A few months ago I got an email from Blogger.com regarding a blog I run in my spare time. It read: “Blogger has been notified, according to the terms of the Digital Millennium Copyright Act (DMCA), that certain content in your blog infringes upon the copyrights of others.” Blogger had taken down a post that I had written a few days earlier because it allegedly contained copyrighted material and the International Federation of the Phonographic Industry had sent them a nasty letter. The funny thing was: it was an mp3 of my own music they took down.
Maybe I should explain a bit first. Back in 2006 when I was finishing up my undergrad degree I had a part-time job DJing at a campus bar. To keep my sets interesting I’d make little blends and edits of tracks on my computer to play later on in the club. I’d take the acapella of one song and layer it over the beat from another, that sort of thing. It’s an old trick but crowds eat it up. Over time the edits got more and more elaborate to the point where I was putting in totally original music underneath the vocal tracks; I was making my own unofficial remixes.
At some point I got it in my head to remix the new (at the time) Timbaland single “Give it to Me”. I took the original, a mid-tempo hip-hop song, and worked into a whole new beast. I sped it up, added a new chord progression, elongated it by a few minutes and generally just turned it into a big dance track. As a derivative work, I was clearly infringing Timbaland’s copyright. To my surprise, people loved it. It eventually made its way onto music blogs where it took on a life of its own. I soon started getting emails from webmasters saying my remix had been downloaded 10,000 times, 100,000 times, at last count it was over 1 million times (and that was just on one blog). My little remix became a minor internet hit.
That remix kick-started a very modest music career for me. On the strength of that one song I got to tour around Canada and the US DJing and I started getting requests to do official remixes for some pretty decent artists. I even got signed to a small record label and put out an EP of original music. And sure enough, two years down the line when I got that DMCA take down email from Blogger it was one of my own remixes that was causing all the trouble. So what gives, Blogger?
My story illustrates what I think is a greater trend away from the classic model of authorship that we’re all used to and that is anticipated by the existing copyright schemes. The days of an author creating his or her work in a vacuum and releasing it to a passive public are numbered. Technology has allowed everyone with a computer become their own publisher, and it has ushered in a new dynamic and collaborative model of creativity. People are commenting, re-interpreting and re-imagining creative works in ways that have never been done before. To trot out a few well-worn examples, consider some of the most popular web sites on the internet: Wikipedia, Youtube, and Twitter. All of these sites are driven by interactivity and user-generated content. Consider even this blog post: It was written in response to Mr. Castle’s article, which itself was a response to Mr. Engstrom’s article. Reinterpretations, critiques and remixes have their own cultural value that people enjoy for their own sake, independently of the works on which they are based. I firmly believe that this culture of interactivity and individual creativity should be encouraged by copyright law, not stamped out.
The issue really boils down to this: Should I have had to get Timbaland’s permission before I made a remix of his song? Should it be up to him and his record label to decide whether people can interact with his music or not? I would argue no. If I had tried to get clearance before making my remix it simply would have never been made, and there would be one less song out there for the public to enjoy. For all its internet popularity I never made a dime off of the Give it to Me remix; but I’d like to think that if I had I would have gladly shared some of it with Timbaland. A mandatory licensing scheme would have worked perfectly as far as I’m concerned. I think this is an attitude that a lot of young creators share: Give us the ability to collaborate, comment, borrow, and remix, but when it comes time for us to sell our own original works make sure we can still get paid.
On its face, the Pirate party seems to support artists like me. They talk about fostering creativity and interactivity through copyright reform and embracing new technology, which is all well and good. But remember: These are the same people who run the Pirate Bay, the world’s largest illegal bit torrent tracker. The party is tightly knit with the site’s recently jailed moderators, and the party’s membership numbers surge with news of their ongoing legal troubles. Considered in context, it seems clear that the Pirate party is more concerned with protecting the users of its website than the creative people who generate its content. They’re more interested in stealing movies and video games than they are in “encouraging culture”.
Nevertheless, there are aspects of the Pirate party’s platform that ring true. The whole Lawrence Lessig “remix culture” is indeed a real thing, and it’s only going to become more prominent moving into the future. The law can either adapt to embrace changing ideas of authorship, or it can resist them and risk creating a permission-based culture that silences young creators in favour of established ones and their publishing companies.
7 Responses
Actually, the Pirate Party is NOT behind the Pirate Bay. The Pirate Bay used to be associated with the Piratbyrån. The Pirate Party is separate from both of those entities. (See e.g, http://af.reuters.com/article/oddlyEnoughNews/idAFTRE55623320090607)
Therefore, I believe that the conclusion that this party is in it to ‘steal’ movies and video games is misleading.
As for their goals, they are:
1. Make copyright inapplicable for non-commercial uses, shorter copyright term, ban on DRM, etc.
2. Restrict government and corporate monitoring of Internet activity, except for criminal investgiations
3. Phase out patents
http://docs.piratpartiet.se/Contributor%27s%20Brief%202007.pdf
This is a link to the Swedish Pirate Party’s “contributor’s brief” which is written to pitch itself for campaign contributions. There is a clear reference to the Pirate Bay as well as Piratbyran as being fellow travelers Pirate Party. This is straight from the horse’s mouth.
Aside from the party’s electioneering around the criminal convictions of the Pirate Bay operators.
And then there’s common sense, but don’t let that slow anyone down.
To clarify: I am aware of no information that would suggest that the party is a ‘front’ for the Pirate Bay.
It is clear that the party shares certain philosophies with the other pirate groups. And yes, it has used the events surrounding the trial of the Pirate Bay to promote its political position. It would also not surprise me that groups with common interests should communicate frequently with each other (whether they do or not, I do not know). These do not make it the same group.
