Techdirt. Stories filed under "remix"

Unauthorized Remix Improves On Landmark Unauthorized Mashup, The Grey Album

Mike Masnick — Mon, 3 Dec 2012 23:59:43 PST

This is a story of massive infringement upon infringement. Or it's a story about culture and building awesome things from the building blocks others helped put together. Or both -- which really should say something about copyright laws today. It was nearly nine years ago that EMI went completely off the rails in trying to threaten everyone for The Grey Album -- the first truly popular mashup album. Put together by the producer Danger Mouse, The Grey Album used Jay-Z's vocals from The Black Album and mashed them up with music samples entirely from the Beatles The White Album -- and it actually worked.

Jay-Z has since referred to it as "genius" and expressed how honored he was to see it happen. EMI, which controlled the Beatles' rights, felt differently, sending cease-and-desist letters to tons of sites that had the mp3s. In response, folks on the internet planned Grey Tuesday for February 24th, 2004 -- a day of digital civil disobedience, where lots of sites would distribute the mashup album. EMI, still not understanding what it was dealing with, sent off more cease-and-desist letters to any site that had indicated that it would participate. End result? Even more interest in the whole thing.

Of course, since then, Danger Mouse has gone on to be an in-demand guy in the recording industry (among other things, he's one-half of Gnarls Barkley, who of course had a massive hit with the song "Crazy" a few years ago). EMI later admitted that The Grey Album didn't "harm" them at all, but still defended the decision arguing, pointlessly, "it's not a question of damage, it's a question of rights."

Given all that, one has to wonder what EMI thinks of another top industry guy, recording engineer John Stewart (who's worked with Kanye West, Big Boi and John Legend), who has remastered the audio on The Grey Album, arguing that he could do a better job -- and the early reviews seem to agree. As noted in the Forbes article linked above:

Revisiting The Grey Album with an expert ear gave Stewart the ability to pinpoint its audio flaws, and his professional experience gave him the agency to do something about it. Stewart says he first got the idea to remaster The Grey Album on Wednesday, Nov. 21, but it didn’t really click until that Saturday. On Sunday he set out to improve the album’s audio, tinkering with various faders in ProTools until he achieved the desired effect: “I just kind of put the sonics on steroids,” he says.

He then put the whole thing up on SoundCloud and Mediafire, where it's getting plenty of listens and downloads. But, of course, as Slate points out: this is still an "unauthorized" work. And even though there's almost certainly no "harm," has EMI (now owned by Universal) finally understood that it makes sense to let these things go?

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Newly Independent Band To Fans: Don't Just Remix Our Music, Please Try To Make Money From It Too

Mike Masnick — Tue, 20 Nov 2012 20:08:00 PST

At this point, bands releasing stems and asking fans to remix their work is old hat. We've seen it done a bunch over the years, and it's pretty common. But Darren Hemmings alerts us to a cool variation on that done by the UK band Chapel Club. Earlier this year, Chapel Club "parted ways" with Universal Music. In testing out new things, it decided to do a remix offering, but one where fans are actually encouraged to then try to sell the results and make money off of it:

We're offering THE WHOLE WORLD the chance not only to REMIX THE TRACK, but to SELL their creations and KEEP THE MONEY. LOL.

So the deal is this: you can download these stems FOR FREE, remix the song and self-release it digitally via any online outlet you like. To find out how best to do this we've attached a little step-by-step guide, below.

The band does admit that they're about to sign a new record deal -- so they're doing this "in between" deals, and it's unclear how long it will last. Also, the terms and conditions (pdf) are interesting in that they actually provide detailed instructions on how to upload the remixed tracks to Tunecore and CDBaby. The band does ask that you email them before releasing the track, which seems like a reasonable request. What's a little odd, though, is that they will not allow remixers to "give away" the remixes:

So the deal is this: you can download these stems FOR FREE, remix the song and self-release it digitally (and only digitally) via any online outlet you like (as long as it’s known for selling lots of music). You can also stream your creation (but don’t give it away).

That seems like a silly and pointless restriction. The band does note that it retains the publishing rights, meaning that if someone does remix the song and sells a ton of copies somewhere, they'll still get their publishing cut (though the remixer will get all of the direct sales revenue, minus the fees taken out by the middlemen). So, it's smart in that the band knows that if someone else somehow figures out a great way to market and sell the song, they'll still make some money. But, it's still a little disappointing to see that restriction on giving it away. For such an experiment that seems pointless.

It's also a nice reminder that letting some others make money in helping to promote your work (or even letting them build on your work) can be a good thing. There's way too much of an attitude among some that every penny that's earned belongs to the original creator, even if someone else did more with it. We've warned before that non-commercial restrictions on Creative Commons often don't make sense -- but many people cling to them out of this irrational fear that if someone else makes money, it means you lose money. So it's great to see the band recognize that a bigger pie can be good for all.

That said, while I do think this experiment is cool -- and I love to see bands experiment in unique and innovative ways -- I do wonder how successful experiments like this will be. I think that many people think that fans will rush out to try to "make money" with content from an artist they like, but in watching various businesses built around that concept before, I just haven't seen it play out in reality. Fans like bands because they like those musicians and want to support them. Assuming that they have a monetary incentive to help out often feels weird and just doesn't interest people. In fact, it reminds me a lot of Daniel Pink's awesome and thought provoking book Drive in which he notes a large stack of research that says for some activities (not all!) providing monetary incentives actually harms output. It's for activities where the person already feels fulfilled in some manner or another, and I'd argue that probably applies with fans. Fans don't want to make money off artists they love. They just want to see them succeed. Adding the monetary component might not necessarily be a very good incentive, even if people assume that money is always a driving incentive.

Still, that's just an aside on money and incentives. I still think it's cool to see a band experiment with something different to engage fans that could possibly open up another new revenue stream.

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Man Defaces Rothko Painting; Defends Himself By Claiming He Improved It

Mike Masnick — Mon, 8 Oct 2012 14:52:34 PDT

A few weeks ago, we wrote about how the octogenarian woman in Spain, who tried (and... failed...) to "restore" a 19th-century fresco, and then tried to claim copyright on her work and demanded a cut of the church's collection box, since the fresco was suddenly drawing many new visitors. Perhaps this "but I improved it" defense of defacing artwork is becoming more common. Apparently, a prankster, who claims to be pushing his own art movement, defaced a multi-million dollar Mark Rothko painting hanging at the Tate Modern gallery... and when tracked down by a reporter from The Guardian, defended his actions by claiming he had improved the value of the painting:

"I believe that if someone restores the [Rothko] piece and removes my signature the value of the piece would be lower but after a few years the value will go higher because of what I did," he said, comparing himself to Marcel Duchamp, the French artist who shocked the art establishment when he signed a urinal and put it on display in 1917.

