Sherman Retorts

RIAA pres Cary Sherman (see Blogcritics interview here) responds to Consumer Electronics Association CEO Gary Shapiro’s commentary in CNET on downloads and copyright from last month:

Last month, Consumer Electronics Association CEO Gary Shapiro took the debate over peer-to-peer file sharing to a new level. In brief, he declared that downloading off the Web is neither illegal nor immoral.
This pronouncement–given in a speech at the Optical Storage Symposium and echoed in condensed fashion in a commentary on CNET’s News.com–is breathtaking, both because it is so blatantly wrong and because the arguments Shapiro advances in an attempt to justify his conclusions are so transparently specious. Nonetheless, it deserves a response, because people need to know that Shapiro’s proclamation, if not a deliberate and outright attempt to misinform, amounts at best to wishful thinking.

Certainly, there is nothing wrong with downloading per se. In fact, record companies and legitimate online music companies are aggressively promoting downloading as a fabulous way to get more music to more consumers. There is, however, a real problem with the unauthorized downloading of copyrighted material, both legally and morally.

“Despite the assertions of the Justice Department,” Shapiro claims, “downloading is not illegal.” Actually, it’s not “the assertions of the Justice Department” that makes unauthorized downloading illegal. It’s Title 17 of the United States Code, which prohibits the unauthorized reproduction, distribution, or digital transmission of copyrighted material.

It’s also a long line of decisions interpreting that statutory provision, in court after court, in case after case. There is simply no doubt that copying and/or distributing copyrighted material on peer-to-peer file-sharing systems without the permission of the copyright holder is illegal, and Shapiro’s preference that the law were otherwise does not make it so.

In an effort to overcome this rather problematic detail, Shapiro turns to the old standby, “fair use rights.” While he doesn’t explain exactly what these “rights” would permit, he makes it sound as if copyright owners are against fair use, and implies that fair use allows consumers to download anything they want. In fact, copyright owners rely on the fair use doctrine as much as (if not more than) anyone, because so much of what is created may be derivative of another’s art.

So, we all respect and support fair use. But can fair use justify the uploading and downloading between anonymous strangers of entire copyrighted works of entertainment? No way.

That card has already been played in a number of file-sharing cases, and the courts have specifically rejected it. As U.S. District Court Judge Marvin E. Aspen ruled just last month in the Aimster case, the idea that “the ongoing, massive, and unauthorized distribution and copying of copyrighted works somehow constitutes ‘personal use’ is specious and unsupported.”

Shapiro also turns to the other old standby, the Betamax case, to show that practices initially equated with “piracy” or “theft” have been accepted as fair use. But here again, he neglects to point out that the courts have already considered this claim several times in fact and repeatedly found that peer-to-peer file-sharing bears no resemblance to the facts or law in the Betamax case.

Perhaps realizing that the law as written and interpreted by the courts isn’t really on his side, Shapiro devotes the heart of his speech to a passionate if poorly reasoned assault on the very notion of intellectual property. “To make downloading immoral,” he says, “you have to accept that copyrighted products are governed by the same moral and legal principles as real property.”

But the fact is that real and intellectual property are different and are governed by different principles. Downloading a copyrighted product does not diminish the product, as would be the case of taking and using tangible property such as a dress. At worst, it is depriving the copyright owner of a potential sale.

Though Shapiro apparently regards this as a key point, it is actually a distinction without a difference. Let’s accept for the moment his assertion that “depriving the copyright owner of a potential sale” does not “diminish the product.” In what way, then, is “taking and using tangible property such as a dress” any different? Whether you steal a dress from a store or steal a recording from an artist, you are harming the owner by depriving him or her of a potential sale.

To argue that the owner of the copyright can replace his intellectual property more cheaply or easily than the owner of the dress is to miss the point. Both owners have been deprived of something of value, and both are entitled to seek redress under the law.

