Archive of posts tagged with "copywrong"

April 16th, 2010

big gyptian (riddim meth0d repost)

[Ok, here’s another oldie-but-goodie from the Riddim Meth0d vaults. Plenty of readers are no doubt familiar with this post/mashup, especially since I’ve revisited the issue. In the time since I wrote it (almost 5 years ago!), I’ve also had the strange fortune of submitting a brief report — about the significance of “Big Pimpin” to Jay’s and Timbo’s respective oeuvres — to the lawyers working for the heirs to Baligh Hamdi’s copyrights. (For the record, while I don’t want to contribute to bad legal precedent, I’m generally ok with taking some of the money that explodes outward as rich people sue rich people, as long as I get to tell the truth as I see/hear it. Also, this likely won’t go to trial.) This example also finds its way into a chapter I’m contributing to a forthcoming book on Pop-Culture Tools for the Music Classroom. Finally, I want to thank the lovely humanitarians at archive.org for preserving the post and — more importantly — the comments on it. I’m happy & relieved to recover the comment thread from the initial RM post, which I will paste in at the bottom of this re-post. It’s hard to lose conversations to the e-ther, even little ones. For the record, this was initially published on 19 September 2005.]

riffing off pace’s east-meets-west blend and continuing my experiments with mashes of musically-related songs, i offer up an orientalist oddity: jay z’s “big pimpin’,” as produced by timbaland, mixed with abdel-halim hafez’s “khosara,” the song that provided timbo with the inspiration for the slinky, flute-propelled loop that undergirds j-hova’s jam.

wayne&wax, “big gyptian” (j-hova v. abdel-halim hafez)
[audio:http://wayneandwax.com/riddimmeth0d/big-gyptian.mp3]

although there was some controversy about the similarity between “pimpin'” and “khosara” (including talk of a lawsuit), timbaland apparently escaped penalty, at least at present, because in this case he replayed – i.e., re-recorded – the two-bar section (rather than digitally sampling it), and the sense appears to be that the underlying composition was not original and/or substantial enough to be infringed in this case. you will hear in the four-bars that begin my mashup that timbaland’s beat bears a very strong resemblance to the original. [note from 2010: i have since changed my opinion on the question of whether this features a sample or not, based on irrefutable evidence.]

this is not an unambiguous case. because the music in question is a short loop and it is re-recorded rather than sampled, it seems reasonable for timbo to get off the hook. of course, not only is the musical reference a clearly recognizable one, the two-bar phrase in question is an important part of the original, serving as an intro and as a recurring riff (notably, returning after the vocal section). at the same time, the fact that, according to this article, label owner magdi el-amroussi would have denied timbo the ability to use this fragment – “Because he’s changed the composition” – also seems to argue for timbaland’s right to do it. despite that timbo and jay used the flute loop to craft a somewhat crass (if catchy) song about pimpin’, the world would be worse off with such arbitrary, authoritarian restrictions on derivative works, whether the so-called owner of the copyright is disney or a seemingly stodgy label owner.

what i like about this mash, as with the “code of the beats” experiment, is that one gets to hear more of the original, which is great in its own right, and thus one understands the sonic inspiration at work here. at the same time, hearing the source alongside the “derivative” track offers new ways of hearing the originals. in this case, one gets to hear how timbo’s interpretation changes the original: rather than a recurring motif, the flute loop now undergirds the entire composition, moving its emphasis toward rhythmic repetition and bass frequencies. similarly, rather than supporting some southern-fried, slap-a-bitch rap, timbaland’s breezy beat, enhanced by additional winds and strings, instead accompanies the mournful, melismatic singing of abdel-halim hafez, the “king of arabic music.”

although timbo’s beat has always had me open, i gotta admit that jay’s lyrics (and those of his cohorts) tend to put me off. frankly, they make me cringe. as much as i can see the attraction of expanding the pimp-metaphor (as with the hustler, badman, etc.) and of playing the role – at bottom, it is a position of power, par excellence perhaps – i just can’t get with the misogyny when it comes down to it. similar to oliver, i have a hard time recuperating exploitation. so, rather than playing any of the verses, or even the chorus, what i have done here is to “dub in” a few of the phrases in jay’s verse that seemed more “positive” or at least could be interpreted that way. “love ’em” (without the “leave ’em”) seems about as good as it gets, though i found some others, too.

after putting the phrases together, i was struck that the line “take ’em out the hood, keep ’em lookin’ good” suggests quite another set of meanings when heard in the context of egyptian music: one can either hear jay-z critiquing conservative islam’s call for women to wear veils – recalling vybz kartel’s “you nuh haffi hide your face like bin laden gal” – or one can hear him assailing the american-style torture interrogation techniques so symbolized by hooded abu ghraib prisoners.

and despite its appearance before 9/11, “big pimpin'” does tap into our historical moment nonetheless, sitting alongside a host of other orientalist beats in hip-hop, dancehall, and various electronic genres. the resonance of middle eastern music in the world’s (urban, popular) musics has been building for some time, reflecting centuries of history of interaction, not to mention a contemporary and increasingly visible and audible cultural presence in the US.

even so, representations of middle-easterners and islam in the US (and, say, UK) remain as stereotyped and distorted as the “eastern” musical figures in contemporary popular music. the article in al-ahram notes that the hip-hop press completely conflated various asian/orientalist signifiers when trying to describe the egyptian sound of “big pimpin'”:

The identity of the composer of the song, though, has been lost within the crazy machinations of the hip-hop world. A review of the song on MTV describes it as “Bollywood-wigged NOLA bounce stutter-stepping,” ignoring its Egyptian roots. Another review describes the beat as featuring “Z droppin big willie rhymes over a swaying, South-Seas flavoured groove that’s a happy musical marriage of Brooklyn and Bali.”

so it is also my hope that a mashup of this sort can serve to bring a little more awareness to the actual music whose ghosts and caricatures today haunt mainstream radio and the global underground alike. the hafez original could serve as a window into a wonderful world of truly amazing music, which, really, should only further justify the existence of timbaland’s homage. (let’s face it: they’re not exactly competing in the same market; one’s existence does not diminish the other – on the contrary, they enrich each other’s resonance.)

i recommend tracking down the original recording of “khosara” – never mind various live versions – and giving the song a listen. it certainly holds up on its own. (i’m sayin’, how do you think it came into timbaland’s hands?) in fact, given that the infringement suit seems like a non-issue, and considering that so many of us really dig the same sounds that inspired timbo and jay-z, it would be dandy if hafez found new listeners by virtue of timbo “putting him on.” you can find one version of “khosara” on CD here (and listen to a real-audio file of the whole thing), and you can hear much, much more from him here. enchanting stuff, no doubt. listen to this alongside some um kulthum, and you’ll get a good sense of mid-20th century egyptian popular music.

a word on technique: i have pitched the hafez recording up slightly in order to match the timbo version (since the latter had the more compelling, bumping center, which i would rather not distort). when the hafez makes harmonic changes, however, i shift the timbaland up in pitch to match it (which, yeah, sometimes sounds a little weird – but this is all kind of weird to begin with, no?). i have simply replayed the first vocal section of the hafez after the jay-z-quoting dubby section in order to give the track’s form a kind of roundness. because the hafez original is substantially longer than i imagine most people’s attention spans are, i decided to excise the rest of it. (when i tried out an earlier mix of these at a boston-based college-bar, it was clear that heads were not ready. it nearly caused a riot on dance floor, and not in a good way. but i insisted on making it through at least one round of hafez’s singing before bringing back the jay-z. the manager thought i had lost it. i quit that gig shortly thereafter. when i played the same sequence at beat research, where there also happened to be some egyptians in the house, people went bananas for it.)

