Sunday, March 15, 2009

File Sharing, Sampling Confusion, and The Revival of Blackstonian Copyright

Hi friends. I'm back from Philadelphia (where I was dealing with some bureaucratic court-related bullshit (let's leave it at that)), and I managed to traverse the city a bit this weekend, see the sights, buy some records, get crunked up at a party in a Laundromat (?), and get my rave on to some d-o-p-e Techno DJs and producers at this amazing warehouse space in South Philly. This city has an awesome underground party culture...

[illustration jacked from]

Check out Tequila Sunrise Records in North Philly for an incredible selection of dubstep, techno, experimental, psychedelic, out-rock, etc. Really the gems are in the dubstep and bass-music section. I'm talking this place has white labels out the ass and seems to get the key releases right when they come out, for those DJs and record collectors that like to stay on top of what's hot.

I picked up Hollertronix #8 with DJ Sega (of Philadelphia acclaim), which I haven't listened to all the way through, but from what I understand, it packs a b-more club remix of Papa Roach's "Last Resort?!" It's a good week for remixes, huh? The cover is badass, and it's the eighth in a series of releases from Mad Decent Records that have been consistent bass-weight, clubby, catchy, but with an experimental edge. NASTY

I also got these totally bootleg promo bassline-house remixes of American Top 40 trax, namely Akon, Lady Gaga, and Beyoncé. They've each got a pretty standard bass-heavy, clear hi-hat, thump-thump kind of feel, but with a bit more of the offbeat, syncopated percussion presence you'd expect from stuff like 2-step and garage. It'll get the queers and the hetero crowd alike banging it out on the dancefloor. Lots of funky, bubbling basslines that travel in smooth arpeggios up and down the octaves.

But anyways, on to the straight talk. I was reading this really great, short&sweet article about how the growing tendency to talk about intellectual property in the same legal terms as one would talk about physical, literal property is setting a dangerous precedent in which copyright laws are being reconfigured more and more to resemble laws that are "...difficult to reconcile with the utilitarian foundations of copyright," and tend to stifle creativity more than encourage it.

In reference to Steve Collins, "'Property Talk’ and the Revival of Blackstonian Copyright":

This article pointed out that one of the devices used by those members of the music industry that benefit from strict control, regulation, and legal precedent against all the appropriative practices of sampling, file-sharing, “piracy,” covering, etc. is a conflation of intellectual property with literal property. For intellectual property “owners,” the advantage of talking about intellectual property, music in this case, as literal property, is that through this paradigm, once a piece of intellectual property is “stolen,” or borrowed, or appropriated, or drawn upon, it is then portrayed as forever ruined, soiled, and therefore useless in the eyes of the original author and/or owner.

This is simply untrue, and implies a conservative divergence away from the original intention of copyright law, which is to guarantee the protection of creativity by ensuring the existence of an economic incentive for hard work and originality.

The author puts it more clearly, saying, “A fundamental difference resides in the exclusivity of use: ‘If you eat my apple, then I cannot’ but ‘if you ‘take’ my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous’ (Lessig, Code 131).”

One interesting thing that this article addresses that could be further expanded upon is the manipulative device on the part of pro-property-paradigm artists in which they neglect to differentiate between sampling or borrowing, as in recirculating only a part of an original work in a new context, and file-sharing or illegal downloading, as in participating in the recirculation of an original work in full, without new meaning or shifted context. If you navigate over to Music United’s webpage, both practices are mentioned by different artists in similarly discouraging ways.

You’ll see that James Brown is quoted in this piece, saying, “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?”

The original source of this quotation is not given in the piece, but one can be sure that it was, or has been elsewhere, mentioned alongside other discouraging anecdotes about why music theft is wrong. When appropriating a part of a song for re-use or for inspiration is conflated with file sharing and bootlegging in popular discourse, the domestic discussion going on in turn begins to file both practices under “theft,” especially with the help of a more and more popular property-oriented paradigm being used to frame that discussion.

And, when sampling (creative, productive appropriation) is mentioned in the same discouraging, pedagogical messages as unlicensed recirculation of music in its original form, it begins to encroach on the one solid remaining argument for hip-hop and electronic music’s bread-and-butter, that as long as the music is chopped, screwed, reversed, pixilated, distorted beyond recognition, shortened, etc., it is indeed ethical and fair use of that music.

