What ASCAP Doesn’t Understand

For the past several days, we here at Public Knowledge have been sitting back being mildly amused by the dust-up over an ASCAP fundraising letter that sought to demonize Public Knowledge, Creative Commons and EFF as "Copyleft" organizations that want to undermine their "Copyright," and want "music to be free."  Now the President of the National Music Publishers Association is getting into the fray, giving a speech about 10 reasons why "enemies" like PK have a "extremist, radical anti-copyright agenda."  How very subtle.

Of course, anybody who has spent more than 5 minutes on our website or talking to our staff knows that these things are not true - Public Knowledge advocates for balanced copyright and an open Internet that empowers creators and the public.  What we oppose are overreaching policies proposed by large corporate copyright holders that punish lawful users of technology and copyrighted works.  We have taken artist-centric positions on a number of critical copyright issues which have put us at odds with some of our copyright reform colleagues.  For example, PK has supported a level-playing field in the payment of performance royalties and called for (pdf) copyright holders to sue large scale peer-to-peer infringers directly, as opposed to holding innovators liable for the infringement of others.  We have also advocated for changes to the law that would make it easier for online music services to license content from music publishers, leading to greater legal use of music and greater compensation for artists.  Finally, and oddly enough, we have emphasized the central role that performance rights organizations like ASCAP could play in a digital world and have praised them for their ability to keep accurate records of who owns what copyright.  So frankly, we're more puzzled by this attack than anything.

But the purpose of this post is not to defend ourselves - and thanks to those of you in the blogosphere and elsewhere who have already done so.  Instead, I'd like to highlight what I have been hearing from artists big and small over the past several months (including during two trips to Los Angeles) and what ASCAP most certainly knows by now as many of its members rebel against its appeal: despite artists' legitimate concerns about how much easier it is for their works to be infringed in an Internet age, they are uncomfortable with the constant drive by the movie studios, record studios and music publishers to find new and better ways to punish people and limit their access to copyrighted works.  Artists just want to be compensated. Period. They want an open Internet, and believe (as we do) that network-level copyright filtering and throwing people off the Internet based on 3 allegations of copyright infringement ("3 strikes") are antithetical to this goal.  They don't like digital rights management or other technological locks, either in software or hardware, that limit their fans enjoyment of their works. 

But despite the clear preference for compensation over punishment, groups that claim to represent artists like ASCAP continue, like their big corporate colleagues, to advocate for the latter, and seem completely bereft of ideas for promoting the former.  Why?  Probably because the old business model suits them just fine: they collect millions of dollars of royalties on behalf of captive musicians and (mostly) pay them.  In a digital world, Do It Yourself is the mantra, with Creative Commons being one of the tools that allows artists to do so.  Where does that leave middlemen like ASCAP?  Nowhere.

The ASCAP fundraising letter has laid bare a truth that many of us have known for a while - that some of the large wealthy organizations that claim to represent artists support policies that are more aligned with their corporate masters.  They fear the freedom the Internet brings to artists and are advocating copyright and broadband policies that would tame and enclose the Internet. 

Of course there are many organizations representing artists who get it: I'm thinking of the Future of Music Coalition, Writers' Guild of America, West, and the Independent Film and Television Alliance to name a few.  They are protective of their members' copyrights, but are not willing to sacrifice an open Internet or creative culture by proposing scorched earth copyright policies.  They are valuable allies who more than ASCAP and their ilk, deserve artists' support.

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