"I was expecting that the security at Tate Modern would take me straight away, because I was there and I signed the picture in front of a lot of people. There is video and cameras and everything, so I was shocked."

"I didn't destroy the picture. I did not steal anything. There was a lot of stuff like this before. Marcel Duchamp signed things that were not made by him, or even Damien Hirst."

He basically signed his name to the photo and added "a potential piece of yellowism" which appears to be some sort of inane attempt at creating an art movement that nobody knows about. We are, of course, big fans of remix culture and the ability to build on the works of others -- but part of the reason why we like such things is that it can be done without doing anything to the original. Flat out defacing another's work is not a remix or a mashup. It's just vandalism.

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Why Copyright & Patent Laws Go Against How We Create

Mike Masnick — Mon, 13 Aug 2012 10:15:00 PDT

We've written about Kirby Ferguson many times before. The filmmaker behind the absolutely awesome Everything Is A Remix series of videos, has just posted a 10 minute TED talk he recently did, which you absolutely should watch. It very simply explains how the nature of both creativity and innovation revolves around building on the works of others, but that both copyright and patent laws are based on the exact opposite belief -- that creativity and innovation springs wholly new from one's head, and thus deserves some form of property rights. Whatever you do, find 10 minutes to watch this video: It goes through how nearly all of Bob Dylan's early songs were actually copies of others' songs (which is funny because Bob Dylan is a name that is frequently cited by copyright maximalists as an example of the necessity of copyright law). And it's not just copyright that he talks about, but patents, highlighting Steve Jobs' hypocrisy, talking at one time about how it's best to take the best ideas of others, but then also going ballistic about Google copying aspects of iOS in Android. He also points out how Jobs lied about claiming to have invented multi-touch, by showing Jeff Han's famous TED demo of multi-touch technology a year before the iPhone launched. And in that video, Han admits that multi-touch has been around for decades. The key point he makes in the end is that the system is broken because of the combination of a few factors that conflict with the fact that everything is a remix. When you mix laws that fundamentally treat creative works as property, with the massive rewards and huge legal fees associated with court cases, combined with the cognitive bias people have against others copying themselves (with a complete blindness for the fact that they are always copying others), you have a system that fundamentally does not work and cannot work.

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Dear Permission Culture: This Is Why No One Wants To Ask For Your OK

Tim Cushing — Mon, 30 Jul 2012 09:00:00 PDT

"Just ask for permission."

When it comes to dealing with the "permission culture" that goes hand-in-hand with copyright these days, there's really no way to win. Certain rights holders claim they just want to be asked, but the actual process involved makes it seem like you'd save a ton of time just assuming the answer is "no."

Hugh Brown (a.k.a. Huge), an Australian recording artist and music business coach, experienced this circuitous process firsthand when he attempted to craft a parody of Adam Lambert's "If I Had You," entitled "If I Had Stew." Parodies are handled a bit differently in Australia, despite recent concessions in Australian fair dealing laws. According to APRA (Australasian Performing Rights Association), "lyric changes and parodies of works must [be] cleared directly with the copyright owner."

"If I Had You" wasn't written by Lambert, but by Swedish songwriting team Maratone (Max Martin, Shellback and Kritian Lundin). But Huge couldn't approach Maratone directly as its website indicated that all the trio's songs were owned by the writer's respective labels. So he emailed Maratone and sent another form asking RCA/Jive Records for permission to make this recording.

Huge heard nothing from Sony but did hear back from Maratone... who told him to contact Kobalt Music Publishing and clear it with EMI as well. Quick count of players involved: There's Maratone, the trio of songwriters behind Adam Lambert (who's likely off sleeping the undisturbed sleep of successful angels). Sony Music. RCA/Jive Records. Kobalt Music Publishing. And EMI. That's four labels and not a single person willing to discuss clearing Huge's parody.

A couple of weeks pass and Sony still hasn't responded. Kobalt UK and EMI Australia have... sort of. The two labels directed Huge to yet another set of forms to fill out, despite him having given them all this information in his initial emails. The new forms aren't even for requesting permission to record a parody. All they do is assist the labels in compiling a price quote on the as-of-yet unrecorded song. And even if permission is granted, it likely still won't be enough. EMI only owns one-third of the track in question. Songwriter Savan Kovetchka, an EMI signee, contributed to Lambert's track, along with Max Martin and Shellback. This means Huge still needs permission from the other two songwriters and some sort of answer from Sony.

It's now nearly a month since Huge first made contact and no progress has been made. Sony appears to be ignoring his requests. If anything, he's further behind than he was 27 days ago, when this whole thing kicked off. The "good" news is that Kobalt Media (representing Kotecha) said "yes," giving Huge one-third of a "permission" -- pending EMI's approval... and when it comes to getting written permission, one-third of a permission slip is worth approximately one-third of nothing. Huge did the right thing and asked (and asked... and asked) for permission, but despite the ever-growing list of interested parties, it looks as if "permission" might be something they simply can't give. And then... things go completely off the rails.

Huge opens his last post on the debacle with, "Well, I'm gobsmacked! No wonder the major labels are in so much trouble." Kobalt has given their blessing but EMI begins a long process of royalty-related correspondence so twisted it would make Joseph Heller proud.

It starts out with a simple request for clarification by EMI.

What is your main goal for this use?

In your original enquiry you have noted that you intended to make a video for the song but have said "maybe" in your request form. Is this principally for release as an mp3 single?

Huge responds:

To be honest, my main intention is to make the song for my own amusement.

If I play it to few people who agree with me that it's fun and good, then I'll think seriously about making a video as cheaply as possible and releasing it on YouTube. I have a few people who are interested in helping with that, though they wanna hear it first.

If it gets any traction on YouTube, then I'll think about releasing it as an MP3 and via iTunes, etc ... I just wanted to clear everything properly first.

Gauging the market before putting the song up for sale is just common sense and YouTube's a pretty good place to get quick feedback. But as soon as YouTube is mentioned, EMI fires off a preliminary standard contract for sync rights, showing that its share of any money generated would be 33.34% and a guesstimated one-time fee of $1000.

Huge forwards EMI his approval letter from Kobalt, which sends the label off on an entirely different tangent.

I just want to clarify with you that we are the licensing department of EMI Publishing, so we are quoting you on the synchronisation rights if you intend on using the work in a video clip. If you want to request approval to record and release this song you will need to get in contact with our copyright department.

So, Huge has been talking to the wrong people. He sends a letter back acknowledging the fact that he (obviously) can't sync the video until after he's recorded the song. He asks EMI for a contact name in the copyright department and receives this in response:

Will you be getting a mechanical license from AMCOS before putting this song on youtube or will you be putting it on youtube before you get a mechanical license?

