When Congress passed the Digital Millenium Copyright Act (DMCA) of 1998, it was an unmitigated hand-out to the recording industry. Now the Recording Industry Association of America (RIAA) wants to revisit the debate to litigate the “tech industry” this time. Ironically, the tech industry was in its infancy at the passage of the DMCA: Google was founded in 1998, Facebook, Twitter, YouTube, Spotify, and SoundCloud were not even imagined at the time.
In a recent tweet, the RIAA announced:
It is time for tech companies and music creators to come together to fix the DMCA and prevent piracy of creative works. We did it when we passed the #MusicModernizationAct and we can do it again! https://t.co/8t4HqCdxWh
— RIAA (@RIAA) May 15, 2019
Well it is absolutely time to “fix” the DMCA, if by fix they mean eliminate. When the DMCA passed into law, only copyright stakeholders were included at the copyright negotiating table. Stakeholders, by definition, had to be around in order to be at the table. None of the tech companies they currently attack were around when they negotiated the DMCA in the mid 90s.
The DMCA gives record companies the ability to include Digital Rights Management (DRM) in digital music files. DRM are files that track where a file has been.While the DMCA does not mandate DRM, it does make it illegal to circumvent DRM. And DRM does all kinds of messed up things to users’ privacy: from knowing where a file circulates to acquiring information about the users.
Furthermore, the idea that the RIAA has the interest of “music creators” is entirely disingenuous. Record labels exploit musicians. When an artist signs a record contract, they receive an advance on future revenue. They have to pay back the advance from their portion of the royalties. Record labels begin to profit long before artists see any money, and most signed artists see no money.
The RIAA is a lobbying group that works for major record labels. By characterizing themselves as representatives of music creators, they do more than just rhetorical harm. The problem is that the public, and Congress, wants to believe that the RIAA has their favorite artists interests in mind. However, as I’ve argued, this gives them the leverage to strengthen their position in the music economy, and further exploit those same artists.
In the early 2000s, teenagers downloading music were the RIAA’s bad guys. Today they want you to believe that the “tech industry” companies are the bad guys. This is what I call the “Piracy Panic Narrative.” We can’t be fooled into allowing Congress to make wholesale changes to copyright law again to advance the interests of a corporate oligopoly.