Democrats for DJ Drama

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Pennsylvania Rep. Mike Doyle used his moment in the "future of radio" panel to mount a defense of mash-ups and DJ Drama, the Atlanta producer victimized by a SWAT raid (reported here by Radley Balko.) Sean Garrett typed up the whole speech, and it's good.

Mr. Chairman, I want to tell you a story of a local guy done good.  His name is Greg Gillis and by day he is a biomedical engineer in Pittsburgh.  At night, he DJs under the name Girl Talk.  His latest mash-up record made the top 2006 albums list from Rolling Stone, Pitchfork and Spin Magazine amongst others.  His shtick as the Chicago Tribune wrote about him is "based on the notion that some sampling of copyrighted material, especially when manipulated and recontextualized into a new art form is legit and deserves to be heard." 

In one example, Mr. Chairman, he blended Elton John, Notorious B-I-G, and Destiny's Child all in the span of 30 seconds.  And, while the legal indie-music download site eMusic.com took his stuff down due to possible copyright violation, he's now flying all over the world to open concerts and remix for artists like Beck.

The same cannot be said for Atlanta-based, hop-hop, mix-tape king DJ Drama.  Mix-tapes, actually made on CDs, are sold at Best Buys and local record shops across the country and they are seen as crucial in making or breaking new acts in hip-hop.  But even though artists on major labels are paying DJ Drama to get their next mixed-tape, the major record labels are leading raids and sending people like him to jail. 

I hope that everyone involved will take a step back and ask themselves if mash-ups and mixtapes are really different or if it's the same as Paul McCartney admitting that he nicked the Chuck Berry bass-riff and used it on the Beatle's hit "I Saw Her Standing There."

Maybe it is.  And, maybe Drama violated some clear bright lines.  Or, maybe mixtapes are a powerful tool.  And, maybe mash-ups are transformative new art that expands the consumers experience and doesn't compete with what an artist has made available on iTunes or at the CD store.  And, I don't think Sir Paul asked for permission to borrow that bass line, but every time I listen to that song, I'm a little better off for him having done so.

Congressfolk understanding art and commerce? Ouch, my brain!

Jesse Walker tackled the rise of mash-ups back in the salad days of 2003.

NEXT: By Way of Defection

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  1. Ayn Rand would not approve of this legitimization of Second-Handers.

  2. And she would utterly ignore joe.

  3. That dudes playing down the street from my house tomorrow.

  4. But seriously:

    But even though artists on major labels are paying DJ Drama to get their next mixed-tape, the major record labels are leading raids and sending people like him to jail.

    That’s the issue in a nutshell. If the person who owns the actual recorded material (not a short series of generic, genre-specific notes, re Chuck Berry’s bass riff) gives permission for someone to sample and mash it, there’s no legal or ethical problem whatsoever. Problem is, many artists don’t own their recordings, so they have little or no say in what happens to them. That right lies with the owners of the property, to do with as they please (the owners being the labels, every libertarian’s favorite whipping boy).

  5. The chairman’s response: “Huh?”

  6. The owners of the property are whomever made the mix-tapes.

    The state insists that the ownership of that physical property is trumped by the imaginary property known as “a copyright on a pattern of sounds”. The moment that pattern is impressed on a physical piece of property, the state asserts that the phsyical object magically becomes the property whomever the state had assigned the monopoly privilege of controlling that pattern.

    The state justifies copyright on utilitarian grounds, so arguments pointing out the disutility of the current incarnation of copyright are certainly useful.

  7. The moment that pattern is impressed on a physical piece of property, the state asserts that the phsyical object magically becomes the property whomever the state had assigned the monopoly privilege of controlling that pattern.

    So long as the stolen property and the physical object are, essentially, one and the same, I’m not sure what other outcome is possible.

  8. So tarran, what do you do for a living? Dig ditches?

  9. Carrick – well, Judge Smails said that the world does need them!

    🙂

  10. How does Mike Doyle afford his rock and roll lifestyle?

  11. That is a very good speech, both because I agree with it and it’s well-written and well-reasoned. As a result, I won’t imagine it will get much attention.

    Seriously, I’m not sure the last time I saw a political speech that attempted to explore the opposing view point while strengthening the speaker’s own. Props to his speech writer.

  12. the phsyical object magically becomes the property whomever the state had assigned the monopoly privilege of controlling that pattern

    Property-rights theory according to an anarchist.

