The Stifling Copyright Cartel

WHEN EMI WENT after Danger Mouse last week, they didn’t stop there. At least one of the websites that’s been publicly hosting mp3s of the Grey Album also received a cease and desist letter from EMI, which demanded that they take down the album, which they did (how could they afford the court case?). The letter is now posted on their site, waxy.org. Fortunately, the Grey Album is still being publicly hosted by the good folks at Illegal Art. If you haven’t heard it yet, you can (and should) download the mp3s right here.

The Grey Album is only one of thousands of legitimate and valuable efforts that have been stifled by the current system (not to mention the ones that were never even attempted because of the legal climate). For the best discussions of the artistic and intellectual reasons why sampling should be legalized, check out this article by Negativland and this flash presentation by Lawrence Lessig. But what’s happened in the past week is also important: the details of the Grey Album case demonstrate that nothing short of a clear legal codification of the right to sample will solve the current problem.

Danger Mouse’s album is one of the most “respectful” and undeniably positive examples of sampling; it honors both the Beatles and Jay-Z. Yet the lawyers and bureaucrats at EMI have shown zero flexibility and not a glimmer of interest in the artistic significance of this work. And without a clearly defined right to sample, the five major record labels will continue to use copyright in a reactionary and narrowly self-interested manner that limits and erodes creativity. Their actions are also self-defeating: good new music is being created that people want to buy, but the major labels are so obsessed with hoarding their copyrights that they are literally turning customers away.

Open-source software advocates often argue that arbitrary regulation stifles innovation and slows progress. Translating these arguments into fields like art and culture is always a dubious venture, but in the case of sampling there’s a pretty clear parallel; there is no question that the music you hear on the radio would be more diverse and exciting if DJs and producers weren’t trussed up by arbitrary regulations that have nothing to do with music.

Here’s just how ridiculous the Danger Mouse situation is:

1. Jay-Z intentionally took the step of releasing an a cappella version of the Black Album, with the specific purpose of facilitating remixes. For him, it encourages people to reuse his vocals which ultimately raises the status of the album (and increases sales of the original). At this point, neither he nor his record label have tried to stop the Grey Album. EMI claims copyright on the White Album, meaning that the Grey Album is being shut down to provide some sort of abstract “protection” to a 35 year old recording.

2. There was no legal way for Danger Mouse to make this album. A small, independent DJ would never be granted permission to sample Beatles recordings. Since there is no compulsory license for samples, as there is for cover songs, sample rates must negotiated directly with the record label. This means that labels can not only demand exorbitant rates, but that they can simply refuse to allow a particular use, effectively censoring certain types of music (even someone like Jay-Z might not be able to secure Beatles samples, no matter how much he offers). Copyright was originally included in the US Constitution to “promote the progress of science and the useful arts”; the law uses temporary copyright monopolies as a tool to encourage more creativity and innovation. But the major record labels have twisted that purpose into a copyright regime that inhibits creativity and innovation– it’s become a failure in its own terms.

3. Even if EMI’s general economic rights were thought to trump the public’s interest in hearing new music, neither EMI nor the Beatles will suffer any economic damages from Danger Mouse’s use of the White Album. There is nothing about the Grey Album that would discourage someone from purchasing the White Album— in fact it is likely to encourage a new generation of music fans to do so. So why does EMI want to shut it down? Because they’re trying to protect a precedent, not just prevent this particular use. Their fear is that if they permit any unauthorized use, they’ll lose their ability to protect the copyright in other situations. This means that not only are corporations deciding that certain art isn’t allowed to be created, but they aren’t even taking this extreme step with any direct economic justification.

4. EMI isn’t just trying to shut down a musician who they believe is unfairly profiting from the White Album, they’re also trying to censor the album entirely by preventing the public from hearing it. As noted above, cease and desist letters are being sent to websites that are giving the album away freely. And while EMI can’t keep the Grey Album off of filesharing networks, their lawsuits against families have scared many people away from using peer-to-peer software. There is simply no justification for denying or attempting to deny the public the right to hear this music.

Again, these points are just to emphasize that even in the most generous circumstances, the major labels’ response to sampling serves no public or private interest. But the overarching need to establish musicians’ right to sample should be examined first and foremost from the perspective of music and culture. The Negativland article, Changing Copyright, is the best starting point and speaks from experience; Negativland (a band) has an interesting and storied history fighting the RIAA over fair use and sampling rights.

By the way, we are scheming about a civil disobedience action in protest of EMI, so please stay posted.