2005 October

CC Talks With: Moving Images Contest Winners

Glenn Otis Brown, October 1st, 2005

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CC Talks With: Media Rights

Neeru Paharia, October 1st, 2005

MediaRights.org is an innovative non-profit, based in New York, but accessible around the world via their website that helps to showcase important social issue documentaries and puts media makers, educators, librarians, nonprofits, and activists in contact with each other to enable the use of documentaries to generate discussion and encourage action on contemporary social issues. MediaRights.org offers, for free, four distinct toolkits: one for producers; one for educators and librarians; one for activists and non-profits; and, one for youth media producers and activists.

MediaRights.org co-ordinates an annual Media That Matters Film Festival. The MTM festival is designed to bring high-impact shorts and ‘Take Action tools’ to audiences throughout the United States and some international venues, all year long. The premiere of this year’s MTM festival takes place in New York on May 18, 2005, at the Brooklyn Academy of Music followed by an Awards Ceremony to be held at HBO headquarters on May 19, 2005.

MediaRights.org recently started using Creative Commons licenses for the films being showcased in the Media That Matters film festival and as part of other MediaRights.org projects.

Neeru Paharia from Creative Commons caught up with David Jacobs, MediaRights.org’s Director of Distribution and Technology, to find out more about MediaRights.org, their various projects and their experience using Creative Commons licenses.

Creative Commons (“CC”): What is the history and mission behind MediaRights.org?

David Jacobs of MediaRights.org (“MR”): The idea for MediaRights.org started as a result of a meeting in 1999 of social issue documentary filmmakers and activists, brought together by the Ford Foundation, to talk about ways they could work better together. It was the height of the boom, so the solution was to build a web site. With seed funding from Ford, and some other partners, New York filmmakers Julia Pimsleur and Katy Chevigny created MediaRights.org as a 501(c)(3) organization built explicitly to foster this connection. A few months later, MediaRights launched and has been growing ever since.

Now we’re the outreach and distribution half of Arts Engine, Inc., a non-profit organization whose goal is to support, produce, and distribute independent media. In addition to our core web site MediaRights.org and the site for the Media That Matters Film Festival, we also maintain the Youth Media Distribution Initiative, whose mission is to improve the distribution of independent youth-created film, video, radio, and new media. We have also produced the web site for the Deadline Outreach campaign, which is intended to motivate ordinary Americans to reevaluate their positions on the death penalty and come to a more informed conclusion about the full ramifications of being “tough on crime”.

CC: What is the history and mission behind the Media that Matters Film Festival?

MR: One of our core philosophies is that the outreach process around a film is as important as the distribution or production process. The festival is a way for us to ‘walk the walk’ in addition to ‘talking the talk’.

The Media That Matters Film Festival is a crystallization of what MediaRights is all about. It’s easy to talk about cooperation between filmmakers and activists, but it’s harder to actually get it done. So in 2000 we started the Film Festival, which is a year long celebration of short activist films. The 16 films that make up the festival each year are streamed from our website, distributed on DVD, broadcast around the United States, and screened around the United States, and at some overseas locations, as part of our traveling film festival.

We pair the films with a series of “Take Action” links and campaigns, so the audience for the films is always presented with an option to act in response to the issues and media that make up the festival. For instance, our film “I Promise Africa” is about the spread of AIDS in Africa in the context of September 11 and the War on Terror. Since the film is only two minutes long, we communicate a lot of the information about the topic via the links and supplementary materials on the site.

CC: What made you decide to license the festival under a Creative Commons license?

MR: We wanted to find a way to get our films distributed to a broader audience, without giving up the filmmaker’s rights, which we were legally bound to protect. The Creative Commons license allowed us to clearly state what rights we wanted to protect and which rights we wanted to give up. Creative Commons, the organization, acts as a supportive and stabilizing presence for our constituents and filmmakers. The resources that Creative Commons provides for free are far greater than what we would have been able to produce and sustain on our own.

A program as large as the festival occupies a large proportion of our time. Since we’re a small organization with only 7 employees, we couldn’t afford to spend the entire year talking to lawyers and negotiating distribution agreements. We wanted to spend our time thinking about creative ways to make media matter more, not talking with our lawyers (as much as I love our lawyer). In past years, we had offered the festival under a non-commercial license to our partners and anyone who wanted to screen the festival. Although our license was good, our members and partners still had to call us to get access to the films and to clarify the finer points of the license. By using the Creative Commons license this year, we hope to make it even easier for our partners and others who want to screen the festival, to do so.

CC: Can you briefly describe the nature of your discussions with the filmmakers about adopting a Creative Commons? What were their concerns?

MR: Every filmmaker wants their film to go farther, and people are (rightfully) a little freaked out about giving up ALL of their intellectual property rights. The CC license allows us to offer a middle path. We want to people to screen the festival, use it in classrooms (there are free companion curriculums on our website), put the DVD on library shelves, and share it with their friends. We are also selling it on Amazon but we don’t want people selling bootlegged copies. This is commonsense to me. I think it is sad, though, that this is seen as so radical in our current political climate.

This is actually the first year that we began selling the DVD as opposed to giving it away, so the nonexclusive nature of the CC license was crucial. Once we explained that Creative Commons didn’t obligate us to give up ALL of our copyrights, people understood the language immediately.

Our goal is to get the films and their messages out as far as possible and the Creative Commons license helps us do that.

People who want to charge tickets for a screening or broadcast the festival still have to contact us, because it’s important to us that filmmakers are fairly compensated for their work and get a cut of any money made off of the films. Any filmmaker’s nightmare is that their work gets repackaged as a bootleg DVD or is screened without their consent, but we were facing these issues before we applied the CC license to our work. It also should be noted that we have a terrific lawyer who does some pro bono work for us, and he was able to clarify issues for us that our filmmakers raised. Mostly, he gave us the confidence to say “Yes, we’ve checked with our lawyer, and this doesn’t compromise our goals in any way.”

CC: Where can people watch this year’s Media That Matters festival?

MR: The festival is streamed on-line, and is available for purchase on DVD. The festival also tours around the United States and some international locations. The most current news about the festival is always available on our blog.

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CC Talks With: Ourmedia

Neeru Paharia, October 1st, 2005

Ourmedia launched three months ago as a home for grassroots media. The site provides a place where anyone can upload video, music, photos, audio clips and other personal media and store it for free on ourmedia’s servers forever. Uploaders have the option of making their works available under a Creative Commons license.

Recently, Ourmedia was nominated as the U.S. finalist for the UN World Summit Awards. The awards are an international competition created in 2003 to highlight the most innovative digital content being created around the world. The awards coincide with the 2005 UN World Summit on the Information Society (WSIS), an international UN summit that will take place in Tunisia this November. Despite having only launching in early 2005, Ourmedia was nominated as a finalist in the e-inclusion category-the UN’s term for initiatives that are helping bridge the digital divide, utilizing the Internet to empower the public.

Creative Commons’ Executive Director Neeru Paharia spoke with J.D. Lasica, the co-founder and executive director of Ourmedia. J.D. is also author of the new book “Darknet: Hollywood’s War Against the Digital Generation,” which includes a profile of Creative Commons and its chairman, Lawrence Lessig.

Creative Commons (“CC”): What are the origins of Ourmedia? Where did the idea come from?

J.D. Lascia (“J.D.”): For years, many of my friends and colleagues had been creating astonishing grassroots video, audio and photos that were hidden away on their computers or posted on a remote corner of cyberspace. I felt that these works deserved a far wider audience.

About a year ago, I gave the keynote at the Digital Storytelling Festival in Sedona, Arizona, and flashed on screen the offer by Brewster Kahle of the Internet Archive to provide free hosting and free bandwidth-forever-for works of personal media. The attendees were jazzed by the idea so I immediately began working with Marc Canter on what we were then calling the ‘Open Media’ project. We changed the name to Ourmedia when we discovered that Open Media was, ironically, a trademarked term.

