On BoingBoing, there’s a thread talking about “the alarming number of lawyers being appointed by the Obama administration to the Department of Justice” and how this means “Bad news for people who believe in copyright reform, and greater freedom to share, remix, and reuse content online.”.

One of the quotes cited in support of the argument reads:

First off, there’s the #3 man at Justice, Thomas Perrelli, accurately described by CNET as “beloved by the RIAA“. Not only has this guy been on the wrong side in the courtroom, he’s fingered as instrumental in convincing the Copyright Board to strangle Web radio in its crib by imposing impossible fee structures.

I don’t agree with “strangl[ing] Web radio in its crib”. Web radio can go on so long as you share copies of tracks from the publishers/artists that let you share. Magnatune has an impressive catalog of tracks you can share under one of the Creative Commons licenses. They treat their artists well, licensing from them non-exclusively and giving them a bigger cut of the take per track than any RIAA label. Magnatune doesn’t play favorites amongst their artists (whereas RIAA labels give superstars like Britney Spears and The Rolling Stones far better deals than just-signed artists). Magnatune’s feeds won’t go away if the big corporate publishers’ tracks become unaffordable to rebroadcast. You and I can rebroadcast Magnatune’s stuff in our own feeds and radio stations. I’m guessing that Magnatune isn’t the only place doing this kind of thing either, they just happen to be an organization I have learned about.

We don’t benefit from identifying “web radio” solely with the RIAA label tracks that aren’t licensed for us to share. It would be a minor unfortunate outcome to not be able to afford to rebroadcast the most popular tracks; hardly the end of web radio. This might end up turning out to be a way to push people into getting interested in media that treats them better—media licensed to share and build upon.

Even if you think music licensed to share is second-best at best and people won’t shift to second-best music, you should know that this shift has happened before. In his TED talk, Lawrence Lessig describes how people shifted to BMI and in so doing challenged the more popular ASCAP. I’ll try to summarize what I can recall: when ASCAP raised their rates over 400% between 1931 and 1939 BMI offered tunes based on works in the public domain free to their subscribers. ASCAP predicted “The people will revolt!” and stick with ASCAP’s increasingly expensive deal. ASCAP was wrong. People didn’t object to BMI. ASCAP was forced to reconsider their pricing.

I take this as a lesson for us today. If enough people show that they’ll listen to and support music licensed to share, collectively we can build a community of works made by treating artists better and promoting the work we love by sharing it with others. Perhaps we can also pressure those who license more restrictively to change their views and make that work available to us on better terms, but I’d take that as an issue of far lesser importance.

Copyfighters can demonstrate good behavior that challenges the increasingly expensive status quo which, more importantly, doesn’t support their desire to build community by sharing.