A Response to Techdirt’s Failed Magic Act

Techdirt Editor Leigh Beadon penned a response to our own T Bone Burnett’s Comments to U.S. Copyright Office.

Apparently, in his off time, Mr. Beadon is a mentalist, who specializes in using misdirection and trickery to convince audiences he’s a psychic. That’s plenty fitting since Beadon’s response to T Bone is itself an example of confusing the issues and hiding the ball.

Here are the facts. The DMCA’s notice and take down system was devised in 1998 to help the internet grow and provide ground rules for using copyrighted materials online.

At its heart is a basic trade off — the passive Big Tech companies who operated the internet and built its various platforms and websites would receive immunity for piracy by their users as long as they quickly took down any unlicensed copies of creative works creators identified and flagged for them.

The intent was to facilitate cooperation. That intent isn’t subject to debate.

It was a well-intentioned and good idea, but like a lot of early predictions about the internet, it simply did not pan out.

The bargain was struck in the age of AOL, when internet speeds were slower, unlicensed copies less ubiquitous, and the idea that copyright owners could themselves keep up with illegal uploads seemed plausible. That is clearly no longer the case.

The law envisioned passive actors, Internet service providers protected from liability for unlawful uploads they had nothing to do with, not those who were actively profiting from such activity. That has clearly changed.

No one predicted how quickly and massively the internet would grow or that huge chunks of the music and video entertainment industries would move to online streaming. No one saw how big internet companies would grow from passive conduits for data into active services that profit off the use of unlicensed music and other creative works. No one imagined that Copyright safe harbors would enable these companies to avoid taking real steps to police their own networks, while simultaneously profiting from piracy.

As T Bone explained, this isn’t the only area where the early internet has failed its promise — but it is a vital one.

Music creators are suffering.

They are leaving the business. In droves.

Is YouTube the only cause of this decline? No. Is it a whopping big part of the problem? Clearly. It simply pays far less for music than other similar services and leverages its Googleopoly status to force creators to accept bad deals on a “take it or leave it” basis:

Accept below market pittance royalties to cover the unlicensed copies of your work that floods across our system or take your chances with our ridiculously bad ContentID system, which you might not even be eligible for and probably won’t even work. Don’t want to? Great — we challenge you to an infinite game of whack-a-mole under the DMCA safe harbors that costs you vastly more than it could ever cost us.

Beadon’s response ignores all this. Like any good magician, he slings his quips and draws readers’ attention to glib distractions and meaningless side issues to ensure no one notices artists’ pockets being picked and their work being stolen under our collective noses. It’s not that his argument on the core issues is unconvincing; he doesn’t bother to make one.

Instead, it’s all ad hominem, snark, and — well — bullshit.

The closest we get is his question how artists “are being silenced” by the broken DMCA? But only someone being willfully blind or intentionally obtuse can’t see how an inability to earn a basic living drives artists and creators out of the business.

Bob Dylan’s first album sold just 4,000 copies in two years. Given the current economics of making music, in part perpetuated by YouTube’s race to the bottom, can an artist in that position hang on? How many socially conscious artistic voices are we losing? Since 2000, the number of songwriters working in Nashville has fallen 80%.

Beadon claims that T Bone doesn’t understand how much good the internet is doing for artists, since it “offers the biggest, most powerful and most accessible platform for artists in history.” The argument that “access” to a platform is good enough regardless of ability to earn a living sounds like Paul Ryan defending his health care plan — sure everyone will have access, never mind the millions who can’t afford the cost. And please do away with the Y2K arguments about music not embracing new technologies. Over 3,000 digital music services are licensed today.

Ultimately, Beadon’s argument seems to boil down to a defense of the fact that the internet does good things, picking up on T Bone’s concern for the future of our creative democracy: “’[C]reative democracy’ is originally the title of a 1939 essay that ended with a passionate assertion that ‘the task of democracy is forever that of creation of a freer and more humane experience in which all share and to which all contribute’. Now you can twist words and concepts all day to pretend that the internet somehow stifles artists, but be honest: is there anything in the world that has pushed us closer to that democratic goal than the internet.”

To be honest, we think music has done more to move humanity forward and help us express our basic values, character, and experience than the internet. You tell us what the world would be like without its hymns, chants, and dirges. What is America without Woody Guthrie and Go Down Moses?

The internet is an incredible tool — a powerful connecting resource that helps people organize, learn, and grow. But anyone who does not see its dangers and its capacity to harm in 2017 is living in a cave.

The internet makes us freer and more humane, more Democratic? Sounds like a Russian bot, an alt-right keyboard commando, someone who doesn’t keep up with current events at all, or an ITOPIAN who profits off the abuse online (in all caps for emphasis and because that was another cheap shot from Beadon). Would Melania Trump’s anti-cyberbullying campaign even be needed in Beadon’s fantasy of online humanity and peace?

Beadon did flag one copy editing error, that we regret. But that’s not much basis on which to hang this kind of obnoxious and personal screed.

Ultimately, it’s a question of worldview.

T Bone sees the internet as an ecosystem, where all must survive for anyone to thrive. He is fighting for balance, to make the internet work better for users, creators, and tech and to restore the original trade off that was at the heart of the DMCA.

Beadon seeks a winner takes all victory for tech and disdains the very idea that artists and creators should have a say in how the platforms operate or work. Forget that companies like YouTube make their billions of the backs of musicians. Artists should just shut up and be grateful they have a place to post their videos at all.

Readers can choose which worldview leads to a place they’d like to live, grow, or — if it’s one where music still exists — listen.

Artist-run, non-profit advocating for musicians, performers, & songwriters in the digital landscape. (Formerly the Content Creators Coalition or “c3”)