There has been some really good attention paid recently to the issue of how our linguist choices really frame the debates about copyright law and, often, prejudge them. In his new book, William Patry (who will be speaking at Duke Law School on October 22) devotes quite a bit of space to analyzing the language of moral panics and the metaphors employed by the copyright industries to skew an honest debate. In a June 2009 article called “Why Lakoff Still Matters: Framing the Debate on Copyright Law and Digital Publishing,” Diane Gurman makes a similar plea for those who oppose the ever-expanding reach of copyright to create their own frames that would balance the rhetoric of theft and piracy.
Although it is often easy to spot the linguistic excess coming from the copyright industries, a recent letter to the Senate Judiciary Committee from the National Music Publishers Association took a more subtle, and even more dangerous, approach. There is a CNET news story about this letter here. The theme of the letter, that copyright law should be technologically neutral, seems benign enough, but the work that the music publishing industry tries to get that rhetoric to do is very troubling. The thrust of this “technological neutrality” appeal is a claim that music publishers should collect a fee for a public performance of a musical composition every time there is a digital download of a piece of music.
To call this grasp at a wholly new income stream “technological neutrality” shows amazing nerve; it is really the opposite of such neutrality. Music publishers do not collect a public performance fee when a CD is sold because there is no way to prove or assume that a public performance (as opposed to a private one, over which rights holders have no control) will take place. Why should a digital download be different?
Fred von Lohmann of the Electronic Frontier Foundation, who is quoted in the article, suggests that this is just a turf war between different rights societies over who will collect a fee and, hence, get a “cut.” He is surely right about that, as he is when he points out that copyright law has never been technologically neutral. Some exceptions (such as the section 108 library exceptions) apply only to certain technologies or treat different technologies differently. There is a special rule, after all, for digital audio tape. But pointing put the triviality of this use of “technological neutrality” may not be enough. We should notice something really pernicious that is happening behind this smokescreen.
The language of copyright neutrality has quite a bit of appeal for copyright policy makers. The fantasy of a law that adapts automatically to new innovation appeals to a legislative sense of economy. That attraction is being used, in this letter, to attempt to vastly expand the scope of the exclusive rights protected by copyright. And this is not the first time. We should remember that copyright owners do not get absolute control over their works, only control within the scope of the enumerated rights.
A single line in the CNET story really encapsulates the problem here — “composers, songwriters and publishers are asking for a guarantee that they will get paid for a public performance even if there isn’t a public performance.” In this letter, the apparently benign call for technological neutrality is being used to disguise an attempt to enlarge beyond all reason the scope of the public performance right. This is not the first effort to use that right to expand the reach of the copyright monopoly. As I wrote about here, the debacle regarding the Kindle text-to-voice feature was based on an attempt to expand “public” performance deeply into the private use of new technologies. For another example, see this report on the unsuccessful attempt recently by music publishers to collect a fee for every ring-tone “performance” of copyrighted music. So the desire to expand the reach of copyright control is well-established, what changes is the disingenuous rhetoric behind which these efforts are hidden.