![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
bliumchikIs bootlegging a form of theft? It's a question the web, not to mention the legislature of various countries, has been talking about since the internet first grew out of its training wheels and came up with enough bandwidth to distribute music effectively. Let me illustrate my terms with a handy google!define:
The word bootlegging has a slightly misleading etymology - illegally produced alcohol, obviously, was not "copied" from legitimate supplies. The operative analogy here is of unauthorised, unregulated distribution, possibly creating excess competition for legitimate sources of the item. The argument has thus been made that bootleggers are indirectly stealing the profits of those who would otherwise be selling legal units of the item in question to that same market.
The main problem with applying this concept to music is universality. An equivocal statement like “bootlegging is a form of theft” must apply to every case that could be termed bootlegging, or the statement is philosophically and legally useless. The word has been used in so many contexts that it is hard to apply blanket value judgements to it – for instance, most people make a moral distinction between selling an illegal copy and distributing it for free. And then there is the tricky question of “fair use” – which we will get into later. First let me just say that I’m not counting people who download music and movies and then sell them, as that doesn’t seem to be what most people are talking about in these tricky illegal downloading debates. We’re sticking strictly to free downloads via torrents or other kinds of filesharing sites.
Now, a common argument against the idea of mp3 piracy as theft is that most illegal downloaders of music would not have spent money on legitimate copies anyway – they would simply have not experienced the music. Check out this nifty calculator to see how much money you would have had to spend if you were to listen to as much music as you have without getting any of it for free. This is clearly as non-universal an idea as bootlegging = theft, since it seems logical that it’s true for some people but untrue for others. An actual ratio would require more stringent data-gathering techniques, but as an informal count – comment if you think downloading mp3s has stopped you from spending money on music, and also if you think it hasn’t.
If that’s not complex enough, both phenomena may in fact be at play in a single individual – I’m sure I would have bought some of the music currently on my hard drive were it not available online, but clearly not all of it. My winamp is annoying and doesn’t give me a total run-time for my music, but I fed an estimate into the calculator and got something like AU$50,000. I’m pretty sure my entire total income for my whole life including parent-granted cash would not add up to that. Still, it is likely that I have failed to spend some money on some music, as have others, which presumably adds up. However, it is also well known that people do in fact spend money on music they have already obtained for free, as well as going to gigs etc to see bands they would not have heard of otherwise. The debate here inevitably turns to the question on whether the added publicity from more people having access to the music results in enough revenue to counteract the loss in revenue from piracy replacing sales. I don’t have the data to tackle that question, although my instinct is to say that this equation will vary between artists. Some musicians with interesting views on the issue include Amanda Palmer, Trent Reznor and Lily Allen.
No, in this post I’m going to talk about a sector of the music piracy scene that’s possibly even more ambiguous. I’m going to see if I can tease out all the various elements of the culture surrounding mash-ups.
A mash-up, for the unfamiliar, is defined in the OED thus:
Here are three mash-ups of popular music:
Fall Out Boy vs. Blink 182
Panic! at the Disco vs. Fergie
Panic! at the Disco vs Britney Spears
[Note: I can no longer remember where I got these, so if you made them or know who did please let me know and I’ll edit this post to reflect that. Unless you don’t want me to :P]
All three are text-book mash-ups: two songs are merged with parts of one blending into the other, for example the very recognisable Fall Out Boy guitar riff behind Blink 182’s first verse, and the back-up vocals of Fergie and Britney behind Panic’s lyrics.
Now, there are two basic reasons why our legal system would in principle object to these if they came to its: 1. the mixer presumably did not get any of the original artists’ permission to remix their music, and 2. The files used for mixing could have been illegally obtained.
However, there has been no suggestion of reprisals for a very similar and more public mash-up with a crucial difference…
This is Benny Davis of the Axis of Awesome, performing something that sounds like a mash-up, but is mostly not considered such. What is the essential difference between this "live mashup" and those created using mp3s and soundmixing software?
- both combine bits of songs belonging to other people
- both rely on the similar rhythm and/or chord structure of diverse musical pieces to combine them
- neither obtains permission from the original artists
- both are available online for free with the permission of the “mixers”
In fact it seems the use of pre-recorded music is the only thing to separate the two endeavours. These mp3s need not be obtained illegally - they could have been downloaded from itunes or Amazon, just as the Axis of Awesome could have learned how to play the songs they "sampled" from listening to bootlegged copies of those songs. The crux of the matter appears to be the tricky question of Fair Use.