This a question that can't be answered. According to APRA/AMCOS rules, Huge needs to secure permission before he can worry about uploading it to YouTube. He tries again to get EMI to follow his line of thinking: get permission, record, upload.

That depends on whether I am allowed to use Sony's backing music or whether I have to completely re-record it myself ... still no word from Sony.

My instinct is to clear everything before I do anything. If I know what it's all gonna cost me I can do up budgets and set targets and so on. I just figured that securing permission was the first step ...

EMI takes this clear statement of ducks-in-a-row and it decides that the mechanical license question needs to be clarified before anything else can proceed, except that other stuff (getting permission) also needs to happen first and perhaps simultaneously.

So does this mean that you do not intend to release the song with a mechanical license prior to putting a video on youtube?

If you intend on getting a mechanical license first you will need to get approval to record and release an adaption but if you do not intend on releasing the song first you will need a synchronisation license.

At this stage, Huge is still waiting for permission from two more writers. EMI, however, only seems to be concerned with properly licensing a song that a.) doesn't exist and b.) quite possibly won't exist if permission is denied. It's also given Huge the "opportunity" to pay an upfront fee of $1000 for a track he might not even make. Huge (once again) points out his thought process: permission, record, YouTube/mp3. This repeated clarification makes no difference. EMI is still hung up on the mechanical license for syncing when it's not trying to just punt the whole thing over to the copyright department. EMI also insists that its previously mentioned $1000 "contract" is valid for only four weeks, after which it will need to issue a new contract. Huge points out (again) that he still is waiting on permission to record.

EMI responds with this amazing statement, which baldly states that the label doesn't particularly care whether or not Huge ever gets a chance to record this parody if he's not willing to throw some cash its way:

We can not give you permission to do anything with the song until you commit to a sync license (internet video) or a mechanical license (release) so please confirm if and when you are ready to proceed.

Huge attempts to wrap his mind around this:

OK, so let me get this straight: EMI will not contact the writer and ask for permission for me to make a parody unless I fork out $1000 upfront and possibly also a mechanical license ... for a song I might not be given permission to make and that might turn out to be unreleasable ...

Alternatively, they won't ask for permission for me to record the parody until ... I've recorded it and know what I'm gonna do with it. No wonder people are just breaking the rules and doing what they want with recorded music!

Precisely. If you want artists to play nice within the confines of your system, then you need to have a workable system, not just a set of loosely-related entities all acting independently and in their own best interests. Having multiple layers of corporate bureaucracy standing between two artists only hurts those who are actually trying to do the right thing. If Huge had gone the other way and decided that it was easier to ask forgiveness than permission, I can guarantee that any sort of takedown or cease-and-desist would come from a single source. When it comes to saying "no," you generally only need one person. But to get a "yes?" That's a "team" effort, apparently.

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RiP: A Remix Manifesto... Taken Offline Due To Copyright Claim?

Mike Masnick — Wed, 13 Jun 2012 20:59:00 PDT

A few years ago, we wrote about the ridiculous hoops filmmaker Brett Gaylor had to jump through in making his film, RiP: A remix manifesto. If you haven't seen it, you should. As you might imagine, it's a movie all about culture and remixing, focusing quite a bit on the artist Girl Talk, but also featuring a number of other folks you probably know, including Cory Doctorow and Larry Lessig. Here's the trailer: It's absolutely worth watching. Hell, if you've got an hour and a half to kill, you can watch it right here (via Vimeo): The full video is also available on Hulu and a number of other places -- including off of Brett Gaylor's own website, where you can pay what you want for it.

However, as I just discovered, if you head over to YouTube, you can find the movie in pieces... but apparently part I has been disappeared down the copyright hole thanks to a copyright claim by eOne, an "independent music company." Perhaps this isn't a surprise. Hell, in the very section that is not viewable, the voiceover by Gaylor says, quite clearly:

Whether or not you think this music is original isn't the point. Because the rules of this game don't depend on who made the songs. They depend on who owns the copyright. And according to the people who do, sampling even a single note is grounds for a lawsuit. That means these kids should not be dancing. And you shouldn't be watching, because using these songs in my movie is against the rules too. And the fact that there are people out there calling my favorite artist a criminal, is exactly why I need to make this film.

To be honest, I have no clue how long that clip has been down, but it does strike me as quite ironic. As far as I know neither Gaylor nor Gregg Gillis (who is Girl Talk) has been sued for infringement. And even though the movie (and Girl Talk's music) are widely available all over the place...apparently eOne decided that it couldn't have that on YouTube.

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Yes, Public Radio Shows Can Do Cool CwF+RtB Experiments Too

Mike Masnick — Fri, 8 Jun 2012 14:14:00 PDT

One of my favorite radio programs/podcasts is Radiolab. They do absolutely amazing storytelling on really interesting things. I don't think I've ever listened to a Radiolab program and then not gone off to talk to someone about it. Their most recent full episode (they also do "shorts") is a really fascinating exploration of color. The final section, on why Homer (of Iliad & Odyssey fame, not the Simpsons character) never mentioned the color blue is simply brilliant.

That said, it's also been interesting in the last month or so to watch the Radiolab crew start to embrace some of the ideas that we've been exploring for some time, concerning CwF+RtB (Connecting with Fans and giving them a Reason to Buy). I first noticed this about a month ago, when Radiolab announced its Lab Partners premium offering. Just as we've seen with artists who offer up content for free, but give people "subscription" style offering for premium features (sorta like our own Crystal Ball offering), Radiolab is giving people a ton of extras if they subscribe.

Some will argue, of course, that this is nothing more than a modern update to the traditional patronage model of public radio -- wherein they beg for pledges every so often and you might get a tote bag if you spend enough. And, clearly, the ideas come from the same general place. But there are some key differences -- mainly that the premium features aren't worthless tote bags, but are actually related to the show, and include things like access. So, for example, you can join an editorial chat with the Radiolab team, or, my favorite:

Toss Your Name in the Hat: Enter your first name to a pool of names that we’ll draw from whenever we need to use a made-up character name in a story.

Like many of these kinds of offerings, Radiolabs has a couple tiers to let fans self-select. My one quibble is that I think there aren't enough tiers -- and there isn't a really low entry-level tier. In watching these kinds of experiments, at least having a very low level of support as an option can really help get more people involved and build up the buzz for a program. But, either way, it's neat.

Of course, that's not all Radiolab is doing. They really are doing a lot on the "CwF" side of things too. They've done a number of touring live shows (where they often bring along great musicians, like Zoe Keating). But they've also just launched a remix contest for the show. Remix contests are nothing new in the music world, but I've never heard of one for a radio show/podcast before. But they're doing the same basic thing -- releasing the stems, allowing you to re-score the music, etc.