CC: By what process were you able to pull the site/community together?

J.D.: We were able to start building the site almost immediately. About 50 thought leaders in the tech and media communities began working together in a wiki donated by Ross Mayfield of Socialtext. There, we hashed out the framework for the site: its mission; its technology (an interesting hybrid, with free server space from the Internet Archive and from Drupal.org); its design; its legal underpinnings (we would rely on Creative Commons for the bulk of our licenses); and its long-range roadmap. For the first nine months it was an all-volunteer effort. To get us over the starting line, we had to hire a few programmers in New Delhi to make the pieces all work together.

CC: What has the response been like?

J.D.: The response has been phenomenal. We were deluged with so much traffic our first day out on March 21 that our servers crashed. We quickly went to a bigger server. More than 24,000 members have joined so far. People like the fact that we are a not-for-profit organization whose aim is nothing less than to give anyone, anywhere, free storage for works of grassroots media-and to showcase those works for a global audience. We’ve also had conversations with companies that are looking for ways to bring greater visibility to amateur works such as Yahoo! and Google.

CC: What’s your vision for the community, say in 5 years? What kinds of things do you think are likely to happen?

J.D.: Our community efforts are just getting started. In July we will be adding some serious social networking components to Ourmedia. Then, Ourmedia members will be able to form groups or communities of interest around certain subjects or ideas, like citizen journalism or podcasting or videoblogging. We want Ourmedia to become a learning center for people interested in taking part in the personal media revolution. Once people see this as an easy and effective way for them to share best practices, these learning channels will become richer over time.

One aspect that we would like to foster is Ourmedia is educational use. Faculty members at five colleges in the United States and Australia have stepped forward to say they want to work with us to create their own versions of Ourmedia that would be geared toward students and teachers at various grade levels and in various disciplines. Ourmedia could be tailored to any age or interest, with thousands of freely shareable works for the classroom.

CC: What barriers do you think still exist for participatory culture?

J.D.: The barriers are chiefly technological and legal. On the tech side, we have to eliminate the stranglehold that the cable companies and media conglomerates exert over our living rooms. There is this notion that because we have access to 500 channels that we somehow have freedom of choice. But the choices remains confined to a relatively narrow swath of commercial-driven programming and ideas. Breaking through that barrier so that we can watch Internet programming on our living room televisions will be a huge battle over the next decade. At Ourmedia, we are working with the folks at participatoryculture.org to bring about access to free, open-source video.

On the legal side, the laws governing copyright and remix culture haven’t kept pace with what the digital generation is doing with media today. The laws were written during the analog era for big companies with no thought given to the digital age. Now that every person with an Internet connection has the ability to be a global publisher, how do we safeguard fair use? How do we let grassroots publishers access our visual culture-including borrowing snippets from copyrighted music and movies and television shows-to comment upon and annotate those works, just as we’ve done for centuries in the text world?

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CC Talks With: Illegal Art

Derek Slater, October 1st, 2005

A museum exhibit called “Illegal Art” might sound like a history of naughty pictures. Turns out that the exhibit (through July 25 at SF MOMA Artist’s Gallery) is more innocuous than most primetime TV: A Mickey Mouse gasmask. Pez candy dispensers honoring fallen hip-hop stars. A litigious Little Mermaid. Not kids’ stuff, exactly—but illegal?

Copyright holders have threatened and sued many of the show’s artists for sampling, remixing, and recontextualizing other people’s artistic creations without permission. Featuring audio and visual exhibits, a full length CD, and several films, the show highlights how copyright, typically considered an engine of creativity, can stifle art and free speech.

“Copyright is often so esoteric and theoretical,” said Carrie McLaren, the exhibit’s curator. “We wanted to make copyright’s problems as real to the average person as they are to our featured artists.”

McLaren originally developed “Illegal Art” to support the unsuccessful legal challenge to Congress’ latest copyright extension. Copyrights originally lapsed after 14 years with a possible 14 year extension, allowing artists to build upon a rich array of past works. Disney, for example, recycled Snow White, Cinderella, and many other Brothers Grimm fairy tales that were public domain and thus free to reuse. Today, copyrights last 95 years for corporations or life plus 70 years for individual artists. Because of Congress’ eleven retroactive term extensions over the last forty years, no one can do to Disney what Disney did to the Brothers Grimm.

Until the terms end, copyright owners retain several exclusive rights, including the right to make derivative works. Before you make Rocky X or remix Eminem’s hit “Stan,” you have to obtain permission—read: navigate a labyrinth of red tape—from the work’s copyright holder. Every appropriation is presumptively a misappropriation.

Because this exclusive right is in tension with free speech, artists can invoke fair use to defend their adaptations. Just as courts have protected controversial speech by setting high standards for libel, courts have identified commentary, criticism, and parody in particular as fair uses.

Most works in “Illegal Art” arguably fit this exception: they take “elements of our mass media environment to express how the artist feels about our culture,” McLaren said. Some works probe the ways mass media mixes commerce and art, while other pieces twist societal icons to critique mainstream culture. Kieron Dwyer’s “Consumer Whore” graphic remakes the Starbucks logo into a preppy, cell-phone-yapping, princess of the dollar.

Nonetheless, the lack of a clear, consistent fair use doctrine has created a strong chilling effect on “Illegal Art” parodists and others like them. Judges use a complex balancing test that weighs the new work’s purpose and commercial impact along with the degree to which the new work transforms the original, among other factors. Even when the Supreme Court ruled that rap group 2 Live Crew was not liable for a parody of Roy Orbison’s “Oh Pretty Woman,” the Court indicated that parody’s protection could be trumped in future cases.

Because of fair use’s ambiguity, critical reuses are still regularly litigated. To avoid embarrassment, copyright holders may try to silence critics and parodists, who often do not have the financial resources to fight back. Though he convinced a judge that his work was a parody, Dwyer was unable to fight on after a year in court and reluctantly agreed to a lopsided settlement. Who needs a defamation claim, likely to fall short of steep legal standards, when a simple copyright cease-and-desist letter will do the trick?

The law is far less forgiving for uses that are not overtly parodic or critical, even if they are highly transformative or borrow only trivial portions. Rapper Biz Markie was told by a judge “Thou shalt not steal” after he sampled twenty seconds of a Gilbert O’Sullivan track. The ruling revolutionized rap from share-and-share-alike to pay-to-play.

Sampling is now something that only people with significant wealth and the right contacts can do. When Redd Kross rock guitarist Steve McDonald added bass tracks to his labelmates The White Stripes’ “White Blood Cells,” he was lucky enough to run into the band and get permission. For most artists, clearing a copyright is too cumbersome, even when the sampled artists do not mind the sampling. Island Records sued Bay Area-based collage pioneers Negativland for parodying a U2 song, though, in a later interview, U2’s lead guitarist said he “didn’t have any problem with” the song and that “the lawsuit was not our lawsuit.”

Had these legal limitations existed years ago, perhaps collage, rap, and Pop Art would have been sued to death before they ever had a chance to flourish. These days, the implication is that these appropriations are lower artforms, deserving legal treatment suited to petty thievery.

“The law presumes that sampling intends to undermine the work of others,” said Mark Hosler of Negativland, whose work is featured in the exhibit and who are helping to develop Creative Commons’ sampling license. “When we make our art to critique others, we’re doing it because we’re inspired by what we find, and I think that’s true of many collage artists. Collage has been a legitimate form of art for a long time, and it’s everywhere in today’s society.”