The Brief does indeed mentioned the two groups. I could locate only one such reference:
“We believe that Sweden, as part of Europe, is uniquely
positioned to be the entity that breaks the spell.
First, the debate climate in Sweden is unmatched. The
Pirate Bay is known worldwide. Sweden also has an
active pirate NGO, the Pirate Bureau, and a political
party, us. Both are frequently seen on national news.”
Intent of a political party may, indeed, be difficult to ascertain. Nevertheless, there is little evidence that this party exists primarily to protect the users of a torrent-tracking web-site.
Sometimes a page of history is worth a volume of logic. There is not an appreciable difference between the legal issues surrounding mashups or remixes today with the legal issues we faced in establishing a market for remixes and sampling 20 years ago. I wrote a paper in 2004 entitled “Justify Your Thug: A critique of Professor Lessig’s defense of DJ Danger Mouse and the Grey Album” that discussed the topic and participated in a panel discussion that year in Washington with A&M artist Suzanne Vega.
The sample licensing practice I established at A&M Records in the 1990s was a series of clearance steps—starting with obtaining consent to the sample by the artist who was being sampled. Particularly in light of the success we had with the remix of Suzanne Vega’s “Tom’s Diner” that went from unauthorized to authorized and became a successful record, we wanted our artists to make the creative judgment of how they wanted their work to be represented.
Why? While the label may technically “own” the sound recording, I viewed good stewardship as requiring the artist’s participation in any license that copied their exact performance into a new, and possibly objectionable, recording. This is the principle difference between being “influenced” by another musician and “reproducing” a recording of another, between being a student of a genre and integrating the work of those who came before you into an original style through learning your instrument, through the sweat of your brow.
The most frequent reasons our artists gave for declining a sample was because the new work had misogynistic or violent lyrics, or was simply mediocre. They did not want to associate their performance—the copy of their actual performance—with a new work that they didn’t respect. And no artist ever asked why we were bothering them. They were all appreciative of the respect for their work by their record company—without regard to monetary concerns.
The law respects the labor value of the artist, the sweat of their brow from years of practicing, studying, recording, and performing, even if others do not respect their work. It’s not fair that someone should be able to take that labor value because incompetently designed cybersecurity lets them get away with it most of the time in the dark anonymity of the Internet jungle where they are descended upon by what quirky Professor Nesson calls “digital natives.”
A remixer friend of mine once said of your remix culture, “Every night, 500,000 people in the world watch live music. Five million people go dancing.” While I recognize the commercial power of shot bars, those five million people need to have something to dance to, and most of the records they like were created by real drummers not drum machines.
Some of what they dance to needs to be new and not regurgitated. And that’s where artists come in. It’s very simple. If it wasn’t valuable, no one would be willing to steal it. And if Girltalk were to do a live show, I really don’t know what would happen after he hit “play”.
And a word about my use of the term “labor value”. I can hear my old Marxisim professor chuckle at the idea that Marxism is “discredited.” I’ll say what he said when advising the class about how to succeed on the final exam—don’t say that “Marxism” has been discredited because of the failures in the Soviet Union. Marxisim as enunciated by Marx has never been implemented, so it has neither been validated nor discredited empirically, so that’s why you have to make an argument. That’s also why I got the “A” from a committed Communist. As someone who was in Berlin before, during and after the wall, and as a witness to the human suffering the Soviet system engendered, in my heart I would very much like to believe that any version of Marxism has been “discredited,” but my head tells me that only time will tell.
My use of the term “labor value” is the plain English version, the “sweat of the brow” version. Marx doesn’t have a monopoly on those words. And yes, if governments allow the systematic violation of the economic rights of a class of citizens, I believe that does violate their human rights and I am more than happy to take that case.
“On its face, the Pirate party seems to support artists like me. ”
Uh, what artists will those be – unoriginal ones?
You can put a new twist on something old, and create original art: but it’s your twist that makes it art. Therefore, you can dispense with something old completely.
I think you know this, but have tied yourself into knots along the way.
Harsh comment, Paulo. Despite the fact that you don’t see the originality in remixes I think it’s obvious that they have distinct cultural value separate from the originals — People are playing and enjoying them, after all. Clearly a remix is not the same as writing and recording a song from the ground up, but that doesn’t mean they’re worthless or unoriginal. It’s a different form of expression.
Chris, I think you might be over-estimating record labels. Without having any stats to back it up, I would guess that very very few unofficial remixes get signed like the Tom’s Diner one you brought up. In almost all cases labels commission only a handful of established producers to make the official remixes, leaving unofficial remixes as the only option for new producers.
I think it’s important to remember that these remixes are being made because people like them. There are literally thousands of creative and talented people out there, some of whom end up producing great tracks. These artists aren’t merely cashing in on the popularity of the originals, they’re reinterpreting the songs in a way that appeals to audiences. I think it’s a bit ignorant to say “they should just make original songs instead.” The fact that they are remixes is the entire point. From a policy perspective, why would you want to crush this scene that’s producing music that people love? As I said in my post, the law should be fostering this type of grassroots authorship and giving new producers realistic ways to work within the system rather than trying to stamp it out.
Oh, and for anyone who feels bad for Timbaland for being ripped off by unscrupulous dance music producers:
http://www.youtube.com/watch?v=M4KX7SkDe4Q
I agree with Stu. Even though I have limited knowledge of music, I have seen the popularity that remixes have. Also, the fact that professionals in the industry ask artists such as Stu to make remixes is also strong evidence that the music industry treats remixes as original.
Technically one could argue that very little in the world is actually “original”- at this point, it is likely that most forms of music and other creative pieces drew inspiration from a previous work of art, whether it be from 500 years ago or 5 days ago. However, I believe that is a complicated argument to make and should be left out of the IP debate (for now).
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