The idea that these two practices, can be classified under the same umbrella of “theft” thanks to the encroachingly popular tendency to speak of intellectual property in the same terms as one would discuss legal property, begins to set a precedent in domestic popular discourse, positing “…that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property.” This understanding in popular discourse undoubtedly affects the ways in which these matters are thought of in a legal and juridical setting, bringing us down a dangerous path where sampling may soon be not only prosecutable, no matter how much it complies with fair use, but more powerfully. stigmatized and demonized in American culture.

This demonization is brought to an even further extreme when artists use a touching personal narrative to describe the ways in which their lives, and by extension their ability to express themselves creatively, have been affected by appropriative practices and illegal file sharing. Not only can we see this in the way that James Brown compares a sample of his music to a “button” or a “toe-nail” from his body (as if his music all came out of his essential genius and was not simply an amalgam of various influences, not to mention band members and contemporaries, that surrounded him), but we have fucking Nelly coming up and comparing sharing his music with a friend with “…break[ing] into your home and tak[ing] everything that you’ve accumulated over the last how many ever years you’ve been in this game.” We’ve also got some douchebag by the name of Scott Stapp saying, “…that is how I feed my family, just like a doctor, lawyer, judge, or teacher. Not to insult anyone's intelligence, but my music is like my home. These file sharing services are sneaking in the back door and robbing me blind."

The personal narratives that get attached to these practices are a powerfully manipulative pedagogical device for creating a climate in which sharing a person’s music with someone else (thus basically promoting them and disseminating their music to a wider audience for free) is associated with doing harm to that person’s very well-being. So the whole system of rhetorical devices goes like this:

-Sampling is conflated with file sharing through being mentioned in the same discouraging pedagogical messages targeted at children and adolescents.

-Sampling and file sharing are then demonized through the deployment of a property paradigm that conflates intellectual property with legal, physical property. -Personal narratives and sad, righteous faces are placed atop the messages generated by big, evil record labels in order to humanize their abuse and bastardization of copyright law.

-Sampling and file sharing are mentioned in the same discouraging light, and may, i
n the future be similarly stigmatized due to the social and cultural climate created by the pedagogical messages jammed into the brains of teenagers looking desperately for moral and ethical role-models in the world around them. Where would hip-hop be without sampling? It would be consolidated to the handful of producers backed by big ass record labels that can actually afford to drop stupid loot on James Brown samples in order to employ the signifying practices of sampling older forms of Black music that are so central to hip-hop. Or producers could just take up field-recording and record their own samples.

So I'm curious: Are those Beyoncé remixes licensed? That would cost hundreds of thousands of dollars to get the legal rights for, right? So how did it go out to production? How is the record label not getting sued? Is it fair use in that the vocal part is sped-up, chopped, and screwed? Somebody fill me in.

Another question: how does, for instance, DJ /Rupture sell his mixes? I know I've spent real money on those CDs, and I'm curious why record stores aren't allowed to sell mixtapes (licensing issues), but DJ /Rupture can put CDs out for sale through major distributors? Did he buy access to each track? Does his use of Top 40 acapellas count as fair use because they've been recontextualized through their placement on top of another instrumental? Jace - are you out there?


  1. I never really realized that people were eliminating the line between sampling and file-sharing, at least in terms of copyright infringement.

    I also wonder about artists like Rupture. Is it because he's big enough that he gets some sort of amnesty? Or is there something different that he's doing that gives him a bit of leeway?

    Great post. I like the new blog a lot so far.

  2. I know that Madonna gave the Avalanches permission to use "Holiday" on their track Stay Another Season... a big first for her and a somewhat symbolic license for them to continue to sample whatever they want.

  3. Thanks Justin S., and yeah, I think Rupture must be striking deals with his artists. I'm not sure he's at the level where he can buy access to tracks for use in his mixtapes, but I'd be willing to guess that there are some genuinely cool artists out there are who are not totally under the control of their legal teams and are willing to let their material be used.

    Also, I think a lot of the non-Western material he uses is obviously going to be coming from people that don't necessarily have legal teams or even major record labels to assist them in legal matters, which means they probably couldn't afford the process of opening up a suit against him. Nor would they really want to.

    I mean, it's free publicity for lesser-known artists, and I think the bigger you get, the more you forget how important it is that people are spreading your music as much as possible.

    And Justin K., did the Avalanches pay for it? Did she preview the track before it was allowed to go out? I'm curious.

  4. Just saw a chunk of the RIP documentary: chapter 4 claims that it would cost girltalk > $4,000,000 to clear one of his albums