The Politics of Art

NEW YORK — Greetings from day two of the 2008 CMJ Music Marathon and Film Festival. I just attended a truly fascinating panel discussion, “The Political Spin on the Music Industry,” which focused on government regulation issues such as intellectual property rights, artist royalties, Net neutrality, and the use of music in the‚ ongoing presidential‚ campaigns.

CMJ Week, in and of itself, is evidence of the fact that thousands of people are still passionate about hearing, promoting, and playing music. There’s often a resistance to bring political implications to the forefront of discussions about music, but at the end of the day, it’s legislation that shapes the music industry as we know it today.

Last week, President Bush approved legislation creating a cabinet-level position of copyright czar that will work similarly to the drug czar, increasing penalties for the infringement of copyright law and providing additional resources to prosecute piracy.

The legislation is just the latest attempt to “stop the bleeding” of the failing music industry, said panelist‚ Gary Adelman, an attorney who represents both artists and record labels.

There is also legislation in the works to require AM/FM radio to pay artists royalties when their songs are played, in an attempt to “level the playing field” between other outlets such as satellite radio, television and film, all of which do pay royalties, and traditional radio, the only medium that does not.

“Arts are an important part of our economy,” Adelman said, citing the current free-fall that has led to thousands of lost jobs in the music business and diminished returns in the past few years.

It goes without saying our next president will undoubtedly face more pressing issues than the copyright concerns of musicians and record companies (“I don’t think this will be at the top of anyone’s agenda come Inauguration Day,” deadpanned panelist Daryl Friedman, VP of advocacy and government regulations for‚ the National Association of Recording Arts & Sciences).

But, even in their campaigns, both candidates have already had to deal with copyright and fair use issues. John McCain, in particular, has faced criticisms and even lawsuits from artists like Heart, Bon Jovi and the Foo Fighters for using their songs in ads and at political rallies.

Democratic candidate Barack Obama’s position on copyright and technology issues has been vague, although one of his advisers is Stanford Law Professor Lawrence Lessig, who has denounced the music industry’s attempts to sue individuals who download illegally. Obama’s running mate, Joe Biden, is strongly against piracy, as the co-chair of the Congressional International Anti-Piracy Caucus.‚ GOP nominee John McCain has a record of championing media consolidation and consolidated playlists for mainstream radio, while Republican VP candidate Sarah Palin has not taken an official position on the issue.

However, Friedman pointed out, Obama is the only candidate who is actually a creator of intellectual property, having authored two books.

Panelist Charles Sanders, who provides counsel for the Songwriters Guild of America, criticized Lessig for ignoring the nuances of the copyright argument.

“Lessig has gone a very long distance to convince people that there is an irreconcilable difference with those who support freedom of speech and freedom of information and those who support copyright,” he said. “It’s not true. Copyright law and free speech … are not at war with one another.”

According to NBC-Universal, 70 percent of Internet bandwidth is consumed by only 5 percent of all users. And 90 percent of that is used for peer-to-peer illegal file sharing. But introducing sweeping legislation to combat this problem could limit the debate of how to handle piracy, Sanders cautioned.

“This threatens to ruin the Internet experience for everyone,” he said.

The current situation we’re in is in no small part the fault of the music industry itself, panelists agreed, which showed an astonishing lack of foresight in its resistance to digital downloads during the 1990s.

“It’s not only illegal file-sharing,” Adelman said. “It’s how the industry has reacted to illegal file-sharing, which is almost as bad as the illegal file-sharing itself. If, instead of fighting it, the major labels had embraced [digital downloads], we’d be much farther ahead now. … Spending all that time, effort and money to try to fight that tidal wave … it’s useless.”

Fifteen years since the advent of Napster, there’s now a moral ambiguity surrounding illegal downloads, and a belief among a substantial portion of society that there is a fundamental difference between physical and intellectual property, Sanders said.

“In the mid-’90s,” Gandel added, “everyone felt that people would come to the realization that, at the end of the day, stealing is stealing. I think that was one of the big miscalculations.”

There is inherent value in copyright, the panelists agreed. At the most basic level, it provides an economic incentive for the creation of art, Gandel noted.

“Art is what moves our society forward,” he said. “We’d all like to believe that people do art for the love of it,” he said. “But everyone still has bills to pay.”