Curated by Interesting People.

One of the remarkable things about having an internet presence is the gratification of being recognized by genuinely interesting people. I would’ve never guessed I’d deserve inclusion among this group.

Copyright killing culture. Old news.

A recent report by the Library of Congress has brought attention to the ways in which our copyright laws threaten the very existence of those parts of our historical memory that have been recorded. As Ars Technica explains:

The Library of Congress has released a sobering new report on the state of digital audio preservation in the United States. The Library’s National Recording Preservation Board concludes that most of the nation’s audio libraries are ill-equipped to handle the complex array of streams and digital formats by which music and other recorded sounds are released today.

“It is relatively easy to recognize the importance of recorded sound from decades ago,” the survey notes. “What is not so evident is that older recordings actually have better prospects to survive another 150 years than recordings made last week using digital technologies.”

But even those older artifacts face the prospect of being lost to posterity because of our nation’s copyright laws. So concludes The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age (PDF).

“Were copyright law followed to the letter, little audio preservation would be undertaken,” the report warns. “Were the law strictly enforced, it would brand virtually all audio preservation as illegal.”

But this threat to our culture isn’t news. My friend Andrew Dubber, among others, has been on about this issue for years. His blog, Deleting Music

is a scrapbook of material for a book I’m writing about the music industries and intellectual property in the digital age.

Specifically, it’s about the problems that arise when music is only considered in terms of its function as commerce, rather than as culture.

I’m interested in archives, identity, education, research, memory, discourse, politics, artistic expression – and the ways in which people use music as part of their everyday lives.

My concern is that because music is only represented as an economic force at a policy level, decisions are being made that threaten our collective cultural capital. And sadly, most of these decisions are being made purely in the short-term interests of corporations, rather than in the interest of citizens, for the preservation or propagation of culture – or, for that matter, the good of artists.

In following this path, we are quite literally Deleting Music.

We’ve got loads and loads of music and movies stored away, and the people who have those recordings typically have no incentive to go to the efforts necessary to preserve them because they don’t own the copyright and often can’t even determine who does. But it’s even worse than the fact the people (libraries, individuals, corporations, etc.) don’t have the promise of being able to sell the recordings. They even fear that copying the recordings so that they are stored on media that aren’t deteriorating can alone get them in trouble. As Dubber points out in quoting a recent San Francisco Chronicle story:

Did you ever imagine you could be held liable for copyright infringement for storing your music collection on your hard drive, downloading photos from the Internet or forwarding news articles to your friends?

If you did not get the copyright owner’s permission for these actions, you could be violating the law. It sounds absurd, but copyright owners have the right to control reproductions of their works and claim statutory damages even when a use does not harm the market for their works.

Want to be an innovator? Be a first follower! And Andrew Dubber is worth following.

It all started here:

And then a friend of the guy who made the video, Andrew Dubber, announced that he would make it possible for you to be a first follower:

30 ideas in 30 days

Starting Wednesday March 3rd, for 30 days, I’m going to put one idea per day up on this blog.

It could be any sort of idea: a business idea, an idea for a board game, a tv show, an observation about the world that could be turned into a book, an invention, a website idea – anything.

I’ll explain the idea in its most basic form – my humble equivalent of a 3-minute TED talk… and then I’ll walk away. Anyone who wants the idea is welcome to it, and can run with it under exactly the same terms and conditions of Derek’s idea.

I don’t guarantee that any of my ideas will be as good as any of Derek’s. That’s not what this is about. I don’t have to be as good at dancing as him, I just want to get up and dance too.

Why is music the main battleground in the copyright wars?

Andrew Dubber is an established scholar working in Britain, an author, and an online music consultant writing a book “about the music industries and intellectual property in the digital age.” He’s also writing a blog as “a scrapbook of material for” the book. The book and the blog, Deleting Music, are “[s]pecifically . . . about the problems that arise when music is only considered in terms of its function as commerce, rather than as culture.”

Two days ago Dubber raised this question: why is his focus on music when the issues he is exploring “extend[] way beyond popular music into books, visual arts, academic works, medicine… and extend[] into the realms of international trade, global politics and genuine life and death issues”? He believes that the reason is that the music industry is uniquely threatened by the commercialization of culture:

There’s a genuine cultural crisis going on in the music industries. Master tapes are decaying in vaults. Original works – by artists you’ve heard of, not just obscure and irrelevant wannabes – are not being preserved. Archives and libraries are only reluctantly being supplied with copies of released material – and not reliably so.

