In a 1980 debate with then President Jimmy Carter, Ronald Reagan, remarked, "There You Go Again." In a 1989 interview with Reagan by Jim Lehrer, Reagan explained "it just seemed to be the thing to say in what he was saying up there, because it was to me it felt kind of repetitious, something we had heard before." And so it is with the RIAA.
Last Friday, I and many others participated in an all-day, closed congressional staff-Copyright Office round table meeting about the statutory damages provision in the so-called Pro-IP bill. The session was wonderfully free of rancor. The Copyright Office had prepared a list of issues that were thoroughly explored in great detail by the participants in a professional, constructive manner, with the exception of a gratuitous, buffoonish attack on the Google/YouTube deal by the NMPA. David Carson, Associate Register of Copyrights, was the moderator, and did a masterful job of keeping the proceedings on track and on point.
Speaking were proponents of the provisions, opponents, and those who were neutral. Legislative history, Congressional intent, and case law were also reviewed. Lawyers who litigated spoke of their experiences; non-lawyers spoke of their experiences. RIAA's representative said little. I had not intended to say anything about the meeting, but I was provoked by a comment from a representative of the RIAA quoted in an article by Andrew Noyes in the current issue of TechDaily: "[A] lobbyist for the Recording Industry Association of America said opponents of the section tried to turn what was supposed to be a narrow conversation "into a referendum on the copyright system in general."
That statement is completely false, and is a sad effort to denigrate what was a productive exchange of views among a diverse cross-section of interests. The statement is at the same level as Bill Clinton's remarks after Barack Obama's win in South Carolina. The parties who opposed the provision as well as those who supported it stayed on the high ground (with the one exception of NMPA), focusing on the question of statutory damages and how to recompense copyright owners for their monetary injury. No one attacked the system of copyright, and no one suggested that copyright owners should not receive every penny of their actual harm, nor that they shouldn't receive statutory damages at their election. Opponents of the proposal asserted that the existing regime did adequately recompense copyright owners, a point the proponents were never able to dispute despite repeated requests to do so by the Copyright Office. Their silence was prolonged and embarrassing. But a request that proponents of legislative change make their case is in no way a "a referendum on the copyright system in general." And if it is, Mr. Carson was a part of the cabal because he repeatedly pressed the proponents too.
When the RIAA was falsely accused recently by the Washington Post of taking a position in a brief it hadn't taken, I stood up for RIAA, and would do it again, but RIAA should itself do unto others as it would have them do unto it, and it is most ironic that a process set up by the sponsors of the legislation to flesh out the need for legislation supported by RIAA should under attack by RIAA.
It is also time for the RIAA (and NMPA in its usual role of Toto) to stop hiding behind photographers' skirts in pushing what is an unwise, gluttonous proposal: the proposal is not new and has nothing to do with photographers; it is a recycled proposal whose origins lie in the MP3.com litigation. The purpose of the amendment is not to clarify Congress's intent because Congress's intent is already clear; the purpose of the amendment is not to correct the courts, because the courts have done a pretty good job in interpreting the statute; the purpose of the amendment is not to provide needed flexibility in the award of damages because the current law already has tremendous flexibility; rather the purpose of the amendment is to hand a windfall to those who have too much already and who will never be satisfied with more.