Techdirt. Stories filed under "creativity"

Dutch Government Realizes That Non-Original Works Don't Deserve Copyright

Mike Masnick — Thu, 14 Feb 2013 07:45:53 PST

For many years, we've discussed how Europe allows for a "database right" on collections of works, while the US forbids it. The US considers a database right improper, since copyright is not supposed to apply to facts and isn't supposed to be given out solely based on the "sweat of the brow," but rather to incentivize creativity. The Europeans, on the other hand, argued that the labor of putting together a database needed to be protected to create the necessary incentives for a thriving information/database industry. In many ways, this has created a useful natural experiment concerning copyright law and whether or not it actually creates incentives. The data has been overwhelming. Without a database right, the database industry in the US has thrived, while the same market in the EU has stagnated.

And yet, many in Europe (and some in the US) still see good things in such a government granted monopoly. We were just talking about how clinging to this outdated and clearly failed concept was now threatening important moves towards open data.

Thankfully, it appears that at least one European country has realized how damaging such rights are, and is moving in the other direction. The Dutch government, which has a number of politicians who really seem to get this stuff, is apparently trying to "modernize" its copyright law by removing protection for any "non-original" works such as databases. The link from the Future of Copyright site notes that the database right -- called "geschriftenbescherming" -- is being removed, as officials are noting that copyright should be focused on creativity, not merely protecting the upfront investments of publishers and printers:

The modernization of copyright law in the Netherlands will be done in two ways. Firstly, modern copyright will only serve to protect creative performances. Since ‘geschriftenbescherming’ does not cover any creative performance, this will now be removed. Secondly, the Dutch government believes copyright should not inadvertently preclude the creative reuse of existing material or the innovative use of information and easy exchange thereof. The protection of non-original works is often invoked to regulate parallel import instead of merely protecting the publisher’s or printer’s investment. By removing the additional protection under copyright law, the exchange and re-use of these works may be simplified. Also this could remove a legal barrier to the use of open data.

As noted in that last sentence, this story is almost the polar opposite to the one we just had about this same concept being used to hold back open data. This would be a nice step forward for the Dutch, and hopefully other European countries will quickly get with the program as well.

Update: In the comments someone points out that this is related to the EU Court of Justice ruling we wrote about last year, which noted that copyright rights need to include an element of creativity and that you can't just copyright facts.

Update 2: More information from the comments, which argues that, despite great similarities between the database right and geschriftenbescherming, this only impacts the latter not the former. The specific issue appears to be that geschriftenbescherming falls under copyright law and copyright law requires creativity (as noted in the story from last year). Yet database rights, fall under the database directive, and don't require any creativity (which is silly, for reasons we explained earlier). We apologize for any confusion and would like to thank the commenter for adding further details.

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Choose Your Own Hamlet Becomes The Largest Publishing Project On Kickstarter, Thanks To The Public Domain

Mike Masnick — Wed, 19 Dec 2012 14:56:44 PST

A Kickstarter project by Ryan North, called To Be Or Not To Be: That Is The Adventure, has become the most funded publishing project on Kickstarter ever, as it recently surpassed $400,000 (he was originally seeking $20,000). While we always love to see interesting and successful crowdfunding projects, this one is interesting for a few additional reasons concerning topics we talk about here: copyright and trademarks. The actual book is, as North explains, "an illustrated, chooseable-path book version of William Shakespeare's Hamlet." So, how does that hit on copyright and trademark issues?

Copyright: Even if the head of the Author's Guild doesn't seem to know this, Shakespeare's works are in the public domain, meaning that anyone can use them however they want -- whether it's to make an exact copy (and, yes, there are plenty of those on the market) or to do a derivative work. There have been tons of remakes and updates on Shakespeare's work, and many of them are super creative, such as this one. Kinda demonstrates just how ridiculous it is for copyright maximalists to argue that without strong copyright protection, creativity gets killed off. Just the opposite, it seems. The ability to build on the works of the past quite frequently inspires amazing new creativity.
Trademark: North refers to this as a "choosable path adventure" because:
"Chooseable-path" you may recognize as a trademark-skirting version of a phrase and book series you remember from childhood. Remember? Books in which... an adventure is chosen??
Yes, they're not using the widely known phrase "choose your own adventure," because it's trademarked, and the owner of the mark has sued before. Of course, the story of the mark is interesting in its own right. Apparently, Bantam Books who helped popularize the original choose your own adventure books let the trademark lapse, and it was bought up by Ray Montgomery, who had run the small press that published the original books, but had not held the original trademark on it.

So we have examples of how a lack of a common "intellectual property" law enabled greater creativity, and how a current "intellectual property" law stupidly limits the option of using the most reasonable description of the work.

Either way, the book looks absolutely awesome, and if you want in on the Kickstarter offering, there are just a few hours left.

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DailyDirt: Beer Googling

Michael Ho — Fri, 14 Dec 2012 17:00:00 PST

Beer has been around for centuries, and it's arguably responsible for the development of civilization and the prevention of waterborne illnesses. Beer is still evolving and improving as food scientists play around with the yeasts and the ingredients that go into making modern beers. Before you head off to happy hour, check out a few of these beer-related factoids.

Microbiologists are engineering beer foam that lasts longer by identifying a gene in yeast for producing proteins with better bubble stability. But will nose grease still work to get rid of the foam? [url]
It looks like beer and tastes like beer, but it's not beer. It's a soft drink. Is there a point to non-alcoholic beverages that taste like their more potent relatives? Has Star Trek trademarked Synthohol yet? [url]
Drinking some beer (or wine) could enhance creative problem solving. Being too focused on a problem might blind a person to outside-the-box solutions, so alcohol's effects on the brain might provide a certain amount of distraction to allow more free-thinking creativity. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

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Don't Quit Your Day Job: Creativity Is About Passion, Not Paychecks

Tim Cushing — Fri, 14 Sep 2012 19:39:00 PDT

There are many who argue, despite historical and ongoing evidence to the contrary, that creativity will die out if creators cannot be guaranteed some sort of livable wage. It's almost as if any creator who creates as a hobby or potential second job either a) is being shortchanged by disruption, piracy, etc., or b) shouldn't be taken seriously because they haven't abandoned their day job.

It's an odd assertion. Most groundbreaking creative efforts were conceived and carried out while the creators worked in a variety of other non-creative jobs. It was only after these breakthroughs that these artists went on to live solely on the earnings of their creative works. Somehow, we're now expected to believe that without piracy and other disruptions, creators would be making better, livable wages, possibly right out of the gate.

That whole thought process ignores the reality. Not having a paycheck tied to your creative endeavors means being able to fail more often and experiment more freely, without having to worry about hurting your current source of income. Case in point: three developers who solved a problem most companies didn't know they had, all without having to "give up the day job."

For the past two years, Brandon Medenwald, Justin Kalvoda, and Bill Burgess have held down full-time jobs while also launching their company, Simply Made Apps.

Their only product is an app called Simple In/Out, which solves a problem that drove Brandon crazy. He explains, “In my fulltime job as a web programmer, we had an old magnetic in/out board like they use in sales offices to keep track of who is in the office and who isn’t. Five or six years ago, they transitioned to a Web-based version.