If you've never listened to a Radiolab production, you might not understand why it would ever make sense to remix a radio show. But, the level of production that goes into every Radiolab episode is astounding. And they do a great job with how they reveal stories and plots. I'm honestly not sure that anyone could actually do a better job editing together an episode of Radiolab than host Jad Abumrad, but I'm actually really curious to hear what other fans can come up with.

As a brief aside, last fall, another great radio/podcast story teller, Ira Glass, from This American Life, did a thorough writeup of why Radiolab is so amazing, and it goes into some amount of detail about how Jad and Robert put together an episode. I think anyone seeking to remix an episode of Radiolab might learn a bunch of useful things from reading it.

Either way, I always think it's great to see more and more people in various areas start embracing these basic concepts and doing really cool things with them. At this stage, it's really just a bunch of experiments, but that's how amazing new things happen.

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Fan-Made Movie Edits: Another Cultural Loss At The Hands Of Copyright

Mike Masnick — Tue, 5 Jun 2012 08:06:00 PDT

I missed this when it was in the news a few months back, but actor Topher Grace (That 70s Show and a bunch of other stuff) apparently decided he wanted to learn how film editing works, and rather than make his own film and edit it, he decided to take some other films that he knew well, and see what would happen if he edited them (massively). His first project was taking Episodes I, II and III of Star Wars -- a total of approximately seven hours of footage -- and editing them down to a tight 85-minute film that focuses almost exclusively on the story of how Anakin becomes Darth Vader, completely wiping out lots of other stuff, but (according to some of the very small number of people who saw it) creating a really compelling storyline in the process.

In a recent interview, he expanded a bit on the reason he did this and what his thinking was. Basically, he said that it's similar to when a director takes acting lessons to better understand actors (but with no desire to be one). He's not planning to do video editing professionally, but he believes editing is the key part of how a video story is told, and he wanted to understand it more. As he said:

There's this expression that [a movie is] written three times: during the script, when you're filming it and when you're editing it. And I believe that's wrong. I think it's written once, in editing -- and everything is clay for that. And I wanted to learn about it -- I thought it would be neat. It's like learning to play the piano and I need a lot of clay. And I thought if I did one movie out of these three ...

But, here's the thing. You and I and everyone else -- other than the small group of folks Grace invited to his screening -- will never see this movie. He's promised never to show it, because he doesn't want to upset Lucasfilm or violate their copyrights. Of course, Lucasfilm has actually been pretty cool about allowing such fan edits, but others in the industry, led by the MPAA, have not. And, of course, it seems that even just the one screening that Grace had for his friends in the industry and some reporters almost certainly violated Lucasfilm's copyrights on the work.

And Grace isn't stopping there either. He plans to do more of these, starting with an edit from the various versions of Close Encounters -- but again, none of us will ever get to see it:

I think, for people who like to edit, this is a cool way to do it. And it's just a great community thing. But they'll never be on YouTube, or any of that stuff.

And that, to me, sounds like a pretty big loss. Fan edits and remixes of music are pretty popular and widely encouraged by artists these days. But, for whatever reason, the same viewpoint doesn't seem to extend much to movies (again, Lucasfilm is a slight, but not complete, exception). And, for the most part, it seems that not just allowing but encouraging the making and sharing of fan edits would be a great way to not just have fans even more engaged in the films, but also to introduce new audiences to films, and to give people more reasons to watch the originals again, just to compare them to some fan edits.

So here's a situation where we have someone doing something incredibly cool and creating a bit of culture that those who have seen it seem to have enjoyed thoroughly. And the rest of the world will never experience it, even though it wouldn't do any harm to the original films. That seems like a huge loss to the collective culture.

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How Does Fair Use Fit Into The Critique Of Copyright?

Patricia Aufderheide and Peter Jaszi — Fri, 18 May 2012 18:29:00 PDT

Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the scene, and has become a sturdy tool for a wide range of creators and users. This transformation has been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same time, cultural studies scholars have showcased the relevance of fair use to their work, which often involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of English and visual art, librarians, makers of open course ware, poets, and dance archivists--have identified fair use as a necessary tool for them to use to achieve their missions. They have turned to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and representatives have appeared before the Copyright Office to testify about the way that the DMCA, which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they receive takedown notices on YouTube, they issue counter-takedown notices and explain why their uses are fair. Remixers have also gone before the Copyright Office to protest the way that the DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported them. Google, the Consumer Electronics Association, and the Computer and Communications Industry Association have all advocated for fair use. Legal and professional services for communities of practice, such as lawyers and web developers, have built their fair use expertise to serve their clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use. Between the scholars, the creators, artists, and organizations, fair use is emerging out of a twilight existence where, for decades, it had lived. During those decades, many professionals and especially professionals in the corporate media environment—whether broadcast journalism, cable documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their rights to be able to improve their work, lower their costs and start or grow new businesses. Some want to expand the sphere of freedom of expression, so that copyrighted culture does not become off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between owners’ rights and the society’s investment in new cultural creation. Some believe that fair use, exercised to the maximum, will provide concrete experience of the limitations of today’s copyright law, and point to more effective change. They all share a common understanding that individual and community action simply to assert their rights has an immediate and long-range effect on markets and policy.

The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S. and world-wide, critiquing the most stifling, confining features of copyright practice today. That discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly toward ownership rights, in a way that prejudices the health and growth of culture. This broader discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the public domain; and civil disobedience.

Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster” it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a range of tweaks to pull back the extent of copyright protection, such as limiting copyright length and dropping protection against the preparation of derivative work, so that less licensing is needed. Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.

Some people offer suggestions to improve the efficiency of licensing, which today is messy, clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or compulsory) licensing schemes, such those that allow today for the retransmission of TV signals by cable and satellite systems. Others have suggested new voluntary digital platforms through which users could make “micro-payments,” tiny payments for each individual access to copyrighted material offered commercially. Legal scholar William Fisher has proposed a voluntary collective administration system, akin to those that today enable public performances and broadcasts of music, and to collect licensing payments through Internet service providers and distribute them to copyright owners and artists whose material is used online. Some copyright owners, including the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.

The ideas and projects all respond to the real problem that copyright law now fits ever more poorly the way people are actually making culture. They may well take some time to become useful, though. The big stumbling block both to fundamental copyright reform and to licensing reform is that large copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on what they would like to do. They do not know what business models will be most relevant in a few years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to them than change that might have unanticipated downsides. As major stakeholders in any legislative reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until their interests shift with shifting business models. As major actors in licensing, they will collaborate on new methods of licensing when they understand how emerging business models favor their interests.