It’s everywhere in part because cheap editing software and the Internet have made sampling accessible to anyone. Thriving communities of DJs, collagists, and “fan fiction” writers collaborating on and sharing their works exist throughout the Web.

Sampling’s everywhere for another reason. Corporate copyright holders, after years of battling the artform, are now appropriating it. Marketed as a near-revolution in filmmaking, Dreamworks has given Mike Myers an exclusive right to insert himself into certain old movies. Meanwhile, several record labels are allowing people to combine three mainstream music tracks for a Lollapalooza concert contest; of course, all entrees immediately become the labels’ property. Now that the “Illegal Art” artists and many more have popularized their artistic practice and suffered for it, corporate copyright holders are ready to reap the rewards.

To provoke a rethinking of how we treat appropriation art, the “Illegal Art” exhibit is touring the country to show people the value and plight of appropriation artists. Many groups are working alongside the exhibit to achieve its goals, like the Chilling Effects Clearinghouse, a joint effort by several law school clinics, that documents and assists accused online artists.

Creative Commons addresses the other end of copyright, providing artists with licenses that permit reuse of their works. Creative Commons licensing is in one sense a pragmatic solution to copyright’s ills. Artists who want to license their works can easily express their preferences in a way that others can identify and trust. In this way, Creative Commons licensing has enabled collaborations that might otherwise require a lawyer and a dozen inquiries. For example, Colin Mutchler submitted “My Life,” an acoustic guitar song, to Opsound, a music registry that requires Attribution-Share Alike licensing; Cora Beth, a total stranger to Colin, then layered a violin onto the song to make “My Life Changed.” No copyright lawyers were consulted—or harmed—in the process.

In another sense, Creative Commons licensing is symbolic. It shows that alternatives to the current legal regime are possible. Artists can create a world where the law meets their expectations about legitimate appropriations — where museums and sterile McMash-Up contests aren’t the only places to see new kinds of art.


CC Talks With: Interview with Flickr

Matt Haughey, October 1st, 2005

Flickr is a new photo management application that lets you annotate photos, share them with friends and family, and now, apply Creative Commons licenses to your shared photos. Flickr’s co-founder, Stewart Butterfield, talked to Creative Commons about this interesting application.

Creative Commons: Can you tell us how flickr came to be?

Stewart Butterfield, Flickr: That’s a long and twisted story! In many ways, Flickr is still coming to be. We decided to begin development on a photo sharing application on December 8th, 2003, and the first preview release went live on February 10th.

featured Flickr work
Stef Noble’s Photos
Share Alike 2.0

Since then it has changed a lot, and the emphasis has shifted from a real time photosharing and instant messaging application with a heavy social networking component (which was based off of technology we had in development anyway) to a more complete way of sharing and managing photos. We’re still a little way from version 1.0, but it has been quite a ride. And the chance to develop both the code and product concept itself with tens of thousands of testers has been really gratifying (if harrowing at times).

CC: Flickr has many interesting features surrounding the idea of putting photos on the web. Can you talk about what sorts of goals you have for Flickr, and where the application might be headed?

SB: There are main things we’re setting out to do. The first is helping people make their photos available to the people who matter to them. That might mean they want to keep a blog of moments captured on their cameraphone, or it might mean that they want to show off their best pictures to the whole world in a gallery or they might want to securely and privately share photos of their kids with their family across the country.

To fulfill this, we want to get photos into and out of the system in as many ways as we can: from the web, from mobile devices, from the users’ home PCs and whatever software they are using to manage their photos. And we want to be able to push them out in as many ways as possible: on the Flickr website, in RSS feeds, via email, by posting to outside blogs or ways we haven’t thought of yet. Making it easier to get photos from one person to another in whatever way they want is a big part of what we do.

Our second big goal is to enable new ways of organizing photos. Once you make the switch to digital, it is all too easy to get overwhelmed with the number of photos you take. Albums, which are the principle way people go about organizing photos today are great — until you get to 20 or 30 or 50 of them. They worked in the days of getting rolls of film developed, but the metaphor stretches to the point of breaking in the digital age.

Part of the solution is to make the process of organizing photos collaborative. In Flickr, you can give your friends, family, and other contacts permission to organize your photos — not just to add comments, but also notes and tags. By capturing the conversations people have about photos anyway, we can safely give up on structured metadata and still have a rich index to search on, so you can still find just the right photo years from now. In a way it’s like the difference between Google and Yahoo, back when Yahoo’s approach was still focused on getting human beings to do the upfront organization of the web into a hierarchy.

CC: How does Flickr use Creative Commons licenses? Do you see Creative Commons licenses solving problems for Flickr creators and visitors?

SB: We allow members to select a default Creative Commons license for all photos they upload and the ability to control licensing on a photo-by-photo basis. This gives people the most flexibility. And I think it does solve a real problem for some people: they want to be able to post their photos on the web and still express their preference as to how their work gets used.

This was an important step for us; as individuals and as a company we believe in and want to support free culture. Creative Commons licensing is great because it just sort of “snaps in” — the hard thinking has already been done, and even some of the technical work. In the longer term we’ll be adding a lot of features which will help viewers find Creative Commons-licensed photos: by license type, by subject, by photographer, and so on. With a powerful search interface we hope that this will become a valuable resource. The best case is really that the creativity that goes into people’s contributions to Flickr goes on to spark yet more creative work by more people around the world. And then they tell two friends …

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CC Talks With: Independent Musicians

Matt Haughey, October 1st, 2005

Scott Andrew LePera founded the lo-fi folk-rock project the Walkingbirds in 1998, around the same time he discovered the Web. Since then he’s actively recorded and released songs in MP3 format directly onto the Web from his little bedroom studio in Northern California. The Walkingbirds’ website sees several hundred downloads each month from all over the world, and their first CD release, The Sandalwood Sessions, is available exclusively on the Web.

Dealership began, in a sense, as a music project conceived by Chris Wetherell in 1995 while studying at U.C. Berkeley. To augment his classical studies, he began to think of ways he could explore pop music on his own. When he met Chris Groves, also a student and musician, an idea took root: Chris W. thought it would be cool to start a band with Chris G. His newfound whimsy impelled him to visit Guitar Center one afternoon and blow his student loan check on band gear. Then came a few months of drum ‘n’ bass work, which didn’t go anywhere except to convince the Chrises that they needed at least one guitarist. They begged everyone they knew to be in the band with them, until finally, sucker that she was, Jane agreed to learn to play the guitar.

In the fall of 1998 they released their first EP, Secret American Livingroom, which they recorded in Menlo Park with Guy Higbey. It was sheer luck that they found a great recording engineer who was patient, willing to teach, and open to playing around with some of the pop trio’s more outlandish ideas. Loaded with pop hooks and pretty vocals, it became favorite of local college DJs and indie scenesters. On the strength of this debut, they played Noisepop 1999 with Imperial Teen, and later that year, CMJ in New York.

Their next album, TV Highway to the Stars, was released in late 2001, and they’ve spent much of 2002 working on a follow-up.

These unsigned musicians have embraced the Internet, thorns and all. We caught up with them to talk about their thoughts on how tough it is to make it in music today, what they love about using the Internet to get their music out, what worries them, and how they plan to use Creative Commons licences for their work.

Creative Commons: In the current world of music, unsigned bands greatly outnumber signed recording artists. Tell us a bit about your bands, how you got started, and what types of music you create. How long have you been making music?

Scott, Walkingbirds: I’ve been writing and recording music for over a decade, ever since I got my hands on a roommate’s 4-track back in college. I started playing in bands while at school, although the music I played was much different, mostly grungesque and prog-rock stuff. After my main band broke up, I tinkered with the idea of a stripped-down acoustic act, with lots of vocal harmony and interplay — very different from what I had been doing before.

