Copyhype

In his four-part video, Everything is a Remix, filmmaker Kirby Ferguson makes a familiar argument:

Copy, transform and combine. It’s who we are, it’s how we live, and of course, it’s how we create. Our new ideas evolve from the old ones.

But our system of law doesn’t acknowledge the derivative nature of creativity. Instead, ideas are regarded as property, as unique and original lots with distinct boundaries.

I say familiar because if you’ve paid any attention to copyright issues in the last decade or so, you’re bound to have heard a variation on the claim. Other videos like Copyright Criminals take the same approach. Lawrence Lessig has written several books on the topic, and entire organizations like Creative Commons have been created to address and advance this claim. ¹See Remix and Free Culture by Lessig. See also Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity; James Boyle, The Public Domain: Enclosing the Commons of the Mind.

This idea that copyright law hinders creativity is one of several ideas central to what could be called “free culture,” and it has fueled a great deal of criticism of current copyright law and opposition to enforcement efforts. Free culture scholarship has held sway in legal literature –  with many of its ideas cited by IP academics outside the free culture sphere — and enjoyed very little criticism until very recently.

In Remix Without Romance, UC Davis professor of law Thomas W. Joo provides a comprehensive and convincing critique of free culture scholarship.

Remix Without Romance

A highly recommended read. The abstract says:

A dominant argument in intellectual property scholarship asserts that technologies such as digital copying empower individuals to participate in the making of culture. Such participation involves individuals appropriating cultural material, “remixing” it with other elements, and “recoding” it by assigning it alternative meanings. By enabling more people to participate in culture, remixing and recoding supposedly enhance “semiotic democracy” and mitigate the dominance of the media industry. The same theorists who make this argument also tend to assert that copyright law is in need of significant reform because it inhibits recoding and thus stifles semiotic democracy.

This Article challenges the empirical assertion that law inhibits recoding—but it also questions the normative assumption that recoding is presumptively good for semiotic democracy. This Article focuses on a specific type of recoding: musical sampling (that is, the recoding of music through digital copying and other means). Sampling, particularly in hip-hop music, is frequently cited as a paradigmatic example of recoding that has been inhibited by intellectual property law. The legal history of sampling, however, suggests otherwise. Commentators have misread important judicial opinions about sampling and misunderstood the business practices of the music industry. At least in the sampling context, law has not prevented the reallocation of recoding rights by contract.

While markets have been able to reallocate sampling rights, however, such transactions do not necessarily advance semiotic democracy, because market failures afflict the marketplace of ideas. In the cultural context, as in the political and economic contexts, formally equal opportunity to participate does not result in equality of influence, and can in fact exacerbate power imbalances. For example, legal and technological innovations (such as digital copying and the Internet) can enable cultural underdogs to recode the messages of media conglomerates and other dominant cultural institutions. But those same innovations also allow dominant institutions to appropriate from the underdog—and dominant institutions can then use their influence to “drown out” those independent voices with recoded meanings. Moreover, recoding by its nature involves the incorporation and repetition of dominant cultural messages. Such repetition can propagate and reinforce dominant messages, resulting in the cooptation of recoding, regardless of the recoder’s intent. In short, recoding is not clearly conducive to semiotic democracy. Rather, it is full of internal contradictions that make its relationship to semiotic democracy an ambivalent one.

In short, Joo makes two claims.

First, many of the factual claims made by free culture advocates are incorrect. This is important. Amongst copyright skeptics, many question statistics about the economic benefits of copyright or effects of piracy and calls for more empirical evidence in copyright policy are common. Yet, as Joo demonstrates, many free culture arguments lack such empirical evidence. They may sound attractive, and they are repeated often, but do not hold up under closer scrutiny. In the article, Joo focuses specifically on musical sampling to demonstrate the differences between the facts on the ground and the narrative advanced by free culture scholars.

Second, Joo refutes the normative free culture claims that weakening copyright rules would increase participatory culture. He finds little reason to believe that “semiotic democracy” would be enhanced, and media dominance in culture would be reduced, if the law was reformed to better allow remixing and recoding.

I want to look at the first of these claims today.

Did Copyright Law Kill Sampling?

