Yesterday, I attended the Future of Music annual DC Policy Day 2009. Watching the panel on Copyright in the Digital Age (a perennial favorite), I was struck by how little the arguments advanced by the champions of expansive copyright have changed since they first addressed this issue in the run up to the Digital Millennium Copyright Act. This includes the condescending dismissal of those holding opposing points of view (Pam Samuelson is a crazy radical who hates musicians?), the insistence that no one other than pirates has anything to fear from copyright filtering (when Steve Marks poo-pooed Gigi's argument against the proposed Feinstein Amendment to the stimulus package as “just implementation” and out of place in considering such a benign and harmless amendment, even copyright maximalists could not suppress a laugh), and insisting that the only reasonable middle course is total capitulation to their demands.
After nearly 15 years of pushing the same policy prescriptions under the same rhetoric, the RIAA finds itself in much the same position as House Republicans demanding a Stimulus Bill based entirely on tax cuts — repeating the exact same arguments for policies that, when actually implemented, have had catastrophic results for their own constituents. Consider this impressive track record:
a) The RIAA imposed mandatory DRM on iTunes. Result? The iTunes DRM creates a barrier to switching online vendors that has prevented the emergence of any significant competitor. Steve Jobs proved who held the real power when the music industry proved utterly unable to increase their license fees. The music industry is now desperate to move away from DRM, in no small part to get away from the monster with market power they created and unleashed upon themselves.
b) In Canada, the Canadian Radio-Television and Telecommunications Commission (CRTC) gave the industry the result they wanted in the Comcast/BitTorrent Complaint by issuing an order allowing Bell Canada to throttle peer-2-peer traffic as a reasonable way to address the supposed network congestion that they claim results from piracy. Result? In less than a week, BitTorrent announced a new method for circumventing Bell Canada's traffic controls. So while the CRTC decision did a good job of cutting off music artists and others using existing p2p technology to sell their works in full accordance with copyright law (a channel of sale now accounting for how many millions of dollars?), it did nothing to stop illegal downloads. Worse, according to at least one peer-reviewed academic study, don't impact legal record sales!. So the CRTC decision that the RIAA would like to replicate in the United States is worse than useless, it actually hurts artists by making it more difficult to develop p2p into a paying proposition for legitimate distribution.
c) The one bright spot for the music industry in recent years was the growth of internet radio which, among other things, <a href=”http://www.publicknowledge.org/node/890>appears to have boosted sales of indy CDs. So, naturally, the RIAA have loaded that industry down with massive monitoring and reporting requirements, along with huge fees, that threaten to drive internet radio out of business.
None of this, of course, has made any impression whatsoever on the RIAA and their posse of enablers in the industry and on the Hill. Instead, in a fashion reminiscent of John Boehner and Mitch McConnell, they insist that only good can come of repeating the same failed policies and arguments of the past and that any evidence of the senses to the contrary is propaganda spun by an extremist and unreasonable opposition unwilling to engage in a “moderate, bipartisan” approach. And, at least so far, the RIAA has had the same result — plunging public approval ratings and finding themselves increasingly marginalized in the face of economic realities that care nothing about ideology.
No one should underestimate the RIAA and the IP Mafia generally. They remain a potent force, and only non-stop vigilance has managed to stop them from inflicting more harm on their constituents and every one else as a consequence of their ideological zealotry. But it is astounding just how little they have changed either their policy prescriptions or their rhetoric despite 15 years of contrary experience. It only took King Canute an afternoon to show that one cannot order back the tide. How much longer can the RIAA ignore the utter failure of their policies in the marketplace before they decide to come to the table for serious conversations? If they hope to have impact in 2009, the RIAA must stop acting as if it were 1995, when holding back the digital tide seemed possible rather than laughable.