It's kind of amazing how frequently those who argue and advocate for more draconian copyright laws show themselves to be totally out of touch with actual culture. In fact, it frequently seems like they want these laws to prevent new forms of culture simply because they don't like (and don't understand) the culture. For example, Michael Geist notes that Leah Pinsent, a Canadian actor, appearing on behalf of the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), spoke before the government, arguing against a "mashup" provision in the proposed copyright reform, which would legalize non-commercial, with attribution, mashup works. According to Pinsent, this idea is immoral:
Ms. Pinsent is fighting to prohibit so-called “mash-ups,” which allow anyone to take elements of works that Canadian artists have created and mix them with other works to create something new. She argues the practice is “morally wrong” and constitutes a form of plagiarism.
Of course, plagiarism is when you take someone else's work without attribution (and is separate from copyright law). Under the proposed law, attribution is required, so it's not clear what Pinsent is so upset about, other than that she just doesn't like mashups. But, as we've seen over and over again, this just appears to be cultural snobbery by someone who doesn't know much about mashup culture, no different than past generations who looked down on jazz, rock, rap or any other "new" music that they just didn't get. Nothing in a mashup takes away from an older work. There's this weird belief that someone doing something with your work somehow "damages" the original, but nothing is further from the truth. Mashups quite frequently introduce new audiences to old works and create new appreciations for old works. I know that's absolutely true with me. When I listen to various mashups, I'm always much more interested in hearing the originals. So I'm at a loss as to how it could be immoral or bad.
Of course, Pinsent isn't completely alone in this view. After all, much of the world has "moral rights" built into copyright law, which allow creators to block others from modifying their works on "moral" grounds. In fact, moral rights are required under the Berne Convention (something the US has skirted by granting them in an incredibly limited fashion such that they really don't exist). But I've never understood how there's any actual moral claim behind moral rights. How is it "moral" to block others from creating something entirely new? It seems, once again, to be based on the idea that the new somehow "harms" the old, but I've yet to see an argument for how that makes any sense at all.
One phenomenon we often write about on Techdirt is how the internet has completely killed the music industry and how it has turned our world into a culturally barren wasteland, deprived of art and even joy. More accurately, we write about people who say such things and point out the inaccuracies, ignorance or basic flaws in their logic.
Critically acclaimed pop culture critic Simon Reynolds was recently interviewed by Andrew Keen and made a bunch of generalizations and claims that are in seeming contrast with his progressive outlook previously shown in musings about punk and post-punk, as well as rave culture.
The interview starts off as you expect it would:
"It's much less likely that you'll be able to make a living doing it."
And how have you measured that 'likelihood'? Even if there are less people making a living from making or performing music, a claim for which I have yet to see good proof, is it really less likely that anyone will be able to make a living off of it?
Instead of backing up his claim, Reynolds continues and discusses the way things used to be in a romantic tone which doesn't change as he compares the old label-centric model to a "lottery", with artists usually having to get "in the red." Misplaced nostalgia. What a long way we have come from that - from a world where artists were at the mercy of corporations to a world of empowered artists in which they are at the mercy of their fans, their customers.
In fact, people have a much larger chance to make a living from music these days. This can be witnessed very clearly in electronic genres, where it is the norm for people to start as 'bedroom producers' and, if they're good enough, they'll get picked up by blogs, then labels and will then be able to build a proper studio and make a living from touring. If they're good enough, according to fans and curators within their niche - not according to label execs or music journalists. Anyone can become a producer and anyone that manages to find an audience and connects with them properly has the opportunity to start making a living from it. It's not easy, but at least it's not a lottery.
Next claim:
"A generation has come along who don't think they should pay for music."