In music, perhaps in more than any other field, culture is not merely being prevented from being remixed – it’s completely disappearing, preventing it from forming the basis of any future works or research. And it’s that, more than anything else, that I want to communicate through this book.

This is not a hypothetical problem, or merely an unfair distribution of power. Popular music culture is literally vanishing right now. Magnetically-charged metal oxide particles are falling from master tapes as we speak.

To me, that’s important, urgent – and worthy of its own book

Music has been the center-piece in the recent copyright wars. Dubber knows better than I the impact of the music industry’s practices on the culture, but I think there’s a very good legal explanation for the music industry’s centrality to today’s copyright disputes.

In both the plastic arts and in literature there is a long history of, well, “remixing” as a legitimate method of creation. There has been in music as well, but not in quite the concrete and specific way there can be in painting and literature. Collage is a long-established artistic genre, and in literature the wholesale copying and rearranging of existing work as a composition method goes back to the foundation of Western literature in Homer. In music, on the other hand, while composition has always been a matter of reworking existing formulas, we’ve been operating in recent times on a general assumption that lifting a single note from an earlier recording constitutes copyright infringement. For long enough this practice has been the norm in the music industry that most people I know simply assume it’s an indisputable fact that if you sample anything from a copyrighted work you must pay for the sample.

But that’s a very debatable proposition. So where did it come from?

Paying for every last sampled note from a copyrighted song only became standard industry practice beginning in 1991 practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc. , 780 F. Supp. 182 (S.D.N.Y. 1991), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie’s third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s cheesy hit “Alone Again, Naturally.” Duffy wasn’t satisfied with a mere injunction; he also referred the defendants to the U.S. Attorney’s office for criminal prosecution and began his opinion, like a preacher from the pulpit with these words:

“Thou shalt not steal” has been an admonition followed since the dawn of civilization Unfortunately, in the modern world of business this admonition is not always followed.

The U.S. Attorney’s office exercised its prosecutorial discretion and refused to seek an indictment against Biz Markie or his producers. One likes to think the prosecutors were more thoughtful about the copyright issues the case raised than was Judge Duffy.

But Biz Markie’s record company did not appeal the decision and, in fact, the decision marked the beginning of the music industry’s practice of requiring permission and payment for any sample. The companies that at the time constituted the industry had a strong interest in maintaining the regime Duffy’s decision put into place (a regime bolstered in 2004 by the decision in  Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), in which the court ruled that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats). Deference to this legal regime meant that each company’s recordings were inviolate without payment. There was no economic reason to challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use was, and no matter how little impact it would have had on the market for the sampled piece. Moreover, artists who would have challenged the existing regime hardly had the financial wherewithal to take on the industry and the enormously successful artists who benefit from it. Thus, as John Pareles has written, “[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. “

Thus, the the RIAA states “generally speaking, the use of any part of a song requires a license.”

But, as I have emphasized again and on this blog, law is forced to change when the material conditions it governs change, and the ability to make and stitch together samples into compositions that can be disseminated world-wide — an ability that in 1991 was held almost exclusive by the recording industry — is now within reach of, literally, millions of people. It is inevitable that with this change the deference given to a trial court decision in 1991 would be challenged and that the arguments Judge Duffy entirely ignored in that decision would be examined anew.

But when, and in what circumstances? That is the interesting legal question right now. As I’ve previously written, Greg Gillis, who performs as Girl Talk, creates music that does nothing but violate the rule Judge Duffy declared inviolate since the dawn of civilization — Girl Talk’s work consists entirely of samples of recordings (virtually all copyrighted) stitched together into entirely new works.

Girl Talk’s work therefore has been described as a “lawsuit waiting to happen.” Gillis’s compositions include samples of recordings made by such artists as Metallica, who have demonstrated their willingness to sue people they believe have violated their copyrights, and the Guess Who, whose representative has stated ,  “We’ll chase [Girl Talk] down. What more can you do?” Yet no one, as far as I know, has yet sued Gillis. Why?

Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis’s argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I’d go after someone I am more likely to beat. Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.