The arrests of Atlanta mixtape DJs DJ Drama and DJ Cannon have already spawned a nifty image (left) and a protest site. Has the RIAA bitten off more than it wants to chew?
First, the NYT account of how Morrow, GA police came to make these arrests belongs in some hall of fame for “fantastic accounts of insightful police work.” Two officers at a shopping mall at Christmas on the lookout for . . . counterfeit rap CDs? Right. Even if the police were acting on a tip from a competitor rather than at the instigation of the recording industry, it’s difficult to understand the shock-and-awe level of the charges unless the RIAA were somehow involved. Real criminals in Morrow are sleeping well tonight.
But the prosecution’s burdens are more than rhetorical. The DJs were arrested on felony state RICO charges, which has commenters everywhere scrambling to figure out why the prosecution isn’t preempted by federal copyright law. A comment at Bill Patry’s blog, and this post at analog hole ferret out the state law that hooks the rappers: a “true name” statute that requires that the producer of the copied discs be properly identified. The statute may or may not be “uncopyright-like” enough to avoid preemption under Section 301 of the Copyright Act, but the Times story, which relies on quotes from the RIAA’s Brad Buckles, leaves no doubt that the point of the prosecution is to stem “piracy,” not consumer confusion. And here’s a thought for anyone looking for a research topic: Does the policy rationale of Dastar, under which some trademark law claims won’t lie with respect to copyrighted works, extend to state law unfair competition statutes?
And finally, in what I think is the most interesting and provocative part of the case, this has nothing to do with adolescents and college kids run amok with Napster and Grokster and BitTorrent. The case doesn’t reduce to “file sharing is stealing.” Hip hop is a big money industry — even if few of its stars aren’t mainstream pop icons — and mixtape DJs have been an important part of its growth. This isn’t personal; it’s business. The narrative here isn’t, in other words, how overzealous copyright enforcement stifles creativity. The narrative here is that the logic of copyright maximalism requires that the incumbent players literally eat its own. Mixtape DJs were perfectly acceptable parts of the industry machine so long as their CDs were marginalized in the marketplace. Once consumers figured out that the promotion is better than the product, however, and thousands of mixtape CDs started shippiing, the logic of the machine required that the product (and the producer) be eliminated. Michael Corleone said, “Fredo, you’re my older brother, and I love you. But don’t ever take sides with anyone against the family again. Ever.” Felong RICO prosecutions of Drama and Cannon are metaphoric horses’ heads. Somewhere, Francis Coppola must be smiling. We know how the Corleone family story ends.