  13. I preminisce no return of the salad days.

  14. Re: “actual recorded material (not a short series of generic, genre-specific notes, re Chuck Berry’s bass riff)”

    So all I have to do is play the exact same thing as the sample (but using my own bass etc.) and I’m in the clear? According to copyright law, using the actual sample and copying a part of the song are both infringement (See My Sweet Lord infringement case). BTW: I think the ruling stinks.

    So I guess to mimic your “property-rights theory according to an anarchist” line, I should part with this: copyright analysis from a man ignorant of copyright law.

  15. Let’s examine tarran’s grade school philosophy of property.

    If John takes Jane’s bicycle, then Jane is deprived of the use of the bicycle. So the bicycle must be real property.

    If John copies Jane’s homework, she still has it and can turn it in. So the homework isn’t really property. Or is it?

    John and Jane’s teacher notices the suspiciously common wording in both sets of homework and concludes that someone is cheating. Since the teacher is an underpaid and overworked public education employee, he doesn’t bother investigate. So he just gives both of them zero credit. He also puts a note in both students records that they cheated. Later Jane is denied admission to her favorite private university. But it’s not like she lost any real value when John copied her homework.

    Intellectual property rights are just a figment of Jane’s imagination.

  16. carrick:

    In order for your homework scenario to work as an analogy, you had to assume that the teacher was a complete screw up. That doesn’t say much for the analogy.

    Even if it were a decent analogy, you are equating property (the bicycle) with a privilege (getting into a private anything).

  17. sampling’s a hell of a lot closer to fair use citations in a dissertation than it is to stealing someone’s homework.

    especially of the mixtape variety. it’s like arresting your graphic designer for using your company’s logo in a new and exciting way…after you pay him to use it in a new and exciting way.

  18. Hi Lamar, Of course it’s a terrible analogy.

    In my terrible analogy, John did not deprive Jane of the use of her creative work. So in tarran’s world, he did not steal anything.

    But John did utterly destroy the “value” of the creative work from Jane’s point of view.

    The basic dichotomy that I see in the arguments for and against copyright is summed up in that example.

    People who claim intellectual property is fictitious point out that infringment does not interfere with the originator’s ability to use the creative work.

    People, like me, who claim the intellectual property is a natural right focus on preserving the value of the creative work to the originator of that work.

    And, I argue that the primary factor that determines infringement versus fair use is the impact that the use of the IP has on the value of the IP to the original artist (that’s why sampling should be considered fair use).

  19. In your scenario Carrick, John is committing fraud. He’s pretending that he knows how to do the homework when he does not actually know how to do so.

    Now, if Jane decides to take the 0 lying down, and accept the note accusing her of cheating, I would be quite surprised.

    For those who are curious, I run own a business that writes software for hire. You don’t need government monopolies to make money creating patterns.

  20. Cool. So you have a website where I can download all of your products, use them without compensating you in anyway, and reproduce and distribute them to your potential future customers?

  21. So if you’ve got a magical unicorn that lays golden eggs, and a pegasus, and you breed them, will the golden eggs have wings? If so, will those bastards at the RIAA try to get a cut of the golden, winged egg revenue?

  22. carrick: I would be more open to a frank assessment of how infringement impairs the value of IP if the RIAA and MPAA weren’t so aboslutely full of shit. Ultimately, it is an unknowable variable that can’t be summed up purely in CD sales or downloads (and the long tail theory puts even more uncertainty into it).

  23. I would be more open to a frank assessment of how infringement impairs the value of IP if the RIAA and MPAA weren’t so aboslutely full of shit.

    I know, I said in one other thread that is was very difficult to argue for strong copyright protection when people like the RIAA and MPAA are the obvious beneficiaries.

    But, still is valuable to talk about the way the world should be so that there is a basis for talking about how to change the way it is now.

  24. Carrick and Terran aside, if you haven’t heard girl talk yet, you need to.

    myspace.com/girltalkmusic

  25. tarran, you don’t claim any kind of copyright in your software?

    I assume you charge for it under a license agreement that obligates the licensor not to sell it or otherwise distribute it?

    So if it “escapes”, so that anyone can get it for free and no one has any reason to buy it from you, what’s your remedy?

  26. DJ CLUE

    2007

    UP IN THIS JOINT

  27. John and Jane’s teacher notices the suspiciously common wording in both sets of homework and concludes that someone is cheating. Since the teacher is an underpaid and overworked public education employee, he doesn’t bother investigate. So he just gives both of them zero credit. He also puts a note in both students records that they cheated. Later Jane is denied admission to her favorite private university. But it’s not like she lost any real value when John copied her homework.

    Uhmm…this is sorta what happened to me.

