We've covered how Lord Finesse and his lawyers appear to be using copyright to stifle criticism of Finesse's lawsuit against Mac Miller, and how Dan Bull was speaking out against that kind of censorship. It's been quite clear that Finesse's main reason for issuing the takedown was to stifle the criticism, since tons of videos using the same beat remain online -- including Mac Miller's.
But, of course, as we've learned over the years, when you try to stifle free speech online, a funny thing happens. It seems that plenty of people aren't at all happy about Lord Finesse's attempt to silence Dan Bull, and they're re-uploading copies of the video by the dozen. At the time I'm writing this, there are well over 100 other copies of the video uploaded. Here's just a sampling of what the search results look like:
Might have been wiser to have just kept quiet about the damn thing. By taking it down, Finesse has now called a hell of a lot more attention to Dan Bull's rather important criticism of his actions.
On Friday, we wrote about the ridiculous situation in which Lord Finesse issued a takedown for Dan Bull's video that was critical of Finesse's lawsuit against Mac Miller. Over the weekend, Dan decided to do a "documentary" style video about the situation, entitled CENSORED BY COPYRIGHT. It's eight minutes, and worth watching in its entirety:
It does a good job laying out both the legal (fair use, fair dealing) and moral (culture, the nature of hip-hop building on itself) reasons for why Dan believes he's in the right. But it also highlights the chilling effects at play. Dan can put in a counterclaim, but if he does so he risks (1) a lawsuit from Finesse and (2) losing his entire YouTube channel, with which he's spent years building a massive following... and (1) is not a particularly far-fetched threat, given that Finesse did, in fact, just sue Mac Miller for $10 million. Clearly, he's got lawyers and he's not afraid to use them.
In the meantime, Lord Finesse posted something on his own Facebook account, implying that Dan Bull has no fair use claim, because he has ads on his YouTube channel. Of course, that's not quite how fair use works. While the fact that Dan might make some money could play into whether or not it's fair use, the fact that you monetize your work does not automatically mean you lose fair use protections. As Dan notes in his own comment, news organizations -- magazines, newspaper, TV news and radio -- are all for-profit ventures, and are probably the biggest users of fair use. What Dan was doing here was providing commentary on the news in the same way that a news program or magazine might.
So while Finesse claims that "there's a difference" between presenting an opinion and making money on ads, that's hard to square with reality, where lots of people make money while also presenting their opinions.
Yesterday we wrote about rapper Lord Finesse suing fellow rapper Mac Miller because Miller released a free song that used the same beat that Finesse used (which was itself based on a sample from jazz musician Oscar Peterson). Miller, of course, has become a phenom, being the first indie artist to top the charts with a new release in over a decade. The song in question, Kool Aid & Frozen Pizza, wasn't on Miller's album, but was just released for free online, and uses the same beat from Finesse's 90's era hit Hip 2 Da Game. And now Finesse is suing for $10 million.
In our post on the subject, we pointed to a song that Dan Bull put together, using the same beat, but as commentary/parody of this legal fight. The song highlights how hip-hop has a long history of building on the works of others, and does a nice job laying out the history with Oscar Peterson's sample being used first. And... this morning Dan Bull logged into his YouTube account to discover that Finesse's lawyers had issued a takedown on his song.
This is a clear abuse of copyright law to stifle criticism of his lawsuit. First of all, it's not at all difficult to find a lot of other songs that use the same beat with people rapping their own lyrics over them... and they all have been left up (and have been up for a while). Here are just a couple examples -- both of which have been up for over a year. And, oh yeah, even Mac Miller's own version is still up on YouTube. So basically, either Finesse and his lawyers just so happened to take down the one video that is critical of the lawsuit... or they're using copyright to stifle criticism and free speech.
Furthermore, it seems like there's as pretty strong argument for fair use (or fair dealing in the UK) for Dan's video. It's clearly using the music to comment on the lawsuit and the fact that it involves this beat. It's difficult to discuss the nature of the beat without actually being able to use the beat, as Dan did. In many ways this seems like a classic case of what fair use/fair dealing was designed for. The beat is integral to the criticism and commentary that is the whole point of the song, and is used out of necessity.
Of course, even more amusing is that the entire point of Bull's song was to tell Finesse just how bad legal action like his lawsuit against Miller really looks -- and instead of getting the message, it appears that Finesse and his lawyers want to look even worse, using the same sort of "copyright as censorship" effort that made Bull call them out in the first place.