The Walkingbirds were formed in 1997, and by that time I had a small catalog of new songs [and was] looking for a voice. From the start we decided this was going to be more of a “project” than a band. A “band” implies that we actually rehearse and perform regularly; we wanted to keep it very casual, so we could skip out on a rehearsal and go drink beer with a clear conscience. My co-writer Laurie Hallal had recently gone through the breakup of her very popular band, and we were both burnt out from the effort of trying to make a band work. The goal was to write songs and put them to tape, and have fun doing it. No more than that.

I moved to California in the summer of 2000, and the Walkingbirds as a duo ended. It was around this time that I realized that most of what we paid to have done in a studio could be done inexpensively on a PC. After a bit of tinkering I managed to record and release a handful of new tunes under the Walkingbirds name, exporting them straight to MP3 format and uploading them to my website. So now the Walkingbirds are fully a one-person DIY record-at-home musical project in the strictest sense.

Jane, Dealership: Oh, I like the idea of a “project” as opposed to a “band” very much. In a way that frees you from having to stick to genres. The toughest and most annoying question bookers and promotional people ask is, “Who do you sound like?” When you’re in a band, you feel you have to develop a “band” sound — not that we really do that in Dealership. Which is why it’s hard to say what we sound like.

CC: How much work and time goes into writing a new song or cutting a complete CD?

Scott, Walkingbirds: It’s always an uphill battle for me, mostly because the ideas don’t come easy. I’m lucky if I can complete one song in six months. It was a bit easier when I had bandmates, because you have more contributors and feedback and can complete a song faster, but the end result is usually much different than when you’re writing solo. I have bits and pieces of songs lying around from years ago — a chorus here, a bridge here — waiting to be completed. Sometimes these bits never become whole songs, and sometimes I’ll be noodling around with some old chord progression and things will suddenly click.

Because I record at home, I have the luxury of taking my time and having complete control. Sometimes I’ll work on a sampled drum track for weeks to ensure it sounds as natural and “live” as possible. Or sometimes I’ll stay up late applying random effects to the bass track, just to hear what happens. If I’m unhappy with a vocal take two weeks after I recorded it, I don’t have to book another few hours at the studio four weeks from now; I can walk go into the bedroom, erase it, and do another. There’s no clock, no engineer running patch cords, no arguing with the lead singer, no hauling a drum kit into the basement.

That said, I can’t really say that technology has improved my songwriting. It’s made me more productive by taking away barriers, like the expense of a studio or CD duplication. Occassionally I’ll hear something while tinkering with FruityLoops or Reason that will give me an idea, a place to start. But inevitably it comes down to what (Smithereens’ guitarist) Pat DiNizio calls “ass in chair” — I have to turn off the machine, pick up the guitar, sit down and just write the damn song. I usually have to have a tune completely written in my head before I open ProTools. The great thing about all of this is that, when I am ready to record, I can do it immediately without the constraints I used to have a few years ago.

Jane, Dealership: I would love to do what you do, Scott. Since we put out our first album, we’ve been throwing around the idea of what Chris W. would call, in his Marxist way, “owning the means of production.” But assembling the components necessary to record a four-piece band with three vocals daunted us, and it’s not until recently that Chris W., who has always been a tireless promoter for his integrative capitalist ideals, has really initiated the purchase of computers and tools to record our own stuff at home. We are also starting to play more with non-live sounds — drum machines, samples, electronically derived sounds — and that makes it easier to make music without expensive, fancy mics.

I think that would definitely change our songwriting style, too. The way we do it now, we pretty much complete the song (or we try to) before we go into the studio — because we don’t want to waste a lot of time and money tinkering. Of course we end up tinkering somewhat. But in the future I see the recording process as an integral part of songwriting — in my fantasy, as I mentioned, we email tracks to each other and build off those. Maybe the danger will be we just won’t know when to stop! We’ll create an infinite loop of music.

CC: When you post an mp3 of your music somewhere online, what are the advantages to doing it? What sorts of things are you looking forward to when you offer your music this way?

Scott, Walkingbirds: Immediate distribution: I don’t have to take the extra step of pressing a CD and shipping it out. I often just rip the audio mixdown directly to MP3 and post it the same night I complete the mix.

Immediate feedback: I love hearing from someone who really liked the song, and appreciate the comments from people who thought the drums were too loud, the bassline too cheesy, and so on. And every so often I get a message from someone in Pakistan or Senegal, or somewhere distant that I will probably never see in my lifetime, and I am totally blown away.

Chris W., Dealership: Often, when thinking about the value of distributing our songs as MP3s, I’m reminded of a lyric from the song of a band we know well (Imperial Teen, Luxury). The lyric reads: “I’m looking for a family who listens to my songs.” MP3 sharing has powerfully enabled our ability to join communities of shared values and aesthetics and support. I’ve watched our behavior as artists change; we now derive a good deal of inspiration from the community of people who’ve listened to us and responded and shared their songs or their weblogs or their art. Artists who don’t share MP3s probably have a difficult time leveling the communication between fan and artist to a more rewarding interchange. If a band doesn’t participate in a sharing community, what kind of fan would be inspired to do more than email them and say, “Hey, liked your band on Thursday,” or “I loved that song”? We can trade music and ideas with a subset of people who already are thinking a lot about music, are exposed to many things (via P2P), and can take an active role in developing a critical aesthetic. The Internet, being a data exchange, is a lot more suited to that than any other medium.

MP3 distribution is also pretty nifty since it often enlists other people as third-party distributors via peer-to-peer processes. It’s a much quicker path to community building. (But not the quickest path to passive distribution of knowledge about your music, a process otherwise known as getting your name out there. That distinction, to be sure, still belongs to television.)

We also realize that there may be people who are encouraged to buy one of our CDs after listening to an MP3. But this result, while positive, is really, really low on the list of other values returned from sharing MP3s.

Free trading of our music has genuine, verifiable returns. Community. Exchanges of artistic thought and aesthetic commodity. . . The RIAA argument that artists won’t particpate in the marketplace of ideas without financial compensation for CDs seems pretty short-sighted from where we sit.

CC: Conversely, can you think of any disadvantages of doing it? What things do you worry about when offering your music files online?

Jane, Dealership: There are disadvantages. Recording, for us, costs money; we spent some time and money designing and producing the CD sleeves, too. And then the cost of pressing the CDs — it adds up fast. It would be great if everyone who downloaded Dealership would also go out and buy a CD. It’s a little depressing that they don’t, I guess. But if we ever make it to Boise, there’s a chance that some kids will have heard of us and will want to see us play and maybe buy some t-shirts and related merchandise. Also a lot of the indie scenesters are sensitive to the poverty of the musicians they like and are quite cool about insisting on paying for CDs.

I think ultimately the lesson that music makers, including the major labels, need to learn is that music will be free — utterly, completely, totally. What we’ll get paid for are related products — like the t-shirts, or the live shows, or the unique CD insert, or the poster, or — well, maybe we’re not smart enough to have thought of all that can happen. We need to change our revenue models. Fortunately it’s easy for us — easier than if we were a major label. We’re small, we’re flexible, and we don’t practice economies of scale. We can print 1000 CDs and watch how they sell, and shift if we need to. Which actually puts us in a better position to respond to emergent technologies, and to take advantage of them.

Besides, it’s not like we’re in this for the money, anyway.

Scott, Walkingbirds: Obviously I don’t get any money for offering free downloads. But at this level you really can’t do it for the money. You’ve got to take that opportunity to connect with the people who are going to become your fans and turn them into repeat customers who’ll come see you play and buy your t-shirts.

