Discussion Group Lead Posting: Remix Intro, 1-5

And Kevin thinks he blathers on...

Lawrence Lessig opens Remix with a crazy tale of a dancing 18-month-old, an old Prince tune and a rights-crazed organization intent on stopping unauthorized use of their songs. He follows this up with an artist’s trials with a John Lennon song and finishes with Gregg Gillis’ work as Girl Talk – a music performance entity that builds its work off of massive sampling. In each case, the rights holders of the sampled work stepped in with oversized (and probably unnecessary) boots to stop or limit the use of the material.

The catch phrase of the Introduction was “Permission was vital, legally”, which provides a villain for this tale. As an alternative to onerous licensing, he sites Silvia0’s music production, released with a Creative Commons license, as a way to maintain ownership of a creative work while still allowing for remixes and other reuse. This positive story ends with a remixer providing Silvia0 a new insight into her own work, thereby showing some of the opportunity available with more freedom of media use.

All of this provides a melodramatic overview of the blurry lines and “collateral damage” that is our current copyright system.

The Creative Commons site: http://creativecommons.org/
Stepanie Lenz’s case: http://www.eff.org/cases/lenz-v-universal
Girl Talk talks: http://www.youtube.com/watch?v=hyVlt5trTgo
… and makes fun: http://www.youtube.com/watch?v=hyVlt5trTgo

1. Cultures of our Past

In this chapter, Lessig begins with the tale of John Philip Sousa trying to defend his rights as a composer in the face of a new reproduction medium: the phonograph. At the time, there was no licensing requirement for records, leaving Sousa upset about his lost income. But Sousa went further, pointing to this Read-Only system being a blight on society, limiting the desire for amateurs to pursue music creation.
Sousa was correct on one level: professionalism became the norm for music creation, and people began to “use” music rather than making it. The financial rewards were immense for the corporate music culture, and professionalism became the way people thought about music.

But within the copyright discussion, Lessig points out that nobody – not even Sousa – thought that the regulations prevented someone from singing along a song on their front porch. And it is this limiting concept that Lessig hopes to revive.

2. Cultures of our Future

This short chapter prepares the reader for the coming chapters.

3. RO, Extended

When analog was the reigning technology, RO (Read Only) media was sold as a consumption, rather than a manipulation, mechanism. The business model that was developed focused on selling copies of the media, and the law supported this model. But with digital media, the entire “nature” of the system changed. Since even media players had to create a copy in order to play the media, the process of copying digital content became easy, and the industry responded by trying to clamp down on “pirates” with lawsuits and DRM. It took the success of the iTunes Store to show the industry how to make money from digital downloads – pointing to one way that RO technology can be improved by embracing the network.

Television viewing is another RO technology that Lessig sees undergoing a rapid change. His discussion of his desire to see the Acadamy Awards ceremony shows not only the availability of viewing on the network, but also the modern viewers demand to see something NOW.

As he states: “Access is the mantra of the YouTube generation. Not necessarily free access. Access.”

It is clear that immediate access to TV material is on its way - whether this is mediated by Hulu, YouTube, Netflix or some entity that doesn’t yet exist. The concept of having an iPod (or other device) as our portable “everything box” may even be out-of-date. It may just be that ubiquitous Internet access makes having a device pointless.

Pointing to Amazon’s tracking of preferences is another way that RO media access can improve. The Amazon system is amazing – it is able to ferret out books, movies and CD’s that compel me to make a purchase. If a system like that can be created for the complete digitized world, it would help me find and consume content (either free or paid) at a greater pace and intelligence level.

However, in order to make this sort of widespread consumption accessible, the right to digitize and contextually search media would be required – an issue that is far from certain. The current backlash that Google is seeing with their book project is one example of the difficulties of current rights regulation (see Kevin’s recent blog posting).

A visual example of Amazon’s “web”: http://imagine-it.org/amazong/arbore.php?XMLFileName=0385504209.xml
The closest thing we have: http://delicious.com/help/learn
How Hulu.com sells itself as an access point: http://www.hulu.com/about/product_tour

Chapter 4: RW, Revived

This chapter contains many charged subjects, and will (along with the next chapter) be a large part of the opinion pieces and discussion questions I will pose. Lessig points to the written word as having an “open” sampling policy: provide attribution and you can quote the words. Other media does not, instead requiring specific permission to be used. He raises Judge Kevin Thomas Duffy’s decision as a terrible example of legal support for the current norm. But Lessig lays down the gauntlet the if you can “sample” for a new Yorker article, why can’t you sample for a film?

In order words, why is the freedom to quote ever limited?