Okay, this one is just crazy. You hopefully already know about Mac Miller. We wrote about him last year, as he was the first truly independent artist to release an album that topped the charts in over a decade. Historically, the charts are absolutely dominated by major label acts, because the major labels pay millions of dollars to "break" a record. Of course, part of how Miller became so famous is the same way tons of new hip-hop stars are rising up: by releasing free mixtapes. Even as some folks insist that giving away music means no new rap stars, you can make a pretty big list of new rap stars who came on the scene by releasing music for free -- and Mac Miller did it better than just about anyone. In fact, a few months ago, I was talking to a big time record label guy (very closely associated with the RIAA), who told me that Mac Miller debuting at number one was one of the three biggest stories of 2011, and showed that the industry was really about to embrace new models.
And, of course, it's quite common for those mixtapes to involve some sort of infringement, but generally no one has a problem with this (unless you're clueless legacy entertainment industry players), especially since these mixtapes are all given away for free, and generally do help promote those other works. It's really become the "new radio" in hip hop.
But there's always someone who lets jealousy get in the way. That appears to be the case with Robert Hall, better known as the rapper Loud Finesse, who had a hit in 1995 called "Hip 2 Da Game." You may remember it:
It turns out that one of the songs Mac Miller released for his mixtape was called Kool Aid & Frozen Pizza, which has him rapping over the same music track:
The lyrics are entirely different, but the music is obviously the same.
Note, again, that this song was given away for free in a YouTube video and mixtape. It was never sold. It's not on Miller's album. But, jealousy rears its ugly head and Lord Finesse has now sued Miller and his label, Rostrum, and the popular mixtape site DatPiff.comfor $10 million -- and the fact that this is all about jealousy is pretty clear from the details of the lawsuit. It points out that Miller got famous, in part, because of his mixtape and thus Finesse seems to think that Miller needs to pay him for getting famous. Once again, he's being sued for $10 million, because of a song which he never sold.
Of course, if you know anything at all about hip hop, you know that its roots came from rappers building on the works of others, taking rhythms and beats and putting new lyrics over them. What many consider to be the very first popular hip hop song, "Rapper's Delight," by the Sugarhill Gang, came about when they rapped over "Good Times" by Chic.
So, you might wonder, does Lord Finesse have a history of building on the works of others? Glad you asked. Why yes, he does. He's widely sampled other artists. Oh, and the music in Hip 2 Da Game? You guessed it. Sampled. It's from Oscar Peterson's excellent jazz song, "Dream of You." Tragically, there doesn't seem to be a YouTube version of that up, but if you have Spotify, you can listen to it here:
Hip hop artist/commentator on culture and copyright, Dan Bull, found this whole situation pretty ridiculous and decided to do what he does best: write and perform a song about it. And, better yet, he did so using the same musical backing track from Finesse... er... Peterson.
This is actually interesting at a variety of levels (and equally unfortunate at a number of levels). The mixtape culture and building on the works of others is really pretty core to the hip hop world. There's a mostly unspoken agreement just within the culture that as long as you're not selling the tracks, it's encouraged to take the rhythms from another and build on it. Going against those social norms which have been pretty strongly developed over the past decade plus, is really hitting back against the basic rules that the community has established for itself, outside of what copyright allows.
In fact, the hip hop mixtape/blog world has been fascinating to watch over the past few years, in part because it actually shows how cultural norms can often set the rules for how these things work, without having to fall back on copyright laws at all. Basic social pressure can often keep most people in line. But when one breaks those social norms -- whether because of jealousy, or because they think there's a quick profit to be earned -- it can come back to haunt them.
That said, there's actually an interesting tie-in to another story we wrote about recently, discussing innovation vs. permission as frameworks for how progress should occur. While we were mostly talking about technology/entrepreneurial innovation, it clearly applies to creativity as well. All sorts of music creations came about because of innovation without permission. Soul music, jazz music, hip-hop and rock-and-roll all exist basically because of people deciding to innovate by building on the works of someone else without permission. Trying to shove a permission based system into that creates massive chilling effects and limits the kind of great music that can be created. Copyright is supposed to be about promoting progress, and yet, once again, it's used to hold it back.
So, remember Lamar Smith's claim that all of the problems of SOPA are "hypothetical" and no one has shown any language as to what's wrong with the bill? Yeah, it seems that one such "hypothetical" has decided to take Smith up on his challenge. Enter Dajaz1, the American music blog that was censored for over a year and denied due process... under SOPA's predecessor, the Pro-IP Act (which many of us tried to warn about at the time it was being debated). Yes, it appears that Dajaz1 (finally relaunched) has a thing or two to say to Lamar Smith about his "hypotheticals."
