To most creators and music executives, the most controversial and important part of the copyright legislation that unanimously passed the House of Representatives about a month ago is The Bill Formerly Known as the Music Modernization Act — which would create an organization to collect and distribute mechanical royalties and limit the damages publishers can collect from legitimate streaming services in copyright lawsuits. The legislation will also give owners and performers of recordings made before 1972 the right to be paid when their works are streamed online, to match the way later recordings are handled, but until last week, the only serious objection to this provision came from SiriusXM Satellite Radio.
Now that the bill has been introduced in the Senate, though, it's open season: anti-copyright activists are coming out of the woodwork, claiming that the right to be paid for recordings made before 1972 amounts to "a pointless wealth-transfer," (Internet activist Cory Doctorow), "new barriers for fans of old music," (the EFF), even "a gift through a monopoly regulation of speech" (academic and former presidential candidate Lawrence Lessig). Worse yet, as Lessig wrote in Wired, all of this is "buried in an otherwise harmless act."
Apparently those sneaky lawmakers hid their regulation on the digital performance of pre-1972 sound recordings right under the bold, capital letters that read "UNAUTHORIZED DIGITAL PERFORMANCE OF PRE-1972 SOUND RECORDINGS." You can practically hear them cackling from here!
It's fair enough to debate this part of the legislation, formerly known as the CLASSICS (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society) Act. But some of this criticism is factually inaccurate, most of it is hysterical, and all of it is coming from Make-The-Internet-Great-Again die-hards who haven't gotten over the Supreme Court's ruling that held the post-Napster file-sharing service could face liability for copyright infringement.
For two decades, Lessig has been obsessed with the idea that copyright lasts too long, covers too much, and interferes with free speech. After making his name working on the Microsoft antitrust case, he challenged the constitutionality of the 1998 Copyright Term Extension Act, partly on free speech grounds, in a case that went to the Supreme Court as Eldred v. Ashcroft. In the 7-2 decision against him, Justice Ruth Bader Ginsburg wrote that Lessig's arguments "rely on several novel readings of the [Copyright] Clause." In legal terms, that's a Ginsburn. Ouch.
Lessig's basic critique of copyright makes some sense, but it's worth remembering that he supported Napster and lamented how the Supreme Court's Grokster decision chilled innovation. (Arguably, encouraging innovation that respected creators rights actually paved the way for Spotify.) And although Lessig likes to call out corruption, some of the institutions he was connected with, including Creative Commons and Stanford Law School's Center for Internet and Society received substantial donations from Google, which has a financial interest in rolling back copyright protection. Lessig wasn't personally involved in fundraising at these organizations, and there's no evidence that he ever changed his opinion. But it's worth noting that he describes the rest of a complicated and controversial law that would help technology companies as "otherwise harmless."
It's easier than it should be to beat the drum against this bill, since it's so confusing. (Not helping: This entire bill, called the Music Modernization Act, essentially combines three previous bills, including CLASSICS and one called the Music Modernization Act.) But Lessig and the other Internet activists object to it on the grounds that it's an extension of copyright — which it really isn't.
The rights to pre-1972 recordings are so complicated because they're covered under state laws — federal copyright law doesn't apply to recordings made before February 15, 1972. This is important because the owners of recordings made after then have the right to be paid under federal law when those works are copied, distributed, and — importantly — streamed or transmitted digitally. ("Non-interactive services" like Pandora and SiriusXM pay performers as well as rights holders.) Recordings made before then aren't protected under federal law — at all. State laws generally prevent unauthorized distribution of recordings for a certain amount of time — the exact term varies, and in some cases it may be perpetual. (It's also possible that the owners of these recordings have the right to be paid when they're used online and lawyers have spent a lot of money trying to figure that out. So far, courts in New York and Florida have found they don't and a court in California ruled that they do. But that decision is being appealed.) Like I said, complicated.
All the Music Modernization Act would do is create a right under federal law for the owners of these recordings — and, for some uses, the performers — to be paid when their work is transmitted digitally. That is a very limited form of copyright. It would last until 2067, which is a long time, but it doesn't give these recordings full copyright protection, which also includes exclusive rights of reproduction, distribution, and the licensing of derivative works.
So how much would this law actually change? It would force "noninteractive services" like Pandora and SiriusXM to pay rights holders and performers for the pre-1972 recording they use — much as they already pay for later recordings. They can do this under a statutory license, at a rate that's set by the Copyright Royalty Board. This law would also apply to interactive services like Spotify and Apple Music. But it's hard to know how much of a difference it would make, since they already need to license rights to later recordings as well as reproduction rights — which almost all state laws protect anyway. In less complicated terms, a few big companies will pay artists and labels a bit more money. That's it.
So what about Lessig's other arguments? He writes in Wired that the law would grant rights holders "basically the right to control copies of recordings on any digital platform," and warns of "weakening the ability of archivists to keep our culture accessible." But the law won't do that because, in legal terms, it regulates public performance rights rather than reproduction rights. In layman's terms, it wouldn't affect copying at all — whether that involves archival work or downloads.
Not only would the law not do what Lessig warns — he conveniently ignores the fact that state laws currently on the books may do this already. This law wouldn't change that. In many cases, the duration of state law protection isn't specified — and in some cases common law copyright could be perpetual (although that could arguably be unconstitutional). Congress addressed this in the Copyright Act of 1976, but setting 2047 as the limit of protection. (State-law protection could end before then but not after.) In 1998, this was updated to 2067. That's where the date in this law comes from. One could argue that state law copyright protection should be cut off earlier than 2067, but that was decided about two decades ago. Is the late-stage outcry about this bill just an attempt to revisit that decision? And, if so, how would that affect the relevant state laws?
The legal issues around recordings made before 1972 are complicated, but this bill — well, this part of this bill — really isn’t. All it does is establish a right to be paid when these recordings are used by streaming services — a right already granted for recordings made after that date. It’s worth debating how long that should last. But let’s make sure any debate about this bill involves what’s actually in it.