“I was constantly frustrated with it, because some of the roughly 40 people in our firm wouldn’t use it. The board became extremely out of date. For years, I was joking that I could write a better piece of software in a weekend, but then over beers in a bar with two friends, it dawned on me we could solve this problem by using the GPS chips in cell phones.”

On it's face, it seems terribly simple: build something better. And yet, no one had really tackled it before. So they took a weekend off to knock out the framework early last year and since then have been refining it based on customer feedback.

For the first four months, the app was free. Last September, they introduced pricing that was based on the number of people being tracked on the company’s board. Prices start at $5 per month for 4 to 10 users, and gradually step up to $160 a month for 250 to 1,000 users.

Although the trio are far better programmers than they are marketers, today they have over 1,600 registered companies. More importantly, they have something they love so much that they occasionally use their vacations to devote extra time to their “nights and weekends” startup.

None of them hate their real jobs. None are eager to quit. They come across as smart, patient people who want to solve interesting problems that other companies aren’t solving.

Creativity very often springs from those tied to day jobs. These three don't sound even remotely "tied." It's not about sustaining yourself from a nights-and-weekend project. It's about being passionate about what you do with your nights and weekends. These days, anyone with a spark of creativity has hundreds of free-to-cheap tools at their disposal. The barriers to entry have been demolished, whether it's music, movies or software. It's not money that drives these creators: it's passion. And if you ignore that fact, and cling to past business models, you're going to find yourself trailing the pack very quickly.

“In a big corporation,” says Brandon, “I’d be fearful of the little people out there doing something that they are passionate about, because, passion trumps money.” He and his partners love what they do, and feel fortunate to be able to solve interesting problems.

Even though the company is turning a modest profit, he says, “Because we love what we do, we don’t have to be concerned about turning a profit, which means we are extremely dangerous people when it comes to our dedication to improving services

The three were able to get this off the ground using spare time and around $100 each, which covered "licenses, a Web domain, a 'doing business as' name, etc." From $300 and a few nights and weekends to 1,600 paid users, all without having to "quit the day job."

Those arguing that creativity is tied to a steady paycheck are relics looking back fondly at the days of gatekeeping, when competition was low because the barriers were too high. It has nothing to do with wanting future artists to be properly "protected" against disruption and everything to do with keeping more people out. That sounds more than a little like fear.

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EU Commission VP Neelie Kroes Explains Why Copyright Is Broken: It Was Made In An Age Of Gatekeepers

Mike Masnick — Mon, 10 Sep 2012 10:33:00 PDT

While the EU Commission has been much more copyright maximalist at times (it was the major driver behind ACTA in Europe), some on the Commission have been pushing back on such views for a while. Neelie Kroes, who is VP of the EU Commission and in charge of "the digital agenda," has been speaking out on these issues for a while. Last year, she pointed out that new business models, rather than greater enforcement was the right path forward. She's also spoken out against kicking people offline and in favor of open innovation and creation.

She's now given another talk on copyright issues, in which she notes that the world has changed a great deal in the last 14 years since Europe last reviewed proposals to update its Copyright Directive. While many maximalists would say the same thing and focus on the struggles of particular subsector -- the record labels -- Kroes properly notes that the real change (which is, in part, why the labels have struggled) is that the world has shifted from one in which gatekeepers control the means of production and distribution, into one where everyone can create and distribute works:

The last major EU copyright instrument, the Copyright Directive, was adopted in 2001. The Commission proposals it was based on date back to 1998.

Let's remind ourselves what's happened since then.

In 1998, Mark Zuckerberg was 14. Today, almost one billion people around the world actively use Facebook, to share photos, videos, and ideas.

In 1998, YouTube didn't exist. Today, one hour of video is uploaded every second.

In 1998, most people listened to music on the radio, CD or tape. Now digital downloads often overtake conventional sales. New technologies allow downloading or streaming; easily, instantly, wherever you are. Not just to passively listen, but to interact and give feedback, to creators and friends.

But changes are not limited to the content business, they affect all sectors. Huge changes have taken place in the research area. Today, new scientific discoveries don't just come from new experiments, new drugs, new clinical trials: in fact, now, we can get new results by manipulating existing data. Data and text-mining techniques now lie behind a huge field of research, like human genome projects, potentially life-saving. They could hold the key to the next medical breakthrough, if only we freed them from their current legal tangle. Research activities are not clearly exempted from the copyright rules and there are many different rules in the 27 member states.

And here's the most important change since 1998. Back then, creation and distribution were in the hands of the few. Now they are in the hands of everyone: democratising innovation, empowering people to generate and exchange ideas, supporting and stimulating huge creativity.

From there, she notes that copyright may be holding back the real policy issues that they should be focused on -- which isn't just about setting up a system for artists to earn money, but also to "stimulate creativity and innovation, improve consumer choice, promote our cultural heritage and help the sector drive economic growth." But, with copyright designed for a gatekeeper society, and focused solely on a system for certain artists to get paid, you have a broken system. As Kroes points out "you have to look at how [copyright] fits into the real world" and she notes that it's clearly lacking. Everywhere you look, copyright seems to be getting in the way of the important policy issues she mentioned, rather than helping them along:

Well for one thing, you often find that online licensing restrictions make it impossible to buy music legally. Sometimes, for example, you can't buy an MP3 across an EU border.

We have already made a proposal on orphan works and recently one on collective rights management, to make multi-territorial licensing easier. The licensing proposal is a good step forward to make it easier to legally access the music you love, especially across borders. I hope legislators are able to agree it quickly. But this tackles only one aspect of the problem.

Because there are other problems too beyond licensing or orphan works. That's why the June 'Compact for Growth and Jobs' makes clear we need to focus also on substantive copyright reform.

And quite right too. For example, I ask myself, are current copyright rules favourable to potentially life-saving scientific research or do they stand in its way?

Do they make it easier or harder for people to upload and distribute their own, new creative content? And is that the best way to boost creativity and innovation?

It seems clear that Kroes -- like many of us -- recognizes the unfortunate answer today is "no, copyright does not help those things, it makes it harder for individuals to create content and it's not the best way to boost creativity and innovation." This is why we're seeing countries finally start to look at true copyright reform, rather than just doubling down on a broken system.

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Nina Paley Explains Intellectual Disobedience

Mike Masnick — Wed, 20 Jun 2012 13:14:00 PDT

Nina Paley (filmmaker, activist, occasional Techdirt contributor, and many other things) has given an interesting interview with O'Reilly's Mac Slocum, in which she talks about the concept of "intellectual disobedience" -- merging "intellectual property" with "civil disobedience." Nina argues that if you believe in creating and sharing culture these days, copyright infringement is almost necessary, and people shouldn't apologize for it, but should stand up for what they're doing:

"A lot of people infringe copyright and they're apologetic ... If you know as much about the law as, unfortunately, I do, I cannot claim ignorance and I cannot claim fair use ... I know that I'm infringing copyright and I don't apologize for it."