one final note: i’ve added some additional, locally-inflected percussion here. having added this mash into my set at the boston bounce party a couple weeks ago, i already had the two tracks arranged with some bounce-y beats underneath (i.e., all the percussion that enters after the first eight bars). i decided to leave the beats in because they give the track some nice extra drive (if obscuring some of the halftime feel of the jay-z) and because i’ve been enjoying this odd beantown groove lately. “big pimpin'” and “khosara,” both with tempos in the mid-130s, were well suited to a boston bounce refix. it’s kind of a funny tempo, i think – unsettling with its constant question, “too fast or too slow?” – but between grime, garage, b-more, techno, soca, electro, and the occasional uptempo hip-hop or dancehall oddity, among others, beats in the 130-140 bpm range seem all the rage of late. at any rate, what’s another node in the network? shit’s messy enough to begin with. i think that’s why it sounds so good.

in case you missed it at the top:
wayne&wax, “big gyptian” (j-hova v. abdel-halim hafez)
[audio:http://wayneandwax.com/riddimmeth0d/big-gyptian.mp3]



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April 13th, 2010

the lion seeps tonight (riddim meth0d repost)

[Well, the Riddim Meth0d domain has finally kicked the bucket, scattering our posts to the great Internet Archive in the ether, or elsewhere. I’m going to continue rehashing here certain posts that seem to merit the treatment. In that vein, here’s another bit of resurrected mashup poetics for you. I’m happy to report that the example below has found its way into a chapter I’m contributing to a forthcoming book, Pop-Culture Tools for the Music Classroom, edited by Nicole Biamonte. This was initially published on 13 April 2006.]

the story of solomon linda’s “mbube” (known to many more as the weaver’s “wimoweh” and the tokens’ “the lion sleeps tonight”) is a tortuous one.

recently, the award of longstanding royalties to the linda family and an article in the NYT has renewed interest in the story’s embodiment of issues of appropriation and just compensation. i’d also recommend reading rian malan’s rolling stone exposé, which tells the story in no small detail, not afraid to name names and indict various actors. not everyone will agree with malan’s perspective (esp. re: pete seeger’s complicity), but the narrative arc malan traces certainly provokes a complex – and, one hopes, careful – consideration of all the problems swirling around this case.

as a musical analog to these prose provocations, i decided to mashup four versions of the tune: solomon linda’s 1939 original, the weavers’ 1951 adaptation, yma sumac’s 1952 cover, and the tokens’ 1961 smash hit. what i like about the mashup is that, as i’ve noted before, it draws our attention to certain correspondences – and differences – in musical form and performance style. it shows us, for example, how seeger’s and the weavers’ version is both faithful to and far from linda’s and the evening birds’ performance. it does the same for the subsequent versions. (i was somewhat surprised, for instance, to discover that yma sumac’s version so closely followed the weavers’ that it not only contained the same number of measures, but it also ended with a big brassy chord on measure 87! – a feature i have retained to end the mashup with the bombast it merits.) above all, i like the way the accretion of new versions in this mash seems to symbolize and embody the accretion of meanings, money, and – depending on where you stand – injustice that have piled up over time and over dozens of repeat performances. it’s a bit of a musical mess, which seems appropriate.

i don’t want to say much more at this point, lest i forestall other interpretations. after all, as i attempted to argue last saturday, musically-expressed ideas about music should communicate, in some ways, more directly than speech about music. so i’ll leave you with the sounds and with a graphical representation of my edit(s).

wayne&wax, “the lion seeps tonight”
[audio:http://wayneandwax.com/riddimmeth0d/wayneandwax_lion-seeps-tonight.mp3]

a technical note: among other manipulations, i have “warped” the songs so that their tempos match, i have pitched-up the tokens’ version to bring it – more or less (i didn’t fuss with microtones) – in the same key as the others, and i have arranged the songs so that to a large extent their forms correspond (in order to highlight the similarities and differences via simultaneous performance). also, overall i have attempted – in something of a critical-creative move – to “discipline” the subsequent versions to the linda original, as a musical “corrective” of sorts, or a mashup intervention, if you will. such explicit “tampering” is intended to underscore that my approach here is ultimately more artistic than scientific.

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March 31st, 2010

My Brief Response to Blogger

Blogger sux

Despite that my blogspot blog is long defunct, I have, largely out of protest, republished the post which some idiot (or some idiotic bot, more likely) thinks infringes copyright. Here is a link to the post, and below is the note that I have appended to it:

Update (31 March 2010): This post, originally published in June of 2006, was “reset” to “draft” status on 29 March 2010 because of a spurious DMCA takedown notification. I am republishing it now, having removed what I believe to be the offending material: namely, a couple links to DJ mixes which may or may not contain infringements of copyrighted materials — not that anyone made it clear to me what that might be. (Blogger’s email was very vague, and the Chilling Effects Clearinghouse to which I was directed is suffering from such a heavy backlog that it may be weeks or days before I get a chance to see the actual DMCA complaint, which will likely still tell me little or nothing about what someone thinks constitutes infringement below.)

I want to note that the mixes to which I linked have long been unavailable, and so the automated takedown notice I received is essentially saying that I am infringing copyright by directing people to a 404 error. Beyond that simple fact, however, I want to register some protest over the burden of proof falling on me: I did not make the mixes in question but am simply linking to them; moreover, it is a rather gray area to claim that a fragment of a track recontextualized in a mix — and one with critical commentary guiding its aesthetic — is an infringement of copyright. My belief is that this use — on the part of the DJ, never mind a blogger like me simply linking to it — is firmly protected by “fair use.”

I am sorry that Blogger/blogspot and the DMCA make it so easy for spurious takedowns to happen as opposed to facilitating the important re-accounting of the balance that copyright is supposed to strike. It’s amazing to me that two defunct links to mixes, which may or may not infringe copyrights, are enough to remove and potentially delete a post with a great deal of other content in it. This vulnerability to bad law is one reason that I moved my blog from Blogger to a private server years ago. Incidentally, in case this post again becomes “reset,” I have republished it, in full, here: http://wayneandwax.com/?p=3186

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March 29th, 2010

My Very Own Blogger DMCA Takedown Notification

Joining the ranks of many great blogs and other innocents caught in the crosshairs of copyright fuckery, I received my very own Blogger DMCA takedown notification today!

I learned this evening via email from Blogger that the following post, originally published to my wayneandwax blogspot blog back in June 06 (defunct since October of that year, when I moved ops over here), was “reset” to “draft” status because someone is claiming that something therein infringes on their copyright. Far be it from them to tell me what might possibly be getting in the way of an otherwise fairly unremarkable post about how my electronic music class had panned out, if of sentimental and, perhaps for some, curious value.

My best guess is that some track or other in one of the two mixes (made by a student) that I link to in the end (and for which, my likely achilles heel, I also provide tracklists) set off someone’s auto-trigger-whatever. Ironically, I never hosted any of that material directly, and the links to the mixes originally embedded have long gone dead.

I’m reposting the supposedly infringing post in its entirety here because I’ll be damned if I’m gonna let Blogger delete it and because I’d like to see a copy of this notification myself — and be persuaded that I’m doing anything that really makes me liable for damages — before censoring this thing that I wrote many years ago that is no way in hell infringing on anything. (Bonus: we get to revisit Keith Fullerton Whitman’s awesome tour of Harvard’s analog synths!) But I’m also reposting to solicit ideas about what might have been the infringing content in question. Any ideas? Get at me, copyright holders.