    As a freshman in college, I copied a friend’s program and turned it in as my own. My prof saw that they were very similar (since I was pretty young and stupid and didn’t bother to make many changes to differentiate it) and we both got F’s. It mattered not who copied from whom or who was the original author, because in the eyes of my prof, it is your responsibility to keep track of your source code and keep it from the eyes of fellow students despite the fact that it was his work..

    Now eventually we talked to the prof and I admitted that I copied it from my friend and that he was merely trying to give me some help and let me see his program as a guide to what to do, but I instead just changed a few vars. Luckily the teacher was understanding and didn’t fail my friend, just me. But I had to fess up for that to happen and even then the prof wasn’t real keen on letting my friend slide.

    The point is most teachers wont investigate and don’t have to. I have had more than a couple of teachers tell us “keep your work to yourself. If someone copies from another you both fail — it is your responsibility to keep your work private. If you allow your work to be copied that is your fault.”

  28. “””In your scenario Carrick, John is committing fraud. He’s pretending that he knows how to do the homework when he does not actually know how to do so.”””

    So by this understanding, Girl talk is committing fraud because he can’t actually play the instuments.

    “””For those who are curious, I run own a business that writes software for hire. You don’t need government monopolies to make money creating patterns.””””

    So you DO have an interest in copy protection. If not, please post your software online we can all experience for free.

  29. The only (music-based) fraud girl talk could commit would be telling people that he isn’t the greatest studio wizard since sir George Martin.

  30. “So you DO have an interest in copy protection. If not, please post your software online we can all experience for free”

    I fail to see the relevance of this at all… Sourceforge.net is an excllent resource for thousands of free software under the GPL. All available for the taking and use, often times even bundling as a unit that you can sell, basicly making money off of other peoples work.

    Dont believe me? Purchase a copy of Redhat enterprise linux for 1200 bucks, you will recieve almost a thousand GPL works.

    Why do people flock to protect an outdated and obviously corrupt system being shoped by the RIAA.

    The RIAA has a dying and corupt business model… the only interest the RIAA has is protecting its cash flow, nothing more.

    The correct analogy is, the riding crop manufacturers attempting to legislate the auto companies out of business, which they attempted to do.. and failed. Would anyone, Carrick et. al, actually argue that they should have??

  31. I fail to see the relevance of this at all… Sourceforge.net is an excllent resource for thousands of free software under the GPL.

    Open source software is not “free”. It may be available at no cost, but it has very, very restrictive conditions on the creation and distribution of derivative works.

    The correct analogy is, the riding crop manufacturers attempting to legislate the auto companies out of business, which they attempted to do.. and failed.

    Your attempted analogy is wildly off-mark. Auto companies did not in anyway try to reproduce and sell riding crops which would have been a possible infrigement of IP.

    You need to pay more attention in class Kanabiis.

  32. John and Jane’s teacher notices the suspiciously common wording in both sets of homework and concludes that someone is cheating. Since the teacher is an underpaid and overworked public education employee, he doesn’t bother investigate. So he just gives both of them zero credit. He also puts a note in both students records that they cheated. Later Jane is denied admission to her favorite private university. But it’s not like she lost any real value when John copied her homework.

    Intellectual property rights are just a figment of Jane’s imagination.

    The trouble with your analogy is that Jane voluntarily signed an ‘honor code’ agreeing to keep her homework secret, and was therefore negligent in allowing someone else to copy her work. She is not being punished because she is an innocent victim of copyright infringement, she is being punished because she is not living up to the contract that she agreed to.

    You can argue that there might have been some extenuating circumstances in which Jane could not have possibly kept her work private… in that case, the honor code most likely has a provision for dealing with that.

    Your attempted analogy is wildly off-mark. Auto companies did not in anyway try to reproduce and sell riding crops which would have been a possible infrigement of IP.

    Actually, the way IP law works nowadays, the carrage makers would have claimed that four wheeled vehicles are their exclusive IP, and therefore auto makers are infringing on their intellectual property rights.

    The thing about IP is, that because it is totally made up and has no basis in physical reality (like normal property rights), you can make any ridiculous property rights claim you want.

  33. What you call “normal property rights” are, at least in the realm of real property, a pretty arbitrary bundle of powers and reciprocal obligations, all of which are traceable back to a grant from a sovereign.

    I continue to find that many/most objections to IP apply equally as much to real property. And I for one am not willing to throw the concept of real property out the window because it consists of intangible and often arbitray rights granted by the state.

  34. Girl Talk! I went to school with that motherfucker. I’m so jealous of his coolness. Everybody go here to listen to him, and make sure to go to his shows if you want to see a few hundred douchey hipsters go apeshit. The shows are quite an experience.