The phrase "intellectual disobedience" has a call-to-arms ring to it, but Paley characterized it as an introspective personal choice driven by a need to create. "It's important for me as an artist to make art, and the degree of self-censorship that is required by the law is too great," Paley said. "In order to have integrity as a human being and as an artist, I guess I'm going to be conscientiously violating the law because there's no way to comply with the law and remain a free human being."

There's much more in the full interview:
I have to admit that I'm a little bit torn by this concept. I certainly think that each individual needs to make their own decisions about what they do when creating, but my general approach has been to avoid infringement wherever possible, and focus on convincing creators that being open and encouraging others to build on their works has tremendous benefits in both the short- and long-terms. At the same time, however, I can see where Nina is coming from as an artist who feels restricted. And that's a major concern. When the laws are holding back what artists can do to express themselves, that seems incredibly troubling. So many people have this unfortunate view that if someone builds on someone else's work (even though that's the very basis for pretty much all of human culture), something has been taken away from culture or society. The truth is the opposite: building on someone else's work expands culture, and does so in fascinating ways. It both creates something new, but also often generates new interest in those original pieces (as Paley herself did with her movie Sita Sings the Blues). Old culture doesn't disappear because someone does something new with it -- it gets revitalized.

Holding that back, for some mistaken understanding of "preserving" culture, does seem like a tremendous shame. And so in those situations I think Nina's point is a good one. Creating new artwork should never be something that people apologize for. Historically, building on the works of others is how culture has been expanded. Some of our greatest forms of culture were created exactly that way. Great plays and novels of the past were really re-imaginings of older stories. Musical forms of folk music, rock music, jazz and soul all are versions of building on the works that came before (often very soon before). Hip hop, of course, is even more directly rooted in building on top of the work of others and making something new out of it. Why should people be apologetic for doing what we've always done?

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Programmers Needed: Take Part In A Quick Study On Creativity & Innovation

Mike Masnick — Thu, 24 May 2012 19:59:00 PDT

Researchers from NYU and the University of Virginia are looking for computer programmers to participate in a study of creativity and innovation. The study involves a creativity contest that will take about 5-10 minutes. The winner will receive a $500 prize. The researchers are looking for professional and serious amateur computer programmers to participate. You can access the study here.

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The Difference Between Nuanced Discussion And The Evil Underbelly Of The Internet Is Apparently A Fine Line Indeed

Mike Masnick — Fri, 20 Apr 2012 18:34:00 PDT

We recently posted what I thought was an interesting essay by musician Erin McKeown on her reaction to seeing someone copy a song of hers, and have that other song become a "hit." We thought it was an interesting and nuanced exploration of some of the challenges of being a musician and thinking about copyright -- from both an emotional and logical perspective -- and thought it would make for an interesting discussion. And, in fact, it did make for an interesting discussion. With well over 100 comments, representing a variety of different viewpoints, there was a pretty deep dive into the myriad responses the piece brought out. Like pretty much any online discussion, some of the comments were more polite than others. But, when viewed on the whole, it struck me that the conversation was much more polite than most online discussions around copyright. In fact, what was interesting was that because the discussion was quite nuanced, most of our usual haters didn't take part. So we didn't have, for example, anyone calling me a slimy lying sociopath or a disgusting human being.

Some of the comments were pointed in their disagreement with Erin, but almost immediately others came in to defend her, and the overall discussion was quite interesting in my mind. And, yet, a bevy of the standard Techdirt critics took to Twitter to claim that Erin's article was proof positive that Techdirt was pure evil, hated artists and was the disgusting underbelly of the internet (a very close paraphrase of actual statements). I'm not going to link to any of these, because I don't mean to call out those people specifically. Similarly, there was a thread on a music site that was entitled "why does Techdirt hate musicians?" I suddenly had people tweeting at me, personally, about how I was somehow destroying music and why did I not want artists to get paid.

I honestly can't figure out why this was the response. First of all, we've regularly been attacked because (we're told) we never, ever post an article where we show sympathy for artists' difficult plight these days. So here was an article, from a musician, explaining her plight -- and we get attacked for that?!? Furthermore, I'm long since past the time when I could read all the comments on the site, but I do read a pretty large number of them, and the amount of hate and vitriol that has come from Techdirt haters (see above, for two very recent examples) is way, way, way, way beyond anything seen in that particular thread.

In fact, the further you read into the comments the more you realize it's a detailed and nuanced discussion on many important issues. People don't agree, but no one's calling each other a slimy lying sociopath or a disgusting human being. Yet, because a few commenters (not even the majority, as far as I can tell) disagree with Erin, all of Techdirt hates musicians? There were a few tweets and statements elsewhere saying that Techdirt hates it when artists make money. Of course, that's ridiculous. We regularly celebrate artists earning money -- sometimes lots of money. What we get nervous amount is when artists start making use of laws in ways that may actually do them more harm than good in the long term, by attacking their fans as if they were criminals, or when they seek to abuse laws that take away fundamental rights of others.

But, really, what was most amazing to me was how quick some of these people were to jump on the entire Techdirt community, because a few comments disagreed with one musician's opinion. They ignored everyone who came to her defense. They ignored the fact that we posted the story in the first place. They ignored all the people on other stories who attack Techdirt supporters in often extremely personal ways (I've been threatened with physical harm as well as seen multiple comments I won't repeat about my family). But most people -- myself included -- see those kinds of comments as part of the price you pay for having an open discussion. Some people are going to disagree and some will use different levels of speech, some more polite than others. To tar and feather everyone on the site because someone on it disagrees with your personal views is to suggest that every community online is a problem.

Is it that difficult to distinguish a nuanced conversations where not everyone agrees with each other... from the "dark underbelly" of the internet?

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A Manifesto For Creativity In The Modern Era

Mike Masnick — Fri, 13 Apr 2012 07:18:00 PDT

Multiple people have passed along this fantastic manifesto of modern creativity that was put together by five curators of an exhibition for Les Rencontres Arles Photographie called "From Here On."

One friend noted just how inspiring that graphic alone was, but reading the more detailed manifesto is worthwhile as well. It talks about just how much the internet and digital technologies have changes our lives, and changed the way art and creativity works -- in undoubtedly positive ways. Here's just a snippet of the larger piece:

The growth of the Internet and the proliferation of sites for searching out and/or sharing images online—Flickr, Photobucket, Facebook, Google Images, eBay, to name only the best-known—now mean a plethora of visual resources that was inconceivable as little as ten years ago: a phenomenon comparable to the advent of running water and gas in big cities in the nineteenth century. We all know just how thoroughly those amenities altered people’s way of life in terms of everyday comfort and hygiene—and now, right in our own homes, we have an image-tap that’s refashioning our visual habits just as radically. In the course of art history, periods when image accessibility has been boosted by technological innovation have always been rich in major visual advances: improved photomechanical printing techniques and the subsequent press boom of the 1910s-1920s, for instance, paved the way for photomontage. Similar upheavals in the art field accompanied the rise of engraving as a popular medium in the nineteenth century, the arrival of TV in the 1950s—and the coming of the Internet today.