One thing that does cross my mind from time to time is the possibility that some shmuck will take a song of mine and pass it off as his own. Or, that some company will start using one of my tunes as a jingle for snack crackers or something. But the Web has this tendency to sniff these people out, and I figure it wouldn’t be long before someone emailed me with a note, “Hey, did you hear this? This sounds like YOUR song.” And that’s where traditional, tried-and-true copyright law can still be effective — because even though I choose to make a song freely available, there are still limits. Under a modified license I might even be willing to allow someone to add my song to his setlist, or use it in a soundtrack.

But the same rule applies: ask first, because otherwise you will be found out, and your name plastered all over MetaFilter and Slashdot. Discovery is just a Google search away!

Chris W., Dealership: The downside of this method is significant and obvious. We aren’t compensated monetarily.

Which would be a disaster if we couldn’t derive compensation through other means such as live performance and merchandise. But we can. And because MP3s are traded for free with excellent, easy-to-install tools for sharing and downloading, this method generally yields the highest amount of people actually listening to our songs. Which, if they enjoy the art we create, can be very gratifying personally.

As far as worry. . . we can’t imagine that there’s too much to ever worry about regarding fair use of music. People like songs. They’ll share music with friends and family. As they always have.

I know what you’re getting at, though. Many people worry that offering music files online means No Money For Daddy.

But, as I’ve said before, I am not entirely convinced that the Internet-music-delivery industry and the CD/Cassette/Vinyl-delivery-industry are commodifying the same product. The reason I’m not yet convinced is that it seems unclear to me whether the “norms” for consumption of music are moving dramatically away from CDs and toward digital MP3 encoded files. Doesn’t it seem more realistic to state that a subset of music consumers are both buying CDs (perhaps less than before) and downloading free MP3s? I believe that the elements of CD packaging — including cover, booklet, and CD design — as well as the product’s very physicalness (something that allows for unlimited portability and decorative collection), are such valuable characteristics as to make a practical differentiation possible.

Which is to say that I don’t think people will ever stop buying music on physical media. And as a result, I believe that musicians will always be compensated monetarily. Consumers may become choosier about their purchases, though. Thanks to peer networks, there are many cheap and efficient methods for previewing a particular product’s contents.

CC: Now that you’ve seen the licenses available from the Creative Commons site, can you tell us how you plan to use them for your band’s work? Considering the potential drawbacks to releasing music online, can you see some benefits from using licenses with your work?

Scott, Walkingbirds: I’m seriously considering a combination of Attribution, Non-commercial, and Share Alike for my material. My primary concern is allowing the public the widest possible access to my songs. I don’t want people who just like my music to have to jump through legal hoops to listen to it on their computer or add a song to their Live365 webcast. I want people to share and enjoy this music by whatever means they have. The licensing options I’ve chosen should allow all of that, while protecting the important parts: I get attribution, and you still have to ask my permission to profit from my work. And if you want to make a funked-out disco remix, you can do that, as long as the end result is covered under the same license.

In some ways, it’s no different than regular copyright, except with the restrictions on copying and file-sharing relaxed. I’m comfortable with that. No more of this “you can only make one copy for yourself” crap. Artists have to get used to the idea that people WILL copy your stuff, they WILL share it with friends, and yes, it’s likely that you WILL find your entire album on the Internet. The question is are you gonna treat those people as fans, or thieves? Do you think people who like your music will appreciate being called thieves? Is that any way to establish a relationship with your new, online fanbase? Maybe the big labels can handle it, but I know that at my level, I can’t afford to alienate a single potential fan.

I’m much more comfortable saying, “Here are some songs, go forth and copy,” and not worry about it. What little money I lose to copying, I’ll make up in mutual respect from happy fans, who, I hope, will come to my shows and buy my t-shirts.

Chris W, Dealership: I think we’ll be releasing songs using the Noncommercial license. The upside is that people who are already sharing our songs and have every intention of continuing to do so will not be incorrectly identified as criminals. And we’ll have some ammunition against unauthorized compilations and unwanted inclusion in advertising. (Though, as a suggestion to the good people involved in this endeavor, it would be nice if this license could be applied specifically to a file format, like mp3 compression, and not to, say, .WAV sound files.)

As for the other licenses, Share Alike and Attribution suggest a release we’ve always talked about but never produced: a karaoke version of a song or two of ours. Be your own Chris Groves or Jane Pinckard in the comfort of your living room. Or cubicle, if you have a small mic, recording software, and understanding co-workers.

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CC Talks With: Opsound’s Sal Randolph

Neeru Paharia, October 1st, 2005

Meet Sal Randolph, the New York-based artist behind Opsound, a new online record label that has adopted the concepts of open source and copyleft and adapted them to music production. Opsound invites musicians to contribute sounds to a “sound pool” licensed under a Creative Commons Attribution Share-Alike license. Others can then take sounds from the pool, mix them or use them as-is, and publish the results however they like: online, or under a real-world micro-label; for profit, or not. The project is a great example of how Creative Commons licenses can promote new kinds of collaboration and help build a digital resource people can use freely — even for commerce.

Sal is kicking off Opsound with an open invitation to the world to submit works to the sound pool. Users will host their own sounds, and the Opsound site will feature a local indexing function that links to every sound in the pool.

Asked if artists would be moved to contribute works to the sound pool, Sal is optimistic. She says she senses, however, a disconnect in most artists’ view of copyright: most understand how copyright protects their own work, but few appreciate how too much copyright can also hinder them from drawing upon others’ work.

“Many artists download music but don’t want to give up any protection on their own stuff. They see copyright as something that is primarily there to protect them. They are afraid that giving away some of that protection will diminish the value of their work, but it is my experience that allowing your work to be used and shared more freely actually increases its value — certainly its social value, and under the right circumstances, its financial value. A lot of the Opsound effort will be to educate artists about copyright and how sharing can help them.”

Opsound is Sal’s newest open source social architecture project. She is also the mastermind behind many other open source art projects including the Free Words project, Free Biennial, Free Manifesta, and Opcopy. Opsound, like many of Sal’s projects, is a constructed social situation based on a “gift” economy — a kind of market that, like the open source movement, operates in part on non-financial motives.

In one of these such projects, Sal produced thousands of books simply entitled “Free Words” containing a collection of 13,000 randomly assorted words and phrases Sal had put together over 10 years as fuel for her poetry. Sal contributed “Free Words” to the public domain. “This text is placed in the public domain,” reads the book’s front cover. “No rights are reserved.” The back states simply, “This book is free.” She began to sneak the books onto shelves in bookstores and libraries around the world. Some people would find the book and take it, while others doubted that the book was indeed free. Sal says “It’s that moment of confusion that is the art.”

I caught up with Sal in New York and had the opportunity to ask her a few specific questions about Opsound and the philosophy behind it.

Creative Commons: Could you talk a bit about gift economies and how they relate specifically to Opsound?

Sal Randolph: I’ve been studying gifts and gift economies for a few years as part of my work as an artist. Generally gift economies are discussed by anthropologists, very often as if they have little to do with contemporary life, dominated as it is by global capitalism and market forces. But gift giving is fundamentally human and is at the foundation of how we create human relationships. Families are largely gift economies. Workplaces are a complex intertwining of gift and money economies where extra work is very often done for reasons that are primarily social rather than financial.

In recent years the free software and open source movements have become an example of a hugely vital gift economy capable of engaging the creativity and attention of hundreds, if not thousands of participants working on projects which now stand alongside the products of a gigantic commercial industry.

Opsound is in part an attempt to apply some aspects of open source software’s example in the context of music. Like software hackers, musicians are very often motivated by the pleasures of making, and the desire to share their work with others. The way the music industry operates does offer the possibility for a small number of musicians to make a great deal of money, but it doesn’t function well for the vast majority of people who are making music. The current situation of the music industry begs for alternative structures to be invented and created.

