John Mellencamp: Thou Shalt Not Permit The Internet To Derail Our Gravy Train

from the holy-shit dept   http://www.techdirt.com/articles/20121026/18271720860/john-mellencamp-thou-shalt-not-permit-internet-to-derail-our-gravy-train.shtml

We've written about John Mellencamp's anti-internet rants before, but this latest one doesn't just take the cake, it takes the whole bakery and turns it into a reality show on the Learning Channel, but with more melodrama and an even looser definition of learning. There's almost too much to unpack here, but let's start with the headline—a particularly audacious version of the "copying is theft" fallacy:

Good News! Ten Commandments Reduced Now to Only Nine

Really now, John? Internet behavior doesn't have any more authority over the ten commandments than vice versa. If it did, we'd already have knocked at least a few more over, since websites stay open on Sunday and graven image machines are a hit on Kickstarter. But let's just sail right on past that, as well as the part where he confirms that he does indeed love music, and meet the bee in his bonnet:

I've been doing this a long time and I'm confounded by the apathy of those who have participated in music-related successes and are now witnessing the demise of the entertainment business as it has existed since the beginning of recorded sound and moving pictures. So here I plan to ask some questions and my hope is offer a solution to the problem.

So, he's confounded by the apathy of the entertainment business in the face of piracy. If only they'd air commercials before movies or something. But, he promises a solution—and we'll save that for later, because I don't want to give away the punchline. He continues:

Tell me where, under today's conditions of de facto indentured servitude, will the new artists come from? If I were a young songwriter today, I would definitely be looking for another way to earn a living. The same would go for the young screenwriter or novelist.

Quiz time, John: What does indentured servitude mean? Time's up, because you already used the term in the most ironically wrong way possible. Indentured servitude means working for no wages in order to pay off a debt to your employer for an initial outlay of cash that allowed you to commence the work. Sound familiar? Because to me it sounds like a traditional record label contract, not something new or anything related to piracy or the internet. And, in case you didn't notice, there are countless new artists everywhere. The internet has enabled more artists to share what they create with the world—and to earn money with it—than ever before in history.
But that's not all Mellencamp is worried about:

And what about the guy who only had one or two hit records 10 or 50 years ago? What happens to this guy who depends on that income to support his family if people are stealing those songs now? Tough luck, right?

Well basically, yeah—tough luck. Were we supposed to shed a tear because a musician can't live comfortably forever on the back of "one or two hit records 10 or 50 years ago," and might have to actually produce some new material or else find some other way to earn his living? Copyright is supposed to encourage creativity, not act as welfare for artists.
So what does he have to say about all the artists who have figured out amazing new ways to make lots of money? If you guessed "it's a fluke, plus something at least mildly original and not totally debunked," then you're half-right.

And to all you bloggers who have prophesized that this new way is going to somehow provide sustainable careers? Your prophecies did not and will never come true. If there is the occasional sparkle of success, it usually turns out to be nothing more than a novelty, not a new business model.

So we can add Mellencamp to the list of people who have, apparently, been waiting for someone to tell them what the magic-bullet business model is, while smarter artists are out figuring out what works best for them and their fan bases. Our mystical blogger prophecies that artists can find new ways to make money will never come true, except for all those times that they have, which were flukes. Duh. Of course, these days there are an awful lot of flukes. Like this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one and this one. And that's just a few that I remembered and could easily look up, rather than any sort of representative sample. But they're all flukes.

Why is thievery allowed to continue on the Internet? And why do people think it's so impossible to correct? Right after radio was invented, they played music and sold advertising. Then it dawned on some: "Hey, they're playing our music, and they're selling advertising on our backs; we should get paid." So performing rights organizations like ASCAP and BMI were established with the express intention of protecting the intellectual property of artists who create it.

...

But where are ASCAP and BMI today on the new delivery system -- the Internet? Where are the record companies? Where are the book publishers? Where are the unions to which we pay dues that are supposed to protect actors, writers, songwriters, and producers? And, most importantly, where's the government? Apparently everybody's too busy making excuses and shrugging their shoulders to realize their gravy train has gone up the waterspout.

To provide an answer to John's list of questions: fucking everywhere. All of those organizations are heavily active online, collecting money for creators from a roster of legal services that grows longer every day. And, really, if we're talking about "thievery" on the internet, perhaps we should look at some of those collection societies who seem to be taking money from artists and not giving it back.

And the entertainment industry is most certainly not "shrugging their shoulders" and failing to notice whatever the hell their gravy train is supposedly doing. They love their gravy train, and are fighting tooth and nail to protect it. But, like "indentured servitude", John doesn't seem to know what "gravy train" means, and yet he has accidentally used it in an accurate way. A gravy train is a way of making lots of money with little to no effort (like say living off the profits of decades-old songs) and it's exactly the kind of thing you don't want in a functioning economy. A gravy train is something society resents, and something we try to take away from those who have it. John's right about one thing: the entertainment industry has been riding one for a long time.
If you can believe it, all that was just a preamble to his main point, the promised solution to all the woes of artists and the entertainment business. Turns out it's extremely simple, as facile solutions to complex issues often are: repeal the safe harbor provisions of the DMCA.