Digital appropriationism
Across-the-board appropriation on the one hand plus hyper-accessibility of images on the other: a pairing that would prove particularly fertile and stimulating for the art field. Beginning with the first years of the new millennium—Google Images launched in 2001, Google Maps in 2004 and Flickr the same year—artists jumped at the new technologies, and since then more and more of them have been taking advantage of the wealth of opportunities offered by the Internet. Gleefully appropriating their online finds, they edit, adapt, displace, add and subtract. What artists used to look for in nature, in urban flaneries, in leafing through magazines and rummaging in flea markets, they now find on the Internet, that new wellspring of the vernacular and inexhaustible fount of ideas and wonders.

What I love most about this is how inclusive it is, and how much of it is about recognizing and embracing what an amazingly creative time this is for artists. All too often, we hear of artists who decry such things, who complain about the fact that their club doesn't feel as exclusive any more. For artists and an art exhibit to not just embrace, but joyfully celebrate the way creativity works today, while recognizing how these tools mean that anyone and everyone are creating art all the time, is really wonderful to see.

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A Perspective On The Complexities Of Copyright And Creativity From A Victim Of Infringement

Erin McKeown — Thu, 12 Apr 2012 15:50:00 PDT

Erin McKeown, a wonderful musician who has been very involved in some discussions on copyright and internet access -- and who was especially helpful in the fight against SOPA -- recently wrote the following thoughtful, heartfelt piece concerning the emotional roller coaster of having someone copy your work, and how all of this relates to copyright law.

I always knew my song "Slung-lo" was a hit.

It just took longer than I expected.

"Slung-lo" came out on my 2003 album, grand (Nettwerk). It found its way to the Brittany Murphy masterpiece "Uptown Girls" and into episodes of "Roswell", "Gilmore Girls", and "Privileged". It also found its way into a Tesco F&F commercial, which ran in the Czech Republic in the summer of 2008. Though not a hit by any means, it was a remarkably long life for a song that came out in 2003.

And then last year, I received two separate emails through my website pointing me to this video for a song called "Touch The Sun" sung by the Czech artist, Debbi. (editor's note: we tried to embed the official video for this song, but Sony Music refuses to allow an embed on the song).

"Have you seen this?" both emails asked. I hadn't.

From the first moment I heard "Touch The Sun," it was as clear to me as anything that someone had taken the DNA of my song "Slung-lo" and turned it into another song. At this point, my lawyer wants me to make very clear that IN MY OPINION, THIS IS COPYRIGHT INFRINGEMENT.

If you want to hear my song again, here's "Slung-lo" on YouTube or you can click here for a free download from me.

I don't want to spend a lot of time technically breaking down the two songs, but I'd like to point out a few things. Among the many substantial similarities between them, check out the lyrical content (weather as metaphor for happiness), the almost exact song structure (solo verse, band verse, double-tracked vocal in the chorus...), and the vocal cadence in unison with the descending instrumental line in the chorus. I could go on.

Debbi's "Touch The Sun" isn't the proverbial "kid in the bedroom with a laptop" who remixes pop culture and makes mash-ups to show how alike we humans really are. No, it turns out the song was written for a commercial scale beer campaign by the giant European alcohol company Metaxa, which itself is a subsidiary of the global beverage conglomerate Remy Cointreau.

And it is a hit. A huge one. Debbi was the runner up on the Czech version of the "Idol" franchise. The song won "Song of the Year" at the Czech version of the Grammys. The original video that was sent to me has almost a million hits. A quick search of YouTube reveals karaoke versions, animations, "how to play versions," and plenty of people in their bedrooms playing the song and singing along. The beer ad with the song aired across the Czech Republic more than 1200 times in September of 2010. That's about 40 times a day.

So, after all this time, "Slung-lo" is finally a hit.

The easy part of this story is that I work with an amazing publishing administrator, Duchamp, who has stepped in to help me. We've retained Czech council who have been in contact with Metaxa, Debbi's record label (Sony!), and the Slovak production house that produced the track. All have denied any infringement, declined to settle, and at this point, court proceedings have started. My lawyers estimate that this could take anywhere from one to five years.

This spring Remy re-launched the ad campaign across all of Europe.

By the way, the writers are Tomas Zubak, Peter Graus, and Maros Kachut. Let's #kony2012 them.

Actually let's not.

Instead, I want to talk about the whole host of emotions this experience has brought up for me, and the way it's forced me to confront and articulate my beliefs about copyright.

After watching the video for the first time, I was certifiably apoplectic. I was physically shaking with anger. How dare they! I wasn't so much angry at Debbi -- who, from what I eventually read, really just sang the damn thing -- as I was at the writers. They had to know what they were doing, I fumed. I mean, the song was just in a commercial there. They had to know about it. How dare they!

And then I felt small. I'm nobody, I thought, so they probably figured they could get away with it. It's not like they ripped off Beyonce. Just small-time me.

And then I felt defeated. I've always wanted to have a hit like "Touch The Sun". And I thought I wrote one in 2003. It was such a great disappointment to me that no one noticed. There will never be enough people to notice me, I thought.

And then, I would find myself dreaming. Maybe I'll get a settlement. Maybe it will be large enough to make all my problems go away. I'll be able to pay for my new record. I'll be able to afford the best marketing and publicity money can buy. And then there will be some left over to buy a house. My life will change!

Finally, I disconnected. I couldn't tell very many people about what was happening, and the feelings were overwhelming me. Ok, I thought, I'll just let the lawyers do their lawyer thing. This is why you pay them. I am powerless. Breathe deep and exhale.

Very early in the process, my lawyers asked me what I wanted to be the goal of my settlement. Did I want 100% of the money made? Did I want a flat fee? How much? Did I want a public apology? Did I want to let it go? Did I just want credit?

These questions became a spiritual exercise. I began to think that how I answered them said something about who I was as a person.

I believe that creativity is an unpredictable, mysterious process. I often have no idea where a song comes from. Other times I am more aware of the hard work. It is not always an easy thing to know where influence ends and mimicry begins. But there is also a way we recognize ourselves in the faces of our children, and a gut instinct that tells me when I am hearing my own musical fingerprint.

I thought for awhile, and decided I would like 50% of all the monies made so far, and 50% on everything moving forward. I didn't need a public apology. I think this is fair, not punitive, and given the current copyright law system and options available to me, a reasonable request.

Now I just have to wait one to five years to see how it turns out.

Recently, I've ended up doing a lot of advocacy and policy work around copyright. This isn't because I am a copyright crusader, for or against, but because the issue gets tied up with so many other things I care about: media access, fair compensation for artists, creating a sustainable music business.

I actually hate to talk about copyright because, once it's brought up, it just seems to take over any conversation. Most of the time I feel like that conversation then becomes counterproductive. People throw around complex legal principles. The jargon resembles a foreign language. Often, the emotions get so heated that a room ends up divided at just the time when we need to work together. I've also noticed that most of the people crowing about copyright aren't individual copyright holders. They're groups of people who make money from the business of policing and administering copyright.

In my advocacy, I want to talk scale. I want to talk relationships and power structures. I want to talk about technology. Copyright is part of this, but it's not the whole enchilada. I've come to think that current copyright law is like an immovable boulder in the middle of a rushing river. It's not likely to change, so I'm going to have to work with it, as it is. And not let it stop other important work.

