Earlier this month Don Henley settled his lawsuit against U.S. Senate candidate Chuck DeVore, a California Republican, for the politician’s unauthorized use of “The Boys of Summer” and “All She Wants to Do Is Dance” in YouTube campaign videos. DeVore apologized, paid an undisclosed sum and said in a statement: “The court’s ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works.” (Henley and his co-songwriters, Mike Campbell and Danny Korchmar, filed the suit in April 2009, and a U.S. District Court judge ruled in their favor last June.) When Rolling Stone asked Henley for comment, he responded with an exclusive treatise on copyright law. His views on what Congress should do to prevent illegal file-sharing are surprisingly conservative, and he blames “online retailers” for “bullying” the recording industry into dropping its largely ineffective campaign of locking up music with digital rights management.
How satisfied are you with the terms of the settlement? To what extent would you say this result is a victory?
I was disappointed that the judge declined to rule on the question of “willfulness” and also on damages, but the ruling he did hand down is a precedent-setting victory for all songwriters and publishers in the U.S. This is a moral victory for creators of music in a time when the rights of creators are being flagrantly disrespected and eroded.
Under what circumstances, if any, might you authorize the use of one of your songs for political purposes?
We don’t license our songs for political purposes, just as we don’t license them for commercial uses. We don’t write these songs for the purpose of selling products or people.
What needs to change about the way the U.S. enforces copyright law in general?
While the onus of legally pursuing infringement has always been on copyright owners, the U.S. Copyright Office clearly has not been a strong enough advocate for copyright owners, particularly when you look at its most recent decisions. I think that fact has been lost over the last 10 years, especially with respect to digital media.
Because the Copyright Office is a part of the Library of Congress, and the mission of a library is to provide free access to the public, there is an inherent conflict of interest. Perhaps the time has come to separate these institutions so that they are not at cross-purposes. After all, the Patent and Trademark Office is part of the Department of Commerce and, since U.S. music, film and other creative copyrights comprise one of our country’s most lucrative sectors, here and abroad, moving the Copyright Office under Commerce Department’s umbrella might be the most effective way of enforcing the law.
How should Congress and/or the recording industry change the way they fight online copyright infringement?
Congress should amend the Digital Millennium Copyright Act (DMCA), eliminating or dramatically limiting the Safe Harbor provisions so that ISPs [Internet service providers] and websites such as YouTube, MySpace and Facebook have legal liability for hosting infringing content. Just as distributors and retailers have equal liability under the law for distributing and/or selling bootleg or infringing music, films, software, and other intellectual property, so should online companies bear similar liability at law.
Without this change, copyright owners are left with the unjustifiable and oppressive burden of constant policing of the online companies’ sites, which has little real effect on the continual problem of infringement of property, and serves mostly to embitter fans and the users of these sites. The recording industry was bullied by online retailers into removing protective measures, such as DRM, from their sound recordings or else facing the prospect of these retailers refusing to distribute their catalogs. Yet, so far, digital royalties on music have failed to live up to the hype; in fact, removing such protective measures has increased the theft of music and other intellectual property.