Thomas Joo focuses on “sampling”, especially sampling in hip-hop, because it is emblematic of the type of artistic practice free culture scholars focus on, and sampling has received so much attention from legal academics. Joo notes, “The hip-hop era has coincided with the digital age, and hiphop has become closely identified with recoding and particularly digital remixing. Indeed, the term ‘remix,’ which today is often used to refer to recoding practices in general, derives from pop music, where it has been used for decades to refer more narrowly to re-edited versions of records in hip-hop, disco, and other genres.”

The prevailing view is that sampling developed as an artistic practice in early hip-hop by flying under the radar of copyright law. Then, as a result of a series of lawsuits beginning in the 1990s, the legal landscape radically shifted. Sampling was declared copyright infringement and largely died out because of the cost of incorporating previously recorded music into new songs.

The prevailing view is wrong, according to Joo. “The narrative of a battle between copyright and hip-hop is an overdramatized myth that ignores the actual history of the interaction between law and musical recoding.”

Joo blames this myth on free culture scholars “thinking like a lawyer, not like an artist.” They overemphasise the effect of law on artistic practices: legal doctrines lag behind artistic innovation, which limits their “role to settling disputes over the proceeds from established practices.”

Joo marshals impressive research and analysis to support his claims. He begins by providing examples of “sampling” that pre-date hip-hop — and examples of recording artists getting and paying for permission to use such samples. The emergence of hip-hop in the late 1970s into the music industry did not change this.

Both turntablism and rap music made the transition from live performance to records, and the existing business practice of paying for permission to appropriate was, quietly and unremarkably, extended to hiphop records. Indeed, the practice dates to the very first commercially successful hip-hop record—yet it did not prevent hip-hop from becoming a dominant artistic and commercial force in popular music.

Infringement lawsuits involving sampling began to appear in the early 90s. The most frequently cited sampling cases, however, have been misinterpreted, and their effect exaggerated. Chief among these are Grand Upright Music v. Warner Bros. Records, (considered the first “sampling” lawsuit to go to court) and Bridgeport Music v. Dimension Films.

Joo on Grand Upright:

Copyright scholars are in general agreement that a 1991 opinion, Grand Upright Music v. Warner Bros. Records, suddenly and radically changed the legal status of sampling by declaring that sampling without copyright permission constitutes infringement. This general understanding is, in fact, a gross misconception of the opinion. Grand Upright did not even present the question of whether unlicensed sampling would constitute infringement, because the defendants conceded that it would. Indeed, the historical record, including the court records in Grand Upright itself, shows that the hip-hop community, from its earliest days, generally understood and respected the obligation to obtain and pay for permission to use samples in commercial recordings.

This “gross misconception” of the law and business practices surrounding sampling extends to Bridgeport, a 2004 Sixth Circuit decision that you’ll find in just about any discussion on copyright law and sampling since.

Joo points out that “Bridgeport is the decision of only one circuit, and not one that is especially influential with respect to copyright law,” and even so, the opinion appears  “to have been consistent with existing industry practices—practices under which sampling flourished. By the late 1980’s, it was well-established practice in the music industry to seek copyright permission both for lengthy, recognizable samples and for briefer, slice and-dice samples.”

Legal scholars often state that albums in the earlier years of hip-hop that made heavy use of sampling — the Beastie Boy’s Pauls Boutique and early Public Enemy albums are frequently used as examples — couldn’t be made today today because of copyright law. Joo argues that this is simply incorrect. These albums were made, after all, at a time when legal rules and business practices concerning samples were similar to today — not to mention that samples on many of those albums were cleared and licensed. The shift away from sample-heavy styles of music is more reflective of a shift in musical tastes than a shift in the law.

Joo’s takeaway: “As a historical matter … copyright law has not prevented the development of sampling.”

The Mythology of Free Culture

Remix Without Romance is a fascinating read for anyone interested in the issues discussed above. And it’s tremendously useful for its empirical contributions to copyright doctrine.

In my opinion, it is also an important work for critiquing free culture (and other copyright skepticism) scholarship. The “exaggerations” (to use Joo’s term) in such scholarship are not isolated to digital sampling — it is concerning how many similar claims are made in this area. In a way, large portions of free culture and other opposition to copyright have been built upon mythology. The effects of this scholarship aren’t limited to academia; free culture has become very popular online and in the general public, where these specious claims morph into talking points against copyright in toto.