Yet here I am facing a difficult situation where copyright is the main issue.

I recently watched Kirby Ferguson's "Everything Is A Remix" series and found it really helpful to understand the feelings that came up for me around "Touch The Sun." In part four, Kirby makes the observation that we humans are easily and freely influenced and inspired by the world around us. However, when we feel like something has been taken from us, we get very angry and indignant. Our anger is as natural and essentially human as is our borrowing or being influenced.

Really how I feel about copyright is this: can you please just ask me? I am so easily found. One or two clicks, a badly mangled combination of "erin" and "mck" will get you to me. Let me know what you're doing. Let's talk. Take some time and connect with me. I know this is imperfect. Sometimes in the creative economy, there just isn't time. But how about we try?

I'd also like us all to acknowledge that the current copyright system, the unmovable boulder in the stream, rather than protecting rights holders and acting as a deterrent to infringement, is in its very complications a shelter for those who use others' material without permission and an obstacle to those who would like to legally use or remix content. Whether it is done consciously or unconsciously, nefariously or in communal bliss, given the complicated, arcane process, the myriad hoops to jump through, the length and cost of the process, who can afford to participate?

So Tomas, Peter, and Maros, I won't assume your motives in turning my song "Slung-lo" into "Touch The Sun." Instead, I'll say this: if you asked me, we might have worked something out. When I found you, we might have worked something out. Who knows, maybe we could have advanced the conversation around copyright and made a radical contribution toward a different type of economy. Instead, it will drag on in court. And I will fight it in court as long as I have to. But this could have gone another way. And for that, I am sad.

Erin McKeown is an internationally known musician, writer, and producer, releasing 8 full length albums in the last decade and spending an average of 200 nights a year onstage. She has appeared on Later with Jools Holland, Late Night with Conan O'Brien, NPR, BBC, and has had numerous film, television, and commercial placements. She's even written a song via text message with her friend Rachel Maddow. Lately, she has added mentor and activist to her resume. She is a board member at the Future of Music Coalition and a 2011-12 fellow at the Berkman Center for Internet and Society. Visit her website www.erinmckeown.com for more info and to join her mailing list.

Special Thanks to Mike King, Andy Sellars, my lawyers, Lawrence Stanley and Vaclav Schovanek, and Erik Gilbert at Duchamp for their help researching and proofing this post.

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If Piracy Is So Devastating, Why Are We Seeing An Unprecedented Outpouring Of Creativity?

Glyn Moody — Tue, 10 Apr 2012 05:05:00 PDT

One of the favorite tropes of the anti-piracy crowd is that all this unauthorized sharing is killing culture, pauperizing artists and generally making the world go to hell in a handbasket. The only pieces of evidence adduced in support of that position are the market reports put together for the copyright industries that (a) say the sky is falling and (b) base that analysis on the industries' own unsubstantiated claims.

In fact, as we know, for all of the copyright industries, the Sky is Rising. But that's only half the story, for alongside the traditional distribution channels, there are now entirely new ways in which people can create and share their creations. These have only emerged in the last few years, and so there is a natural tendency to underestimate their importance. But gradually figures are emerging that hint at the extraordinary scale of the creativity they foster.

For example, user uploads to YouTube are now running at one hour of videos every second -- that's 86,400 hours every day, and over thirty million hours per year. Now, a portion of that content may be copyright material -- but only some, and probably not much. That's because Google has been employing its Content ID system for some time now:

What is Content ID?

YouTube's state-of-the-art technologies let rights owners:

Identify user-uploaded videos comprised entirely OR partially of their content and

Choose, in advance, what they want to happen when those videos are found. Make money from them. Get stats on them. Or block them from YouTube altogether.

It's up to you.

How does Content ID work?

Rights holders deliver YouTube reference files (audio-only or video) of content that they own, metadata describing that content, and policies on what they want YouTube to do when we find a match.

We compare videos uploaded to YouTube against those reference files.

Our technology automatically identifies your content and applies your preferred policy: monetise, track or block.

What the use of Google's Content ID means is that the stuff copyright companies care about is already being caught. What's left varies from high-art mashups to how-to manuals to cat videos. But whatever it is, there's lots of it, with millions of hours of new content being uploaded every year.

Tumblr hosts a different kind of user-generated content, but with similarly huge holdings. It currently has over 20 billion posts on 51 million blogs, and each day, over 60 million more are added:

The average Tumblr user creates 14 original posts each month, and reblogs 3. Half of those posts are photos. The rest are split between text, links, quotes, music, and video.

Again, some of the music and video shared on Tumblr may be unauthorized sharing, but much of that creativity -- the photos, text and links -- almost certainly isn't.

Meanwhile, on a site that most people have forgotten about, assuming they'd ever heard about it in the first place, content in the form of wikis is being produced in ever-greater quantities:

Listed among the top 10 social networks and blogs in the U.S. by Nielsen in 2011, Wikia sees nearly 50 million global unique visitors per month, has over 339,000 communities (600 new ones added daily), and is witnessing 42% traffic growth year-over-year.

More specifically, gaming and entertainment communities have been Wikia’s bread and butter. The site hosts over 65k game wikis with 2.48M game pages. Elder Scrolls, for example has 8k+ content pages and it would take a month to read them all at 5 minutes per page.

Putting these kind of figures together with the daily output of hundreds of millions of users on Twitter and its Chinese analogs -- to say nothing of the near-billion Facebookers -- and what emerges is a ferment of creativity the likes of which the world has never seen before. So how can this be squared with the repeated claims that piracy is somehow leading to the death of culture?

I think the answer is that in the eyes of many commentators all this activity simply "doesn't count". That is, a video on YouTube is not "real" art, and a Tumblr post is not "real" literature. So when people complain that piracy is "killing" culture, what they are really expressing is their own incomprehension in the face of this new kind of art.

To admit that piracy isn't a problem, because it seems to be leading to more, not less creativity, would be to admit that the huge outpourings of user-generated content are indeed art, some of it even rather good art. And that, rather than any supposed harm from unauthorized sharing of copyright materials, is what many seem to fear. For the copyright industries and cultural commentators it calls into question their ability to make aesthetic judgments -- and hence money -- while for the artists, it questions their privileged position in society, and the special role of their art there.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Imitation Is Still The Sincerest Form Of Flattery

Leigh Beadon — Fri, 6 Apr 2012 03:29:00 PDT

Full-time portrait artist Gwenn Seemel recently posted a brief video about how she feels when someone copies her work. To her, being copied means you have created something important and meaningful, and she notes that the most copied works of all time are also the most seminal cultural icons we have:

I do feel there are a couple of points that she could have made better. Firstly, she doesn't fully acknowledge the value of transformative works, although from her slideshow of examples it is apparent that she understands that value. Secondly, when she talks about her true scarce value—being the only genuine source of her artwork, which is an important thing for artists to recognize—I wish she had also noted that, just like every other artist in history, her work also draws on what came before it. Despite these small quibbles, it is a succinct and sincere statement from a real artist about why being copied is good, and why freaking out about it means taking an incredibly pessimistic view of things.

