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However, given that a) listening to music isn’t speech in a legal sense (I’m actually guessing here, and I’d wager that there aren’t any rulings to the contrary, but I’m ready to stand corrected) and b) labels aren’t required by law to use DRM (right?), how does this add up to prior restraint?

Again, not picking fights, just interested in the response.

http://www.boingboing.net/2008/11/03/video-the-cowsills-o.html

One more minor point re: your above assertion that BB is linking FREE DOWNLOADING with anti-DRM civil disobedience. To me, they’re doing the vast majority of work in just exposing what the hell DRM is, why it’s idiotic and unconstitutional, and how the labels and tech-corps are making themselves look ridiculous trying to defend their actions. I don’t see much if anything in the way of BB rallying the troops to steal music from artists, but then again, I could be missing a whole lot of posts here.

Keep in mind as well that while BB might call to light artists who give their music away for free as a good thing, that artists of all stripes have always done this sort of thing, to varying degrees! The decision ultimately falls to them, as you say in your own post. But again, I don’t agree that the only solution for artists to get money to make art is the major label structure that we’ve got going right now. That’s just absurd.

And as I said, there’s a clear difference between the stakes involved in the Patriot Act and DRM, but at their core, as I also said, they’re both issues of privacy, which is undeniable and obviously where BB gets involved in the matter. Again, I don’t think it’s their key cause, but I do think they’re doing a lot of good in this regard. They’re a tech-blog, first and foremost, and at this point, DRM/DMCA is the tech area that gets the most traction with their audience. I don’t know if their writers are cut-out for analyzing the “complexities and ambiguities of the music biz”–and look what happens (as you did in your Idolator post) when dumbasses try to talk about stuff they shouldn’t. Taking the PAC step, as you recommend, is a lot easier said than done, but I agree that it would be a positive one.

I guess we’d have to do an actual study to settle this one way or the other, but I do think that BB’s well-written, thoughtful, and convincing explanation of these issues has caused the rhetoric online (and, consequently, people’s thoughts) about downloading music to become considerably more extreme. Talk to Maura in this regard about all the “we deserve free music!” nuts she comes across on a daily basis. I don’t think it’s the volume of BB’s free music postings so much as their connection between that and their totally on-the-money attack on the DMCA and related issues. If the government is invading your privacy by forcing you to pay for DRM-enabled music, then downloading free MP3s is a form of civil resistance, right? But hey, it’s really not. BB has made this into a moral issue, which I feel very strongly is a bad idea and fundamentally untrue, though it seems like you disagree. By making it a moral issue, it makes it ethically OK to download MP3s, when I think it’s a clear gray area. I think it would be more responsible of them to get into the ambiguities and complexities of the music biz right now, instead of just connecting those legitimate DRM/DMCA legal issues to the more biz or artistic issues of downloading music.

Like you said here, there’s a very basic legal objection to all this: it represents prior restraint, and that’s unconstitutional. It’s also profoundly contradictory, which is a very bad thing for a law to be. Those are entirely valid reasons for it to be overturn the laws. But again, BB and everybody else involved have escalated this to the point where, to them (and to you, I guess), there really is a value to comparing the DMCA and the Patriot Act. But honestly, from my experience, if you made this comparison to anyone outside the tech-nerd realm, even someone well-versed in the issues involved, this would seem absurd. And if you did it to someone not versed in the issues, they would look into it, notice that one deals with the government being able to listen to your phone calls and the other deals with a company putting a cookie on your computer, and would be a lot less likely to take the issue seriously. I think with those 7.5 million viewers, BB would be a lot better served by forming a PAC, collecting donations, and hiring a lobbying firm. Otherwise it just seems like people are trying to make themselves feel like they’re involved in this very important political struggle when in reality they’re just arguing about mining regulations.