Republicans Should Back Recording Artists, Consumers

Friday, March 08, 2002

By Glenn Harlan Reynolds

Sen. Fritz Hollings, D-S.C., is at it again. Although he represents South Carolina, Hollings is sometimes known as the "Senator from Disney" because of his eagerness to support the interests of the motion picture and record industries and their lobbying arms, the Motion Picture Association of America and the Record Industry Association of America.

Hollings' loyalty to Big Entertainment -- which favored him with contributions of nearly $300,000 in the past election cycle -- was manifested last fall by his championing of the Security Systems Standards and Certification Act, which would mandate the inclusion of copy-protection in every digital device and every computer operating system.

And Hollings has proved that he is true to his salt, by holding hearings in support of the same idea last week, hearings at which he made no secret of his siding with the entertainment industries and against the interests of consumers.

This might seem odd for a senior member of the Democratic Party, which usually styles itself a friend of the little guy, and it can't simply be explained away as an eccentricity.

Money seems to be the explanation here. A Wired article on the hearings noted that in the 2000 election cycle, the entertainment industry gave Democrats a whopping $24.2 million in contributions compared to $13.3 million to Republicans.

So championing the cause of the little guy only counts until the bidding gets high enough.

This partiality is a betrayal of principle. As such, it represents a real political opportunity for the Republicans. Democrats do like to portray themselves as the friends of the little guy and the protectors of ordinary Americans against greedy big business -- as demonstrated by their posturing over the Enron collapse. But as Ken Layne pointed out last week, the entertainment industries make Enron's management look like Boy Scouts.

Talk about screwing the little guy: audits of record companies routinely indicate "errors" that are always in the companies' favor. (Recording artist Peggy Lee just won a big judgment, and many other artists' lawsuits are pending). Accounting is byzantine enough to make Enron's look simple.

Record companies regularly deduct 15 percent off the top of sales as an allowance for "breakage" -- a survival from the days of shellac records that now simply serves to reduce artist royalties by that amount. Despite being illegal, payola is rife, keeping interesting artists off the air in favor of the manufactured hitmaker of the week. And now, record companies -- who have allied themselves with the just-as-bad motion picture industry - want to make it a felony for you to own a computer that is capable of copying music from a CD to your portable player without paying them money, even though courts have held that such copying is entirely legal.

"Keep your grubby laws off my computer" sounds like a pretty good slogan, and it's one that Republicans could use against Democrats nationwide. A few smart Democrats, like Rep. Rick Boucher of Virginia, realize this. As Boucher puts it, these companies are "seeking to use their copyright not just to obtain fair compensation but in effect to exercise complete dominance and total control of the copyrighted work...I have told the heads of the major labels I think this is a major mistake that will engender a major public backlash." Unfortunately, Boucher seems to be a voice in the wilderness within the Democratic Party, which has forged a symbiotic relationship with the entertainment industries over the past few decades.

But what's bad judgment and betrayal of principle for Democrats is a political opportunity for Republicans, who can capitalize on that "backlash." Imagine this scenario: the Department of Justice investigates the record and motion picture industries for fraud, where artists are concerned, and price-fixing, where charges to consumers are concerned. (There wouldn't be anything bogus about doing so: I mentioned the vulnerability of the record industry to racketeering charges a few months ago at an entertainment-law panel discussion that I was moderating, in the hopes of stirring up a hot dispute between lawyers who represent artists and those who represent record companies. But, strikingly, everyone there agreed that the record companies were vulnerable on this ground.)

Meanwhile, Republican legislators denounce these industries for trying to take control of individuals' computers, denouncing the "spyware" already on Windows Media Player that tracks what you listen to, and promising to outlaw such intrusive technologies in the future. Democrats are left with a choice: side with fatcats, and against consumers and popular artists, or turn on a constituency that has been a major source of campaign funds.

Such an approach would turn the Democrats' greatest political weapons into vulnerabilities. Are the Republicans smart enough to do that?

Glenn Harlan Reynolds is a law professor at the University of Tennessee and publishes InstaPundit.Com. He is co-author, with Peter W. Morgan, of The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (The Free Press, 1997).

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