Then explain Justin Bieber. Where does the demand for his merchandise come from? Who is attending his tour events? About 30% of all music recordings are still bought by people under 30, the generation that grew up with the internet. Even the RIAA's numbers show it. That does not take into account live shows or other ways of 'paying for music'. True, the same group used to be responsible for 45% of the purchases, but that still doesn't mean they don't believe in paying for music. Just because only 20% of teenagers will clean up their room out of their own free will, that doesn't mean an entire generation has come along who don't think they should clean. Then again, where would music be without people talking about new generations they do not understand.
Reynolds continues:
"I think there's something about paying for music that makes it more intense; you've got to listen harder to music. If you pay for it you're going to pay attention to the record you bought and get your money's worth."
Does music that depends on the psychological phenomenon of cognitive dissonance really deserve to be bought? At the end of the day, music being available in a 'feels like free' manner, for instance via YouTube or Spotify, means that your music has to stand out. Either by being really good or by having a unique sound. Preferably both. Quality gets rewarded with attention and attention is what can be monetized down the line. No more lotteries.
Then follows a breakdown of mash-ups. Two lines really stand out:
"A mash-up is not something that you'd really want to listen to more than a few times because it's like a joke, isn't it, really?"
"And they're not adding anything. They're not adding--they're not a contribution to the future of music, I don't think."
Come on! That's what my parents said about house music when I first heard it as a kid. Those statements, especially the latter, sound like an echo of the criticisms early rave innovators like Shut Up And Dance and The KLF received from the previous generation that did not understand the new revolution in music.
Perhaps some explanation is needed. Part of the mash-up culture is indeed like an out of control meme - nerd humor at its finest, focused more on the joke than on the art. However that's definitely not what all mash-ups are. Take a look at this live mash-up by Madeon, which we covered a while back:
Or look at Girl Talk. Or look at absolute classics like De La Soul's 3 Feet High And Rising album, which is basically composed of intricate mash-ups layered with raps. The same for the Beastie Boys' Paul's Boutique album, of which someone composed a great Spotify playlist with all the tracks that were sampled on the album by the way.
Many new, trendsetting genres, such as dubstep or moombahton, rely or have relied heavily on remixing, altering or mashing-up previous works. The outright dismissal of mash-ups as a contribution to the future of music is nothing new though. This dismissal was false when hiphop and house DJs started mashing up disco and funk records in the late 70s and early 80s, and it is false today. Mash-up culture is pop art on steroids.
After Keen notes that "you're not allowed to be on TechCrunch and be too miserable," they aim to end the interview on a cheerful note and start talking about radio (yes, really).
"Anything that can take on the role that radio used to have and deliver new things to people that they're gonna like. It's gonna prosper."
I think he's on to something there. Personally I have very high hopes for something called... the internet. It's common to see people looking for ways in which 'new technology X' can replace 'old technology Y', although that's never the people that grew up using the new technology. The internet's purpose was never to create a way to replace old technologies with some a single new alternative. What the internet has done is take all the different roles of radio such as curator, broadcaster, gatekeeper, commentator, critic, entertainer and more, and it has separated or perhaps eliminated some. Now anyone can take on one of those roles or any combination thereof. It's no longer something exclusive.
Hope you don't mind the sarcasm here and there, Simon. You've got a great mind, but I couldn't let these claims go by unchallenged. If you'd like to retort, please get in touch. We'd be glad to feature it on here.
Personally, I think this is an awesome time for both musical artists and fans right now. There is so much opportunity and freedom. I think it's a great time for music and perhaps it will take some more years and further disruption for some folks to finally be able to see that -- just like the general music industry's shifted opinion about that De La Soul album mentioned above, which was initially met with plenty of animosity from the traditional industry. Luckily, true pioneers ignore such animosity, move on and set the standards for tomorrow for both musical artists and fans.
Aaron DeOliveira alerts us to a wonderful presentation by writer/artist/poet Austin Kleon called Steal Like an Artist. It's a little less than 8 minutes, but worth watching:
There's a lot in there that will sound familiar if you're a regular reader, but it goes over the simple fact that content creators always build on the works of those they come across, whether on purpose or not. There were two lines that really caught my attention. The first was this one:
You are a mashup of what you let into your life.