Another part of this broad copyright critique is a range of efforts to expand copyright-free and copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such as open source software (collaboratively created and freely offered software), open source (free and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely available curriculum materials) offer such alternative zones. The various Creative Commons licenses contribute to this alternative zone by offering a way for creators to give their work away more easily, although with conditions, by labelling it appropriately.

These efforts have indeed created significant copyright-light zones, as well as creating enormous enthusiasm for a more flexible copyright policy. They work well for people who want to give their work away and share it without economic reward. A pool of noncommercial works now exists, but it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News Corp will continue to copyright their holdings and treat them as assets. The existence of copyright- light zones, however large, does not address the frequent need that people have to access mass commercial culture to make new cultural expression.

Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the Yes Men, Adbusters magazine and others—position themselves on the margins of official culture, and see themselves as reclaiming culture one image or gesture at a time. They also see themselves as challenging the terms of long and strong copyright. Ironically, many times the uses they make of copyrighted material are actually completely legal fair uses.

This broad and diverse discourse calling for changes in long and strong copyright thus has many faces and approaches, each with opportunities and limitations. They add up to a broad public awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair use more useable stand out because they can be done now, by people in many walks of life; they can be publicized and celebrated, thus spreading the word; and because using this right expands its range of uses.

Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics. Some regard it as hopelessly compromised because of technologies such as encryption, which override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too much of the status quo, and that another copyright-free world is possible. One way that concern is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to accomplish our goals.

In fact, under the current interpretation, fair use does apply in a wide variety of situations. They range from making copies of TV programs on our DVRs to creating digitally annotated critical texts to making an archive of the worst music videos ever to making relevant curriculum digitally available to students. Fair use has evolved, having different functions at different moments in U.S. history. Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore copyright to its constitutional purpose, and the transformativeness standard assists in creating that value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open; vigorous exercise will not break fair use.

Fair use will continue to be important, no matter what the success of other aspects of long and strong copyright protests and proposals. Even if we could wave a magic wand and execute reform of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair use would still be an important tool to free up recent culture for referencing in new work. Even if licensing were much easier than it is today, it would never address all the needs people have for use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the copyrighted material existing outside those zones without permission or payment would still remain. Sometimes people need to use materials that the copyright owner simply will not license to them. Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be fun, although some culture jammers are actually just employing their fair use rights without knowing it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals or pirates, and don’t want to.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that evidence the poor fit between today's copyright policy and today's creative practices. In a world where the public domain has shrunk drastically, it creates a highly valuable, contextually defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy—not merely protection for owners but the nurturing of creativity, learning, expression. Asserting fair use rights and defending the rights of others to use them is a crucial part of constructing saner copyright policy.

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Musician Wonders What It Would Take To Become An Open Source Musician

Mike Masnick — Wed, 16 May 2012 12:42:00 PDT

Kevin H alerts us to the news that electronic music/DJ artist The Polish Ambassador recently began musing on Facebook about what it would mean to be an "open source" musician:

According to Wikipedia, "Open Source" is a philosophy that promotes free redistribution and access to a project's design and implementation details. The end user who edits the program is then allowed to send his/her input to the author for possible inclusion in the project.

If an artist like The Polish Ambassador were to become an open sourced project what might that look like? Is there room/possibility for art/music/brands to become open source? Is it already happening? Could this ideology serve some purpose? Maybe a way to get other people's ideas out there? A way to collaborate? A way to merge efforts of like minded folks? A way to create art from art? A way to generate $ for end users/charities? It seems to me the possibilities are endless. We all use open sourced software every day. Linux, Firefox, etc, but I haven't heard of many artists that when I think of their name, I also think, "O yea, she/he's that open source artist." Maybe there's a reason for this, maybe not. With Twitter/Facebook and the web in general, technologically speaking, we have never been more connected. Would love to hear your thoughts and ideas. Could "open source artists" be an evolutionary step for art?

Of course, many folks in the "free culture" world would point to Creative Commons as the artistic equivalent of an open source offering. However, two interesting things strike me. First, as of the time I'm writing this post, no one in the dozens of comments posted to that story mentions CC at all. Second, the request actually goes a bit further than CC. It's not just about making the works free to distribute or use... but the second part: sending it back to the original creator for possible inclusion in the project. Now, again, we have seen some examples of this with various remix projects. In particular, I'm reminded of the experiment by K-OS, where rather than having fans remix an album, he pre-released all the stems, and let fans create their own original mixes, and then took the best for each song and released a combo album: one of his own mixes, and a second of the best fan mixes. In the hip-hop world, releasing instrumentals or acapellas for fans and other artists to remix (and building contests or other promotions around that) is fairly common—but only a few artists have gone further and offered up the individual bits and pieces. Perhaps that's along the lines of what The Polish Ambassador is looking for.

Either way, this has me wondering if there isn't something Creative Commons could include in their offerings, or if if this goes beyond that. It is an interesting point however. One of the thrills people get in working on open source software isn't the fact that they can do what they want with it, but that they can collaborate to make the project better. Open source developers feel well-earned pride when a contribution gets included in a larger project. Imagine the same situation with musicians. What if your favorite band released your remix of their song? That is, what if they effectively worked with you and said your version was one they really liked -- such that you got the official stamp of approval that had the work more widely distributed? Again, it appears that some artists are doing this on the margins, but it seems like the kind of thing that could be more clearly formalized and promoted as a cool way for artists to connect with fans and for fans to gain some form of validation for their own help with certain projects.

Oh, and in the meantime, it appears that The Polish Ambassador is currently offering up its entire discography for free -- 7 hours worth of music, all in FLAC format.

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When The Kids Of Major Label Execs Get Accused Of Infringement...

Mike Masnick — Wed, 18 Apr 2012 07:15:00 PDT

You may know the name Jimmy Iovine. He's the head of Interscope Records, one of Universal Music's most important subsidiaries (if not the most important one). Not surprisingly, Iovine has a bit of a history of being something of a copyright maximalist. A few years back, he specifically called out the evils of children infringing:

"Rip it, burn it--the last few years parents and children have been given a pass when they knew in their hearts that [what they were doing] was wrong," Iovine said.

Indeed, he seems to suggest that parents share some of the blame for their kids infringing:

"(Piracy) is hurting kids because kids are learning a disrespect for the basic relationship between creativity and ownership. It's hurting parents because they are in on the sham."

So, one would assume that Jimmy Iovine's kids are squeaky clean, right? Especially, say, if they were professional DJs whose websites indicate they're a part of the Interscope/Universal Music family, right? Yes, that's the website of DJ Eye -- also known as Jamie Iovine, son of Jimmy Iovine. Jamie actually has a really good reputation as a DJ but, like many DJs, he releases mixtapes/remixes/etc. And, recently, it appears, Jamie's Soundcloud account was shut down due to copyright infringement: If you can't see that, it says:

My soundcloud is temp disabled due to some copyright bullshit. Getting it cleared up and should be re activated soon

His account is now back but a recent remix has gone missing. It was a remix that included Will.I.Am (Interscope Artist) along with Jennifer Lopez and Mick Jagger (not on Interscope).