Fair use is older than the internet. Fair use of any copyrighted material means activities undertaken for specific purposes, such as criticism and review, parody or private study, do not constitute infringement of copyright (Marshall 2005). The term originated in the US, where it was first used in the Copyright Act of 1976, but has since spread both to other legislatures and to the common vocabulary. In Australia the law is known as fair dealing, on the grounds of research and study, review and criticism, "Reporting the news,” legal advice or parody and satire (with some exceptions). (Copyright Act 1969)
Under these laws, we discover another difference between our two examples – the Four Chords Song is explicitly satirical in intent and execution, whereas the pop music mashups have no indication of such an intention. Thus the Axis of Awesome are safe under the fair dealing law. But what of the plain old mash-ups for aesthetic or novelty value? These appear to come under only the Derivative Works law.
The US law defines derivative work thus:
The mash-ups clearly fit this definition – the two songs in each case have not simply been attached to each other, but different elements of them have been altered, crossed over, sped up or slow down to create a smoother whole track. However, derivative works usually require a license or at the very least permission from the creator of the original work. Technically, then, works like this, distributed via online filesharing communities, are breaking various national laws, depending what country they originate in.
However, does this count as theft? I am not speaking in a legal sense here, since obviously theft laws and copyright laws are separate – legally it’s not theft, it’s copyright infringement. In the eyes of the public, though, and in the news media, any story involving or peripheral to music piracy brings on the use of the word “stealing” to describe the activity. Lee Marshall, in his 2005 book Bootlegging: Romanticism, Copyright and Piracy, makes the point that copyright has been reframed as an aesthetic or moral issue when it began as an economic issue. This change, he argues, happened because “it is impossible for rights holders to successfully increase or defend copyright legislation in economic terms alone.” (Marshall, 2005)
Ethically speaking, then, and regardless of the law – how does music piracy, particularly in the area of mash-ups where the purpose is to create something new with it, compare to theft? No artist works in a vacuum. All creative work builds on other work past. In Lawrence Lessig’s words, “creativity in part depends on access to, and use of, the already created.” (Lessig 2002) Some creative works simply become part of the background of our society, and hence the backdrop of any future creative work set in that society – if a character in a movie hums a bit of melody from a song, should the creator of the movie be required to obtain permission from the copyright holders of that song?
There are those that allow their work to be distributed and sampled for free under the Creative Commons and do not consider this detrimental to their profit margin. Doctorow (2007) announces that his problem is obscurity, not poverty, and releases all his works for download from his website the same day they are available in print. And indeed, many music artists release their tracks for remixing quite deliberately, often as a marketing tool. Stephen Colbert famously encouraged his audience to remix his interview about copyright with Laurence Lessig by having his satirical onscreen character strictly forbid anybody to remix it.
However, what about those who withhold permission in a non-satirical manner? We cannot make this a simple division of with permission = okay, without permission = not okay, because there are clearly works we are allowed to use without permission – those with no discernable author, those used with satirical or critical intent and those sufficiently diluted that we do not consider their use “copying” or “stealing.” It is this latter point that is particularly relevant to remix culture and the morality and legality thereof. The question under fair use, then, and the basis of any alterations to either that section of the law or the one on derivative works, is at what point we decide to place the transitions between the background creative melting pot, the derivative use of a work and straight-out copying. These points, after all, are not fixed in stone – we construct our ideas on the limits of creative work based on our cultural context. So, at what point do we consider a work to have sufficiently changed the building blocks of other people’s work to be considered “original”? What precisely is the qualitative difference between Benny Davis singing part of an Avril Lavigne song and an anonymous internet user mixing in a prerecorded part of someone else’s song? The one uses his own voice and piano while the other uses music-transforming software. Both require some degree of skill, an ear for music, creativity…
I feel that the thing shaking up our ideas about ownership of work is the technology involved. We have a long history of social agreement on the ethics of performing songs written by others. Digital remixing technology, on the other hand, has only been around for a few decades, and has only become democratised and popular in the last one. This debate may look entirely different to the next generation, the one that’s growing up with this technology commonplace around them. In the meantime, what can we do to maintain a sensible tone of argument in these litigious times?
