Escape Hatch

In a stunningly under-reported turn of events this past week (the only good account I've been able to find was this story), Orrin Hatch, senator from Utah and musician, decided to threaten the record labels with rewriting US copyright law to explictly lay out generous definitions of "fair use" for digital media content. Hatch, the principal architect of the Digital Millennium Copyright Act, castigated the labels for failing to make their music easily available online. If you haven't responded to the DMCA carrot, he basically said, perhaps you'll respond to the stick of a "clarification" which enshrines in law all sorts of practices -- making a copy of your CD to listen to in the car, trading tapes with your friends, ripping your CD at home and listening to the MP3 file at work -- that you've been wailing and moaning about forever.

Vermont's Patrick Leahy put the argument in terms of the political pressure 20 million Napster users could bring to bear, suggesting that if their Napster access were cut off and no reasonable alternative provided, the Senate would be dragged kicking and screaming into the Internet age by the groundswell of protest email. I think Leahy's wrong on this one -- if you asked me to name a more politically inactive constituency than that of typical Napster usuers, I'd have to go either with with the severely impoverished or those too young to vote. My sense is that Hatch isn't particularly responding to grassroots political pressure -- the free-music camp just doesn't have the kind of muscle that turns gears in Washington, nor has there been the kind of crazed all-over-the-place faddism that generally otherwise inspires Congress to act, even when there isn't money per se at stake. I think Hatch is going personal on this one, both as a small-time musician and as a legislator who feels betrayed on the deal implicit on the DCMA.

And though I'm not really a fan of the recent American trend in which every abstract issue must be reduced to the most crassly individual terms and every act rooted in purely personal considerations, principles be damned, (cf. The Patriot as a case in point), in this instance I have to say I feel some admiration for Hatch, who in ordinary circumstances is one of my least favorite politicians (going back to his shameful behavior during the Clarence Thomas confirmation hearings). His personal involvment has, I think, led to him to what I see as one of those wonderfully simple anti-Jephthaic realizations: don't like the way the law is making things evolve, well then, let's just change the law and fix things. A lot of discussion of the whole Napster situation has focused on social decisions about Napster itself and tried to calculate the respective consequences of deciding to encourage it or to prohobit it. But this is going about things exactly backwards: we should be asking what sort of a media regime we want, and then going about determining which decisions will bring us closest to and which will leave us furthest from. What better place, in fact, to start, than with the fair use clauses, whose notorious ambiguity, almost everyone agrees, has been the source of so much trouble? The greatness of Hatch's suggestion is that he's treating fair use as a means towards social ends rather than as an intrinsic good with a paricular worth that must either be saved or sacrificed. In the world of books, fair use by itself is valueless: what is valuable is the culture of reviews and exchange and cascading scholarship and increased attention paid to books that fair use enables, and a similar goal-directed approach has something to offer to digital music.

Hatch's actions also put in perspective the real interests of the record labels. On the one hand, as much as the DCMA was supposed to get them to open up their vaults to the Internet, you do have to feel a little sorry for all the low-level executives who looked at the Internet, and saw, quite rightly, that the instant the catalog hit the web would be the last instant the label would ever have genuine control over the catalog ever again. They figured that they wouldn't be fired for stalling the process while they desparately tried to overcome what Larry Lessig calls the "architectural" constraints of the 'Net, whereas they might very well be fired if -- as seemed quite possible -- digital music distribution turned out to be the pirates' heaven it reeked of. The law -- the DCMA -- did what it could to help them along, but the technology wasn't really there. And now, what a horrible surprise, right when they were planning on going back to Capitol Hill to ask for a little more help from the law in closing those ugly truck-sized loopholes that Napsterian and Gnutellan programs create, to find out that Washington is looking to them to make the next step. Such a simple mistake to make: they thought that Washington was promising to back up their solution to digital copyright, and that the DCMA was the first fruit of that commitment. And Washington was promising to back up their solution, but by that "solution," Washington had something more specific in mind: the DCMA itself. Come on in, Hatch has been syaing, the water's fine and I won't let you drown, but I will start shooting at you if you stand around on shore much longer.

The DCMA, you see, is written to back up systems of content distribution and control with the force of the law, no matter how flimsy those systems are technically. The movie industry has taken the leap of faith: they went ahead and used CSS in order to assert "control" over DVD distribution, and now they're asking Washington (via the courts) to make good on its end of the bargain. Their situation is, admittedly, somewhat easier, just because high-quality movies are so much more gargantuan than medium-quality music, so the consequences of a cracked system are somewhat less catastrophic. But the record labels, I think, see very clearly a future in which the easy availability of ripped content forces them to be a value-add in some way other than the mere providing of otherwise unavailable content. Better indexing, more exhaustive backlists, higher-reliability servers, interoperability with portable devices -- all these have possibility, but they're all also much closer-to-the-edge games to play, ones with smaller margins for error and less to do with the music itself -- and also, I think, less room to play hitmaker and turn a 500,000 unit album into a million-unit one. Which is why Hatch's threat may be very close to what Doctor Love ordered . For smaller bands willing to forego some of the network effects and (highly fickle) publicity machines of the majors, the barriers to entry, once you get past the production phase (which technology has other ways of helping with), there gets to be less and less you actually need a record label for.

I'm talking off the top of my head here, with some of these speculations. But something important is going on here, so if you commit only one more act of websurfing today, surf on over to the article and think about what the consequences might be.