[The DMCA] was supposed to bring U.S. copyright law into the digital age but it included something called "Safe Harbor Provisions" that basically says that each artist is responsible for retrieving his own merchandise and shutting down anyone stealing their property, which is kind of a joke.

...

This law now, unintentionally, allows big search engines -- like Google, Yahoo, Bing, etc. -- to be the equivalent of a department store as both provide and sell many services and products. Let's say that Ralph Lauren has his merchandise in Macy's. If someone shop lifts it out of the store, he's told, "Hey Ralph, your stuff's being stolen off of our shelves. You better go try to collect your money for it. It's not our problem or responsibility since all we do is make your stuff available to non-paying customers..." In other words, under the Safe Harbor Provisions, search engines behave like unpoliced department stores where anyone can steal whatever they want with no real threat of significant repercussions.

I could write a whole post about those few sentences, but let's try to run through some of the glaring problems here. Firstly, the vast majority of copyright infringement is a civil issue, not a criminal one—so it has always been the copyright holder's responsibility to bring action against infringers. The DMCA's safe harbors are about liability—they say that you must go after the person who actually infringed on your copyright, not the provider of the tool they used. In other words, you have to hold the correct person responsible. Such protection is the backbone of the internet as we know it—without it, not only would websites be unable to allow user participation, even ISPs would be unable to provide open internet access and protect customer privacy.
But Mellencamp's primary concern is, apparently, search engines. We've heard this one plenty of times before, but perhaps never so ineptly described as it is here. The analogy to a department store is stupid in so many directions that it's like some kind of memetic virus, and I'm getting a headache trying to write a response. For one thing, retailers buy their stock up front and then re-sell it. If it gets stolen, it's their loss, not Ralph Lauren's. Secondly, Google doesn't have "stock" that people can "steal," it's a damn search engine, and the DMCA's safe harbors don't turn it into an "unpoliced department store." In Mellencamp's shoplifting analogy, the DMCA would be the law that says you can't sue the manufacturer of the shoplifter's car, or the company that made his backpack, or any of the other entities that provided tools he used while breaking the law—and that's what he finds unacceptable.

To put it plainly, radio kept track of their playlists, record stores kept track of their sales, each movie theater counted tickets, each bookstore kept track of books sold, and why? Because the law required it and the manufacturers demanded it. And so the same should apply to search engines. They should be governed in the same manner but they're not. The Safe Harbor Provisions allow intellectual property to be stolen because the search engines are not held accountable.

Search engines do not provide content. It's pretty hard to violate copyright while staying on Google—you have to click through to the site that is actually providing the infringing material. The only reason to attempt to pin blame on search engines is that it's convenient for copyright holders (or because someone doesn't understand how the internet works), not because it makes any sense for them to bear liability. And it's not at all clear what Mellencamp is asking search engines to count... the number of people who click on links to sites that contain infringing content? How is Google, or anyone other than the copyright holder, supposed to tell? There's no magic "detect infringement" algorithm—even real live humans struggle with the nuances of the law.

If anti-piracy legislation were the order of the day servers, wherever they may be including the mythical "cloud," could and would be shut down thanks to technologies that have been developed and successfully employed during the fight against terrorism. The means to get this done actually exists; what we're lacking, at the moment, is the will to do it.

Wait, what? Did John Mellencamp just call for drone strikes on the Pirate Bay, or does he think copyright filter technology was an important part of the war on terror? Either way, he needs to learn that taking down sites has proven to be futile, since replacements always pop up in no time. But then we get back to the hilarious premise that is peppered throughout the article: the notion that the entertainment industry is not trying hard enough. It sounds like he slept through the SOPA and PIPA fight, when anti-piracy legislation was very much the "order of the day", and that order was overruled by the people.
For the final paragraph of Mellencamp's rant, let's get granular:

The entertainment business has been criminally assaulted by wrong-headed thinking that says we need to keep up with the Internet.

If by "criminally assaulted" he means it feels like they need to be beaten over the head with it, then I agree. As for keeping up with the internet, maybe he's right—in a previous rant he called the internet "the most dangerous thing invented since the atomic bomb," and look what happened when everyone was worried about keeping up with that. Plus, as War Games taught us, there can only be bad news when the two coincide.

No, search engines need to abide and adhere to the laws that have governed this country for over 200 years.

And what about laws that have governed the country for 16 years? It's odd for John to be so fixated on respecting the law, since his entire premise is that we should stop respecting the DMCA's safe harbors. But maybe he's only interested in laws that have been around for two centuries—so I guess we should return a copyright term of 14 years, applicable only to maps, charts and books. That I can get behind.

It's a moral imperative. Thou shalt not steal. Ring a bell?

Yes, it's the same non-applicable tenet you brought up in the headline. If someone was stealing something, you'd have a point. Since they're not, you don't.

Calling it progress, ol' Hoss, don't make it right.

And calling it wrong doesn't make it disappear.