We keep hearing from people who seem to think that the only "real" art is art that is wholly original. And, yet, they can't point out anything that really is original. All art builds on the works of others. There's simply no getting around that. The second line that caught my attention:
Imitation is not flattery. It's transformation that is flattery.
I'm not sure I agree with that statement, but it made me think. I actually believe imitation may very much be a form of flattery, and furthermore that imitation very often is what leads to transformation. In many cases the first step of transformation is, in fact, imitation. But I fear the situations where we make it illegal to imitate in large part because without being able to imitate, we often lose the ability to transform and build and create something special.
I'd never heard of Kleon before, but it appears that this presentation is a short version of a longer talk that he's actually turning into a book. Should be an interesting one to watch out for.
Reader samkash points us to a recent interview with The Goo Goo Doll's John Rzeznik by Mike Ragogna. There are two bits in the interview that will be interesting to folks around here. The first is that he admits that he doesn't really like the official video for the band's new single... but mentions that he much prefers a fan-made video found on YouTube:
MR: Yeah. Now, "Home" is your new single?
JR: Yes.
MR: And it comes with a video.
JR: I've got to be honest, man, I don't really like the video. They kind of wanted to do this sort take off on Lost In Translation, and I'm doing a hundred things, and I'm like, "Sure, okay, that's fine. Let's do it." You know, there's another video out on YouTube that the fans made. They sent in little video clips and some woman edited them together, and I think it captures a lot more emotion than the official video did.
MR: Often, fans do know what's best.
JR: They do, they always do.
Stories like this always amuse me, because, of course, it wasn't that long ago that all we heard was how evil such "infringers" were, in creating their own videos "using music that doesn't belong to them." It's always nice to see musicians realize that fans making videos are fans making videos, rather than threatening them with infringement claims.
The second interesting bit is the fact that Rzeznik admits to using Limewire to find a song that he couldn't get on iTunes. This is, of course, why many folks use tools like Limewire, but if you believe some of the people speaking out against file sharing, you would hear that it's "destroying the music business," how no real musicians would ever use file sharing programs, and how the only reason people use stuff is because "they just want stuff for free." Not only does this show, yet again, that there are other reasons why some folks use file sharing programs, but in this case, Rzeznik not only downloaded the song, but it resulted in the Goo Goo Dolls covering the song he downloaded on their latest "deluxe version" of the album.
MR: Something For The Rest Of Us also is released as a deluxe version with a digital download of "Home," a signed lithograph, and three bonus tracks--Flesh For Lulu's "Postcard From Paradise," Pete Townshend's "Rough Boys," and the Kinks' "Catch Me Now I'm Falling"?
JR: Yeah, yeah.
MR: What inspired the covers?
JR: Well, I love that Flesh For Lulu song. It's such a great song, and I was looking through the old CDs and stuff trying to download it online. Actually, I have to confess that I went to Limewire and found a copy of the original song because I couldn't find it on iTunes. So, if I ever run into the guys from Flesh For Lulu, I promise I'll give them a buck (laughs). It's just such a great pop song, and people don't write songs like that very much anymore.
I'll have a post forthcoming sometime soon about a very interesting book on the value of companies being able to imitate and build on the work of others, but there are times when you can see it in action. Jack Everitt points us to a short, but fascinating blog post by a guy working with contract manufacturers in China. While there, he went around looking at some of the gray-to-black market products built in China with no regards for intellectual property laws and found some unique, but interesting combinations:
Walk around the electronics markets in Shenzhen and you'll see these devices. I saw a great iRobot-branded iPad knock-off with the Android character on it, which was a pretty excellent combination of three brands.
But here's one I really liked: the G1-on-the-outside + iPhone-on-the-inside smartphone.
