Sasha Frere Jones is a smart guy, but he really took a wrong turn in his column this week (“Heavy Sifting: Broke Hop”) particularly with this line: “But beats built from fragments of vinyl sound great, and before changes in law made sampling too expensive for anyone who isn’t named Kanye West, a lot of work got done with old soul and funk records….These acts then had access to resources (clearance lawyers employed by the label) and freedom (A. & R. people who could shield them from the suits), enabling them to go bonkers after they had delivered a radio-friendly single or two.”
I’m not even going to get into the most common form of “shielding” that was and probably is still done—called lying.
First of all, there has been no change in the law regarding infringing reproductions since sound recordings were accorded copyright protections in 1972, and that only affected the recordings, not the songs. Remember, you have to clear both.
Some of the labels that specialized in hip hop may have had semi-captive outside clearance companies—usually not lawyers and only rarely in-house lawyers—who did a lot of clearance work for the labels. This was far more frequently clearance companies who did work for the producers, not for the labels. Some of these clearance companies are still around today.
I also have no idea who these super-A&R people were who could shield artists from “the suits” and they certainly couldn’t shield anyone from lawsuits. I have seen A&R (and producers) say “there’s a James Brown sample in the record” and when told that they needed to clear the sample say “there’s no James Brown sample on the record” in the next breath and “I never said there was a James Brown Sample on the record” in the third breath. I wouldn’t exactly call that “shielding” but I would call it lying. The closest I ever came to that was one big hip hop A&R exec who had a provision in his employment contract prohibiting any of his records being put on “legal hold” for samples. That didn’t “shield” the artist, that was a shield for the exec.
The most essential point that Sasha is missing here is that the artist who is sampled is being thrust into a setting they never contemplated. They deserve the right to approve how their recording is being used. This is why I have a hard time according the sampler who doesn’t give a damn about getting artist consent the same respect as one who does.
It’s called commoditization. It’s called “catch me if you can”.
It’s no different whether its some club DJ putting up unauthorized mix tapes that rip off artists, the Pirate Bay linking to torrents they know are illegal, or Google buying YouTube. They are all in their own way playing the odds and they are all in their own way denigrating the artistic integrity of the artists they want to rip off.
The reason they don’t ask permission is because they don’t want to be told no, and they think (correctly, unfortunately) that the government won’t do anything about it.
Looks like Google has a new opponent in their charm offensive: Germany. More specifically, Germany’s attorney general Brigitte Zypries. Zypries said that Germany is considering filing a friend of the court brief in the Google Books case in order to “[make] the court aware of certain legal aspects“.
Now what might those legal aspects be? “Google’s actions are irreconcilable with the principles of European copyright law, according to which the consent of the author must be obtained before his or her works may be reproduced or made publicly available on the Internet” for starters according to the German delegation to the European Commission. The Commission was asked to “…examine the Google Books project as well as the impact of the settlement sought in the USA from the point of view of copyright law, law on restrictive practices and cultural policy and, where appropriate, to introduce new measures to protect rights holders.”
Google’s reaction? “Google said it was ‘happy to engage in any constructive dialogue about the future of books and copyright.’” Meaning what? We can outlast you in court?
It is a far, far different thing taking on ligitation with governments than it is bullying a bunch of authors, journalists, recording artists and songwriters.
Oh, one other thing…Germany has elections in a few months. Congratulations Dr. Smarty Pants–you are now officially an international incident.
It’s called the Heidelberg Appeal.
They seek him here
They seek him there…
Michael Geist is up in arms again, this time about a report that was issued by the Conference Board of Canada. Apparently the Conference Board had ordered a report from an acolyte of Geist that he would say they “ignored”. (Michael Geist, aka “he who shall not be named,” according to a prominent Canadian artist, is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP with its 100% American external advisory board, and the paid consultant to Industry Canada. SG-CIPPIC’s external board includes the EFF and EPIC board member Professor Pamela Samuelson, the director of EPIC, the EFF legal director and Lessig, so it shouldn’t shock anyone that Geist’s views bear a striking resemblance to the EFF’s own anti-worker positions (especially their direct opposition to the AFL-CIO’s positions in the net neutrality comments). See also Lessig’s “The Starving Artist Canard”.)