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We're Living In the Most Creative Time In History

Mike Masnick — Fri, 3 Feb 2012 19:39:00 PST

As we recently noted in our The Sky Is Rising study, all of the evidence shows that we're living in a time of true abundance in terms of the content world. All of the data shows this. It's really incontrovertible. And yet, we keep hearing from certain folks -- often legacy entertainment industry interests -- that somehow the content creation world is at risk. That's pretty difficult to square with reality. In fact, I think it could be argued that if the industry gets its way with some of its legal proposals that would put this amazing age of creativity at much greater risk than anything the industry is complaining about.

It seems that plenty of others are recognizing this as well. Tom sent over a great blog post by Terry Border of Bent Objects, explaining why this is the most creative time in history... and why we shouldn't take that for granted. And, of course, a big reason for such an explosion of creativity is because of the internet, and the ability to not just create, promote and distribute works, but the ability to communicate.

Think about the art of writing for a minute. Think about creative, or biographical, or whatever kind of writing. Before blogging, how many people wrote any more than it took to fill the space of postcard? If it wasn't their profession, I'd say very few. Now, it seems like everyone has had a blog at one time or another. And now "micro-blogging" is in style thanks to Twitter. Not as many words you say? Right, but it's a different skill that people are learning. Very concise wording. Do people want to post boring tweets? Of course not. People spend quite a few minutes of their day trying to write interesting, humorous, or informative Tweets and Facebook updates. Small bits of creativity for sure, but add them up on a weekly basis, and it's quite a bit.

I think of all the craftspersons who have learned from each other on-line. Popular knitting blogs for instance have taken that old past-time of grandma's and made it mainstream. Before Etsy and the like, where would a person sell the scarves and hats that they made besides the occasional craft fair? I mean, a family only needs so many scarves, and then the knitting needles were put away. Communities on the web not only serve as a place to share work and ideas, but that also serve as shops to sell your product worldwide, creating a reason to make more, and to try new, crazy ideas. Kind of incredible.

That's just a small clip from his longer post, which goes into much more detail. It's worth a read, and definitely pay attention to his conclusion:

My contention is that these days we live in right now will be looked back on with longing, especially with various governments trying to push through laws to control the internet. If that happens, these will be the good old days, so don't take them for granted. Look around and enjoy. I think this is an incredible time to make things, and I hope it stays around for a while.

Couldn't have said it better myself. And this is part of the reason why so many people are so worried about things like SOPA, PIPA, ACTA and TPP. We don't want this amazing era to go away. We just want it to get better and better.

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Responses To Nimblebit Point Out That Inspiration Comes From Lots Of Places

Mike Masnick — Fri, 27 Jan 2012 16:07:08 PST

We just wrote about Nimblebit's response to Zynga upon discovering Zynga's game that looks a lot like a Nimblebit game. In that post, we noted that even Nimblebit's game was hardly the first such game out there, and now (as pointed out in our comments), someone decided to take the format of Nimblebit's letter, and redo it as a letter to Nimblebit about the other games that inspired Nimblebit's game. The tone is a little snarky -- and to be honest, I never got the feeling from the original that Nimblebit was claiming that it, too, wasn't inspired by others. Still, this really does show the nature of creativity and copying these days. All of these games can (and do) happily co-exist in the marketplace, where they can compete with each other to improve and provide a better consumer experience. And that seems like a good thing. On top of that, for those who are worried about another company copying them, it helps to remember that then you can copy their best ideas right back.... and improve on them. It's through this sort of process that innovation rates increase...

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Creativity Comes From Such Strange Sources

Mike Masnick — Thu, 29 Dec 2011 15:58:00 PST

Aaron DeOliveira points us to an amusing Christmas to New Year's week diversion in the story of the song, WTF?! I Wanted An iPhone!!! (warning, potentially NSFW, if your work place doesn't like people singing curses). Beyond being entertaining and amusing, the story behind it is a cool case study in how creativity comes from all sorts of strange sources online. The story begins with comedy writer Jon Hendren, being bored on Christmas Eve & Christmas, and playing around with Twitter search, doing searches on terms seeking particularly entitled and angry tweets from kids who didn't get "what they wanted" on Christmas -- with "what they wanted" being defined as an iPhone, an iPad or a car. Hendren then started retweeting the ones he found: That, itself, started to go viral, at which point singer Jonathan Mann, who's made quite a name for himself writing, recording and releasing a song a day ever since January 1 of 2009, picked up on the story and wrote the song linked above (his 1089th song, if you were wondering). The song basically takes some of the "best" of the entitled tweets and produces a fun little ditty (again, potentially NSFW): Now, this whole thing is silly (or, potentially, a bit sickening when you look at how entitled some of those kids feel), but it really does demonstrate a few different concepts, all wrapped up in one nice holiday package:

Creativity comes from all sorts of strange sources
Online, collaboration can happen without people even realizing it (and that's cool)
The ability to create, promote and distribute content just keeps getting easier and easier

But, mostly, it's just amusing.

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Canadian Actor Claims Mashups Are Morally Wrong And Should Be Illegal

Mike Masnick — Mon, 7 Nov 2011 10:53:12 PST

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.

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DailyDirt: Video Challenges

Michael Ho — Mon, 17 Oct 2011 17:00:00 PDT

Do you have a video camera and untapped creative juices? There are more and more outlets for uploading your videos, and there are even people willing to pay you for your contributions. Here are just a few open video contests out there.

Create your own Public Service Announcement on how technology has made an impact on creativity. There's a $1000 prize available, and it's due on October 28th, 2011. (Oh yeah, and you can keep the copyright to your submissions for this one because we're sponsoring it!) [url]
The USDA has a Fruits&Veggies contest looking for a 30-second video on how to add more plants to your diet. The first prize is $1500, and the submission period ends November 15, 2011. [url]
Submit a video on the theme of Unlikely Innovation here. The winner receives $5000, and it's due on December 30, 2011. [url]
To find other interesting links for entrepreneurial folks, check out what's currently floating around the StumbleUpon universe. [url]

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Kutiman Continues To Make Amazing New Music Via Musical Collage

Mike Masnick — Thu, 16 Jun 2011 12:50:00 PDT

We've written a few times in the past about the brilliant musician, Kutiman, who creates astounding musical works through what might be called musical collage -- taking bits and pieces he finds on YouTube and mixing them into something amazing and wonderful. From a copyright standpoint, what he's doing is almost certainly infringement, in some sense, under today's laws, though thankfully no one is challenging him on that (and Israel, where he's from, has decent fair use protections). He's now released his latest work, and while it's also a musical collage, it's quite different in nature. Rather than just pull clips from YouTube, he spent a couple months going around Jerusalem, interviewing various local musicians and asking them all to just improvise some music (all around the key of D), and then mixed it together into this amazing sounding song (and wonderful video), called Thru Jerusalem: I think we can safely say that this (as with his previous works) is really quite an incredible piece of musicianship -- but his works are created in a world that copyright law can't even comprehend, let alone predict. Can you even imagine trying to untangle the "copyright" question on such a song? Thankfully, it seems unlikely that such a question will directly come up with Kutiman's work, but it very well might come up with other musicians who do something similar or something else new and creative. And do we really want that? Do we want musicians having to worry about "the copyright question" as they create beautiful works such as this?