Lessig believes that “Remix is an essential act of RW creativity”, one that “no free society should restrict”. He then attempts to lay out a logic for this belief, first through the democratization of the Web through the creation and widespread use of blogs (which remix culture statements with original material), to the feedback network created by blog reader’s comments, then to the process of “writing” with media. This last work is compared to collage, where images were mixed to the point of absurdity, and work both poignant and silly were created from whole cloth out of other images. The Internet provides an overload of image, sound and video data, and it is Lessig’s contention that this data has cultural value that should be easily (and legally) reusable.

The choices of material that Lessig points to are remixes that have a message – specifically a political message. But the point of his argument is that reusing digital media is important because that media may have a cultural resonance that helps enforce a critical statement. Negativeland was notorious for that very thing, making pointed statements about popular culture using its own media (or, in some cases, its offal).

The section on AMV’s was difficult to follow, and the link provided was unusable without signing up for the site. Nevertheless, you can see a YouTube example of an AMV at:

http://www.youtube.com/watch?v=sXuwA7Go

This is an example of an innocuous media venue that, if anything, serves to bolster the value of the remixed product to its owner. A video of this quality is also apt to bolster the cultural identity of the producer, too.

The discussion about the educational value of media remix is compelling (if short). An important aspect of this is the discussion of “good” and “bad” remixing, and that learning to do better comes with producing some bad work. Hard to argue with that, right?

5. Cultures Compared

Lessig starts this chapter by defining a core difference between RO and RW culture: RO is strictly professional, while RW can also incorporate amateurs. He points to some areas where RO is appropriate and even required (like medical instructions or the payment stream for commercial films). The most potent pro-RO statement is “Where we can see that creativity would be hindered by the absence of this special privilege, the privilege makes sense.”

Lessig believes that RW culture strikes us differently, and that as such has a powerful cultural position – that it promotes active learning and important social values. In his (and Andrew Odlyzko’s) view, content is no longer the important property, it is an ingredient for future work. This is talking about economic value, but I find the argument somewhat difficult to follow.

In his defense against Charles Sims’ call for “original creativity”, Lessig hones in on his main argument for RW culture. He appreciates remix for its ability to give people a voice, and to give them an avenue to explore creativity. He also hopes that it can heighten the creative culture beyond the Britney Spears level of media.

Lessig then gives us an overview of copyright law as it relates to current media – which, in essence, makes all media RO unless specifically made RW. In essence, it criminalizes all RW work. The law supports any limit the copyright holder may put on a work. Lessig claims that, in the digital age, the law provides much greater control than was possible in the analog world, since digital media use involves processes that can limit our ability to consume freely (unlike, say, a book). Since almost every use of digital media requires a copying process, these uses all trigger copyright law.
Sampling-based music is compared to jazz, where each builds off the work of previous musicians. Jazz is seen to be free from legal hassles, while sampling musicians are hit with onerous legal burdens. Given that this feed a lot of lawyers means that it is an economic hot button, and the legal industry isn’t in a rush to change anything.

Lessig feels that all of the above places RW culture in a disfavored position, and that this needs to change. In an attempt to begin this change, he points out some of the laws that need to be changed and some of the avenues that are being explored.

Opinion and Questions (Questions in bold italics...)

I think that Lessig arguments are utopian – but also heavily slanted, with examples that provide the best vision of remix culture and the worst vision of current copyright laws. I want to discuss a number of areas where I feel like an alternative view could prove useful (or at least open a lively discussion). Perhaps some of these views will explore edge conditions, but these are the conditions where laws and regulations need to help us.

Sampling of the Written Word: Sampling of the written word is not without limitations. I could not, for example, place this essay at the front of Remix and sell it as my own work. In fact, even if half of my version of Remix was my own writing, it would be widely considered either a plagiarized or fraudulent work. Since there are limits to the reuse of the written word, it makes sense that there should be some limit to the reuse of media work. That the limit has not yet been agreed upon doesn’t make the limit useless. I am concerned about “without limit” in this case – something that will be a common theme in this writing.

What are the accepted limits in sampling the written word, and how might these inform us on limits for sampling video, audio and still images?

Remixes as a Form of Collage: A sticky subject, and one that is not completely clear from a legal standpoint. I’m sure that we will hear more about “Fair Use” in upcoming chapters, but art and Fair Use have a rocky history. If Fair Use is able to support true remix/collage efforts, then the point is moot. If it is not, then there is some room for discussion. At this point, it seems that the law is not yet clear on the subject.

Pretty Woman Fair Use on Wikipedia: http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.

Nevertheless, even Fair Use arguments are disconcerting if we look at edge use cases. Take, for example, the Cliff Evans’ art piece that was displayed on-campus. At the end of one section, a naked family is holding hands in a field as a spaceship takes off. Evans clearly states that all of the images he uses are appropriated from Goggle Images, and that he does not seek permission to use any of them.

