ASCAP’s HQ, a CC-licensed photo from Flickr user CosmoPolitician
I can’t believe this slipped by me last week: ASCAP has started urging its members to fundraise against Public Knowledge, Creative Commons, and the Electronic Frontier Foundation. The blog ZeroPaid has two pieces on the initial ASCAP action and CC’s response.
To do a Jon Stewart meet-me-at-camera-3 thing for a second: Hey, ASCAP. As I’m sure our fellow music industry members at the RIAA can tell you, it’s never wise to engage in a public war against people the general public overwhelmingly like. It doesn’t do our industry any favors. But what’s far worse about what you’re doing here is you are blatantly misstating the nature of things.
Creative Commons is not about destroying copyright or artist rights – quite the opposite. CC is about allowing artists the freedom to decide for themselves exactly how much control they wish to assert over copyright. As any US copyright scholar will tell you, our scheme of copyright is all about artists and authors a limited monopoly on expression in order to encourage them to create and disseminate works. The exclusivity we give comes at a cost, however: the monopolies we grant to authors necessarily prevent the general public from doing certain forms of expression. We’re okay with this because we believe (or strive to believe) that the net result of our system is that more works are created.
Creative Commons allows us to fix a deadweight loss in the system – authors who are “over-incentivized” can, at their control and discretion, give back to the public the monopoly rights they determined are unnecessary for them to create and disseminate. The beauty of CC is that the decision is left in the hands of the artist to decide for themselves.
Now I consider myself pro-artist, notwithstanding my professed leanings in areas of copyright policy. And I’ve taken heat from my friends by standing to defend your lawsuits against bars and restaurants that do not pay their PRO fees. But I do so because I believe the ends justify the means: public performance royalties are often a necessary ingredient of the royalty-mix that allows songwriters to make a living. When an artist decides for her or himself that they don’t need a public performance royalty – say, by declaring attribution is enough through a form of Creative Commons license – they signal a contrary preference, and we should respect that decision.
At my most charitable, I see what you’re doing as being over-paternalistic, deciding that artists cannot decide for themselves what rights they need to assert in order to create their works. What I truly think is going on is you’re annoyed that Creative Commons cuts ASCAP and the other PROs from receiving fees in certain circumstances, meaning you have less of a royalty pool to dish out later (and collect administrative percentages on top of). Perhaps I am being cynical, but why else would you attack Creative Commons? It’s the same reason why you decided to claim that a cell phone ringtone is a public performance: if it is, you get paid; if not, you don’t. So don’t pass this off as an artist rights issue. To act in the artists’ interest would be to allow them the choice. What you’re doing is something else entirely.
Update: More and more folks are weighing in on this one: here’s an ad hominem piece by David Israelite of the NMPA, Gigi Sohn of PK’s response, and an assessment from Wired’s (always amazing) Threat Level blog.
Coincidentally, this week I’ve been going through William Patry’s Moral Panics and the Copyright Wars again. In that book Patry talks of how use of folk devils and hyperbolic metaphors is killing our ability to have a cogent debate on this stuff, which is essential to the development of constitutionally sound copyright policy. This present fight is proving his point all too clearly.
I should also note that the contents of this blog, to the extent they are not owned and licensed by another party, are licensed under a Creative Commons Attribution Noncommercial Share-Alkie 3.0 license.