I’ll leave you with something I consider an original work that uses a popular movie as, essentially, an instrument from which to extract pleasing noises in a creative pattern, the same as any other instrument. I’m pretty sure they didn’t get permission for it.
 |  |
The word bootlegging has a slightly misleading etymology - illegally produced alcohol, obviously, was not "copied" from legitimate supplies. The operative analogy here is of unauthorised, unregulated distribution, possibly creating excess competition for legitimate sources of the item. The argument has thus been made that bootleggers are indirectly stealing the profits of those who would otherwise be selling legal units of the item in question to that same market.
The main problem with applying this concept to music is universality. An equivocal statement like “bootlegging is a form of theft” must apply to every case that could be termed bootlegging, or the statement is philosophically and legally useless. The word has been used in so many contexts that it is hard to apply blanket value judgements to it – for instance, most people make a moral distinction between selling an illegal copy and distributing it for free. And then there is the tricky question of “fair use” – which we will get into later. First let me just say that I’m not counting people who download music and movies and then sell them, as that doesn’t seem to be what most people are talking about in these tricky illegal downloading debates. We’re sticking strictly to free downloads via torrents or other kinds of filesharing sites.
Now, a common argument against the idea of mp3 piracy as theft is that most illegal downloaders of music would not have spent money on legitimate copies anyway – they would simply have not experienced the music. Check out this nifty calculator to see how much money you would have had to spend if you were to listen to as much music as you have without getting any of it for free. This is clearly as non-universal an idea as bootlegging = theft, since it seems logical that it’s true for some people but untrue for others. An actual ratio would require more stringent data-gathering techniques, but as an informal count – comment if you think downloading mp3s has stopped you from spending money on music, and also if you think it hasn’t.
If that’s not complex enough, both phenomena may in fact be at play in a single individual – I’m sure I would have bought some of the music currently on my hard drive were it not available online, but clearly not all of it. My winamp is annoying and doesn’t give me a total run-time for my music, but I fed an estimate into the calculator and got something like AU$50,000. I’m pretty sure my entire total income for my whole life including parent-granted cash would not add up to that. Still, it is likely that I have failed to spend some money on some music, as have others, which presumably adds up. However, it is also well known that people do in fact spend money on music they have already obtained for free, as well as going to gigs etc to see bands they would not have heard of otherwise. The debate here inevitably turns to the question on whether the added publicity from more people having access to the music results in enough revenue to counteract the loss in revenue from piracy replacing sales. I don’t have the data to tackle that question, although my instinct is to say that this equation will vary between artists. Some musicians with interesting views on the issue include Amanda Palmer, Trent Reznor and Lily Allen.
No, in this post I’m going to talk about a sector of the music piracy scene that’s possibly even more ambiguous. I’m going to see if I can tease out all the various elements of the culture surrounding mash-ups.
A mash-up, for the unfamiliar, is defined in the OED thus:
Here are three mash-ups of popular music:
Fall Out Boy vs. Blink 182
Panic! at the Disco vs. Fergie
Panic! at the Disco vs Britney Spears
[Note: I can no longer remember where I got these, so if you made them or know who did please let me know and I’ll edit this post to reflect that. Unless you don’t want me to :P]
All three are text-book mash-ups: two songs are merged with parts of one blending into the other, for example the very recognisable Fall Out Boy guitar riff behind Blink 182’s first verse, and the back-up vocals of Fergie and Britney behind Panic’s lyrics.
Now, there are two basic reasons why our legal system would in principle object to these if they came to its: 1. the mixer presumably did not get any of the original artists’ permission to remix their music, and 2. The files used for mixing could have been illegally obtained.
However, there has been no suggestion of reprisals for a very similar and more public mash-up with a crucial difference…
This is Benny Davis of the Axis of Awesome, performing something that sounds like a mash-up, but is mostly not considered such. What is the essential difference between this "live mashup" and those created using mp3s and soundmixing software?
- both combine bits of songs belonging to other people
- both rely on the similar rhythm and/or chord structure of diverse musical pieces to combine them
- neither obtains permission from the original artists
- both are available online for free with the permission of the “mixers”
In fact it seems the use of pre-recorded music is the only thing to separate the two endeavours. These mp3s need not be obtained illegally - they could have been downloaded from itunes or Amazon, just as the Axis of Awesome could have learned how to play the songs they "sampled" from listening to bootlegged copies of those songs. The crux of the matter appears to be the tricky question of Fair Use.