  35. “””The thing about IP is, that because it is totally made up and has no basis in physical reality (like normal property rights), you can make any ridiculous property rights claim you want.”””

    Humm, if I imagine something, then build it using materials and tools, it has no basis in a physical reality? You’re correct if you focus only on the “imagine” part and ignore “the material thing” created, or intends to create, as a result of that imagination. It can’t be imagination alone, there is a physical element involved.

    Anyone can make any ridiculous claim they want, that doesn’t make it true. It’s what the law says, and how the courts uphold the laws that matter. The law can be changed.

    “””Why do people flock to protect an outdated and obviously corrupt system being shoped by the RIAA.

    The RIAA has a dying and corupt business model… the only interest the RIAA has is protecting its cash flow, nothing more.””””””

    It’s not just the RIAA’s cash flow, it’s the recording artist’s cash flow too. I’m not fond of record labels, but how will the song writer get paid in your world?

    I’ve heard DJs do some cool stuff with mixes, but when you break it down, it’s still someone else’s music. If the DJ is making a buck from it, the original artist(s) should get something too. After all, the DJ could not have done it without them.

  36. “What you call “normal property rights” are, at least in the realm of real property, a pretty arbitrary bundle of powers and reciprocal obligations, all of which are traceable back to a grant from a sovereign.”

    Pretty arbitrary? Two thousand years of history didn’t have anything to do with it? That’s a pretty thin analysis. There’s very little arbitrary about real property laws. They are tried and true, and help to apportion a scarce resource. Laws generally are geared towards encouraging exploitation of the land. IP, on the other hand, is infinite, and we suffer creating a market for IP because we want people to make more content, not because physical violence, wars and personhood depend on it.

  37. “but how will the song writer get paid in your world?”

    Very few songwriters get paid in the “this world” leading to anger at the RIAA. To steal a quote about the “Inconvenient Truth” movie, there’s too much focus on the property and not enough on the intellectual.

  38. That doesn’t answer the question.

  39. Long before the RIAA began to fight against the types of copying they deplore, ASCAP and BMI were working to get their members compensated for public performance of their songs. OTA radio stations don’t have to pay performance royalties on records, but they do have to get licenses from the music publishers’ agencies. So, the songwriters get paid, as long as they still retain ownership of their songs, or they got a taste when they sold their catalog.*

    What sucks is when ASCAP and BMI harass clubs that host live performances, assuming that all bands play mostly covers. Some sort of proportionality would seem to be in order.

    Kevin

    *Standard disclaimer about unscrupulous record execs cheating writer-performers out of royalties by making a transfer of copyright a condition of recording them, or just slapping their names on songs they didn’t write, applies.

  40. I have time for a quick drive-by post.

    1) Those of you who demanding copies of my software, I am contractually obligated to keep most of it secret – in other words, I promised my customers that I would not make copies available to their competitors.

    2) Even if it wasn’t secret, whey should I post it on my website? What are you going to give me in exchange for me making it available?

    3) Of course, my agreements with my clients do not preclude them from making the software widely available. Perhaps if I am successful enough I will stop agreeing to that. However, if a customer decides to have someone else maintain or improve what I created for them, and the guy can do a better job or charges less money, more power to them.

    4) RC Dean, at the time sovereigns were claiming the power to assign property rights by fiat, they were also claiming to have been placed on their thrones by the God. Both claims were attempts to rationalize strongman rule and the thefts they engaged in. The idea that the King of England owned Pennsylvania before a single Englishman had set foot on it is quite laughable.

    5) What are property rights? They are essentially the moral power to control something exclusively, which is distinct from the physical power to control that item. Why do we have them? Well, for physical objects, only one person can really exercise control. For example, I and RC Dean cannot simultaneously brush our teeth with the same toothbrush. Granted, we could wrestle for it, and the person who wrests the tootbrush away from the other can use it exclusively. However, such a system, being inherently violent is unlibertarian. The assignation of property rights attempts to forestall conflict by signaling who is supposed to control what. Thus, RC Dean and I do not fight over the toothbrush since we both know who is supposed to use it. Now, every social system has some method of assigning property rights, and the libertarian one is no different. We live in a universe of mostly unowned property. Whomever grabs something first, owns it (crudely speaking). Grabbing can mean picking toothbrushes off of an unowned toothbrush tree, or it can mean improving some bit of Mare Crisium to establish a claim to that piece of basalt. The new owner is then free to trade or give his property right to others, or to abandon his property, restoring it to an unowned state.