Before I get into SOPA and PIPA, let’s go backwards and discuss the language of Pro-IP. Since Mr. Smith is so concerned about the language I’m hoping he can point me to the language in the Pro-IP Act covering criminal forfeiture where it states or even insinuates that it can be used to seize DOMAIN NAMES. That language doesn’t exist, what does exist is broad confusing open ended wording that apparently covers a wide spectrum of things the legislators who passed this bill never considered it could be used for. With all the assurances the bill he co-sponsored back in 2008 wouldn’t be misused coupled with the fact I’m writing this post on a factual representation of its misuse, it seems pretty rich that he’d have the guts to come out talking “show me the language.” Who cares about “language” when it’s written specifically to be vague enough to allow for a free for all?
Lets be honest here: What the worlds population hasn’t caught onto yet (and all the (‘Big Content’ owned versions of Self Serving State TV are not going to tell them) is much of the things in SOPA/PIPA that people are against, the authors and many of the co-sponsors of SOPA/PIPA already snuck into Pro-IP. The internet is already being censored, it’s already being misused, abused, free speech has already been stifled and there has already been collateral damage. All with the same open ended broad definition type language that exists in SOPA/PIPA that they absolutely refuse to narrow down as evidenced by not approving even the most common sense amendments. Many of which would have likely taken away or reduced their ability to misuse Pro-IP.
If Mr. Smith and his colleagues are genuine and sincere, why don’t they show US the language where it specifically states you cannot do all the things everyone is concerned about, make the language clear and concise, and then correct the language in Pro-IP so it can no longer function as the free for all that is already doing everything opponents of SOPA/PIPA are afraid of. Then, perhaps, I can take you somewhat seriously in your position that you believe you are doing the right thing and not just doing the bidding of corporations that bought you lock stock and barrel even at the detriment to your own reputation. One scenario makes you easy to manipulate, but genuine and willing to correct mistakes; the other just makes you corrupt. Pro-IP must be repealed and corrected immediately
But the folks at Dajaz1 are just getting warmed up. After discussing Pro-IP, they discuss how the industry has a ridiculously broad definition of "rogue website" by pointing to the infamous GroupM "rogue website" blacklist put together by Universal Music and others -- which included a bunch of hip hop blogs (including Dajaz1 itself and another of the seized blogs, OnSmash, which is still in purgatory somewhere). They also note that hip hop superstar Drake not only used the internet and free music to turn himself into a superstar... but that he did so via the exact same blogs listed on the GroupM "rogue website list.". From a press report at the time:
"You’ve gotta credit Drake, especially with NahRight and other sites, He was well-connected to those guys."
The use of the Drake example becomes pretty important, because back during the House Judiciary Committee's SOPA hearings, Rep. Ted Deutch of Florida, rather stunningly, used Drake as an example such sites. See the video here, which highlights how insane that is:
In fact, that's the topic of Dajaz1's third post in the series: just how out of touch Ted Duetch is that he thinks that, for there to be the next Drake, he needs to shut down the very sites that Drake directly used to promote his work.
REALITY CHECK: On February 12, 2009, Drake released a Mixtape called “So Far Gone” for free on the internet. This mixtape garnered so much buzz for him that he ended up touring (making a reportedly 5 figures per night), and getting several singles on the radio in the top 10 on Billboard. Drake accomplished all of this as an independent artist. A bidding war ensued by the major labels and Drake signed to a major a few months later. Despite the fact that he’d given away “So Far Gone” for free 7 months prior on the internet and it had well over a million downloads, the tape was re-released as an EP by his label in Sept. 2009 and still managed to go Gold. He was nominated for 2 Grammy Awards.
Drake came from the internet, making relationships with and utilizing the blogs, most of which are listed as so called “ROGUE WEBSITES” that have been targeted by “Private Rights of Action” in the form of a blacklist by advertising giant, Group M. Two of those “rogue sites” had their domain names seized with banners calling the operators criminals by The Dept. Of Homeland Security. (While this domain was returned last month, OnSmash is still in purgatory). No hypothetical here,this is the reality of the misuse that is happening now and will only get worse with the passage of SOPA and PIPA.
Dajaz1 also points out that the other example Deutch uses -- Adele -- also came up through the internet, and was discovered on MySpace -- just the type of site that would be significantly burdened under SOPA/PIPA. Furthermore, the post highlights numerous other top music acts directly thanking the various sites listed as "rogue sites," including some of those seized and censored by the US government under ProIP.