None of this is to suggest that Jamie did anything wrong here. In fact, it looks like he did something completely natural and certainly very common: remixed some music in a cool way. But the way copyright law often works, you can now get in lots of trouble and owe lots and lots of money for doing something completely natural. Perhaps his father will realize that these issues aren't always so black and white, and even if your children are brought up in a house where they're taught repeatedly just how totally awesome copyright law is, it doesn't mean they won't, someday, discover how copyright law limits them, and get accused of copyright infringement.

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Michael Jackson, Pirate Remixer

Mike Masnick — Fri, 9 Mar 2012 18:43:26 PST

We always hear stories about how copyright has to be protected to "protect the artists," and yet time and time again we learn that some of the biggest name artists will often copy directly from each other without credit or payment. It's the way music is made. In James Boyle's excellent book, The Public Domain, there's a really fantastic chapter giving plenty of examples of this in practice. However, Rob Hyndman recently pointed us to another such example, found via Wikipedia, but backed up via its sources of course. The discussion? It's about where Michael Jackson's famous song Billie Jean came from. Turns out, Jackson himself admitted to copying the bass line directly from a Hall and Oates song:

According to Daryl Hall, when Jackson was recording “We Are the World,” Jackson approached him and admitted to lifting the bass line for "Billie Jean" from a Hall and Oates song (apparently referring to Hall’s "I Can't Go For That (No Can Do)" from the 1981 album Private Eyes): "Michael Jackson once said directly to me that he hoped I didn't mind that he copped that groove."

Of course, the really amusing part? Hall responded to Jackson... by telling him he had done the same thing himself to get that bassline in the first place! "It's something we all do," Hall later explained.

Indeed. And yet, under today's laws, it's still considered infringement, and we still hear people looking down on "remixing" or people who create works in this manner, by building on the works of others. And yet, this is one of the most successful pop songs of all time. And the bass was a big part of that. Elsewhere in the Wikipedia article, there's a discussion of how the producer of the song, Quincy Jones, hated the song, and specifically the bass line. Yet Jackson insisted that the bass line was the key to the song, and the two of them fought over it until Jackson won. And the bassline was completely copied.

It's stories like this that make us wonder how people can say with a straight face that copying something can't help to create something new.

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When We Copy, We Justify It; When Others Copy, We Vilify Them

Mike Masnick — Fri, 17 Feb 2012 09:00:35 PST

We've written multiple times about Kirby Ferguson's excellent Everything is a Remix project that has produced three videos highlighting the problems and history of intellectual property and how copying and derivative works are a core element of culture and invention. He's now released the fourth and final installment in the series, and it's a great summary look at the general problems with intellectual property law today. The key theme is that the theory (treating ideas, inventions, content, etc. as a form of "property" -- in the minds of many copyright and patent system supporters) simply doesn't match up with reality (where almost everything is a derivative work of some sort). What the video does nicely is highlight the hypocrisy of it all. As he notes brilliantly, when we copy (and everyone does copy), we justify it. When others copy, however, suddenly we attack them and vilify them. A perfect recent example of this, by the way, was former NYT executive editor Bill Keller's bizarre defense of the NYT copying and posting a work covered by someone else's copyright, just days after his own column came out in support of greater legal enforcement of copyrights.

As he notes, this is psychologically understandable. It's all about "loss aversion." People feel a sense that they "own" something which they really do not -- and that's often boosted by the concepts of intellectual property that really spread the idea that you can, in fact, own an idea (and, yes, technically neither copyright nor patents apply directly to "ideas," but that's a nuance that most people fail to grasp when they see how content and inventions are considered "owned" under the laws of today).

The video then talks about the continued expansion of copyright laws, and the more nefarious effort to continue to ratchet things up through trade agreements like ACTA and TPP. But he also points out that this is somewhat ironic, since in its early years, the US refused to sign similar trade agreements, and was a "pirate nation" that ignored copyrights from around the globe.

The video doesn't just cover copyrights, but digs into patents as well -- with specific attention paid to broad software patents that do little to contribute any knowledge to the world, but instead take broad concepts and seek to lock them up for the purpose of suing and trying to extract settlements from those actually creating and innovating.

From there he breaks out the original purpose of both copyrights and patents under the US system. In both cases, they were about benefiting the public: to encourage learning or to promote the progress of "useful" arts (inventions). But when the laws fail to do that, then we should see the system as broken and seek to remedy it.

All in all, Ferguson's series is a great introduction to many of the issues we cover around here. I don't fully agree with everything in all of the videos -- and the latest one has a slight undertone suggesting that capitalism and markets in and of themselves are bad (which I think is conflating a few different issues). But overall the videos are fantastic -- and in terms of production quality, it seems like each one in the series is better than the previous one. He keeps maturing as a video maker, which is cool to see. Ferguson is now moving on to a new project, called This is Not a Conspiracy Theory, for which he's raising funds on Kickstarter, so check it out.

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Thomas Jefferson: Original Remixer

Mike Masnick — Fri, 23 Dec 2011 19:39:00 PST

Thomas Jefferson, of course, was the author of the Declaration of Independence, our third President, and had tremendous influence on the early days of our country. While he did not write the Constitution, he was still hugely influential in what went into it. It's been noted plenty of times that Jefferson was extremely skeptical of the copyright/patent clause of the Constitution. He was among those who suggested that monopolies would almost always do more harm than good. He later relented, and indeed ran the first Patent Office, though even then he seemed to remain quite skeptical of the idea of ever locking up knowledge. Either way, Aaron DeOliveira points us to the news that Thomas Jefferson was a remix artist before such things were cool (he was always such a trendsetter). Apparently he literally cut up and remixed the bible, to create a version "he believed was a more coherent narrative and pasted them onto blank paper." Thomas Jefferson... a pirate?

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No Copyright Intended: The Coming Generation Who Intrinsically Assumes Remix & Sharing Makes Sense

Mike Masnick — Tue, 13 Dec 2011 08:54:26 PST

A whole bunch of folks sent over Andy Baio's recent brilliant post entitled No Copyright Intended, after the exceptionally common phrase found all over YouTube, where uploaders (mostly young uploaders) declare that, or the slightly modified "no copyright infringement intended," with videos they post. These are almost always on videos of songs or remixes -- in other words, content that almost certainly does infringe on someone's copyright. But the key point is that young people today intrinsically recognize that this doesn't make sense -- and they assume that their non-commercial use and intent not to profit mean that it should be fine. Legally, it's not. But it's certainly important to recognize that very few young people seem to recognize or care about this:

How pervasive is it? There are about 489,000 YouTube videos that say "no copyright intended" or some variation, and about 664,000 videos have a "copyright disclaimer" citing the fair use provision in Section 107 of the Copyright Act.