    If a property right is conceived to eliminate conflicts over some scarce set of things, how does it relate to ideas? Well, when one person uses an idea, it does not preclude anyone else from using the same idea themselves. If I build a turbine that uses a special nozzle to increase its efficiency, I am not precluding someone else from using a similar nozzle in their own turbine.

    Thus, if I build a turbine, and my neighbor sees how I do it and makes his own, he has not robbed me of my turbine. If I were to prevent him from manufacturing the turbine, on the grounds that I thought of it first, and I want to make lots of money selling them, I would have to aggress against him; I would have to seize his goods, or somehow physically interfere with his peaceful activities.

    The same goes for music, or for the content of a book. To prevent someone from independently using these things, I will have to physically aggress against them.

    6) There are, of course ways to prevent ideas from being copied without being unlibertarian. My customers pay me money in exchange for exclusive access to my software. You can require everyone buying your book to sign a contract stating that they won’t help make copies, and will not make the book available to others (I would be surprised if anyone bought such a book though). You can price the copies so low that it’s not cost effective for someone to try to copy them.

    7) Copyrights are different from contractual agreements not to copy in that under a contractual regime, enforcement is the responsibility of a party to the contract. Under copyright systems, everybody is forced to pay for enforcement whether they were a party to the agreement or not. Additionally, people are not permitted to opt out of the agreement – the state treats them as if they agreed not to sing Happy Birthday around the campfire without permission.

    8) Lots of people are scared that there would be no entertainment, books, new inventions under such a regime. That is incorrect. People would still invent things, because they would have a personal unmet need they were trying to fill, or because it would place them sufficiently ahead of the competition that people would trust them. It’s no accident that Curtis (who gave away his design ideas and opposed patents on aircraft) ended up buying the defunct Wright aircraft company which spent most of their energies on trying to establish and maintain patents of monopoly on aircraft design.

    However, the way ideas are created and disseminated in a libertarian society would be very different than the way they are disseminated today. I am absolutely certain that people would be creating music, movies, books, plays, games etc, because people want these things, and would provide their own entertainment if they could not get it served up on a platter.

    How precisely would such products be disseminated? I’m not certain at all. I can make certain predictions (performers would depend on live performances for their income, more plays, fewer movies etc.). Somehow, somewhere, people will figure out how to meet the demand for new entertainment since like nature abhorring a vacuum, a free market abhors an unmet demand.

    I have to stop my short post at the point of discussing the impossibility of an unmet demand; the mechanics called to tell me they have finished replacing the nuclear pile in my aircar. I should be good for another 5,000,000 miles! 😉

  41. Nitpicking

    not “mix-tape” = Mixtape

    and all the examples people give here re: software, etc dont really clarify the unique situation with mixtape djs, who, regardless of whether you think they ‘own’ the content or not (many mixtape DJs would say they dont, but that they play a part in giving it value purely through its inclusion on their elite selections of ‘what people should listen to’), are a fundemental part of marketing hiphop.

    Radio DJ’s pick songs and broadcast them, and pay mechanical royalties…they promote music they think the public should be aware of. Mixtape DJs are really not very different, but they have migrated away from broadcast because radio is inherently limiting – due to things like censorship of dirty words, and

    The question as to whether mixtape dj’s actually CANNIBALIZE sales of the artists who they feature on their tapes is most important. In general, people who buy/listen to mixtapes arent hearing a ‘full’ version of any track, and it’s usually special versions of those tracks (with guest mc’s, the dj toasting on it, it)…so while having the same songs, in most cases they arent ‘exactly’ the same. mixtapes are like Trailers…they help sell the artist more than ‘steal the song’. If I took any mixtape i had, and said, ‘did i not buy the album of ALL these artists because i dl’d the tape? No. I generally learned about new stuff from the tape, and bought 1 new 12″ or LP based on something that inspired me enough… I wouldnt have heard about the music any other way, or would have been incentivized to do so.

    anyway…regardless of wonkly property rights discussions, the dynamics of this stuff in the context of hiphop/djing is fairly unique, and isnt easy to simply slap on some economics class truisms and say you understand the issue.

    JG

  42. I think the major concern regarding a world absent copyright is in areas that require either substantial up front costs or large amounts of time. You are in those areas replacing the profit motive with “I want to do it because I love it.”

    I dunno about that.

  43. JasonL:

    Up front costs and capital intensive IP projects are mostly in the area of patent where, ironically for your position, the protection is the least. And the pharma companies seem to do just fine.

  44. A zen koan for the 21st century:

    If one illegally downloads the Girl Talk album, does one have to feel guilty about it?

  45. FWIW, I have tested this empirically and the answer is “no”.

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