Ignorance of the Law Is No Excuse

April 18, 2003 -- The U.S. Justice Department has decided that Verizon must give up the name of the poor sap that downloaded 600 songs. Expect the suit to be in the $90 million range. I hope you weren't surprised by this. It's all part of the DMCA (Digital Millenium Copyright Act, also known as the Draconian Morons' Criminal Atrocity).

I really don't think the U.S. Justice Dept. had much choice but to side with the RIAA. Who do you think wrote the DMCA? But this brings up a completely new issue that I wasn't going to actually discuss on this site. Until I heard about the Verizon decision.

You see, I'm kind of pissed off at the FBI this week anyway. I asked them a simple yes or no question. They refused to answer it. Said they were far too busy with terrorists and Syria to deal with my problem. When I brought up the fact that they had time to arrest college students for downloading music, they hung up on me.

Got the picture so far? I called the FBI to ask if I was about to break a federal law. I never identified myself. The agent I talked to had no clue who the hell I was. They told me what they were working on, clarifying something that Donald Rumsfield was still refusing to discuss publicly, and hung up on me when I asked if I was breaking the law.

But wait. It gets better.

The FBI wasn't the only government office I called. I was asking them the same question -- Am I breaking the law? Am I about to? Even if no one has considered this, what happens when they do?

So far, no one has attempted to answer the question. I've asked just about everyone. I'm just trying to verify whether a business agreement would be legal. No one knows. And I mean no one.

Here's the scenario. It's not a rhetorical question. It's not hypothetical. It's an actual business offer I received from another business that operates in the same city as I do, Tempe, Arizona. He's a webcaster, and I won't mention his name because I'd really like to do business with him. He seemed like a nice enough guy. He wasn't trying to hide anything. He wasn't trying to con me. He was straightforward and honest. He wants to play my music. I've been waiting forever for someone to tell me that.

We'll just call him Mr. Webb (as in Webbcaster, get it?), which I hope does not turn out to be his actual last name.

To save a lot of useless detail, here is the core of our conversation.

Mr. Webb stopped playing major label music after the royalty rates for webcasting were established. The primary motivation is to avoid paying the royalties.
Since I am an independent artist and not a member of the RIAA, the Billington Webcasting ruling (law, act, whatever) allows me to waive my royalties. The webcaster can play my songs without paying me.
Instead, I have to pay him. He says he'll play my stuff (at least one song) five times a day for a fee. We didn't actually discuss how much that fee was. It is irrelevant.
He said, "You know it's pay for play, don't you?"
If I were paying Clear Channel to play my songs, that would definitely be in violation of the 40-year-old law prohibiting payola (pay for play).

Mr. Webb says that the payola laws do not apply to webcasting.

Remember, I like Mr. Webb. I'd be glad to pay him to play my music. Hell, I would have paid Clear Channel. But if it's putting a pinch on Don Henley's budget, well, I could probably never come up with that much cash. But it would have still been illegal.

Note to FCC Commissioner Michael Copps -- That's the obstacle I referred to at the Tempe, Arizona hearing. Are you paying attention yet, Mr. Copps? If you thought it was weird that, even though they were invited to participate in the panel, the Arizona Republic would not mention the FCC hearing taking place, much less show up to cover it, the rest of this is going to make you have a coronary.

Please sit down. Have a drink. Call Orrin Hatch. He's going to want to see this, too.

So I'm ready to write this guy a check or give him a credit card number and then I think, 'Hey. Wait a minute. This is a set-up. I'm going to pay this guy and Hilary Rosen will have me arrested for violating the payola laws. I'm not using independent promotors like the RIAA does, I'm paying the guy directly.'

So, before I entered into an actual agreement, I thought I would find out whether or not this business activity was legal. As we all know, ignorance of the law is no excuse.

The Long and Winding Road

First I tried our mayor. I had written to him before about City Council and things like that. He always answered. Not this time.

No problem. He's a busy guy. I've written to John McCain a half-dozen times and I'm still not sure if he ever received a single e-mail. So I called the City Attorney. Both businesses are in Tempe. The City Attorney's Office said to call the Arizona Attorney General's office, which I did. They advised that I call an attorney if I wanted legal advice.

Okay. That was a dead end. The attorneys say I should call an attorney. I thought I did.

Who's going to arrest me if I break a law? Most likely, it would be the City of Tempe's Police Department. They suggested the FBI, since this would obviously be a federal issue. We know how that worked out (above).

But before the FBI hung up on me, they told me to call the FCC.

Mr. Copps, Senator Hatch -- Take a deep breath. Here it comes...

No one at the FCC knew what "payola" meant. They told me to call the Federal Trade Commission. The FTC said that word is not in their database so they could not possibly take any information pertaining to it.

They suggested I call an attorney if I wanted legal advice.

It was time for the Wizard of AzOz to put in a call to the Scarecrow himself.

So I called Orrin Hatch's office in Washington, D.C. Yes, Senator Hatch. You're my Scarecrow. Have a beer. It's got barley in it. Maybe it will help clear some of this up. If that doesn't work, try playing yourself a little 12-bar blues.

Your people don't know what payola is, either.

When they told me they did not know the meaning of the word, I about had a coronary myself. Thought my head was going to explode. Heard the "Twilight Zone" theme in the background. Saw Rod Serling's ghostly image out of the corner of my eye. Thank goodness for those cholesterol medications and Zoloft.

I pointed out to the nice person who talked to me that Senator Hatch had promised a pre-Grammy gathering that he expected to conduct a Senate Judiciary Committee meeting on this very issue, oh, two or three weeks ago. But she still didn't know what "payola" was so she transferred me to the Senate Judiciary Committee.

The guy there would have loved to help me, especially after I explained to him what "payola" was and why the Senate Judiciary Committee might (a) be interested or (b) possibly answer my simple little question. After determining that I was in Arizona and Jon Kyl was my Senator, on the Judiciary Committee AND the Technology Committee, he transferred me over to the Technology Committee.

Fortunately for us all, the person at the Technology Committe phone desk knew exactly what payola was, why they should care and she would check around to see if anyone knew the answer. Unfortunately, they are kind of busy with this terrorism and invasion of privacy stuff (psst. It's Hilary). They suggested I call the U.S. Copyright Office.

Well, I'm going to talk to the Copyright Office at the DMCA hearings on May 14, so I can always wait until then.

But what the hell. I decided to give it one last shot.

I called Senator John McCain's office in Phoenix. It started out sounding like all the rest. Pleasant hello, introduces herself, and "How can I help you?"

Me -- I really don't want to waste a lot of your time. Do know what webcasting and payola are?
Her -- Well, I know what webcasting is, but I've never heard of payola.
Me -- It's when a record label or an artist pays a radio station to get their music played. It's against the law.
Her -- I really have never heard of that before.
Me -- Really? On January 30th, John McCain raked Clear Channel's owner over the coals about this at a Commerce Committee hearing and Orrin Hatch was supposed to conduct a Judiciary Hearing on this subject. Could you maybe ask around and see if anyone else knows what it is?

Very brief pause.

Her -- Okay. I think I'm the only one that didn't know what it was.

So Senator McCain's office is looking into this.

Follow-Up -- January 24, 2009 -- Still waiting for McCain's office to call me back.

Payola laws do not apply to the Internet, BTW.