As he notes, many kids really seem to hope that just explaining their intentions will ward off a takedown, even though so many takedowns are automated these days. But the key point that Baio makes is at the end, where he notes that "no amount of lawsuits or legal threats will change the fact that this behavior is considered normal..." And from there, he suggests that as this generation ages, and begins voting, the trend of ever more draconian copyright laws is going to start to look pretty silly:

Here's a thought experiment: Everyone over age 12 when YouTube launched in 2005 is now able to vote.

What happens when — and this is inevitable — a generation completely comfortable with remix culture becomes a majority of the electorate, instead of the fringe youth? What happens when they start getting elected to office? (Maybe "I downloaded but didn't share" will be the new "I smoked, but didn't inhale.")

Remix culture is the new Prohibition, with massive media companies as the lone voices calling for temperance. You can criminalize commonplace activities from law-abiding people, but eventually, something has to give.

We've been arguing the same thing for a while. We're often told that as these kids grow up and "learn" more about copyright they'll change their minds. I just don't see it. It may happen for a small percentage, but it's tough for these kids to deny reality. Sharing content, remixing content and building on content is so natural to them. The idea that it should be illegal simply makes no sense at all. No amount of "education" (even if it involves McGruff the Crime Dog) can fool people into believing that nonsense is reasonable.

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Steve Jobs' Real Genius: Tweaking, Curating, Editing & Remixing To Make Things Better

Mike Masnick — Tue, 8 Nov 2011 10:19:02 PST

We've argued a few times that Steve Jobs' real success wasn't in inventing anything particularly new, but in taking what others had done and making it better. That's why we found his complaints about Android seem so odd. Now, as a ton of you have submitted, Malcolm Gladwell has penned a piece on Steve Jobs' "real genius," which he describes (eloquently, as always) as a "tweaker" more than inventor. Elsewhere, he's described as an "editor," rather than inventor.

Jobs’s sensibility was editorial, not inventive. His gift lay in taking what was in front of him—the tablet with stylus—and ruthlessly refining it. After looking at the first commercials for the iPad, he tracked down the copywriter, James Vincent, and told him, “Your commercials suck.”

“Well, what do you want?” Vincent shot back. “You’ve not been able to tell me what you want.”

“I don’t know,” Jobs said. “You have to bring me something new. Nothing you’ve shown me is even close.”

Vincent argued back and suddenly Jobs went ballistic. “He just started screaming at me,” Vincent recalled. Vincent could be volatile himself, and the volleys escalated.

When Vincent shouted, “You’ve got to tell me what you want,” Jobs shot back, “You’ve got to show me some stuff, and I’ll know it when I see it.”

I’ll know it when I see it. That was Jobs’s credo, and until he saw it his perfectionism kept him on edge. He looked at the title bars—the headers that run across the top of windows and documents—that his team of software developers had designed for the original Macintosh and decided he didn’t like them. He forced the developers to do another version, and then another, about twenty iterations in all, insisting on one tiny tweak after another, and when the developers protested that they had better things to do he shouted, “Can you imagine looking at that every day? It’s not just a little thing. It’s something we have to do right.”

This is a key point that we've been arguing about for years. There's tremendous value in what Jobs did: innovating not actually by inventing, but by tweaking and "editing" the ideas and designs of others to make them "perfect." That act of taking what others have done and making it more valuable is such an underrated skill -- and yet it's really the key ingredient to innovation.

If you look back, historically, it's what Thomas Edison really did as well. He didn't actually invent very much himself. But he took others' ideas and made them better -- often recognizing how valuable the ideas were much more than those who originally came up with them. That's a form of editing and a form of remixing to make things better -- and Edison and Jobs were both amazingly skillful at it. So skillful, that many people falsely credit them with "inventing" things they really just remixed.

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After Watching This Video, Can Anyone Say That Remix Isn't An Act Of A Musician?

Mike Masnick — Tue, 19 Jul 2011 12:25:05 PDT

One thing we hear all the time from folks who dislike remixes or mashups aren't "real" music is that a computer isn't a real "instrument." However, when I see and hear artists like Girl Talk, Kutiman and Pogo, I can't see how anyone with any ounce of intellectual honesty can claim that these are not true musicians in every sense of the word. And yet, people still argue that they're not, saying that sitting at a computer cutting up sounds isn't the same thing as playing a real "instrument." But... I point out that if someone is sitting at an electronic keyboard and pressing the keys, all they're really doing is playing a sound created by someone else. Is that really all that different than mashing up sounds played by someone else? What if you take things a step further and program clips of other songs into a keyboard and have someone play it?

Step on up, Madeon. While it's not a keyboard directly but (perhaps more impressively) a Novation Launchpad, this 17-year-old recently released this incredible video of him mashing up 39 of his favorite songs into one song... live. I defy anyone to claim that what he's doing here is anything less than a musician playing a keyboard or guitar: Just like a musician, he's using an instrument and the sounds that it makes to create something new and wonderful.

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We Need To Let Go Of The Idea That Our Creations Are Utterly Ours

Mike Masnick — Thu, 7 Jul 2011 09:35:14 PDT

We've written about Kirby Ferguson's excellent Everything Is A Remix project, and the folks over at On The Media have a nice interview with Ferguson. The whole thing is worth a read (it's pretty short, actually), but there were two great quotes that I thought were worth highlighting. He's asked if he's "sympathetic" to copyright holders, and responds:

I'm sympathetic to most of them. It's natural in our culture to want to protect what you feel you worked hard for or invested in. Unfortunately, I don't think it's as natural to be aware of the innumerable ways we take from our culture in order to create these things. We need to let go of the idea that our creations are utterly ours. Creating something new entitles us to some rights, but not to perpetual monopoly, which is the direction we're headed in.

That bolded part is the key. People have a natural inclination to give themselves more credit for their own work, and diminish the contributions of everyone who came before them whose work was instrumental to their own. I definitely recognize the natural instincts there as well, but I agree with Ferguson that it's important, culturally, to get past that.

He's also asked where he'd like to see things go "culturally in terms of copyright and patent laws" and he answers:

I think we have to stop conceiving of remixing as a kind of theft. It's not theft, it's not piracy, it's a legitimate effort to make something new. That effort deserves some respect, if not for the results, then for the intent. So I think step one is to stop treating remixing as theft and bring the penalties for unauthorized remixing back down to earth.