Of course, the traditionalists will be horrified at this sort of blatant "copying," but these kinds of "mashups," while certainly not legal, are actually an interesting way to experiment and potentially innovate, by not being hindered and held back by artificial rules that block such interesting combinations. As the blogger notes:
It's easy to dismiss these products as the work of cheats and counterfeiters, but that is only half the story. A lot of innovation is occurring in the Pearl River Delta, unencumbered by law and protocol. As an entrepreneur here in the USA, it is fascinating to observe this kind of hardscrabble creativity playing out in different ways in different places.
I think this even undersells the importance of understanding what's going on here. China is an increasingly important player in the technology space -- and, yes, much of the work they do today is imitation and copying, but it certainly isn't always that way, and it won't be in the future. Because these firms are able to experiment and innovate, where firms in other countries are blocked, just watch and see how future generations of innovation from China will come out ahead. They have the opportunity to experiment and increment and (most importantly) learn from what happens when you do that -- while those of us elsewhere are held back for no good reason at all.
Sage Ross points us to an interesting writeup by Christina Mulligan at the Yale Law School's Information Society Project, noting the somewhat mixed messages Hollywood gives people on derivative creativity. Specifically, she talks about the TV show Glee, which I have to confess to never having watched (nor even knowing anything about the show other than that it exists, and people talk about it). Apparently, however, it's about a fictional high school chorus, and while the show takes on all sorts of meaty social issues, it also displays regular acts of remixing and other forms of derivative works, many of which might get folks sued in the real world, but which never mention copyright issues:
...a video of Sue dancing to Olivia Newton-John's 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue's camcorder: up to $300,000). And let's not forget the glee club's many mash-ups -- songs created by mixing together two other musical pieces. Each mash-up is a "preparation of a derivative work" of the original two songs' compositions -- an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for -- or hope to get -- the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 -- times two.
So here we are with a hit TV program, showing off how kids are doing all sorts of almost certainly infringing derivative works... at the same time we're told (by the same Hollywood folks) that such works are illegal. And, this isn't some random "well, they could sue but they don't" situation:
You might be tempted to assume that this tension isn't a big deal because copyright holders won't go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops, to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles' copyright holders tried to prevent the release of The Grey Album -- a mash-up of Jay-Z's Black Album and the Beatles' White Album -- and only gave up after massive civil disobedience resulted in the album's widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don't hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.
As the article notes, these mixed messages may be confusing, but in the end, most people know which side actually makes sense, and it's not the side that the law is on right now:
These worlds don't match. Both Glee and the RIAA can't be right. It's hard to imagine glee club coach Will Schuester giving his students a tough speech on how they can't do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law). Instead, copyright violations are rewarded in Glee -- after Sue's Physical video goes viral, Olivia Newton-John contacts Sue so they can film a new, improved video together.
So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators?
Current law favors copyright holders. But morally, there's nothing wrong with singing your heart out. Remixing isn't stealing, and copyright isn't property. Copyright is a privilege -- actually six specific privileges -- granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren't "property" in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices -- choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.
The Constitution allows Congress to pass copyright laws to "promote the progress of science" -- a word often used in the 18th century to mean "knowledge". The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me -- what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?
It's a good post and well worth reading the whole thing. But what I find interesting is that Mulligan doesn't even touch on the fact that these mixed messages are coming from the same place. The same folks who produce, distribute and broadcast Glee are the folks who insist copyright is property and that the current laws are just and good. But, even they must know, conceptually, that there's a mismatch between what the law says today and what people actually do.
Perhaps if you've been living under a pop culture rock for the past few years, you were unaware of the popular hobby of creating subtitled videos of an angry Hitler reacting to something going on in the world today, using a clip from the German movie Downfall. For example, here is Hitler responding to NBC's snafu with late night television programming with Jay Leno and Conan O'Brien:
"Someone sends me the links every time there's a new one," says the director, on the phone from Vienna. "I think I've seen about 145 of them! Of course, I have to put the sound down when I watch. Many times the lines are so funny, I laugh out loud, and I'm laughing about the scene that I staged myself! You couldn't get a better compliment as a director." Some of Hirschbiegel's favorites are the one where Hitler hears of Michael Jackson's death, and one in which the Fuhrer can't get Billy Elliot tickets
Of course, as director, and not producer, he probably does not hold the copyright and has no say in whether or not the clips are allowed -- but it is worth noting that he seems to quite enjoy them.