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Why Do Some People Have A Mythical Standard Of 'Newness' To Determine What Qualifies As Art?

Mike Masnick — Tue, 29 Mar 2011 09:38:08 PDT

In our recent discussion on the ruling against Richard Prince, saying that his appropriation art is infringing and should be destroyed, I'm seeing a somewhat disturbing response from people who disagree with Prince: they seem to have some mythological idea that for any artwork to matter, it must somehow be "new." I have trouble with this standard for a few separate reasons:

What determines what is really new?

If you look at the history of music, for example, things like the invention of soul music really involved a very close copy of works that had come before. There was very little new. Ditto with all kinds of rock music. Led Zeppelin is famous for nearly every famous song they had being a near direct copy from someone else. The changes made were minor, but created massive successes -- showing that people seemed to really like these "copies," even if there was very little new in them. It seems, to me, that clearly something important was "new" in that people liked the copies much more than the originals.

One of the complaints in the discussion on Prince's work is that he "didn't spend much time" in creating his artwork, since he basically started with Cariou's work, tinted it, and added a few minor adjustments. Perhaps that's true, but it seems likely that he spent more time than Cariou did in taking the photograph in the first place. I'm not -- as some accused -- arguing that Cariou's work isn't art. Quite the opposite. I'm saying that the time involved is not a statement of what is and what is not artwork either. After all, Carious quite literally "copied" the scene that he photographed. He gets a copyright on it because of a few creative choices, but these are minor: where to position himself, how to frame the photograph etc. But are those really all that different from Prince's decisions of "how to tint, what to change, what to add?" I can't see how one is art and the other is a copy. It seems like both are art to me, even if I'm not personally impressed by Prince's work.

Does it really matter if the copy isn't really new?

And here's the bigger point. If people really enjoy those works, why are we so upset that they're copies with minor changes? Ray Charles had success with "I've Got a Woman," despite it really being the same basic song as the Harold Bailey Gospel Singers, called "I've Got a Savior," with just moderately changed lyrics, and a little more pizazz in the music. Led Zeppelin's most classic hit, "Stairway to Heaven," is a pretty close copy the song "Taurus," by Spirit. And Richard Prince's paintings involve just moderate changes to Patrick Cariou's photographs. And, yet, in all three cases, the markets seemed to value the latter versions more. Doesn't that suggest that, even if these newer works are "mostly" copies, that they provide significant value in the marketplace?

Why does it matter that they're not "new" by some subjective standard?

If the world really felt that there was something fundamentally wrong with these copies with minor changes, then wouldn't they have rejected the market for them? Would the world have been a better place if we didn't have "I've Got a Woman," but were just left with "I've Got a Savior," a song so hard to find these days that James Boyle could only find a single copy in existence when he wrote his book which told the story of the song?

Isn't the world actually better off that we have these "copies with marginal changes"? Why do people feel the need to complain about them?

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Using Technology To Bring Out Creativity In Children

Mike Masnick — Thu, 24 Mar 2011 15:56:21 PDT

A few weeks ago, we mentioned an experiment that we were doing, to try to create more useful and engaging ad products, specifically with a "conversational" ad unit on the front page of the site. The initial ad centered on a discussion of ways in which kids could use tablet computers (the ad and post were sponsored by ASUS and Microsoft). We're running another experiment now. On the article page for this post, or on the front page of Techdirt right after the first post (if you don't run an ad blocker), we have an ad unit that asks for your input on the question of what kinds of computing activities might best develop kids creativity. It shows my answer and asks you to "vote" for one of four activities and then allows to type in a more complete answer -- all from within the unit (so it's not taking you to some other page). This is very much an experiment, and we already learned some things from the first pass at this (some stuff worked, some didn't), and we'll be doing some more as well. In order to keep the feedback in that ad unit, I've disabled comments on this post.

This post should also be considered sponsored by ASUS Windows Slate, in partnership with Microsoft and SAYMedia.

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If This Is 'Piracy' Then I Support Piracy

Mike Masnick — Wed, 23 Mar 2011 12:49:00 PDT

One of the common refrains in the comments from some of Techdirt's biggest critics is that I'm a "piracy supporter." I'm not sure what to make of such claims, because I don't actually support or endorse copyright infringement. I don't partake of it (willingly). I don't use any file sharing programs for downloading or sharing content. I don't download unauthorized music or movies. My position is solely from the point of view of the content creator and how they might be able to better engage their audiences and put in place smarter business models. Yet, for some reason, people keep trying to paint me, falsely, as a supporter of "piracy."

Of course, what I do support is the creation of new and engaging content. What troubles me, is when people try to imply wonderful creative works are somehow not creative because they build on the works of people before them. Of course, that's silly. All kinds of wonderful creative works you enjoy almost certainly come from near direct copies of things that came before. A lovely demonstration of this is seen in this short clip from the documentary RIP: A Remix Manifesto: But I still feel that one of the best examples of creative works building on the works of others comes from Kutiman, the Israeli artist who burst on the scene two years ago with his absolutely amazing album Thru You, in which he assembled random clips from around YouTube -- without permission -- into an entire album that sounds absolutely nothing like its component pieces. Kutiman is the modern conductor, putting together an amazing, involuntary orchestra of players who don't even know what's happening. While he's been somewhat quiet (though, apparently touring the world), Kutiman has just released a brand new track, once again combining various YouTube videos into quite the jazz song, entitled My Favorite Color: Seeing people's reactions when they first see the videos really is priceless. They're amazed as they realize what's happening. The one that seems to get the most attention (for plenty of good reasons) is the first track off the Thru You album, The Mother of All Funk Chords. However, when trying to show the power of remixing and building on creativity, I actually think the second song from Thru You can be more instructive. That's because if you break down a number of the component parts, you realize that some of them just aren't all that impressive by themselves. Take, for example, trombone part that's used in the song. When viewed by itself... it's really nothing special: Now, put it into the middle of a larger song, with the very accurate (for this discussion) title of This Is What It Became, and you get an incredibly powerful, haunting and moving trombone solo, which comes in at about 43 seconds: And, if you look at some of the other component videos, including a family vacation video, a simple demo of a bass synth, a fire engine siren and even crappy toy piano, and pull it all together to become the song above... it's really quite amazing.

And yet, to hear some people talk about these things, none of this is "creative." It's all just "copying." In some cases it's outright "piracy." After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are "piracy" in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then "plays" it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves... or by taking the note originally played by someone else and doing something creative and amazing with it?

Is this really the kind of thing that our politicians and copyright defenders mean to outlaw?

I'm not a supporter of copyright infringement or "piracy." But if this is piracy, then I am a supporter of it. Because this is truly creative works, whether or not it's built on the works of others.