CC: Why are you using Creative Commons licenses? What do you think the value is of Creative Commons, and our licenses to the world, perhaps in the context of a new social architecture?

Sal: I began working on the Opsound project before Creative Commons released its licenses. I was aware of some other possibilities like the EFF’s Open Audio License, and Copyleft Attitude’s Art Libre/Free Art License, as well as a number of open content licenses designed more for texts and academic work. All of these were clearly inspired by the GNU General Public License and the work of the free software and open source movements. . . .

I had various hesitations about each of these, including how easy or difficult they would be for artists to read, understand, and use, what their legal strengths and weaknesses were, how widely applicable they were internationally, how the license notification worked when pieces were published or released, etc.

When Creative Commons introduced their licenses, I was delighted to see that many of my questions had been addressed. Most important, the licenses are easy for anyone to understand and use. In addition, the “some rights reserved” logo and html provided by Creative Commons gives everyone with web-based projects a very easy way to make the licensing of the work clear to its audience. Creative Commons does a wonderful job of introducing the public to the ideas and principles behind the licenses as well as explaining clearly how they can be used and what they mean. From my point of view, working with a group of artists and members of the public who may not yet be familiar with these issues, this aspect of Creative Commons’ work has been essential.

In the larger picture, I feel that there is a general movement to respond to the increasingly restrictive climate of copyright legislation and practice by simply bypassing it, by creating alternative structures where music, art, and writing can be more freely shared and used. Despite the dominating mind-share of the commercial cultural industries, most music, art, video, and literature is still made for noncommercial reasons, and the artists who make that work have nothing to lose and everything to gain by sharing it more freely.

CC: How did you get interested in social architecture, open source, free art projects?

Sal: I had been working for years as a poet and installation artist. Over time I came to feel that the traditional art experience, essentially private and contemplative, was frustratingly brief and passive. I began to look more deeply at the situation of art: where we find it, how it is used, how it is bought and sold, what are some of the hidden forces at work in shaping our experience of art. I became very curious about art’s relationship to money, and I began a series of art projects investigating the pricing of art. As part of this work I gave a few things away for free, and found that a new and astonishing energy entered people’s engagement with the work.

I’ve been working on free art projects for about five years now, and they grew quite naturally into the work on social architecture. Gifts (as Marcel Mauss points out in his wonderful book, The Gift) are essentially relational. Gifts ask for reciprocation, and in the back and forth that ensues relationships form. So projects involving giving things away very quickly take on a social dimension, spontaneously creating and illuminating social networks.

I’ve always followed the open source movement with some interest, but as I became interested in the way that more complex gift economies and social architectures might function, I began to study it more specifically. Because the history of the free software and open source movements are so fresh and so well documented by participants and observers, a great deal can be learned from it. One of the particularly interesting things about open source software is the interface between the gift economy in which much of the work is created, and the capitalist economy in which it is also bought and sold. No one yet knows if the economic model of open source software is entirely sustainable. And we know even less about whether it can be applied to other areas, for instance music. Nevertheless, the sheer energy and scale of open source software is enormously inspiring.

CC: What is your vision for Opsound a few years down the line? What kinds of contributors do you anticipate? And how many? What will the Opsound community look like, overall?

Sal: One of the exciting things about working with social architectures and gift economies is that they are living entities, and therefore unpredictable. I have never done one of these projects without something very surprising and interesting happening. That said, however, I am hoping that Opsound will gain a certain critical mass and energy, a few hundred participants at least, to create a vibrant community where there are many ways of taking part.

With a large pool of sound files available, many things will be possible. Musicians, sound and video artists will be able to draw on them as elements in new work. For those who aren’t musicians, there will be the possiblitity of easily creating online microlabels. And of course I’m hoping for Opsound to be an interesting record label in its own right, producing and selling records and cds, holding events, parties, tours, etc.

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CC Talks With: Oyez’ Jerry Goldman

laura, October 1st, 2005

Jerry Goldman is determined to archive every recorded oral argument and bench statement in the Supreme Court since 1955, when the Court began to tape-record its public proceedings. Goldman, a professor of political science at Northwestern, founded the OYEZ Project in 1989 “to create and share a complete and authoritative archive of Supreme Court audio.” This month the OYEZ mission takes a new step forward with the release of hundreds of hours of MP3 versions of their archived audio under a Creative Commons license.

We spoke with Jerry recently about The OYEZ Project, their use of Creative Commons licenses, and the impact of their new MP3 release.

CC: What inspired you to create The OYEZ Project?

Jerry Goldman: In the late 1980s Professor Linda Kerber gave a talk at Northwestern University on her project dealing with gender discrimination in the law. Kerber played a few audio excerpts from the oral arguments in Hoyt v. Florida, a case that upheld the exemption of women from jury service. The audio was enlightening because it opened up a new way of thinking about the Court and grasping its work. It was my view that technology could enable a better use of these materials.

A later demonstration of such technology was equally inspiring. Two English professors visited Northwestern to discuss their Shakespeare project. Using an early Mac, a video-laser disc player, a color monitor, and some speakers, they demonstrated how one could highlight, say, Act II Scene 3 from Macbeth and then instantly play back the corresponding video. The ability to integrate text, audio, and video lay the groundwork for future OYEZ projects involving audio and annotation tools.

CC: After you became interested in the Court’s audio recordings, how did The OYEZ Project begin?

JG: The earliest version of The OYEZ Project dates back to 1989. I came up with the idea of presenting our Supreme Court data and archives like a baseball card collection while sitting at a Chicago Cubs game at Wrigley Field. The idea materialized into a pre-web version consisting of complex HyperCard stacks. The stacks contained an elementary demonstration of video and audio linked to background information on the individual justices and the cases they decided. As a tribute to OYEZ’s origin we created the “Law-Baseball Quiz,” an idea from the creative mind of the late law professor, Robert Cover.

The transition to downloadable MP3s is a result of working with Chris Karr, a creative and forward-thinking computer scientist and web architect. Chris made me wake up to the need for wider sharing of our materials. I’m greatly indebted to him and quite pleased to acknowledge his contribution to the Creative Commons effort and to the entire re-conceptualization of The OYEZ Project.

CC: How did you obtain the Supreme Court audio materials? Why have you decided to release them?

JG: We purchased and collected the audio from the National Archives and Records Administration in College Park, Maryland. The audio materials — principally in the form of oral arguments — are the core of The OYEZ Project.

We released the public proceedings because they are some of the greatest intellectual and legal debates of our era. Transcripts — even with the justices identified — lack the emotive qualities of humor, irony and anger, which audio conveys. The first Roe v. Wade argument (the case was reargued) stands out in my mind. When Jay Floyd, representing the state of Texas, began his argument, he tried a bit of good-ole-boy humor, which was met by the Court’s silence. (Remember that the bench was all men in the early 1970s.) His argument headed downhill from there. Sarah Weddington, representing Jane Roe, made a kitchen-sink argument, throwing every thing she could imagine at the Court. That struck me as pointless, though some of the justices were very gentle about it. Among the announcements of opinions, the Regents v. Bakke audio stands out. In a rare exercise, the justices spoke at length about their disagreements in the case, and the emotions are palpable.

CC: Government works are essentially uncopyrightable. How did you obtain the copyright for these works?

JG: The OYEZ audio is a derivative work because we’ve made technical and editorial judgments that depart from the original source. The raw audio we obtain from the National Archives often needs to be edited. Sometimes, the first part of an argument will exist on one reel and the remainder is on a second. We dub both reels and then match them up, removing any overlap. We have voice corrected many hours of audio because of timbre and pitch problems.

CC: How does this MP3 release add to what OYEZ is offering currently? What good might come of this for OYEZ in the future?