Here goes…

(btw, yes, I saved a full backup of the blogspot years ago)


harvard’s sunlit serge

it’s now been about a month since the electro class wound up. an ambitious, breakneck survey of the wide world of “electronic music” (broadly defined), it was a delight to teach once again, especially with students joining from as far as edinburgh and omaha. i won’t be offering this particular course again, but the endeavor – and two years experience working through the materials – has deeply informed my perspective on “electronic music” and i look forward to digging into various areas, themes, and histories in new ways in other courses in future years.

i suppose the biggest thing i’ll take from the experience is similar to what i hope most students come away with: an enriched sense of how these various genres and styles relate to each other, sonically and socio-culturally, and how we can hear histories of social movements and cultural politics in contemporary sonic structures (especially in the way they draw musical genealogies – often in a rather audible, immediate manner).

considering that we began with stockhausen and the beatles and proceeded to trace “experimental” and “popular” movements (and their interplay) in “electronic” music from the 50s to today, it seemed appropriate to end with a twin tutorial on oldschool analog synthesis and newschool max/msp from local versatile virtuoso, keith fullerton whitman (who, i should note, performs with matmos on the latest podcast from the dublab).

keith gave an excellent introduction to both systems of synthesis, including showing us his max setups for both kfw and hrvatski mode – the latter requiring that one could operate it well drunk, which is, to paraphrase keith, how breakcore is supposed to be played.

that there (decent but terse) wikipedia article on breakcore – see also, e.g., kid kameleon’s xlr8r article – provides as good an opportunity as any to discuss the final project for the course, which required each student to create or make a substantial edit (or series of edits) to a wikipedia entry on some aspect of “electronic music” – defined as broadly as the course defined it (which is to say, broadly).

the guiding idea was to attempt to enrich as we engaged with public discourse on electronic music and to marshal our collective efforts toward something that might go further than term-papers that might not receive a second glance or final exams that definitely wouldn’t receive a second glance. (not to mention to teach students how an increasingly ubiquitous research-tool – that is, wikipedia – actually works, and thus to discourage, among other things, the practice of citing it as an “authority,” rather than as a particular expression of, or “consensus” around, an idea – which is, of course, how one should approach any text.)

my main concerns were: 1) that a wikipedia entry (or even series of entries/edits) might not quite be substantial enough for a final project; and 2) that the “neutral” POV standard of wikipedia might make it difficult for students to engage at the critical level that i would like them to, dealing not just with description and synthesis of information in their posts but also looking at how their subjects are enmeshed in certain discourses, etc., and to explore somewhat self-reflexively how their endeavors fit into the larger public conversation about electronic music. for concern #1, we adopted a slightly fuzzy “substance” standard – judged relatively across the class – to be sure that people were doing an adequate amount of independent research and original work. (it turned out to be rather helpful that one can track another wikipedian’s contributions quite precisely.) for concern #2, we enforced an explicit policy of discussing the endeavor itself on our class blog and on the appropriate “talk” pages at wikipedia.

here are three standout contributions:

1) an entry on the orb’s seminal adventures beyond the underworld
2) an entry on the ambient side of psytrance, aka psybient
3) and an impressively complete entry on video-musikers, hexstatic

///

finally, i’ll to point people to a couple mixes that our edinburgh-based classmate put together. the first is an orientalist-tinged dubstep mix, the second a romp across various african popular genres. descriptions and tracklists follow..

melonhands, i need dub(step)

“dubstep mix i did in ableton – LOTS of ‘eastern’ influence/appropriation present here!”

tracklist:

nettle – unknown halfstep (!)
pinch and p dutty – war dub
pinch – qawwali VIP
tinariwen – amassakoul n tenere
i-wiz – habibi
digital mystikz – ancient memories (skream remix)
caspa – for the kids
distance – taipan
aphex twin – on
black ham – necron
toasty – angel
filastine – dreams from wounded mouth
mutamassik – high alert aala teta
amadou and mariam – toubala kono

and

melonhands, fatmix

“a mix of african tracks (from all over africa) for my dad’s birthday – the end kind of lets it down but it’s still very listenable ;) starts off with 20 minutes of soukous/ndombola etc style stuff then a bit more of a mixture”

tracklist:

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February 25th, 2010

So You Can Help

This one’s making the rounds, but I can’t resist posting here too — it’s just so funny, awesome, etc. (via) —

kennedys

I wish there were a way to make a similar gesture in the age of mp3s.

Empty thumbdrives seem to lack a certain poetry.

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January 29th, 2010

Share Alike, Or

What Happens in Riddim Method Stays in Riddim Method

I’ve written a lot here about the “riddim method,” a cheeky term suggested by my co-author Peter Manuel to describe a well-worn practice (and in the case of our article, a distinctly Jamaican version of it). We jest, but we’re serious. In short, what we try to explain is an approach to musical materials as shared/public/communal resources which people feel a certain license to riff on, reinvent, rearrange, remix — an approach sharpened and modernized in some special ways in the soundsystem<->studio industry-ecology of L20C Kingston, and an approach long gone global via reggae’s own migrations not to mention as absorbed and additionally broadcast by hip-hop, house, jungle, garage, grime, you name it.

But just because people participate in riddim/remix culture doesn’t mean they aren’t quick to turn the screws of copyright when it suits them. As Peter and I note in our article and as Larisa’s thesis will no doubt illuminate in lots of nuanced detail, plenty of reggae artists, musicians, and producers have sued each other over the years over allegedly unauthorized examples of plagiarism or infringement or tiefing.

Take Nando Boom, for instance, one of the Panamanian pioneers of dancehall reggaespañol. My co-editor-y-compi, Raquel, told me many months ago that Sñr Boom was suing Don Omar (as well as Wisin y Yandel and their producers) for the unauthorized use of elements from his “Enfermo de Amor” in their relatively successful single, “MySpace” (a song initially discussed here way back when). So thanks to Raq for putting it on my radar, though I’ve been steadily wondering — even while sitting on a draft of this post — what’s been happening with the suit. In that regard, I gotta thank my tweep Tito for letting me know yesterday that the case was recently settled, at least between Nando Boom and Don Omar.

Indeed, it apparently was announced earlier this month that Sñr Boom was withdrawing “counterfeit charges” against Don Omar and would accept his $100k offer as “bastante” despite having turned up his nose at it for about a year and a half (he initially demanded a sum in the millions and is still waiting on W&Y to “square up”).

When I discussed “MySpace” back in June 2007, what I appreciated about it was the brief moments when Don Omar performs a retro style reggae/ton flow —

We hear a number of signposts of the new reggaeton — state-of-the-art synths, emotive harmonic progression, dembow loops — but we also hear a nostalgia for “old school” stylee in a few retro interludes (e.g., around 1:10, 2:10), complete with throw-back, flip-tongue rapping by Don Omar over a crunchy, skanking, digi-reggae loop (though I can’t quite place it) –

Jace was quick to note that the riddim itself seemed to be a version of “Night Nurse,” and about that he was right. What neither of us caught at the time was that Omar was actually directly alluding to — really, re-performing — a central phrase from Nando Boom’s own version of “Night Nurse” (and it’s worth noting that a good number of Boom’s songs, including his own big hits, have been covers of Jamaican dancehall recordings):

While taking more departures than Arzu’s siempre fiel (save for Spanish) “Amor” — including, of course, the very melody / flow and lyrics that Don Omar recites — Nando Boom’s song is itself quite audibly a version of Gregory Isaac’s rubadub classic, employing the Night Nurse riddim as well as some of Isaac’s vocal melodies (and, yeah, underlying medical conceit). Doing what Omar does in “MySpace” or what Nando does on “Enfermo” — i.e., inserting a musical mnemonic, invoking a familiar phrase — is not merely commonplace but arguably central to the poetics of reggae and its many musical kin. (Can I get a zunguzungung?)

Call it quotation, homage, allusion — we have lots of words for this sort of thing (including, I’m afraid, “interpolation,” which is an attempt to bend language & culture to the demands of commerce & its legal armature). So while there’s no disputing that Don Omar has, in a word, “copied” something from Nando Boom, there’s no way that Sñr Boom himself can avoid the same charge on the very song for which he is claiming ownership. (Or just about any other song in his “catalog,” to risk reifying another recording industry concept.)

Tego Calderon noted the inherent irony of the case a while back:



“Defamation”? Oh man, could the litigiousness get any more specious? (I better watch my mouth though, don’t?)

To his credit, Omar has essentially gone the genteel route, proclaiming himself a “caballero” all along, apologizing throughout, offering praise and respect for Nando, and offering $100k in recompense. Actually, it’s not clear how much they eventually settled for. Nando Boom will only say it’s “bastante”; he won’t specify p/q “hay secuestradores” (kidnappers).