Let’s set aside the fact that someone took a photograph of their family in the nude (assuming, as it appears, that is was completely innocent). At some point, the photographer placed a copy of this photo on a networked computer – possibly for backup purposes only. Google spidered this computer, found the image, cached (copied) it on their machine and made it available through its search engine. Evans found the image, copied it onto his machine, manipulated it and put it into his artwork, then copied that artwork onto a machine here at DU.

What if the original photographer never meant for this photograph to be “published”? Who is the party that has broken the law – Google (for making the initial copy)? Evans (for copying it and placing it on his machine)? DU (for copying it onto its machine and displaying it publicly)?

And let’s say that an over-anxious DA decided that a photograph containing two nude children represented a sex crime. Which of these parties was the distributor of the picture? Which of them moved the photograph over state lines (making it a federal offense)?

To my mind, the issue of unlimited collage remix of network-based material is two-fold: 1) it doesn’t require the remixer to approve the use of an item that may have been placed on the network inadvertently, and 2) it doesn’t maintain a provenance of activity ("who touched this thing?") that can be sorted out when other issues crop up.

Remixes as Cultural Value: Lessig points to remix in the political netscape as being important, and remix in the commercial (anime) world as being interesting. To a political remix, I say “Bravo!” Public figures are not immune from parody, and these remixes can serve a useful point. The commercial entities behind anime probably cheer on the AMV crowd, since they help bolster the visibility of a character or product in a crowded marketplace. But not all remix videos are positive...

Let’s say that my neighbor’s son Jasper decided that he hates my son Wyatt and wants to make fun of him. Let’s say that Jasper finds an online video of my son (that I put up to share with my family) and replaces all of his words with the audio “I am a great big dingleberry.” Now Jasper posts it on YouTube and tells all of his friends at school. They see it, send a link to all their friends, and it becomes an Internet sensation.

This is not really criminal, and it is not life-threatening, but I would like the ability to call YouTube and say “No, I did not offer the rights to my video for this production” and have it taken down.

In my opinion, the issue with the above is that Jasper has broadcast the video internationally. Prior to the advent of the net, Jasper would have had to take his own video, done the audio overdub, then show it to his friends personally. They may have made copies and given it to other friends, but the difficulty in distribution would have limited this embarrassing situation to a small group.

The network makes every posted media item into a potential broadcast. And I should have the option of saying “No” to anything I create from being broadcast. Let’s take another, probably more disturbing example. I produce music, and some of my music is available online. Let’s say that someone uses my music in an amateur porn production, and I get wind of this use. I would like the option of saying “No” to this use because I don’t want my music used within that genre of video.

This is a case where allowing free use with attribution would even be more horrifying. It’s one thing if my music is being used without my permission, it’s a bigger problem if they attribute the music to me, and I find out that a search on my name places a porn video at the top spot of a Google search. This would have a significant effect on my life, and the fact that I was properly referenced would be little solice.

Right now, copyright is automatically granted at the time of a work's creation. What happens if this is no longer the case? What rights - other than economic - are lost if the presumption of copyright is lost?

Freedom for Non-commercial Use: This “No” problem is at the heart of my concern with claiming unlimited non-commercial use. There are plenty of non-commercial situations that I would prefer to avoid. I wouldn’t want my music played in the background of an Anti-Obama remix, nor would I want it as the soundtrack to an amateur Girls Gone Wild knock-off. Lessig states that RW culture only enhances the value of media. I don’t think that is true – especially if the media becomes an iconic representation of an undesirable entity.

Let’s say that I do a soaring piece of music and sell it as a soundtrack for an independent film. On viewing the film, the American Nazi Party decides that it liked the music so much that it was going to use it for their party anthem. The hold a press conference, covered by CNN, to goosestep around a stage to my musical piece. The American Nazis are non-commercial (as far as I know), so in this scenario they would have unlimited rights to my music. Shouldn’t I have the right to say no?

In any case, there is another issue: what does non-commercial mean. Does it mean the remixer doesn’t make any money? When I viewed the AMV video on YouTube, there was an overlay ad for something, several sidebar ads for some other stuff, and a great big YouTube icon for me to stare at during the entire viewing. YouTube is certainly making money on this production – does that make it commercial?

There are very few non-commercial sites that provide post-textual media support. Providing the bandwidth to stream audio and video is expensive, so most of these sites are either ad-supported or subscription-supported. Only P2P distribution provides truly non-commercial distribution, but these networks provide little visibility of the media for search engines and delicious-style affinity voting. In this environment, what really constitutes non-commercial?