JG: It offers new independence to users by permitting downloads of OYEZ audio and promoting the sharing of those materials — subject to our Creative Commons license — on peer-to-peer networks. While we enjoy our popularity in academic and educational circles, we can reach more listeners by enabling downloadable versions. With the development of Creative Commons, we have, for the first time, a way to license our content that assures use consistent with our objectives.

The more I listen to the recordings the more I realize that the true value is not in the audio itself but in a community of dedicated listeners and scholars who could add to the audio. The original Court transcripts do not identify the justices, only the attorneys. Adding transcripts and voices to the audio would help create a searchable audio archive. For instance, you could search and listen to any audio where Scalia used the expression “strict scrutiny.” Listeners could annotate audio by pinpointing selections that illustrate good and bad advocacy, or particularly interesting views on an issue, and then share their annotation findings with others in a shared community. Encouraging a community to select and identify audio clips will increase awareness of OYEZ audio as a primary source for scholarship and teaching.

CC: Why did you decide to use Creative Commons licenses? Why do you think this project is important?

JG: Creative Commons has a good solution to the nagging problem of commercialization and is based on a solid theory regarding the power of creativity. We want to contribute to that creative enterprise. It doesn’t make sense to maintain the high transaction costs associated with acquiring these materials. Having made this investment — with the help of many institutions —it is our responsibility to freely share this treasure.

Peer-to-peer networking is getting a bad name as a result of the enormous amount of unlicensed music file-sharing. By making our collection available we are emphasizing a good use of P2P and hopefully inspiring other content creators to recognize that there is more to be gained by sharing than by withholding their work from the public.

We hope OYEZ audio will be used by law students, Supreme Court junkies, practicing attorneys, teachers, and the general public. To borrow from the immortal Yogi Berra: “You can hear a lot by listening.” The experience is daunting and thrilling, and my hope is that by listening and learning, the quality of advocacy and communication will improve.

(MP3 versions of OYEZ audio featuring our licenses are available from the OYEZ site. Read more about our MP3 embedding policy)

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CC Talks With: People Like Us/Vicki Bennett

Derek Slater, October 1st, 2005

Collagist People Like Us (a.k.a. Vicki Bennett) is most at home exploring fault lines — artistic, emotional, legal. Take “Going Out of My Town,” one of many songs Bennett has made available under a Creative Commons license. It starts with an unsettling assortment of pops and fizzes, then introduces an acoustic guitar sample under a sweet, vaguely familiar melody. By the time the rousing German chorus breaks in, you don’t know whether to feel mildly disturbed, smile serenely, or burst out laughing.

In her ten solo albums and regular live performances (including Creative Commons’ launch party), Bennett has made this sort of odd juxtaposition her signature.

“I have always wanted to make magical worlds that are unrestricted by the practicalities of ‘real life,'” Bennett said in an interview with Creative Commons. “When I sample disparate elements I can bring together all sorts of people and situations that I could and more likely would never get together. In this sense I am an editor of life.”

Featured People Like Us Work
Going Out Of My Town
Attribution-NonCommercial-ShareAlike 1.0
[download MP3]

Bennett is part of a larger artistic appropriation movement, which ranges from collage, to dance remixes, to “mash-ups.” Though hampered by copyright’s restrictions on derivative works, these practices have flourished as editing software has gotten cheaper and easier to use.

Bennett spoke with Creative Commons about her music, Creative Commons’ upcoming sampling license, and the legal and ethical issues surrounding collage and other kinds of re-creativity.

Creative Commons: First, tell us a little about how your affinity for audio and visual collage developed. What first got you interested in the artform?

Vicki Bennett: [in 1980] I discovered the work of Steve Stapleton, better known as Nurse With Wound. It is a very funny record full of appropriated soundbites. It made me realize that it is possible to release music like this. Until that point I was under the naive impression that if you made appropriated art you would somehow be found out at the pressing plant and be struck down by a lightning bolt.

CC: What is it about sampling that inspires you?

VB: Even before I had the slightest clue about what I was doing, I was making collage. It seems like the most natural way of finding relationships between subjects and objects, and also to gain some perspective on one’s thought processes and reactions. I started working with visual collage as an art student in the 80s—first photographic, then video, and then some sound. I left college, and financial restrictions led me to work with music and radio.

CC: How do you create your songs? Where do you draw your samples from?

VB: Sampling isn’t new. We have always recycled, but only now is this seen as offensive or, oh yes, illegal. We have always drawn from what is around us—not just creatively. It’s no different than being influenced by another’s speech patterns and expressions.

Samples are drawn ethically from any source, so long as I use it in a way different from where I found them.

At present 99% of my film footage comes from Rick Prelinger’s public domain archives. There are many film people who are very protective of what you do with their material, and many others who charge far more money than an artist like me can afford. It’s not practical for anyone except a famous or rich artist. When I found the Prelinger Archives, where everything is free, I felt like I’d come home.

Audio-wise, the sky’s the limit. Sound is available everywhere; music is so far ahead of film on so many levels, least of all that we have so many ways of getting it for free.

CC: In a BBC interview, you asserted that the bootleg movement has been the most important music in the last ten years and has brought music “back to where it belongs.” Why is that?

VB: The bootleg movement (and by “bootleg” I mean “mash-ups,” not mass duplication) has brought energy, relevance, and humor back into the world of popular music, and brought the art back to the streets. It’s like punk music. Thankfully, it has also given people like me a higher profile because mash-up is a form of collage.

Forget all the analyzing; it’s fun, and lots of people are doing it.

CC: Why did you Creative Commons license your music?

VB: I license partly because of the negativity of IP law, which says, “You can’t do this, you can’t do that.” How about building on creative works, and finding out what the creator thinks, rather than what marketers and A-and-R execs want? The idea behind a Creative Commons license is good because it cuts out the middleman. One can find out how the creator feels about interpretation and duplication of their work.

I also did this to support the cause of a thriving public domain and am glad that Eric Eldred and Larry Lessig do what they do, promoting works available for everyone, not just those who can afford it.

CC: Creative Commons is developing a sampling license to help alleviate legal concerns about copyright’s gray areas. Have you experienced any problems sampling others’ work?

VB: No, not legal problems. Only problems with people assuming I’m not to be taken seriously for “taking from other people” or writing nasty letters about their dead grandfather when I send a mail out supporting the fight for the public domain.

Practically speaking, I’ve had problems finding a higher profile label that will distribute and promote my work because of the sampling. They are worried about getting sued. Other potential labels have wanted to control how I sample, and I’m not about to go along with that. So as a result the focus has turned to making live concerts (audio and video), which reaches far more real people face-to-face. I also use the Internet as a means of distribution, rather than making physical albums.

CC: To make the sampling license, we’ve had to define “sampling” in a useful way. What, to you, is “sampling,” and what reuses of a work would you not be comfortable with?

VB: Any creative use of a pre-existing work is sampling, including any interpretation in part or re-contextualization (which may be using elements as a whole, but in a collaged, cut-up way). There are some people working with a whole song but then putting another whole song over the top. When I say “creative use,” I am not placing any judgment that the creative work is good or bad. Neither do I believe that one should be making a different judgment on whether someone sells the work or not. Given that we are all using what went before, that we all have the right to work, and if we give our lives to this work we have a right to be paid for our labor.

Any carbon copy of a physical object (i.e. CD, DVD) made purely for commercial use is in the traditional, negative sense of the word, a bootleg.

I am comfortable with any creative re-use of my work that is made for art’s sake rather than purely as part of a commercial agenda (i.e. pirate copies for sale, or use for advertising).

CC: Your sentiment about advertising is shared by several people participating in the Creative Commons sampling discussion. How do you reconcile that with collage’s expansive view of “art for art’s sake,” or, as you say, that art is neither good nor bad?