Now, I’m not saying that Sñr Boom didn’t pay some serious dues. I feel too that, in some sense — indeed, in the same sense that applies to the pioneers of hip-hop who never got to profit from its eventual global commercial triumph — dude deserves some “reggaeton money,” if you know what I’m saying. Despite his seminal contributions to the genre, Nando Boom never made the kind of cheese that these guys have. And maybe that’s what Don Omar’s magnanimous settlement is nodding to. Still, I don’t know about shaking down random infringers participants in riddim/remix/REGGAE culture.

Among other things, it just adds to bad precedent — and I don’t mean actual legal precedent, since this never went to court, and I’m not really sure about the wider implications of a Panamanian ruling about reggae copyright infringement (except that it could be bad for a lot of Panamanian reggae artists) — I’m talking about how bad faith behavior can have chilling effects on an immense, international, interlocked system of peer-to-peer cultural norms.

I hope Wisin y Yandel and the producers of the song continue to stand their ground. Or maybe just break dude off with a micro-writing credit or something, if that’s what he’s getting at. That seems fair enough, especially if it can be dialed down to the degree to which his so-called “property” animates the song — good luck trying to calculate that, folks.

I can understand if the bad blood / press might have itself felt like bastante to Omar, but I still can’t believe he didn’t go to court over this. Would it really have cost him $100k in lawyers’ fees? (Did they really make that kinda dough with “MySpace”?) Then again, given that the Panamanian courts had apparently granted Nando Boom’s request to arrest Don Omar and Wisin y Yandel should they ever come to Panama (see last para here), who knows whether he could have beaten the charge. In a US trial, I think he might be able to make a decent argument, despite that I don’t have great faith in this country’s legal system when it comes to policing musical practice. But when the issue becomes a question of national patrimony (even if that so-called patrimony is also Jamaican), tensions can really flare.

As I’ve been noting for a while, this sort of geographical enmity / argument among reggaeton’s “stakeholders” (i.e., would-be stockholders) — in particular between Panama and Puerto Rico — animates a great deal of online discourse about reggaeton, and my chapter in the reggaeton book was an attempt to speak to and sort out the various claims. Ultimately, I try to show the various and distinctive ways that each node in the network — Jamaica, Panama, Puerto Rico, New York — have done their part to shape what we now call reggaeton. Clearly, not enough people have read it ;)

Nearly every blogpost, news article, and vaguely related YouTube video have played host to strongly jingoistic arguments about who is owed what in this case. See, for example, the comments from one particularly UNHINGED fellow on that blogpost about Tego pointing out Boom’s hypocrisy —

TWO DIFFERENT SONGS
P.RICANS KEEP TAKEN OUR MUSIC

CARLITO EL PANAMENO is practically calling for his gente to receive reparations from reggaeton. But shouldn’t that open the floodgates of such claims? Should reggae and hip-hop artists, in turn, shake down their legion interpreters in Panama and Puerto Rico alike? I mean, if that’s the game, better be prepared to play by those rules. If it’s true that, as is alleged, Hector El Father decided to drop a dime on Omar + W&Y, I wonder whether Nando Boom should worry about someone making a call to the Cool Ruler.

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December 3rd, 2009

Independent Riddim

Thanks again to Tom, our man in Panama, who recently pointed me to an additional, and interesting, instantiation of the Miss Independent riddim. As we heard previously, the Ne-Yo instrumental — most famously reappropriated in Vybz&Spice’s “Rampin Shop” — has become a veritable version in Panama, supporting no fewer than a dozen local voicings (and probably many more).

Tom shares with us the awesomely brash COMANDO TIBURON EL KID CON LA BANDA CENTENARIO DIANAS REMIX 2009 (and notes, helpfully, that “Diana’s is a musical style–Horns and rhythm section that gets used on occasion with the Panama Reggae Artists”). Chequéalo —

I did a little poking around and discovered that the meaning of las dianas goes a lot deeper than its occasional appearance in Panamanian reggae. This Miss Independent mash is therefore particularly interesting b/c of how strongly, supposedly, dianas represent Panamanian patriotism, see e.g. —

… Dianas con más de 100 años de rendirle tributo a la Patria. Se escuchan desde antes del nacimiento de la República (1891), cuando Panamá pertenecía a la Gran Colombia. Inclusive forman parte integral de las fiestas patrias.Parte del fervor de las fiestas patrias la implementan las famosas dianas, que tiene sus máximos exponentes con los miembros del Cuerpo de Bomberos de Panamá, aunque existen informes de que la Policía Nacional puede interpretarlas. … (link)

… Las dianas son una música originaria de Pamplona, España, donde se saluda al nuevo día con gaitas y tambores. Esta música llegó a Panamá en los inicios de la vida republicana con la variante de que sólo se tocaban con clarines y tambores. En 1950 el capitán Carlos Levi y luego el sargento AlfonsoDiez impulsan su popularidad, interpretándolas para saludar a la patria y a los mandatarios de la época. Tradición que ha perdurado hoy día. … (link)

Giving the Ne-Yo instrumental a dianas remix seems a pretty powerful gesture of nationalization. Try taking that away with a cease and desist order. Obviously, given my general sympathies toward samplers over samplees, I can’t help but grin (not least b/c I rly dig that beat) whenever I hear yet another version of what can only be described now as the Miss Independent riddim. Despite EMI’s best efforts, the cat is way out the bag. The track has, ironically and iconically, attained an inarguable degree of independence.

Further testament: that Sentimiento Reggaetonero CD I picked up in Mexico last week turns out to contain three tracks (out of 21 total) which feature a pista audibly indebted to “Miss Independent”: Arthur’s “Quedate Conmigo Esta Noche,” La Factoria & Original Dan’s “Olvidarte De Mi,” and Joseph’s “Dale Con Tu Amor.” At the same time — pace the riddim method — the riddim in these cases has been completely replayed and reconstructed, or relicked inna reggae parlance. I don’t actually think it even contains samples from the original, though it clearly closely mirrors — is ‘gestures to’ too subtle? — everything from the harmonic progression (bridge included), drum and synth rhythms, and timbres. The producer(s?) also add an unfortunate, if mercifully muted, marimba line —

Sin duda, the producer here — whoever it is (Pablito?) — has put their own stamp on this very popular, very public, and now very Panamanian instrumental. Interestingly, this latest remarkable versioning of Miss Independent also suggests a shift in significance for the riddim not simply within Panama, where it has moved squarely into the pop/balada sphere, but throughout the Latin American reggae/ton network, where Panamanian productions leave a long, large footprint. (Incidentally, Marisol LeBron has some fascinating things to say about the Puerto Rican reaction — macho, retro, and authenticist — to the significantly Panamanian-propelled romantiqueo turn for the genre.)

I’ll leave it here, for now, with a few choice bits about stealing and national pride from a recent interview with Panamanian reggae artist Eddie Lover:

Would you say Panamanian music is finally getting its due?

I wouldn’t say we’re “getting our due.” Although the roots of reggae lie in Panamá, los Boricuas took a huge step forward with the commercialization of reggaetón. We feel a certain amount of gratitude because they’ve opened doors and thanks to them, our music has been able to evolve.

Do you think artists from other countries steal their style from Panamá?

I think the influence of Panamá in what’s currently happening in reggaetón around the world is obvious. But I don’t want to take any credit away from anyone who decides to become a reggae or reggaetón artist.

The saga continues. Speaking of which, I’ll be talking about transnationalism, commerce, race, nation, narrative and reggaeton this very afternoon at Harvard; moreover, I’ll be joined by my co-editor, Deborah Pacini-Hernandez, who will be touching on similar issues with regard to cumbia. Deets here.

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October 5th, 2009

Still Fighting Back

Team Tenenbaum has filed an OPPOSITION TO PLAINTIFFS’ MOTION FOR JUDGMENT AND DEMAND FOR INJUNCTION, which pretty much means what it says — or in my attempt at non-legalese: they’re asking the judge, rather than entering the judgment recommended by the jury (which, interestingly enough, she has yet to do), to fundamentally reconsider the validity, context, and conduct of the case against Joel.

