Tuesday, September 23, 2008

Copyright Violation: Every Artist's Birthright

A couple years ago I took a class on Pro Tools and studio production techniques. I took it at a little community college, but it was a good class. My teacher needs music for a new class on podcasting and broadcasting, music he can give his students to use without fear of getting sued, so he sent out a mail to all his students - and I'm in the difficult position of figuring out which of the songs on my music/art site are legal.

Think about that question, because it's a question many musicians and artists have been asking for the past twenty years or more: which of my artworks are legal? Anybody who's ever heard sampling in hip-hop and electronic dance music, or seen graffiti on the side of a wall, knows that some art is legal and some art is criminal.

It's an insane distinction. Art is a way of communicating. If some forms of communication are legal and others are illegal, does that mean some thoughts are legal and others are not? Could the rise of police states be tied to this idea? Is it a good idea to raise children who all take for granted that some ideas are legal and others are inherently wrong?

This is not how things always were. This is a side effect of bad laws.

Lessig's well-known on the Web and copyleft is a cause célèbre here. What he doesn't mention, and what a lot of people don't seem to remember, is that this fight began before anybody ever bought a modem. It began in the music industry, with artists asserting a new form of artistic freedom.

The new freedom: sampling. The artists won the fight in Europe, and lost it in the United States.

After Public Enemy released It Takes A Nation Of Millions To Hold Us Back in 1987, every kid in England sold their guitar and bought a sampler instead. In 1988 England discovered house music, and all those samplers were right there ready to use. Europe in general and the UK in particular experienced a musical Cambrian explosion. The ubiquity of sampling in electronic music created a gigantic industry and a staggering range of subgenres.

Meanwhile, in the States, the record industry staffed up on lawyers, and set up a system for licensing music which basically requires that whoever owns the copyright on whatever you sample A) likes you, B) likes your new song, and C) charges you what you can afford. In practice, this doesn't happen often. Albums like Nation Of Millions or the Beastie Boys' Paul's Boutique, which used abundant samples to create a new sound, would be legally impossible today.

The discussion usually centers on laws, but that's only part of the picture. In the US we have a very important law protecting free speech and freedom of assembly. In the UK, the government enacted a law which criminalized anyone playing "sounds wholly or predominantly characterised by the emission of a succession of repetitive beats" on any kind of sound system with more than one person in attendance. Yet it's the US where artists lost the fight, and the UK which created an entire subgenre based around just one sample, and a flourishing industry around that subgenre, including magazines, superclubs, and weekend-long parties in Amsterdam with all-expenses-paid travel packages.

It's good for the economy. It's good for the artform. It's good for the country. And most important of all, it's just good. Restricting artistic freedom is bullshit.

This is why I support graffiti - not just as an artform, but as a political act. If you throw up paint on somebody else's property - or better yet, government property - you're saying that your right as an artist is more important than a property-owner's right to their property.

That's where the debate has to start. The property-owners - especially the corporate ones - should have to fight just to have their rights to property recognized at all. Saying property matters but artists count too is exactly the cowardly, begging-for-leftovers bullshit that lost us all the sampling and innovation in hip-hop while Europe was building whole industries on a new artform which we discovered and created. Property doesn't matter. Art matters.

Anybody who ever joined a debate team (or dated somebody that did) will notice my argument that property is less important than art invokes the economic benefits of this attitude. I'm not going to bother clearing up that contradiction - anybody who opposes graffiti or drum and bass just doesn't deserve the effort it would take for me to make sense - but I will tell you it's at the core of a fantastic book I highly recommend.

The Pirate's Dilemma, in a nutshell, is that punk rock, anarchist attitudes drive successful capitalist enterprises. This is something Thomas Frank observed from another angle in The Conquest Of Cool - anti-establishment attitudes drive the founding of new businesses much more successfully than they do the overturning of actual establishments. The Pirate's Dilemma goes one step further, saying that if you've got a great idea, there's no point waiting for the law to catch up. The only way the law knows how and when to change is when it starts punishing artists and entrepreneurs for creating new things, and then people vote against the laws these artists and entrepreneurs violate.

Laws expire. There are laws on the books in Massachusetts which state it's legal for a man to beat his wife as long as the cord - that's the piece of tree he's beating her with - is no thicker than his thumb. This law is no longer enforced, and newer laws contradict it. In an ideal world the legislatures repeal every law that expires, but in an ideal world, the legislature is qualified to make laws in the first place.

(Relevant but probably doomed link.)

In the real world, there's a constant battle to define what laws we should have, and part of that battle is proving how some laws we already have are just plain wrong. Copyright law is just plain wrong. To have a literate population, we need to destroy it. To have artistic freedom, we need to destroy it. To enable many forms of internet commerce, we need to destroy it, or at least give up the idea of protecting it. It's the job of artists and entrepreneurs to destroy copyright law before it causes any more harm. Laws restricting what ideas the population can express threaten democracy.