VB: Mash-ups appropriate the obvious, or are very simply constructed. But it’s intended to be pop music, which only works if it’s obvious or simple. It is still a transformative appropriation.

The anti-advertising argument does not have to do with whether it’s good workmanship, or whether one may think advertising is bad. First it is an advert, then it is art. That is where the distinction lies—in what its primary function is, and the initial intention behind the act.

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CC Talks With: Wall Street Journal on the Sampling Licenses

Mike Linksvayer, October 1st, 2005

by Ethan Smith, Staff Reporter of The Wall Street Journal

For some people, the future of copyright law is here, and it looks a lot like Gilberto Gil.

The Brazilian singer-songwriter plans to release a groundbreaking CD this winter, which will include three of his biggest hits from the 1970s. It isn’t the content of the disc that makes it so novel, though — it’s the copyright notice that will accompany it.

Instead of the standard “all rights reserved,” the notice will explicitly allow users of the CD to work the music into their own material. “You are free… to make derivative works,” the notice will state in part. That’s a significant departure from the standard copyright notice, which forbids such use of creative material and requires a legal agreement to be worked out for any exceptions.

Is this the future of copyright? Perhaps. But a better way to think of it is that it’s one of the possible futures of copyright. Because right now, it’s all pretty much up for grabs.

Blame it all on the Digital Age. As any digital downloader can tell you, technology and the Internet have made it simple for almost anyone to make virtually unlimited copies of music, videos and other creative works. With so many people doing just that, artists and entertainment companies sometimes appear helpless to prevent illegal copying, and their halting legal efforts so far have antagonized customers while hardly putting a dent in piracy.

The challenge is finding a way out of this mess. Efforts fall broadly into two camps. On one side, generally speaking, are those who revel in the freedom that technology has brought to the distribution of creative material, and who believe that copyright law should reflect this newfound freedom.

On the other side are those who believe that the digital age hasn’t changed anything in terms of the rights of artists and entertainment companies to control the distribution of their creations and to be paid for them — the essence of copyright law. For them, the answer is to leave copyright law intact, and to use technology to make it harder for people to make digital copies.

Here’s a closer look at some of the competing visions.

In This Together

The copyright notice for Mr. Gil’s coming CD is being crafted by Creative Commons, a nonprofit organization that seeks to redraw the copyright landscape. Believing traditional copyrights are too restrictive, it aims to create plain-language copyright notices that explicitly offer a greater degree of freedom to those who would reshape or redistribute the copyrighted material.

Traditional copyright law gives owners of creative material — and them alone — the right to copy or distribute their works. Although they can waive all or part of those rights, the process isn’t easy and usually occurs in response to a particular request. Those hurdles, critics say, can hinder the open and freewheeling sharing of material the digital age makes possible.

Creative Commons seeks to make the system more flexible by spelling out which rights the copyright holder wishes to reserve and which are being waived without waiting for a request. Artists can mix and match from among four basic licensing agreements: They can decide whether they simply want attribution anytime their work is used by someone else; whether they want to deny others use of the work for profit without permission; whether they want to prevent others from altering the material; and whether they want to permit the use of material only if the new work is offered to the public under the same terms. An underlying layer of digital code enforces the rights laid out by the owner, telling computers how a given work can be used.

A Creative Commons license isn’t for everyone. It might appeal to independent artists for whom free samples, distributed online, might represent an attractive marketing option, or for someone like Mr. Gil, who believes that making it easier to share and reshape his music can be an important part of the creative process. But it’s unlikely to appeal to the big media companies, for which copyrighted material is what they sell.

Still, Mr. Gil, who is also Brazil’s culture minister, sees Creative Commons as a way to unlock the creative potential of digital technology. “I’m doing it as an artist,” he says. “But our ministry has been following the process and getting interested in supporting projects concerning free use,” not only for music, but also for creative content in general.

Tax Time?

A more radical proposal for overhauling the copyright system comes from William Fisher, a Harvard University law professor and director of the Berkman Center for Internet and Society.

Mr. Fisher believes that the wide-open nature of the Internet and the explosion of creative material that it has fostered are making the administration of copyright law increasingly unwieldy. Traditional copyright is beyond fixing, he believes, and ought to be scrapped in favor of a simpler system that doesn’t require an onerous effort to protect each piece of creative material against copying.

His solution is a regimen called compulsory licensing. In this system, music and film, after being registered with the copyright office, could be traded freely over the Internet, eliminating the problem of copyright enforcement. The owners would be compensated out of a fund raised by a new tax. In order to share the proceeds of the tax, content owners would be obliged to license their material for such use — that’s the compulsory part.

“The only palatable short-term taxation option would impose a levy upon services and things that are used to access, store, record and play digital entertainment,” Mr. Fisher says. “ISP access, blank media, MP3 players, CD burners, and so on.”

The professor estimates that a tax would need to be set at a blanket 15% to make up for the revenue lost to the new system. Critics already have pointed out, however, that the $2.4 billion he estimates his proposal would raise annually falls far short of the roughly $11 billion in annual revenue reaped by the music industry alone in the U.S.

Exercising Restraint

On the other side of the debate are those who believe that copyright law doesn’t need to be tinkered with at all; it just needs an effective enforcement mechanism, which is not out of the realm of possibility.

Steps already are being taken in this direction with technology known as digital-rights management, or DRM, a field led by Microsoft Corp. This technology aims to protect the copyrights of producers of digital materials while allowing for the traditional right under copyright law for people to copy materials for personal use.

Rather than locking up digital content, DRM puts it on a leash. For instance, DRM technology may serve as the basis for security features that allow for only a single copy of a CD to be made, and don’t allow the copy to be copied. The technology may allow tracks from the same CD to be exported to a portable MP3 player, but not to be transferred online.

In describing how DRM can protect entertainment providers without antagonizing consumers, Dave Fester, general manager of Microsoft’s digital media division, says, “DRM is the magic link that allows you to step into that secure world, yet do it in a smart, flexible way.”

Numerous security systems rely on Microsoft’s DRM, now in its fourth incarnation. Most of the new online music stores that sell music in the Windows Media format rely on Microsoft DRM to place limits on copying and burning; the others, Apple Computer Inc.’s iTunes store and Time Warner Inc.’s MusicNet, rely on different DRM schemes. And a handful of CDs have been sold with Microsoft-powered DRM systems in place, in an attempt to stanch the flow of copyrighted material onto the Internet.

Indeed, DRM has provided a middle ground for music companies that have hesitated to institute in the U.S. the draconian controls now standard in Europe and Asia, where CDs generally are sold with technology that prevents them from being copied in any way. Not wanting to go that far, these companies until now have settled for continuing to produce CDs that have no controls at all.

A pioneer in DRM technology is a CD by rhythm-and-blues singer Anthony Hamilton released in the U.S. in September by the BMG unit of Germany’s Bertelsmann AG. The CD relies on a copy-protection system from SunnComm Technologies Inc. of Phoenix. The system, which incorporates DRM technology, uses encryption to allow for the creation of only a handful of copies of the tracks on a CD inserted in a computer, for uses such as export to MP3 players.

However, the protection application runs only on some operating systems. Worse, many in the online community quickly pointed out that simply holding down the shift key while inserting the disc prevented the copy-protection application from running at all.

Thomas Hesse, BMG’s chief strategic officer, acknowledges the system’s shortcomings, but adds that it is “more a speed bump than a complete solution to all our problems.”

SunnComm Chief Executive Peter Jacobs points out that the shift-key trick only works if a user executes it the first time — and each subsequent time — the CD is inserted into his or her computer. Mr. Jacobs adds that future versions of the copy-protection software will make the trick even less likely to work.

“You can’t start from a perfect place,” says Mr. Jacobs.

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