Guild Monkey Throws Poop at EFF

by George Ziemann -- August 2, 2006

Just so that we can be certain that every branch of the music industry has its head inserted fully up its anal orifice, Rick Carnes, the president of the Songwriters Guild, has stepped forward to offer his wisdom on the current state of affairs.

The story really begins last month, when EFF posted a list of Frequently Awkward Questions for the Entertainment Industry, "a sample list of tough questions you can ask RIAA or MPAA representatives at conferences or public speeches."

The music section of EFF's list was really aimed at the RIAA lawsuits, DRM/spyware and definition of what is and is not "fair use". I thought it was a pretty solid list, because it addresses the key questions that have to be answered sooner or later, unless we allow the RIAA to sue everyone on the freakin' planet first.

So Carnes responded to EFF, offering a logical, point-by-point explanation of how to resolve each issue on EFF's list to the mutual benefit of all parties involved. Not really. Not even close. He didn't answer a single question. He decided to be a satirical humorist. His comic genius is immediately illustrated by masterfully playing off EFF's original title, resulting in: "Aways Awkward questions for the EFF".

I'll just address a few of them, out of order, because the entire technical circle-jerk is officially out of order anyway.

Since when did 'Fair Use' include world wide distribution of copyrighted material without the permission of the songwriter?

That would be 1996. Ha! Just kidding, of course. The correct answer is 1909, as explained by Edward Samuels' "Illustrated History of Copyright."

"The novel compromise ultimately adopted by Congress in 1909 was a special system of compensation that has come to be known as a compulsory license. On the one hand, the White-Smith case was overruled by Congress, and composers were granted the exclusive right to make mechanical reproductions of their music. On the other hand, this exclusive right was severely limited. Under the new law, composers could choose whether or not to allow recordings to be made of their works, and could charge whatever the market would bear for the first such recording. But thereafter, any other record companies would be allowed to make their own recordings of the song by paying a fixed rate, set in the statute at 2 cents per copy. So, if I wrote a song, I could license Eddie Cantor to record it for whatever I could get him to pay. But after that first recording, if Ethel Merman or Frank Sinatra or Bette Midler wanted to record their own renditions, perhaps updated versions for new generations, I couldn't stop them, so long as they paid me 2 cents per recording. What this assured was that performers, who might otherwise not be able to afford licenses to record songs, could buy the rights to virtually any song at the legally prescribed rate.

"To be sure, composers in this way are treated differently from other copyright owners, in that they lose control over who can record their works."

If you can't control who records it, you can't control how far (or whether) it spreads.

How could the RIAA sue 20,000 'innocent' people and prevail in virtually every lawsuit?

Well, there's the fact that most of the judges don't have a clue what anyone is talking about. They don't know the difference between uploading and downloading. How could the RIAA sue 20,000 people for copyright infringement without ever having to produce a timely copyright registration for a single song? How can the RIAA sue 20,000 people over a two and a half year period without a single case reaching an actual trial, with evidence?

Why were you so wrong about Grokster being legal?

Again with Grokster. Everyone in the music business keeps telling people how they "won" the Grokster case and with it, the declaration that every peer-to-peer service was declared illegal. That is, after all, exactly what the RIAA asked the Supreme Court to do in the motion they filed asking for a summary judgement. EFF asked the justices to declare Grokster as legal.

The Supremes said that Grokster was probably guilty of something but the RIAA had missed the mark, too. Both motions were denied. The Supreme Court decided not to decide. I don't see the "victory" angle from any perspective, except the lawyers who collect the fees for arguing this petty crap.

If illegal downloading isn't hurting anyone then why have half the songwriters in America lost their jobs in the last five years?

Several reasons for this, actually. How about mergers and roster cuts? The major labels have probably reduced their output by more than 50 percent over the last six years. Fewer records, fewer songs, fewer sales, fewer songwriters. Maybe music's core audience is in Iraq. Maybe everyone fully replaced their old vinyl with CD versions.

Why should the iPod cost 400 dollars but the twenty thousand songs it contains be worthless?

Hmmm... Maybe because enough of us already bought enough music to fill an iPod before they even started making CDs and we'd like to listen to it again, without the crappy songs? It's commercial-free that way, too. Why should the 20,000 songs that I've already paid for require an additional fee to listen to them?

How much would those 20,000 songs be worth if you take the iPod away? How much are all those songs worth that the studios never considered moving to the digital realm? Six years ago, they were worthless. Take away file-sharing, completely. Yeah, that'll help. What are those old songs worth if no one ever hears them again?

When will EFF begin to understand that behind every song there is a songwriter who deserves to get paid?

This was actually the first question but I saved it for last since it was so self-serving. You know, Mr. Guild President and all. He has to act like every songwriter is so special that they are owed something by the universe for their work. I would agree that behind a great number of songs are songwriters who deserve to be paid for their contribution to society and our culture. But every song? Well that's just crazy talk.

"Mmm-Bop" comes to mind. I would pay to never hear that song again. I'd pay more to have it permanently erased from my memory, along with the "Hamster Dance", "Crazy Frog", anything by Metallica and several other acts whose name begins with "M". Actually, the list is pretty long.

No, they all don't deserve payment unless you can get a refund for the tunes that suck.