Here’s how it opens:

Joel Tenenbaum through counsel undersigned, speaks to a judge of both law and equity, master of the power of the least dangerous branch, see Bickel, The Least Dangerous Branch (1962). We seek to open the Court and the Law to Internet and to preserve the freedom of the people of the Internet Age against the tyranny of copyright. This case is not only about the size of the verdict. Bigger questions are at stake. From the very first the prosecution of this case under Title 17 Section 504(c) was not legal. Congress never considered the effect of the Internet on copyright law as embodied in Title 17 Section 504(c). Congress never authorized statutory damage suits against consumers. At stake here is not only the fate of a young man emblematic of his generation found guilty and sentenced to bankruptcy. At stake for the future is whether the check of fair use on the tyranny of copyright will be taken away from the jury. At stake is our citizenry’s right to a full and fair trial by an empowered jury. At stake ultimately is the proper balance among creative artists, the corporate copyright industry, the federal court, and the rights of the people in the age of Internet.

The defendant deserves a new trial. The Court in the trial just completed committed critical errors on central issues. First and foremost, this case should have been dismissed at the outset because the statute in question does not permit a lawsuit against an individual consumer for statutory damages. Second, the Court committed reversible error when it granted summary judgment against fair use, improperly assessing some factors of fair use, improperly excluding others from consideration, improperly shifting the burden of proving infringement to the defendant, and improperly directing the jury’s verdict that he infringed. Third, in an erroneous and prejudicial application of Rule 408 of the Federal Rules of Evidence, the Court excluded evidence of the defendant’s willingness to take responsibility for his actions and admitted his offer to do so in a redacted form that allowed the plaintiffs to twist it into an unwarranted and damning attack on the defendant’s character. Fourth, in the Court’s final instructions to the jury the Court distorted the jury’s common sense of a “just award” by improperly telling the jury to return a verdict within the legislatively prescribed range.

Given the Court’s failure to address the significant, basic, constitutional issues presented by the case, it is no surprise that the resulting verdict is radically disproportionate to any actual harm the defendant may have caused, and blatantly inconsistent with fairness and justice. The verdict is itself an impeachment of the law and process that produced it. The impermissible and unnecessary injunction sought by the plaintiffs adds further insult to it.

That last bit about the “injunction sought by the plaintiffs” refers to the gag order that the RIAA’s attack dogs are seeking to impose on Joel, hoping to staunch any attempts to share his story with peers and the greater public, among other things kvetching about a tweet that remarked on the “interesting” existence of a torrent reeking of irony and contempt for the RIAA, “DJ Joel: The $675,000 Mixtape,” which collected the 30 songs Joel was found guilty of “infringing” at the tune of $22.5k each. Talk about adding insult to injury.

Although I’m sure most lawyers and blawggers will disagree, one compelling aspect of the brief, for me, is its use of narrative (beyond mere case law), putting both filesharing and the RIAA’s aggressive, unprecedented legal campaign into historical context. I want to highlight one particular passage from the 28 page document, as I think it may be of interest — and perhaps use — to those of us who find ourselves stupefied and horrified by the excessive degree of punishment any ordinary Joe(l) could face simply for downloading and sharing media at a time when the practice is utterly ubiquitous, the damages to the would-be-monopolists of “THE” Music Industry® unproven, and the intent — in the majority of (noncommercial) instances — far from malicious. Allow me to quote in some length, reproducing the emphasis in the brief:

In July 2000, Congress began a process of considering the proper course for copyright law in response to the alteration of the market brought about by the advent of open connected cyberspace. Under the leadership of Senators Hatch and Leahy, the Senate Judiciary Committee conducted a hearing titled, “MUSIC ON THE INTERNET: IS THERE AN UPSIDE TO DOWNLOADING?” This hearing made eloquently clear that Congress was not only aware of but open to incorporating peer-to-peer music file sharing into our national copyright statutory scheme. As the Congressional Record demonstrates, the Senate Judiciary Committee certainly did not view peer-to-peer file sharing as illegal:

Senator Hatch: “Our reasons for holding this hearing are to learn more about what is taking place in the marketplace and, in doing so, better equip us to advance the interests of consumers and creators. Insofar as consumers are concerned, they desire access to downloadable music which is not unnecessarily restrictive or unduly burdensome. I want to ensure that the marketplace provides them with the opportunity to access the music they want to hear over the Internet and to do so legally. Insofar as creators are concerned, I want to ensure that artists and creators are protected through an approach to copyright that empowers them to generate maximum revenue for their creative works. …

“As chairman of the Judiciary Committee, I take it as a basic premise that our copyright laws must play a role, a strong role, in protecting creative works over the Internet. These protections, however, must be secured in a manner which is mindful of the impact regulation can have on the free flow of ideas that a decentralized, open network like the Internet creates. We must protect the rights of the creator, but we cannot, in the name of copyright, unduly burden consumers and the promising technology that Internet presents to all of us.

“With this in mind, it is my hope that we can learn more about the online music marketplace and why there is so much disharmony. We have with us this morning a number of different models of online music services.

“MP3.com shares revenues with artists, often on a 50/50 basis. And we have Emusic, which offers downloads of singles or whole albums, paid for either per song or per album. Emusic has deals with many independent record labels and offers deals to artists that are structured similarly to recording contracts. Both Emusic and MP3.com can track usage levels to accurately account to the artists for use of their music and pay them accordingly. And both Emusic and MP3.com are structured with a central server Web site that makes music licensing relatively easy for creators and consumers. Their organization is similar to the chart on display which diagrams a traditional Web-based search engine, where an individual’s computer deals with information sources through the intermediary of a single server.

“By way of contrast, consider the architecture of the Napster and Gnutella communities, as represented in these schematic charts over on the right here. As you can see, Napster, which is a business, operates with a central server site through which members submit requests. Requests proceed from the central site out to other Napster users. And with Gnutella, there is no central point, but we are linked directly to other Gnutella users’ PC’s. We can download the music directly from any Gnutella users’ computer to which we are linked.”

This organization has implications for both music licensing and for broader Internet technology. To quote Andy Grove, of Intel, ‘‘The whole Internet could be re-architected by Napster-like technology.’’ Using this peer-to-peer technology to search for information on the Internet allows us to get the most up-to-date information direct from the source, as opposed to traditional Web search engines that are made through intermediaries. With regard to music licensing, however, as you might guess from the charts, peer-to-peer file-sharing poses a much greater challenge than single-source licensing. With each user being a publisher to a greater or lesser degree, the relative lack of a real distribution center makes licensing somewhat chaotic and haphazard, which brings us to the nub of this hearing. This technology presents a unique opportunity to those who make a living by producing copyrighted works. They can be selfpublishers dealing directly with their fans. But it also presents a unique threat, if misused, to rob them of their livelihood, which could rob all of us of their continued work by destroying the incentives to create and publish their works, all of which will require much greater creativity in licensing or distributing copyrighted creative works.

“To illustrate the file-sharing technology that has proved so controversial, we will demonstrate how a search and download of music is done using Gnutella. If you will direct your attention to the monitors, you will be able to see the process from a live Internet connection. First, we submit a request for particular music or a particular artist. As I mentioned before, we do not submit the request to a central site, but rather we link directly to other Gnutella users and relay our requests through the individual hard drives of members of the new telecommunity who are online. If you look at the bottom left-hand corner of the screen, you can see how many connections we have made with other users. The search engine returns to us a list of the relevant music files available to us from other Gnutella users, together with information on the size of the file and the other users’ bandwidth, and hence probable download speed. We can choose from among the many options returned which files to download, and can watch the progress of downloading. Since the downloading will take a few minutes, we will return to play the music after the ranking member’s remarks. Once the file is downloaded, because the music is in a digital format, I can copy it onto a number of different listening devices to take the music with me. I think music fans have expressed a strong interest in getting popular, legitimate music in this format. One continuing problem raised throughout the evolution of online music, however, is the complaint that the major record labels have not been willing to license online music distributors to provide their music, or have offered licenses on terms much different than online entities related to those labels.” (U.S. Senate Judiciary Committee Hearing, July 11 2001, pages 1-3.)