Take a critical read of Acolyte De Beer’s report and I think you’d have to at least consider that the Conference Board “rejected” it, they didn’t “ignore” it. It’s actually pretty thin stuff and very argumentative. Typically, and in the great tradition of the Critical Theorists, the anti-copyright crowd makes a habit of self quoting and self promoting from within their ranks (see Andrew Orlowski, “The Great Circular Award Ceremony” http://www.theregister.co.uk/2008/09/10/digital_rights_circular_awards/). Acolyte De Beer is no exception.
In the first five pages, Acolyte De Beer has quoted Google VIP Patry, Professor Samuelson, Geist, the Electronic Frontier Foundation and—the most important person of all–himself. Twice. He quotes himself twice in the first five pages. (He quotes himself five times in all.) The obligatory quote from Lawrence Lessig (head of the U.S.-backed Creative Commons) comes late in the report and reads like “I have to quote him somewhere where can I do it, oh I can make something up right here and stick it in whew that was close” if you ask me. But he’s in there. Plus De Beer managed to misspell “Israel” and “and”. Personally, if someone can’t spell the word “and” in a finished piece of work product for which they have been paid, I stop reading.
Like Geist, Acolyte De Beer sees Yanks Under the Bed at every turn. The fact that Canada was placed on the Priority Watch List in the Special 301 report is presented like the Obama Administration came up with this yesterday. He glosses over the 13 year history of Canada’s failures to implement the WIPO treaties and the problems with law enforcement that the Canadian police clearly acknowledge.
Dutifully repeating the line laid down by Geist, it is the corrupt Obama Administration that is so dominated by “Hollywood” lobbyists that they simply tote that barge and lift that bail at Hollywood’s beck and call. Given the reality, that’s actually funny.
The paper is shot full of unsubstantiated assertions such as this: “There is the potential of TPMs to replace democratic law and policy-making processes with private ordering through technology.” Say what? DVD players replace the law? He must mean in his classroom. And this: “Other anti‐competitive practices facilitated by TPMs, such as tied selling, may also hinder innovation. An example is the inability to play most music purchased from Apple’s iTunes Music Store on devices other than the Apple iPod, which may be restraining further growth in both the online music and consumer electronics markets.” Another Yank Under the Bed you see.
I’m shocked that Acolyte De Beer wasn’t able to find a quote from anyone, not even the ever-accommodating Acolyte De Beer himself to substantiate these mere assertions–from someone who has never sold a record as far as I can tell. It would have been nice to hear from someone who had a least run a lemonade stand online as support for a public statement from this important organization.
What is most striking about Acolyte De Beers’ “report” is that he never once talked to anyone at all in the digital music, or software, or gaming business in Canada – or any other digital business for that matter. Not one. I didn’t see his work order, but organizations like the Conference Board deal with BUSINESS not with ACADEMICS. You may wonder what they were thinking for even bothering with this guy, but they did, they were wrong, they buried his report and moved on. My guess is that they won’t be back, either. No big deal—except I guess they didn’t tell De Beer, so Geist and The Acolyte got a surprise when they weren’t mentioned. And you know how being ignored drives these academics nuts.
Everywhere Professor Lessig’s army stumbles on
Each one a dedicated follower of Larry
The problem is that these anti-copyright types manage to gum up the works on an important issue that they each recognize.
As Professor Lessig would say: “For the Internet has unleashed an extraordinary possibility for many to participate in the process of building and cultivating a culture that reaches far beyond local boundaries. That power has changed the marketplace for making and cultivating culture generally. . . .” Lawrence Lessig, Free Culture (2004), at p. 9.
And of course as Geist would say: “The Internet and new technologies have unleashed a remarkable array of new creativity, empowering millions of individuals to do more than just consume our culture, instead enabling them to actively and meaningfully participate in it.” Michael Geist, Our Own Creative Land: Cultural Monopoly & The Trouble With Copyright (2006), at p. 9.
No wait. Did I get those quotes reversed?
…He thinks he is a flower to be looked at
And when he pulls his frilly nylon panties right up tight
He looks a dedicated follower of Lessig.
From Dedicated Follower of Fashion by The Kinks
Not only have Google been run out of town by German authors, they’ve also been run out of town by German villagers. And a few other people according to CBS5.com (“Germany to Google: Erase Raw Street Level Images“
“Greece’s Data Protection Authority recently rejected Google’s bid to roam Greek streets with cameras mounted on vehicles, while the Pentagon barred Google from photographing U.S. military bases for the service. Residents of a small English village formed a human chain last month to stop one of Google’s camera vans.