These two submissions came in one after the other, both having to do with Brazil, so I decided to just mix them together into a single post. Of course, it's a bit of a good news/bad news sorta thing. Let's start with the "bad news." Reader Stuart Waterman alerts us to the news that Google, owner of Orkut (the social network that is amazingly popular in Brazil for reasons still unclear) has been ordered to pay Formula 1 racer Rubens Barrichello $500,000 because there were fake profiles of him on Orkut. If this were the US, the case would have been tossed out on Section 230 grounds (noting that the service provider is not liable for the actions of users -- even though the users may be liable). But the Brazilian court apparently said that Google is, in fact, liable because it manages the site. If you're a service provider in Brazil, you just got a reason to lock down any sort of user-generated offering. Of course, this has happened before to some extent. Remember that a Brazilian court once tried to get YouTube shut down entirely due to an uploaded video that someone didn't like.
On to the good news. Carl alerts us to the news that Brazil is considering a new copyright law that would legalize mashups and private copies. It would also allow the reproduction of out of print works. Of course, this is just the proposed bill, and you can expect that the entertainment industry is about to send in the lobbyist army to fix things up quickly. On the whole, though, Brazil has been quite good about recognizing the downsides to overaggressive copyright law. In fact, Gilberto Gil, a grammy-award winning musician and Brazil's former minister of culture, released his music under a Creative Commons license, and has regularly spoken out against abuses of intellectual property law. And, of course, we've seen stories about how forms of Brazilian music have thrived by taking advantage of the easy promotion and distribution allowed by file sharing. It would be nice if the country's laws were updated to reflect that.
Now, if only they could also change the laws to stop blaming service providers for the actions of users, then Brazil would get it all right this time.
We're still totally amazed at the Thru You album that Kutiman came up with earlier this year by mixing together a bunch of totally separate YouTube videos into a rather complete album of amazingly good songs that had never been heard before. Kutiman had to do lots of work to find the right videos playing the right music for what he wanted, but the next person looking to do something similar have a bit of help. Daniel alerts us to a new project that he's created on YouTube, called Instrumentube, which is basically a series of simple videos of a single instrument being played in a specific way, matching up with a chart on the bottom, which perfectly aligns with the YouTube slider. Once you let the full videos load, you can just start clicking on the slider in the appropriate place to get the note you want. I was going to embed a few below, but for some reason I'm having trouble getting the embeds to be at the right size so that the notes line up with where the slider is, so if you want to check out a few individually, here's a piano, electric guitar, standup bass and shaker.
Of course, by themselves they might not be anything special, but start mixing them together... and maybe with some work (and some others) you can start to get something like this:
There's been a bunch of buzz this week about a new "album" created by an Israeli musician, Kutiman, who took videos on YouTube of people playing different instruments, and mixed them together to create a series of songs (tragically, it looks like all the attention has brought down the site right now). The end result is incredible. The music is really good, even if it's based off of a mix of high and low quality clips that no one ever would have put together otherwise. Whenever we talk about the power of "mashups" or "remixed" content, there's always someone who complains that it doesn't count, and it's not really creative or new because the remixer "didn't create anything." However, I don't see how anyone can listen to the songs created here and say that Kutiman didn't create something new and amazing. But, of course, as reader Johnjac notes, in theory, those whose videos were used on this album certainly could claim copyright infringement (in the credits, you can see all the "original" videos), and perhaps they might. But it's difficult to take seriously any copyright law that says that creating music in this manner is illegal.