The new telecommunity of which Senator Hatch speaks are the citizens of cyberspace.

Senator Leahy then described how his own children download songs and send them to him:

“But when you can move so quickly on some of these sites, and when I go on college campuses, as many of us do, to talk and everybody is talking about what they have downloaded, how they share, and so on, and when my kids pick up a ‘‘Black Muddy River,’’ which happens to be one of my favorites of the Dead, and send it to me—they have heard a new version—and I log on in the morning while I am having my breakfast and there it is, I mean this is a whole different world, and I think we have to recognize that on where we go.”

You can read the whole thing here. In case you’re curious, the argument proceeds as follows:

I. INTRODUCTION
II. BACKGROUND
III. CONGRESS NEVER DECIDED TO REGULATE COPYRIGHT IN THE AGE OF INTERNET BY IMPOSING STATUTORY DAMAGES ON CONSUMERS
IV. THE COURT WRONGLY DECIDED THE ISSUE OF FAIR USE
V. THE COURT IMPROPERLY TOOK THE ISSUE OF INFRINGEMENT/FAIR USE AWAY FROM THE JURY
VI. AT TRIAL THE COURT ERRED BY PREJUDICIALLY REDACTING DEFENDANT’S OFFER OF EVIDENCE THAT HE WAS WILLING TO TAKE RESONSIBILITY FOR HIS ACTIONS, TWISTING IT INTO DEVASTATING IMPEACHMENT OF HIS CHARACTER
VI. IN ITS JURY INSTRUCTIONS THE COURT ERRED BY INFORMING THE JURY OF THE STATUTORY DAMAGE RANGE
VII. THE JURY’S DAMAGE AWARD IS GROSSLY EXCESSIVE, VIOLATED DUE PROCESS, AND SHOULD BE REMITTED
VIII. PLAINTIFFS’ REQUEST FOR INJUCTION AGAINST THE DEFENDANT SHOULD BE DENIED

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September 3rd, 2009

Who Gotcha?

The Story Behind The Story Behind The Roxanne Shante Story
By Wayne Marshall and Jeff Chang

If a rapper claims to be a killer, no one cares. If she says she has an education, they send in an investigative reporter, or at least someone who purports to be.

Oh don’t we love gotcha journalism. But who’s really getting got here?

Two weeks ago, the New York Daily News ran a story in which legendary rapper Roxanne Shante says she forced Warner Bros through a contractual clause to pay for her education, earning degrees from Marymount Manhattan College and Cornell University.

Yesterday, lawyer and “pro-copyright” blogger Ben Sheffner published his piece of gotcha journalism, claiming that not only did Warner not have direct contracts with Shante, but that she hadn’t finished her coursework at Marymount Manhattan and never enrolled in Cornell.

Perhaps most annoying to Sheffner was that “the story was endlessly blogged and tweeted, heralded as an example of a heroic triumph by a girl from the projects over her evil record label.”

Commenters around the web have praised the Slate piece as a fine bit of investigative reporting by a disinterested journalist. Here’s our gotcha: he’s not disinterested, and the investigative reporting wasn’t all that investigative.

First, his “disinterest”: his Slate piece contains, at the bottom, what seems like a standard statement of disclosure: “While an attorney in private practice in the early 2000s, he represented numerous AOL Time Warner entities, including several Warner Music Group companies, on issues unrelated to Roxanne Shanté.” Yup, he was defending the “evil record labels,” even then.

And still is. His bio on his blog states that he is an attorney currently employed by NBC Universal, and his job description includes — we presume — looking sometimes at exactly the kind of artist contracts Shante would have signed.

By his own writing, he is not really a disinterested observer. The bio reads:

Ben Sheffner is a copyright/First Amendment/media/entertainment attorney and former journalist. Ben is currently working as a production attorney in the NBC Universal Television Group. Preiously [sic], he worked as an associate at O’Melveny & Myers LLP, as Senior Counsel, Content Protection Litigation at Fox, and as Litigation Counsel at NBC Universal. From July-November 2008, Ben served as Special Counsel on Senator John McCain’s presidential campaign where, among other responsibilities, he handled the campaign’s copyright, trademark, and other IP issues.

Clearly, Sheffner’s interest in this story, which motivated his questionable “investigation,” grows out of his ongoing efforts to protect the interests of his former and current (and future?) employers and, more generally, to advance the pro-copyright, pro-corporate side of the intense public conversation around the present state and future of the music industry.

Sheffner has backed the same interests in his coverage on his blog and for other online outlets, on the two cases involving the RIAA and alleged copyright-infringing filesharers that have, to date, gone to trial. He’s pretty much in the pocket, as they say.

We can imagine him looking at that piece and going, “Aw shit. Now I’m gonna have to give those kiddie actors a college clause — no way!” Then firing up his word-processing program and emailing Slate’s editors.

OK, so Shante didn’t have Warner pay for her education directly — and perhaps we’ll never know if one of the subsidiary labels made such an agreement with her because Pop Art’s contracts were supposedly lost in a flood. Cold Chillin’s file with Warner, according to Sheffner, didn’t have that level of detail. (Makes sense the file might be incomplete — they ended up at odds with each other after the big judgment against Biz Markie over his sampling case.)

Here’s what WB’s counsel wrote to Sheffner: “If Cold Chillin’ guided this artist’s compensation to education expenses that would certainly be a worthy one.” Then Sheffner makes what seems to be his main point right after that: “None of the half-dozen music industry sources contacted by Slate for this article had ever heard of a record label making an open-ended commitment to finance an artist’s education.” Gotcha!

But what of her education? Sheffner makes a big point of alleging Shante did not receive her Ph.D. and is not listed as a practicing doctor. Gotcha again! (Sheffner seems to fetishize this “Doctor” thing. Maybe he’s sharpening his knives for Dr. Dre next?) But according to her, Shante has received her BA and MA degrees. Her passionate message in her talks to hip-hop youths across the country is about the importance of education. Clearly much more of the story here is begging to be told.

Most importantly, Shante said she attended college under another assumed name — not even her birth name — because of a domestic violence situation. Sheffner didn’t follow up on, we think, a reasonable, relevant, and obvious lead here. If she was right, he must have known at that point the story might have required real investigative reporting. Yet Slate’s editors didn’t put the brakes on the story even at this point. Instead, the piece ran with Sheffner’s slander that she failed to “substantiate such claims.”

So what did we learn here? One, Warner Brothers didn’t, but perhaps someone in the industry did fund Shante’s education. Two, Shante may not have a Ph.D.

We think that’s all pretty thin for a so-called exposé.

Too bad this couldn’t be settled with battle rhymes. We all know who’d win that one.

cross-posted to cantstopwontstop

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August 18th, 2009

Re-Meet the Beatles, *Really* This Time

Last night at Beat Research the employees of Cambridge-based video game makers Harmonix swarmed the E Room with their friends, their gadgets, and their various musical side projects. They put on quite a show, and to a packed house! Video killed the radio star, but Rock Band might make some rock stars yet.

Harmonix is in the news right now as they gear up to release the newest edition of Rock Band. Devoted to the Beatles, the game has been generating a lot anticipation and a lot of commentary. The Fab Four — by which I mean Paul, Ringo, Yoko, and Apple Corp. — are remarkably and, in some cases, notoriously strict controllers of their music and brand. Case in point: their recordings are still unavailable via iTunes. So the fact that they signed on with Harmonix speaks significantly to their belief in the potential of the game — and, it goes without saying, their ability to maintain close control.