Fair use is older than the internet. Fair use of any copyrighted material means activities undertaken for specific purposes, such as criticism and review, parody or private study, do not constitute infringement of copyright (Marshall 2005). The term originated in the US, where it was first used in the Copyright Act of 1976, but has since spread both to other legislatures and to the common vocabulary. In Australia the law is known as fair dealing, on the grounds of research and study, review and criticism, "Reporting the news,” legal advice or parody and satire (with some exceptions). (Copyright Act 1969)
Under these laws, we discover another difference between our two examples – the Four Chords Song is explicitly satirical in intent and execution, whereas the pop music mashups have no indication of such an intention. Thus the Axis of Awesome are safe under the fair dealing law. But what of the plain old mash-ups for aesthetic or novelty value? These appear to come under only the Derivative Works law.
The US law defines derivative work thus:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
The mash-ups clearly fit this definition – the two songs in each case have not simply been attached to each other, but different elements of them have been altered, crossed over, sped up or slow down to create a smoother whole track. However, derivative works usually require a license or at the very least permission from the creator of the original work. Technically, then, works like this, distributed via online filesharing communities, are breaking various national laws, depending what country they originate in.
However, does this count as theft? I am not speaking in a legal sense here, since obviously theft laws and copyright laws are separate – legally it’s not theft, it’s copyright infringement. In the eyes of the public, though, and in the news media, any story involving or peripheral to music piracy brings on the use of the word “stealing” to describe the activity. Lee Marshall, in his 2005 book Bootlegging: Romanticism, Copyright and Piracy, makes the point that copyright has been reframed as an aesthetic or moral issue when it began as an economic issue. This change, he argues, happened because “it is impossible for rights holders to successfully increase or defend copyright legislation in economic terms alone.” (Marshall, 2005)
Ethically speaking, then, and regardless of the law – how does music piracy, particularly in the area of mash-ups where the purpose is to create something new with it, compare to theft? No artist works in a vacuum. All creative work builds on other work past. In Lawrence Lessig’s words, “creativity in part depends on access to, and use of, the already created.” (Lessig 2002) Some creative works simply become part of the background of our society, and hence the backdrop of any future creative work set in that society – if a character in a movie hums a bit of melody from a song, should the creator of the movie be required to obtain permission from the copyright holders of that song?
There are those that allow their work to be distributed and sampled for free under the Creative Commons and do not consider this detrimental to their profit margin. Doctorow (2007) announces that his problem is obscurity, not poverty, and releases all his works for download from his website the same day they are available in print. And indeed, many music artists release their tracks for remixing quite deliberately, often as a marketing tool. Stephen Colbert famously encouraged his audience to remix his interview about copyright with Laurence Lessig by having his satirical onscreen character strictly forbid anybody to remix it.
However, what about those who withhold permission in a non-satirical manner? We cannot make this a simple division of with permission = okay, without permission = not okay, because there are clearly works we are allowed to use without permission – those with no discernable author, those used with satirical or critical intent and those sufficiently diluted that we do not consider their use “copying” or “stealing.” It is this latter point that is particularly relevant to remix culture and the morality and legality thereof. The question under fair use, then, and the basis of any alterations to either that section of the law or the one on derivative works, is at what point we decide to place the transitions between the background creative melting pot, the derivative use of a work and straight-out copying. These points, after all, are not fixed in stone – we construct our ideas on the limits of creative work based on our cultural context. So, at what point do we consider a work to have sufficiently changed the building blocks of other people’s work to be considered “original”? What precisely is the qualitative difference between Benny Davis singing part of an Avril Lavigne song and an anonymous internet user mixing in a prerecorded part of someone else’s song? The one uses his own voice and piano while the other uses music-transforming software. Both require some degree of skill, an ear for music, creativity…
I feel that the thing shaking up our ideas about ownership of work is the technology involved. We have a long history of social agreement on the ethics of performing songs written by others. Digital remixing technology, on the other hand, has only been around for a few decades, and has only become democratised and popular in the last one. This debate may look entirely different to the next generation, the one that’s growing up with this technology commonplace around them. In the meantime, what can we do to maintain a sensible tone of argument in these litigious times?
I’ll leave you with something I consider an original work that uses a popular movie as, essentially, an instrument from which to extract pleasing noises in a creative pattern, the same as any other instrument. I’m pretty sure they didn’t get permission for it.
no subject
Date: 2009-11-13 04:56 am (UTC)no subject
Date: 2009-11-13 04:59 am (UTC)