Copyright-law tempest in a neo-bluegrass teapot
Say what you want about Mumford & Sons. Call them hypocritical megalomaniacs if that's how you feel. But whatever they are, they're probably not hypocritical megalomaniacs who want to keep you from sharing their CDs with your friends — no matter what you might read in this slow post-Christmas news week.
On Sunday, the usually quite reliable Wired reported that copies of the U.K. roots-rockers' mega-selling 2012 album Babel contained fine print that apparently banned friends letting friends borrow their records. To wit: "The copyright in this sound recording and artwork is owned by Mumford & Sons. Warning: all rights reserved. Unauthorized copying, reproduction, hiring, lending, public performance and broadcasting prohibited." The contentious word here was "lending."
Wired cites a San Francisco-based lawyer who raises legal, political, and social questions about the Babel copyright notice. A representative from the nonprofit Electronic Frontier Foundation is quoted as calling the notice "outrageous." But the trouble is, we've poked around a little bit, and you know what? Shockingly, Mumford & Sons didn't invent the boilerplate language on the back of their CD, and this is actually no reason for renewed outrage.
A quick Google search reveals more than 200,000 instances just online of the exact sentence above about unauthorized "lending," including in transcriptions of the text from records by Pink Floyd, Metallica, Shania Twain, Mars Volta, Rob Zombie, Rammstein, Bryan Adams, Vangelis, and more. And that's just the discs where people bothered to post the full liner notes, copyright disclaimers and all, online! Soundgarden's Superunknown? Super-unlendable. A letter to the Los Angeles Times quotes this text appearing on a cassette from as long ago as 1992. So if Mumford & Sons are being jerks, so are a bunch of other artists from the past 20 years.
Here's what probably happened. Yes, as information-wants-to-be-free true believers will all too quickly tell you, the United States has a "first sale doctrine" that allows you do pretty much whatever you want with a given work after you've bought it. But the European Union, of which Mumford & Sons' native Britain is a part, obviously follows different laws. And in 1992 the European Commission passed a directive requiring member countries to grant authors of copyrighted works a rental and lending right. "Lending," as the European Commission's website makes clear, refers here to "institutions such as public libraries," not to what you do with your friends.
It's also worth taking a look at the bigger picture here. Although the copyright debate is often pitted as one of virtuous Internet users against greedy record labels and movie studios, the more relevant battle concerns not civil liberties but, as always in American society, business interests. Technology companies have a legal obligation to maximize shareholder value, and they're locked in a zero-sum battle with copyright holders. Demonizing the artists is good business for tech companies who would rather not pay royalties. That's partly what's happening in the Pandora-led push for the so-called Internet Radio Fairness Act, which artists as seemingly disparate as Rihanna and Brian Wilson have gone on the record opposing.
Or consider this year's deeply misleading debate over the so-called SOPA legislation, which, yes, did have serious flaws. But it's no coincidence the scuttled bill would've hurt tech companies while actually helping indie music labels. To put it in Mumford & Sons' favored terms — Biblical — the Goliath in these situations might actually be deep-pocketed Silicon Valley businessmen, while the David is the little labels and bands whose good names are being besmirched for no reason.
Hell, besmirch Babel's good name all you want. We sure did. But there's no reason to start burning Mumford & Sons CDs except for the music that's on 'em.