This emerges, alongside countless other fascinating bits, in a recent NYT magazine article, in which Harmonix founder and CEO Alex Rigopulos claims no less than to be on the brink — and at the helm — of a new era in THE music industry:

… last month Harmonix announced that it will license software tools and provide training for anyone to create and distribute interactive versions of their own songs on a new Rock Band Network, which will drastically expand the amount and variety of interactive music available. Already the Sub Pop label, which released the first Nirvana album, has said it plans to put parts of its catalog and future releases into game format. The Rock Band Network is so potentially consequential that Harmonix went to great lengths to keep its development secret, including giving it the unofficial in-house code name Rock Band: Nickelback, on the theory that the name of the quintessentially generic modern rock group would be enough to deflect all curiosity. After a polite gesture in the direction of modesty, Rigopulos predicted, “We’re really going to explode this thing to be the new music industry.”

The possibility of opening up the Rock Band platform for all manner of artists and labels (not that they’re offering to do that exactly) is definitely an exciting one, and the release of the Beatles game will no doubt prove a major marketshare expansion for Harmonix. What struck me throughout the article, however, was not so much the implications for (the?) music industry, but rather, the bizarre contradictions that emerged around questions of control (of the Beatles’ “property”) and, simultaneously, an acknowledgment that the Beatles are inherently (and increasingly) a fan-produced phenomenon.

Paul seemed to voice this recognition most clearly when he says that a Beatles edition of Rock Band “reflects where the Beatles are at,” since, as he puts it —

We are halfway between reality and mythology.

I suppose I’d agree with that (and/or this). But this recognition of the Beatles’ mythologization seems pretty ironic alongside the band’s cautious and occasionally litigious actions with regard to “unauthorized” uses of their music. The article describes the deep degrees of tricknological secrecy and protectiveness applied to the project c/o Giles Martin, the audio engineer son of fifth-Beatle and legendary producer George Martin and Harmonix’s point of contact with the Beatles’ master recordings.

Mainly Martin worked in the less-iconic Room 52 down the hall, next to the men’s room. Apple’s preoccupation with security meant that the high-quality audio “stems” he created never left Abbey Road. If the separated parts leaked out, every amateur D.J. would start lacing mixes with unauthorized Beatles samples. Instead, Martin created low-fidelity copies imprinted with static for the Harmonix team to take back to the States — in their carry-on luggage. They were just good enough to work with until the game coding could be brought back to Abbey Road and attached to the actual songs.

I found the references to “amateur D.J.”s and “unauthorized samples” — even though it’s unclear whether these are Martin’s or the author’s words — pretty interesting to read against McCartney’s quote above. In other words, THX 4 THE MYTHOLOGY BUT DONT DO ANYTHING UNAUTHORIZED K? Or, you’re welcome to re-meet the Beatles, but don’t try to re-mix them.

One wonders what would be the harm of “amateur” DJs “lacing” mixes (now there’s a verb) with “unauthorized” Beatles samples. I mean, as “amateur” products such mixes would not circulate in the same market at the Beatles, or any market for that matter. Moreover, however craptastic their new contextualizations, they could never lessen the power of the original songs. And what harm would fantastic remixes be? Could such critically-acclaimed and popularly shared projects as the cease-and-desisted (but only kinda) Grey Album, or DJ BC’s The Beastles, actually degrade or dilute the Beatles brand? Detract from their mythology?

How is one supposed to participate in the Beatles’ mythology anyway — a mythology which, like all myth, can only be collectively produced and maintained — if one needs “authorization”? This paradox brings us to one of the oddest, and perhaps most disturbing and incoherent, quotations in the piece:

McCartney sees the game as “a natural, modern extension” of what the Beatles did in the ’60s, only now people can feel as if “they possess or own the song, that they’ve been in it.”

Only now? You mean that when I bought those CDs and sang-along with friends and family and learned to play your songs on guitar and tried my hand at remixing a few tracks … you mean that all that time I’ve yet to inhabit or possess your songs. Shucks. I guess I’ll have to get the game.

This is all a little maddening for those of us who insist on our rights to work with and riff on public culture — especially public culture we hold dear. (And I do hold the Beatles’ oeuvre quite dear, in case you didn’t know.) Few things could be more public than the Beatles’ repertory, which, to paraphrase John, might be more popular than Bible hymns. In the face of all of this, I have to stand by a bit of insight I came by some years ago: if Michael Jackson can own the Beatles’ music, so can I.

McCartney is either disingenuously hyping this product with a quote like that or, I just don’t know — maybe the author distorted the sentiment somehow. I can’t swallow that Paul actually believes playing Beatles Rock Band is truly the first or only way to “possess” or “own” or “be in” his & his bandmates’ songs. I think we either do all of these things anytime we engage seriously with a song, in the many ways that may happen (listening, singing, playing, tweaking), or we never do, even those of us who write songs.

Musician and writer Ethan Hein, who himself recently posted about Rock Band and inhabiting songs, also seemed a little irked by McCartney’s comment. His retort? “You know what really makes me feel like I possess a song? If you let me remix it.” The last few words of that sentence link to a meditation on sampling which includes a pretty resonant paragraph with regard to the ownership of songs; allow me to quote Ethan at a little length —

When I was an angry, confused teenager, I let myself be convinced that ideas are property, that it’s possible to steal them and thereby harm their owner. I listened to strongly opinionated musicians and critics hold up originality as the main criterion of artistic worth. Then I got out into the world and did a lot of playing and interpreting and composing of my own, and at the end of the day I’ve come to feel that to assert ownership of a song is like trying to assert ownership over a person or an animal or a place. You can have a close relationship with a song, you can be present at its birth and you can give it nurture, but once it grows up, you can’t control it. Why would you want to?

Say word. At that, I’ll leave you with perhaps my favorite Beatles mashup. Good luck removing this from the world! Or figuring out who “owns” it —

Oh, and props to Harmonix and the Beatles. I bet the game is gonna be great. SRSLY!

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August 4th, 2009

Bearing Witness, or Not – Part 3

As many of you may have heard, the trial concluded on Friday with the absurd award of $675k in statutory damages to the RIAA — in other words, Joel Tenenbaum, a 25 year old physics grad student, was found liable, at the whopping cost of $22,500 each, for the willful infringement of the copyrights to 30 songs he downloaded and shared on p2p networks during college.

That’s a pretty odd figure, $22,500, the result of some weird math, for sure. It appears the jurors were divided and so “compromised” on a number that lands between the statutory minimum of $750-per (which would make for a total of $22.5k) and the maximum of $150k-per (for a total of $4.5M). So maybe the jury did something like this: let’s take the minimum total and apply that to EVERY act of infringement instead of all of them together. Or maybe they just hit X30 on the calculator twice. Or filled out the form incorrectly. I dunno. But I still find it hard to believe that a jury would find $675k a “just” amount to fine an individual being sued by a group of corporations. That just seems ridiculously unfair and outsize. But so it goes. To put it bluntly, Rasta, the shitstem muddup.

Although, as I mentioned, I didn’t get to testify as an expert witness, I did eventually take the stand as a “fact” witness. The facts that I demonstrated were rather simple: that one could buy an mp3 of any of Joel’s 30 songs via Amazon as well as find them streaming on YouTube. Had he his druthers, Charlie’d have wanted me to be able to demonstrate more than that, I’m sure, and to talk more about the cultural context of filesharing, but that was not to be. The plaintiffs’ lawyers objected strenuously to any questions that strayed from this simple demonstration, including the seemingly innocuous “What is an ethnomusicologist?”

Given that Charlie had been ruffling the plaintiffs’ and judge’s feathers for months — including during the trial itself — I actually had to take the stand twice: once without the jury present, to make sure that Charlie “behaved himself” and didn’t introduce any “prejudicial” / “immaterial” / non-“fact”-astic testimony, and a second time with the jury back in the room. I don’t know how unusual that is, but a couple of funny things emerged from the process.

