks.

Read any pro-digital media article and you'll see why no one is on our side. Unless you are technically literate and somewhat visionary, the body of the text is practically all techno mumbo-jumbo. Your average 40-60 year old person is so lost in the technical/cultural terminology, they skip over to see what Billy is up to in Family Circus. It is like handing a second grader a copy of A Brief History of Time and then expecting them to give a thesis on Quantum Mechanics.

Where are the real-world examples of the potential damage of RIAA meddling? Why not explain the danger of these new laws by describing it in a way that the average consumer can understand. When a scientist wants money from Congress to build an atom smasher, he doesn't get it by writing formulas at a Senate hearing. However, people who aren't physicists can understand the desire to explain the secrets of the Universe. The current discussions and articles on technology rights are preaching to the already converted. To everyone else, we're dancing with snakes and speaking in tongues. We need a clear message to connect with the consumers who live outside of our industry.

Media Bias

This brings me to my final point. The media makes it very difficult to get any message out. Take a peek at the Lifestyle section on any given Sunday, and you'll see hundreds of thousands of dollars in advertisements for movies and music. Who do you think pays for all of that, the ACLU? The media has the most to lose when it comes to giving a balanced representation of this particular issue. If a news organization's editorial slant sides with the consumer, they stand to lose millions of dollars in ad revenue. If you were the editor of a news organization, would you risk losing your job over this issue? This is why the only safe outlet for the consumer view has been in technology publications. What do you think the circulation of the Washington Post is compared to PC Magazine on a monthly basis? I've never seen an ad in PC Magazine for the latest Ashley Judd movie. Only where there is no threat from recrimination is there true freedom of the press.

On A Clear Day

It is obvious that we need a clear, resonating voice representing the consumer on this issue. Until we find support within the populace, we will continue to be nothing more than a gnat buzzing in the ear of the RIAA and their Congressional cronies. While the RIAA continues to give speeches professing their love of the ignoble, their arrogance screams "Let them eat cake." However, if we don't do something soon, after this revolution, it just may be our heads on the chopping block.


2003-10-14 10:22:57
Excellent points, but where to go from here?
I think you have made some great points here, that the tech community has been unable to organize and create a common voice that speaks in terms non-techies can understand. My question is: how do we rectify this? I quite seriously would like to see this happen, but so far organizations like the FSF come across to me as overly idealogical and having little in common with the 'average user'.

Something like an "Association for Consumer Rights" is what I think we really need. And you're right about the whole file swapping issue too - most people don't understand what file swapping/ripping/etc. is, let alone that they are doing it. However, the RIAA has actually brought the issue to the forefront by suing everyone, including children, some of who didn't even realize what they were doing was illegal.

Because of this, now is a great time to get such a consumer rights organization started. I know a lot of people who saw that on the news and they were mad - they couldn't understand it. Even non-techies found the RIAA's actions to be downright oppresive. This is an excellent example of just the sort of problems we will see down the line unless we take a stand. Average people want their voice to be heard, but probably don't know how to go about it.

Do you think this would be a good first step towards taking a stand?