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'Free' Culture Folks Discuss Models For Sustainable Creativity

Mike Masnick — Fri, 11 Mar 2011 01:04:00 PST

Last year, I was invited to attend the FCForum's event on creating sustainable models for creativity in the digital age in Barcelona. Unfortunately, due to timing and conflicts, I was unable to attend, though I heard from many who were able to make it and enjoyed it. Out of that event, the FCForum has released their version 1.0 document which is described as a "How to for Sustainable Creativity." I take a bit of an issue with the title, which implicitly seems to suggest that creativity isn't naturally sustainable, and needs some sort of outside help. However, the document itself is an interesting read. It digs into what the current state of the market is in music, filmmaking, writing & publishing, fashion and software, and then looks at various economic models that can be used to support all of those. The discussions on each industry could certainly be fleshed out a bit, but there are some interesting visual representations, such as this breakdown of money going to a certain major label band: When you look at images like that, you quickly realize the problem is not that the internet is eating away at money going to musicians, but that something isn't right in how musicians make money today. Thankfully, things are changing, and the ability to seek out competition, rather than remaining a major label act, means that artists have more control and aren't forced into ridiculous deals like the one above. The paper then goes on to look at some of those economic options.

Looking over the list, there isn't anything too surprising, but it's nice to see all these ideas in one place. I'm sure some will brush this off as being nothing special, but as a 1.0 document, it really does seem like a good start in highlighting the massive spectrum of possibility for creators to make money for being creative today. Of course, what I find interesting is that this is all being put together by the folks who the legacy industry likes to (falsely) declare "pirates" who "just want stuff for free." Yet, here they are, working hard to put together a rather helpful "how to" to help creative folks earn money. What has the industry done on that front other than complain to the government and sue their fans?

Separate, but related to this, Eric Goldman points us to a similarly interesting report on sustainable business models for university presses. It could almost be an appendix to the earlier report -- though this one is much more fleshed out. It's nice to see various university publishers thinking through these business model issues, and doing a pretty thorough job of it, rather than just complaining about how everything is failing.

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Crowdfunding Makes Sense... But Does Crowd Creative Decision Making?

Mike Masnick — Mon, 24 Jan 2011 19:03:00 PST

I'm all for interesting experiments involving compelling ways to connect with fans and give them a reason to buy, and I love finding out about platforms that enable such things. However, I have to admit that I'm pretty skeptical about the basic concept behind Crowdbands, which not only lets you "fund" an artist, but also vote on the creative decisions they make. The platform does lots of similar (and useful things) that other platforms do: allowing you to support an artist via a "membership fee" of sorts, in exchange for which you get access to the musicians, the artist's music at no extra charge... and a chance to vote on the creative decisions the artist makes.

I understand why they did this, in terms of getting greater fan buy-in, and trying to differentiate from the competitors out there. However, as much as I like crowdfunding of things, that doesn't mean creative decisions should all be crowd decided. I can see it work in some cases, but making creative decision by committee is difficult enough. In this case, the creative decisions are being made based on the popular vote, with apparently little actual input from the artist.

Years ago, in discussing "crowdsourced" efforts, I noted that they were especially good at digging out factual information. When it comes to things that involve insight, analysis or opinion, crowdsourcing tends not to work that well. This isn't all that surprising. However, moving the fans directly into the decision making process seems like a disaster waiting to happen. I should be clear: I'm all for fans having ways to participate, and have their voices heard, but that doesn't mean that artists should have to follow their suggestions. It seems likely that the design-by-mass-internet-committee will serve mainly to make weaker, less inspired decisions.

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Permission Culture And The Automated Diminishment Of Fair Use

Mike Masnick — Mon, 27 Dec 2010 14:32:00 PST

The very point of fair use is that it's supposed to allow for creativity without permission. Even in a society dominated by copyright, at least our courts and regulators recognized the need for creativity built (in part) on what came before, without having to go through the tollbooths of requiring permission to create. However, some recent events have shown how the DMCA and other attempts to beef up copyright law are trying to erode the very notion of fair use without permission.

SinkDeep alerts us to the news that a bunch of DJs are upset after discovering that SoundCloud took down a bunch of the mixes they had hosted on the service. If you're not familiar with SoundCloud, in the last few years, it has become one of the most popular tools for musicians and DJs to host their music. It offers a really nice toolset for anyone looking to promote their music online (and for others to build apps on top of it). SoundCloud has also been a pretty big supporter of open culture, supporting things like Creative Commons along the way.

I contacted SoundCloud to find out what was going on, and the response was pretty much as I expected. Due to the nature of the copyright world we live in today, the company recently implemented a fingerprinting-type technology, similar to those used by YouTube (ContentID) and MySpace (Audible Magic), which lets copyright holders designate their own works, and which SoundCloud then automatically blocks. While the original link above "blames" SoundCloud for becoming a "walled garden," that's not really fair nor accurate. The real problem is the nature of our copyright laws today, that assume infringement over fair use. As we've discussed before, copyright law is effectively broken when it sets up fair use as a defense, rather than a proactive right. Fair use should be seen as the default until proven otherwise, if fair use is really (as is claimed) designed to be a pressure valve on copyright law to allow free speech.

Unfortunately, the industry has pushed back on this notion to a huge level. The very crux of the YouTube-Viacom legal fight is really over this issue. As many have noted, in the specifics of the lawsuit, Viacom basically notes that it has no problem with YouTube starting with the exact date that it implemented its ContentID program. In Viacom's (and much of the entertainment industry's) interpretation, the DMCA requires such filters. The likely reason that smaller companies like SoundCloud are now implementing filters as well is that they know there's a half decent chance that the eventual outcome of lawsuits like the Viacom/YouTube fight will mean that a company is required by law to have such things in place.

But, of course, the problem with all of this is that it goes back to creating permission culture, rather than a culture where people freely create. You won't be able to use these popular or useful tools to build on the works of others -- which, contrary to the claims of today's copyright defenders, is a key component in almost all creativity you see out there -- without first getting permission. The systems will try to block it, until you make your case that something is fair use -- though many will just not bother. This is unfortunate, and really shuts down a major opening for creativity these days. If you look at the history of music, nearly all popular music today is built on earlier works, without first getting permission. It would be a terrible situation if we end up shutting off that form of creativity by requiring permission for everyone first.

The issue isn't to blame the tools providers for implementing such features, but to look more deeply at the state of copyright law today, where we're increasingly suffocating the real purpose of fair use, which was to allow such creativity, without first requiring permission. These filters don't understand fair use, so they assume anything that matches is infringement, and because of that, we all suffer.

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More Research: Competition Makes Groups More Creative

Mike Masnick — Wed, 18 Aug 2010 21:33:15 PDT

One of the key elements of things like copyright and patent laws, are that they are really attempts to eliminate certain forms of competition. That's always struck me as an odd idea, since it's competition that leads to greater innovation -- as has been shown over and over again in the economic research. So this following study shouldn't surprise anyone, but Glyn Moody points us to a new study that shows that groups who are put in greater and greater competitive situations, come up with more creative solutions to challenges they're given.

This should be common sense, of course. However, what strikes me is why people think it actually makes sense to limit competition in the creative industries, where you would think that greater competition, leading to greater creativity, would be a good thing? Already, we're seeing that smart creative types have realized that they need to "compete with free" and they do so in increasingly creative ways. Shouldn't we be encouraging that kind of creativity from the creative community?

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