And residents in Japan complained that the service provided a view over the fences around their homes, prompting Google to agree to reshoot all photos in the country. “
Now some people would think that doing a creepy thing like Street View was probably not something that was worth withstanding human chains of “consumers” driving them out of town.
But if you look very closely at any Street View image you will see a few very faint, shimmery words embedded in the image: “Copyright Google, Inc.”
So trying to separate the tech from the dirt, it’s certainly true that it is not necessary to put a copyright notice on works of authorship in most countries, but people do all the time particularly in this era of the “5 minute copyright”. Google is not only organizing the world’s information, they intend to own the world’s information.
Including pictures of your house.
And the award goes to Greg Sandoval for getting through an entire interview about newspaper layoffs without mentioning…Google!
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Thoughtful post by Helienne Lindvall in the Guardian about a mock trial on the relevancy of record companies that was put on as a moot court at the Great Escape Festival in Brighton. Well worth reading her analysis which emphasizes several important points that the “Abbey Road in a Box” crowd would do well to understand.
If you’re one who finds yourself using the phrase “tyranny of the experts” in conversation, you should not bother yourself.
Very well-thought out post by Siva Vaidhyanathan “The Googlization of Universities” on Siva’s blog http://www.googlizationofeverything.com/. (Now that’s a domain I wish I owned.) The post is particularly illuminating on the issue of the affect of Google on students research skills (mostly undergrads), which I would say has trivialized one of the important skills that college is supposed to teach–discriminating use of research tools in critical thinking and writing.
“There is one particular conclusion that should trouble anyone concerned about the influence of Google on the information skills of university students: “Students’ use of [search engines] now influences their perception and expectations of other electronic resources.” In other words, if higher-quality search resources and collections to not replicate the reductive simplicity and cleanliness of Google’s interface, they are unlikely to attract students in the first place and are sure to frustrate those students who do stumble upon them….[T]he seductive power of Google – its perceived comprehensiveness and authoritativeness – fools students into thinking that a clumsily crafted text search that yields a healthy number of results qualifies as sufficient research. Even if Google links students to millions of documents heretofore inaccessible, it does nothing to teach them how to use the information they discover or even distinguish between the true or false, dependable or sketchy, and polemical or analytical. Because simple Web searches favor simple (and well-established) Web sites, students are unlikely to discover peer-reviewed scholarship unless they actively click over to the obscure Google Scholar service. And even then, they must hope that they have the institutional affiliation to acquire the articles they find.”
The piece is well worth reading and is an insightful criticism of the negative effect of Google on scholarship. I don’t think that this is as much of an issue for PhD candidates, but it might be eventually. I have seen this Googlization effect on young lawyers, too, who have to be essentially ordered to go to the law library and actually touch books.
Siva and I don’t agree about everything by a long shot, but I respect the guy and I think he’s very smart and thoughtful. Also a good and careful writer. The only real problem I have with him is the same problem I have with a lot of these guys and most academics, which is that they don’t really understand the music business yet they don’t question their own lack of understanding. As Jimmy Durante used to say, “[p]retty soon they all want to get into the act.”
I was on a panel with Siva once and he was good humored about our differences which I really appreciate and try to do myself (although I’d be kidding myself if I thought I was successful at it all the time).
Purdue University is doing its part to make sure those Federal education dollars are put to use. According to what is apparently a pseudonymous post on a college website, Purdue students were encouraged to “…loot, pillage and plunder the record and movie industry in a way they’ll have to listen. Hit them in their wallets.”
Well, they certainly did their part. According to a new survey released by the PRS and Big Champagne, “The songs of popular musicians like Lady Gaga have been passed on 14 million times each in one year alone with no payment to the artist….Lady GaGa’s ‘The Fame’ was downloaded 388,000 times in the last week of April 2009 alone.”
The legal utilitarians will argue that the Pirate Bay verdicts have done little to reduce file sharing. That’s right. But the Pirate Bay verdicts establish a rule that can be used to persuade the consumer that what they are doing is stigmatized and is wrong. That, too, is not going to stop anything overnight, but it is one of the thousand cuts that will eventually bring down this beast.