First, a little background on why Charlie might want to call me as a fact witness to demonstrate something so straightforward. I’m sure he had plenty of reasons, actually, including putting my sympathetic face and voice on the stand (I kid you not). Mainly, though, Charlie wanted to show how easy it is, today (as opposed to when Joel was first filesharing), to legally purchase any of the mp3s in question, DRM-free to boot. (We used Nirvana’s “Come As You Are” as the example.) He also wanted to show how easy it remains to acquire an mp3 for free.


not the official, unembedable instantiation obv

The funniest moment came during an attempted demo of the latter (during the voir dire portion of the proceeedings, i.e., before the jury joined us). After showing the judge, plaintiffs, and observers how easy it is to find “Come As You Are” on Amazon and purchase an mp3 (with just 1-Click®!), Charlie asked me to find the song on YouTube. Notably, the top return for “Come As You Are” is the official instantiation of the (non-embeddable) video c/o universalmusicgroup. Further making his point about the current state of the legal mp3 biz, right away an ad popped up at the bottom of the video offering links to Amazon or iTunes to purchase the song as an mp3.

Charlie asked me, however, to go a step further and show how one might extract the video or audio from the YouTube page. So I quickly navigated to keepvid.com and pasted the URL into the input field. At this point, lead plaintiff lawyer for the RIAA, Matt Oppenheim practically leaped out of his seat. He would not allow his client’s copyright to be infringed right there and then! Charlie said that this was a clear case of fair use, as we were in a courtroom of the US government, but that wasn’t good enough for the judge or Oppenheim, so he relented. But, really, the utter silliness of the seriousness! These guys are jokers and don’t even know it.

The second funny thing was that I was actually asked to log-in to my Amazon account in order to click-thru the purchase of the “Come As You Are” mp3. In a rare moment of levity, Oppenheim said he was more than happy to let his clients benefit from my $0.99 purchase. I registered a slight objection at this, noting that I had bought Nevermind on CD back in the 90s and shouldn’t really have to buy this song twice. But it turns out, I eventually had to buy the song thrice, for I was asked to click through again with the jury present! Don’t ask me what I’m going to do with two mp3 copies of “Come As You Are.” Actually, feel free to suggest possibilities! I was thinking about some sort of absurd duplicate-file art-project. A redundant mashup perhaps? Would that be a fair use? Even if an inaudible transformation? (Certainly as parody and critique, no?)

Given that the chips were strongly stacked against them — that, among other things, they couldn’t argue fair use or encourage jury nullification — I give Charlie and Joel credit for going all-in anyway. Their only real defense, after Joel admitted “liability,” was that they had no defense but that Joel did nothing wrong and that the truly un-fair dimension of this lawsuit is the application of corporate pressure and commercial law to Joel’s life and the arbitrary choice to bankrupt him as a lesson to his millions of peers. All things considered, I thought Charlie’s closing argument was really quite eloquent; he danced around the issue of nullification gracefully as he attempted to tell the jury that it was fully in their power — and instructions — to reach a “just” verdict. I’m sorry that you can’t hear & see it for yourself, but that’s another issue.

I have yet further thoughts about witnessing in this case, and others like it. But I’m going to have to save those for a separate post (part 4?). I’d like to round these thoughts out, however, with a brief reflection on the question of musical value in our day & age.

Let me begin with one of the more notorious and obviously “unexpert” opinions offered by economist Stan Liebowitz (one of the plaintiffs’ witnesses). John Palfrey reported it thusly,


This starts to get us toward some notion of musical value, if — for me and many others — a rather specious and ignorant idea of what constitutes the “good.” In dismissing this bizarre opinion, which really should not have been uttered in that courtroom, we need go no further than this lovely rejoinder I received when I retweeted Palfrey’s quotation —

Can we really place the value of a song at $22.5k? I guess in some abstract sense we might contend that Nirvana’s “Come As You Are” is worth that much; Incubus’s “New Skin,” on the other hand, I’m not so sure about. I jest, of course, kinda. The truth is that these songs can’t really be assigned any sort of rational value, but rather than that making them worth nothing, that actually makes them priceless. As Cory Doctorow observed in a recent review of Chris Anderson’s Free, albeit with regard to so-called “amateur” culture rather than “professional” —

Though Anderson celebrates the best of non-commercial and anti-commercial net-culture, from amateur creativity to Freecycle, he also goes through a series of tortured … exercises to put a dollar value on this activity … But for the sizeable fraction of this material – and it is sizeable – that was created with no expectation of joining the monetary economy, with no expectation of winning some future benefit for its author, that was created for joy, or love, or compulsion, or conversation, it is just wrong to say that the “price” of the material is “free”. The material, is, instead, literally priceless. It represents a large and increasing segment of our public life that is conducted entirely for reasons outside the marketplace. Some of the supporting planks may be market-driven (YouTube’s free hosting), other parts are philanthropic (archive.org’s free hosting), or simply so cheap that creators don’t even notice the cost (any one of the many super-cheap hosting sites).

Public culture is free culture — not so much “free” in the monetary sense, though it is often that too, but “free” insofar as we the people have the freedom to access and remix and discuss it. If you put it out there, you’ve got to let it be out there and be prepared to watch it swim through the currents and cross-streams of culture. The academic “jury,” as we’d have it, is still “out” with regard to the impact of freely circulating mp3s on the livelihood of musicians, despite what the Stan Liebowitzes — shudder the thought, but he represents a plurality of sorts to be sure — of the world might assert as “expert” “fact.” See, e.g., this dissenting study.

Or take for example the recent case of a “viral” wedding video propelling sales of a year-old Chris Brown track. This calls our attention, quite clearly, I think, to the fact (if I may) that the value of a musical thing (if you must) does not so much inhere in that thing itself but accrues according to how people make use of it. Media scholar Henry Jenkins calls this spreadability, and his persuasive research is largely the reason I put “viral” in quotes back there. Referring to such phenomena as “memes” and “viruses” removes all the crucial agency involved in making something popular and meaningful and valued (and, I suppose, valuable). It misses out, as Siva said, on “how culture really works.”

If you’re a musician who disagrees with this and demands payment for every use of your “IP”-protected commodities, well, have fun playing your songs over in the corner. And don’t expect, if you’re hustling your wares out here in the open, that you won’t be treated with the disdain that so many salesmen can engender (never mind fatcat middlemen).

Thanks to the unprecedented access to powerful tools of production and connection, truly popular culture is now fully participatory culture. The kids are all right (myself included, if I may). We’re just sick&tired of mainstream monoculture and corporate enclosure. Despite attempts to insert their cultural products into every nook&cranny of social and personal life, the stuff of the RIAA and MPAA is but a narrow slice of global cultural production today. (Among other indicators, and this only at an industrial level, Hollywood recently fell to #3 in production behind Nollywood; it had long been eclipsed by Bombay’s industry.) I couldn’t tell you the last time I went to the movies or bought a CD. But I’m swimming in stuff to watch and listen to and comment on and rework as never before. What is happening is that THE culture industry — a fleeting institution really, if you take a long view — is being replaced by cultural industry writ large: namely, peer-oriented production and interaction. Observing all the activity on YouTube and imeem and MySpace, et al., disregard for copyright hardly seems to be removing “incentive” for making music and video and dance, etc.; on the contrary, we bear witness today to perhaps a greater degree of “amateur” production (i.e., people doing it mainly for the love) than ever before. Even if the amount of activity has remained a constant — though I suspect cultural production took something of a hit with the 20th century’s read-only culture (not that reading isn’t an incredibly rich and productive cultural domain of its own) — we are able to bear witness to it at an unprecedented level thanks to socially networked media, digital tools, and broadband access.

And a lot of this activity — much of which is the focus of this blog and its brethren&sistren blogs — is so unvarnishedly dope (despite what certain uninformed experts might proffer), that hi-fi industrial bling has been revealed to be but one aesthetic among many — not a question of “as good as” at all, just a way of hearing, all shiny-like, how certain sound objects embody a particular economic-ideological-historical mode of production.

Joel is not the best poster boy, by a long shot, for what I’m talking about here. But he found himself riding the wave of digital youth culture during a transitional period (in his life, the life of the net, of popular culture, & of music industry), and he should not have to pay such a price for surfing along.

Can I get a whatwhat?

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Wayne&Wax

I'm a techno-musicologist, internet annotator, imagined community organizer.

I left my <3 in the digital global, but I reside in Cambridge, MA, where I'm from.

I represent like that.

wayne at wayneandwax dot com

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