When Congress and the RIAA says “Rogue Websites” do they mean the tools the artists are using to connect directly with their fans and distribute their own music? I mean I’m just wondering because I could make this post 20+ pages of screen shots showing examples of artists utilizing these “ROGUE WEBSITES” the RIAA is trying to get Congress to pass legislation and scrub from the internet.
And, in fact, Dajaz1 then shows a ton of tweets from famous artists to the very same blogs that were targeted as "rogue sites" (some of which were taken down). So just as clueless Congressional Reps. like Lamar Smith, Bob Goodlatte, John Conyers, Mel Watt and Ted Deutch insist they're "protecting the artists," it appears those very same artists are using those darn "rogue websites" to not just promote themselves and their careers, but to make a ton of money doing so.
So who exactly is Congress trying to protect? The content creators or trade groups with deep pockets who become obsolete if the majors fully embrace technology and innovate? Truth be told there are some incredibly smart people in the urban internet world who’d be amazing assets to the legacy industry in adapting to the marketplace. If only they’d utilize them.
One of the most disturbing things to come out of the SOPA hearings is how gullible many members of Congress appear to be and how technically inept many are in Washington. If you don’t understand the technology it is not OK to say you don’t get it while turning around and saying you don’t believe the people who do. (I’m looking right at you Mr. Watts) Generation Gaps are no excuse, you’re in what amounts to a management position and you should be qualified to hold that position when you are dealing with my generation and our children’s generation economic future. Your lack of knowledge is not an excuse for the loss of any American’s Constitutional Rights. To essentially shoulder shrug like you’re cute when something that important is at stake is reprehensible. If anyone in Congress, The White House, DOJ, ICE, Homeland Security, or any other branch of Government’s knowledge in technology stops somewhere around 1997 then it is time to retire as you are no longer qualified to hold your position in 2012.
This is the crux of the matter here. The complaints that Lamar Smith so wants to dismiss are not "hypothetical" to sites like Dajaz1. And, they're not hypothetical to artists like Drake. The idea that these artists need such laws to protect their interests is simply laughable when you see how these artists rely on those sites to market their works, make a name for themselves, and leverage that publicity into huge piles of money from live shows or later recording deals. These aren't hypotheticals. These are all very, very real... and Congress, in its ultimate cluelessness, is trying to break the internet to "stop" these sites. And not because it will protect artists, but because it will protect the major record labels and movie studios from up-and-coming competition. The major labels don't want Drake to come up through the internet. They don't want people like Mac Miller creating best selling albums, without a major label, by using those same sites to get publicity.
So they start this huge campaign to label these new forms of distribution as "rogue sites," get the US government -- in its admitted cluelessness -- to support them, and then (to make the insult even worse) pretend that it's all about protecting the very artists who rely on these new forms of distribution.
Sorry, Lamar Smith: the threat isn't "hypothetical." It's very, very real, and Dajaz1 is living proof.
To hear some people tell the story, there's no way to become a super successful musician embracing the internet and what it allows, unless you give in and sign a deal with a major label. Of course, that seems silly. For years, we've pointed to tons of artists who would never have found success in the old "major label" system (or who bounced out of that system after not scoring the massive hit), but who are now able to make a very, very good living thanks to new business models and doing little things like connecting with fans. But still, some keep asking, where are the "chart topping" artists that come out of the internet, without a major label. Well, now there's one. Rapper Mac Miller recently debuted at the top of the Billboard charts with his debut album, despite not working with a major label. I don't think much of the Billboard charts, but if people want those kinds of traditional metrics, there you go.
Miller sold about 150,000 copies of his debut album last week and became the first indie artist to debut at the top of Billboard in well over a decade. And he did so without having a single playing on the radio (another thing that old-timers insist is a "must.") While he had some help from truly indie label Rostrum, he also worked with INgrooves and Fontana for distribution, and apparently it all worked well enough. But, of course, the real key was the internet. The NY Times points out that Miller is one of a generation of hip hop artists recognizing that "free music is an investment that pays off." Shocking. If only there had been sites arguing that for the better part of a decade... But I digress.
But the driving force behind Miller's success on the sales charts is that he's really connecting with fans. His Twitter feed has 1.2 million followers and his Facebook feed has 1.5 million fans. His YouTube channel apparently has something crazy like 176 million views. But it's not just about the numbers, but the connection. Miller has continued to tour and perform live as a way of building up his fanbase, but also interacts with them online in a variety of ways.
I'm sure, as with every artist success story we highlight around here, our usual critics will come up with all sorts of reasons why Miller is "an exception." But one by one, all of the "must haves" that the old guard insists are necessary are being shown to be total myths. Embracing the internet works. Treating the internet as a problem, doesn't.