This can't be said enough, even though it's rarely said at all. I've explained in the past how insulting it is for people to make criticisms like "create your own!" when they see amazing creative new works built by remixing the works of those who came before. If you can't respect amazing creations built off of others' work as being something amazing and new, then you lead a culturally deficient life.

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Everything Is A Remix: The Invention Edition

Mike Masnick — Fri, 24 Jun 2011 08:38:12 PDT

We've discussed in the past Kirby Ferguson's excellent project Everything is a Remix, which tries to highlight how creativity is almost always derived from elsewhere. We wrote about the first two videos, which covered copyright issues, starting with music and then movies. His latest may be the best yet, as it focuses on inventions, in large part by retelling the Apple story, concerning how it built off the work at Xerox PARC (which in turn built off work at SRC and other places). We actually just talked about this story a few weeks ago, and this video definitely adds to that conversation: The key point, which critics will undoubtedly skip or gloss over, is that he's not just saying that copying is good. He's saying that copying is one part of the very important process of innovation. Copying is a component, but the important part is then taking that copy and doing more with it. At issue is that some people believe that it's better to do everything from scratch. But that's incredibly wasteful, inefficient and too often, limiting. Being able to build on the works of others, to transform them and combine them with other good ideas, that's where innovation comes from. We've pointed this out many times before. The iPhone was a wonderful innovation, but almost all of its technologies could be found elsewhere. It's just that Apple put them together in a brilliant and user-friendly package. The video shows that the same thing was true of the original Macintosh, which took ideas from elsewhere and put them together in a useful manner. And, as you look back through history you find that it's true of all sorts of revolutionary and transformative advances in progress, such as the Gutenberg printing press or Henry Ford's Model-T mass production setup:
Innovation is almost always about remixing. It's about taking ideas that are already out there, and transforming them and adding to them. And yet, our social and legal policies seem to deny this. They seem to be focused on the myth of "flash of genius," -- of an invention that is brand new and unique. And so we create a system like the patent system, which doesn't recognize the importance and value of building on the ideas of others in order to continue that process of innovation. And that's a shame, because it's holding back progress in dangerous ways. It's certainly not stopping progress, but what we lose from progress not going as fast as it could is tremendous.

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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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Waiting 100+ Years For Version 2.0

Tim Cushing — Fri, 27 May 2011 19:39:00 PDT

Jeffrey A. Tucker (of the Mises Institute) recently had the pleasure of viewing Tangled, Disney's 2010 remake of the Rapunzel story. He gives a brief rundown of the improvements, including:

"[T]he story mercifully leaves out some very strange aspects of the original Brothers Grimm, including the wildly implausible idea that a husband would give up child-rearing rights to his wife's child in exchange for free access to the neighbor's lettuce patch."

(It's amazing how a little hindsight makes free access to a lettuce patch seem less valuable than a human child.)

Of course, Disney (a.k.a. Kaptain Kopyright) has often raided the Brothers Grimm for inspiration, thanks to their stories being in the public domain, something Disney's own work will likely never be subject to. And while there's a lot to be said in regards to Disney's hypocritical plundering of the past, Tucker points out just exactly how much copyright stifles creativity:

"Sometimes 2.0 is just much better than 1.0, and here we see the big problem with intellectual-property protection. It freezes the first release as the only release for up to several generations. Improving and adapting are made against the law. This is not a problem if you use a story that is old enough. But why should society have to wait 100 years to get a better version of the original? Why should we have laws that artificially slow the pace of progress?"

That question is directed at you, copyright maximalists. Why should we have to wait more than a lifetime to improve or adapt an idea? It can't just be the money, because most ideas don't generate a lifetime of income. Is it the fear that someone might improve on your idea? Is that the main concern? That the world will move on, forgetting the originator and embracing the "remixer"? Or is it simply a short-sighted and mercenary view that has self-perpetuated into the endless copyright extensions of today?

It's often argued that extensive copyright protection "fosters creativity," but this "creativity" is often narrowly defined and bound to one person (and their heirs) for 100+ years. Tying down an idea for more than a century fosters nothing more than resentment on both sides of the issue. The creators tend to feel that there is something sacred about an original idea, despite the fact there is no such thing as "original". Those on the outside who wish to build on existing ideas are locked out and no matter how brilliant their take is, it will never see the light of day.

It's as if certain artists feel that their ideas should exist on an unwavering straight line that runs parallel to their lifetime. While copyright protection theoretically "incentivizes" creativity, in practice it has become nothing more than a legislatively-backed, wholly undeserved pension plan that does nothing more than lock everyone else out of the creative process.

(Quick hat tip to JPM, who shot this post in my direction via evil social behemoth, Facebook.)

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Gorillaz Don't Just Ask Fans To Remix, But Offer Them A Full Specialized Synth App Too

Mike Masnick — Thu, 21 Apr 2011 03:02:07 PDT

Tons of artists now release stems of their music for fans to remix. It's pretty common to see "remix" contests as well. Still, it's pretty interesting to see how some bands are taking it even further. Eliot Van Buskirk alerts us to the news that Damon Albarn's "virtual band" project, The Gorillaz, have teamed up with Korg to offer a special KORG iElectribe Gorillaz Edition for the iPad. The regular iElectribe is just an iPad synthesizer, which people seem to like. But the Gorillaz edition has a different (more fun, more Gorillaz-style) user interface design (making it look like it's been around the block and run over by a truck or two along the way), along with a ton of presets using music from The Gorillaz' latest album. So, instead of just giving people stems and telling them to remix, this is almost like an album bundled with its own synth tool in one package. I expect we'll start seeing things a lot more advanced than this. Why release just a plain old album when you can start to enable your fans to do much more with your music?

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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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Star Wars Is A Remix

Mike Masnick — Fri, 4 Feb 2011 17:28:00 PST

A few months back, Kirby Ferguson started a fascinating project called Everything is a Remix, highlighting how the concept of "remixing" what came before, and adding additional new elements to it is much, much more common than you would think. The project kicked off late last summer with a video highlighting remix within music, focusing mainly on Led Zeppelin and how many, many of their songs are clearly "remixes" of existing songs: While it's taken a while, the second video of the series has now come out, and focuses on remixes in the movie industry, with a key focus on Star Wars: It's long been known that George Lucas relied heavily on Joseph Campbell's works on myths in creating Star Wars, but you might not have known how many specific scenes, characters and elements he appears to have "remixed" from other movies. I've cut out a few quick screenshots below, but there are many more in the video:

Some of these are even more clearly take-offs on the originals when you see the video version. For those who think copying is somehow "wrong," do you now think any less of Star Wars? Or will you come up with some sort of rationalization why this kind of copying and remixing is okay. The point, of course, which will unfortunately be missed by many, is that this is how culture and creativity evolve. Everyone builds off the works of those who came before them. This is a good thing, rather than something to be punished.

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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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