Invoking the First Amendment
Shapiro goes on to contend that it’s unfair to compare intellectual property to real property, because unlike intellectual property, real property can be taxed and “can be owned forever.” So? Intellectual property royalties can be (and are) taxed, and the fact that the property right isn’t for forever makes it even more important that it be adequately protected during its term. Shapiro also argues that, unlike real property, “copyright law must bow to the First Amendment that expressly allows people to use a copyrighted product without the permission of the copyright owner.”

Leaving aside the fact that the First Amendment “expressly” says no such thing (nor, as noted above, does the fair use doctrine permit free downloading), the fact is that real property rights are no more or less unqualified than intellectual property rights. A peace officer can commandeer your car. A public-works agency can compel you to sell your land. A zoning board can make you tear down your treehouse.

At bottom, Shapiro seems to be saying that abstract concepts aren’t as valuable or deserving of protection as tangible objects. (Plagiarists, take heart: Stealing other people’s writings is OK with Shapiro, just as long as you don’t steal the computer they wrote it on.) Whether or not he really believes this (and given the dependence of his member companies on patent, copyright and trade-secret protection, it’s hard to see how he could), his speech paints a portrait of artists as crybaby Luddites standing in the way of global prosperity.

What “the creative community” has done to warrant such scorn beyond trying to protect its rights is hard to fathom. The idea that artists want to put an end to downloading or even peer-to-peer file sharing is absurd. All they are asking is that people stop ripping them off.

And make no mistake about it, they are being ripped off, notwithstanding Shapiro’s remarkable statement that despite illegal downloading, “music sales are holding their own.” Perhaps he hasn’t heard about the 10 percent decline in sales last year and the additional 10 percent drop in the first six months of this year. And he must have missed the stories on the layoffs, the cutbacks and all the labels and retail stores that have closed.

Stripped to its essence, Shapiro’s attitude flies in the face of centuries of civil law and practice, as part of which civilized societies grant artists, authors and other creative people the right to own and control the original work they produce, be they paintings, poems, songs or any other form of literary or artistic expression. In the United States, copyright authority is woven into the national fabric. The founding fathers didn’t like placing restrictions on the public, but they regarded this particular need with such urgency that they took the unique step of not only inserting it into Article I of the Constitution but also explaining why it was important (“To promote the Progress of Science and useful Arts”).

Of course, in Shapiro’s view, none of this matters, for the real culprits aren’t consumers who want something for nothing or hardware manufacturers who don’t mind encouraging them for the sake of their own sales. Rather, they’re the antediluvian record and movie companies that fail to take advantage of the Internet and then “whine that they ‘cannot compete with free.'” In Shapiro’s 21st century marketplace, might evidently makes right. Instead of looking to the law, he insists, “The recording industry and motion picture industry should stop complaining so much and consider a more flexible business model.”

Well, our companies are already doing that, very aggressively in fact. And the increasing availability of music online–in a host of subscription and download services that offer more and more content, in a smorgasbord of different packages, at a variety of competitive price points–also rebuts his claim that the music industry has made little effort to look at new business models that take advantage of the new technologies.

But the fact that record companies are embracing new technologies and the Internet is really beside the point. In a nutshell, what Shapiro is really saying is something like this: Despite what Congress and the courts say, digital stealing isn’t really stealing, and therefore it isn’t immoral. Moreover, despite what the U.S. Constitution says, intellectual property rights aren’t really rights because intellectual property isn’t really property. Therefore, even if music piracy really is stealing, copyright owners don’t have a right to take reasonable steps to prevent it.

If that sounds like sophistry, it’s because it is. Ironically, Shapiro accuses the copyright community of declaring “war on technology.” But the only war being waged here is the rhetorical warfare that Shapiro has launched against artists and labels that simply want to protect their ability to continue in the business of creating music.

The last thing we need is more overheated and polarizing rhetoric. Shapiro would do well to drop the destructive diatribes and instead engage in some constructive dialogue. That’s the only way we’re going to figure out how to better serve consumers, creators and technology companies alike in these challenging times.