Kevin Driscoll

Today’s keynote panel considered the challenge of building a commons that can accomodate the needs of a diverse groups of creators. Implicit in this conversation is the question of core values. What unifies artists from the Future of Music Coaltion to geneticists working with Science Commons? Amid a lively debate of the criticisms expressed by Prof Elkin-Koren of University of Haifa School of Law, we heard the term “social contract” with regard to intellectual property policy.

In the US, I believe one need look no futher than the Constitution to find a “social contract” for the growth of an intellectual commons. However, as Minister Gil referred to in his address, the 20th century departed from tradition in many respects. Among these errors was a failure to maintain the integrity of this social contract. Creative Commons arose as a response to this failure.

As I listened to Prof Elkin-Koren describe the variety of choice in CC licensing as potentially “self-defeating”, I wondered how differently she might orient her criticism were the social contract changed. 140 million works link back to CC licenses. These works represent creators for whom the traditional, all-rights-reserved protections are not satisfactory. How many more would choose CC if not for its demands of time, energy, interest, and chance?

As I read it, the US Constitution communicates this message: “Creativity and innovation is something we value as a nation. Creators, continue creating. We will protect you.” Does the message of CC communicate a similarly simple commitment? I worry that CC puts the onus too heavily on creators to be their own lawyers.

In Prof Elkin-Koren’s call for a simplification of CC licensing and reduction of choice, I hear a call for a renewal of the social contract. Which nation will first hear this call and update its legal code to reflect this social contract? Where will the burden of finding fair, some-rights-reserved licensing finally be lifted from the creators?

Readers of this blog are advised to take an hour or three this week to browse the inevitable deluge of analysis to follow today’s Grokster decision. Corante’s Copyfight is a great place to start and SCOTUSblog is required reading. Further jump-off points include: EFF DeepLinks, Downhill Battle, Notes on the RIAA/MPAA Press Conference, and A Copyfighter’s Musings.

Tonight is my last in Boston until July 19. I will likely break the quiet during my visit to the Copyfight conference in Barcelona but expect little until then as I melt away on the shores of the Mediterranean. (If any readers in Florencia, Roma, or Barcelona would like to meet up, feel free to write me a note: kevinpublic AT crashingjets DOT nu.)

Nike recently caused ripples through underground music communities with the images being used to promote it’s Major Threat skateboarding tour. Compare the Major Threat advertisement to the cover art for Minor Threat’s seminal discography.

In terms of IP discourse, the Minor Threat imagery is as revered and iconic to punk rockers as is Mickey Mouse to supporters of the Sonny Bono Copyright Term Extension Act. For a subculture with a long history of collage and parody, having the tactic work against them has been startling. “fisrt [sic] you rip off children in sweat shops, now you are ripping off the hard core scene!” reads one comment on the Skateboarding.com message boards.

“Nike never contacted Dischord to obtain permission to use this imagery, nor was any permission granted. Simply put, Nike stole it and we’re not happy about it. We are not yet sure what options, if any, we have to stop Nike from using our images to sell their shoes,” — Dischord Records.

Although many critics have advocated in favor of a lawsuit between Dischord and Nike, it is uncertain whether the indie record label could financially sustain a legal dispute with the multinational lifestyle purveyor.

As word of Nike’s alleged trespass spreads across the web, the sinews of semiotic democracy respond in kind. See this collection of parody album cover advertisements for an example of technology enabling increasingly sophisticated expressions of discontent.

Several clerks spent the night in prison after allegedly selling a bootleg mixtape to an undercover officer last week. According to Pitchfork:

“After the sale, police produced a search warrant, fingered the arrestees, shut down the store for roughly five hours, and confiscated, according to the RIAA, “500 CD-Rs, 27 Music DVDs, Nine DVD burners, and a scanner,” among other items, which include the computer containing the store’s database and recent sales records.” — NYC Record Store Mondo Kim’s Raided by RIAA, Pitchfork, 10 June 2005

To people outside of hip-hop, bootlegging of this sort seems a cut-and-dry case of piracy. Upon further examination, however, the situation reveals itself far cloudier. Once purely regional, the underground mixtape trade is responsible for launching careers, testing potential new singles, and carrying news throughout the decentralized rap network. Recognized sports figures and famous radio DJs are often found hosting mixes while artists and producers leak out exclusive mixtape-only remixes to start street-level buzz.

50 Cent and G-Unit, the biggest artists in hip-hop today, got their start on the mixtape circuit. Rising stars (and blog favorites) the Diplomats and Swishahouse have both established themselves based on relentless mixtape appearances. Groups such as these often move more than 10,000 copies of a mix produced, manufactured, and distributed completely independently of existing industry structures. With this type of success, artists are effectively creating a new hip-hop middle class.

The increasingly frequent crackdowns on the mixtape economy evidence a hypocrisy permeating the entertainment industry’s assault on democratized media production. While collecting revenue from hip-hop superstars, major record labels are working to choke out the very farm-league systems that wean them.

Furthermore, the mixtape trade is one of the last areas of contemporary music to retain the regional nature that once characterized pop music across the U.S. Houston’s mixtapes are slow and hazy. Miami is nasty and puerile. New York backpackers value wordplay and sample-based production while the Puerto Rican population churns out reggaeton remixes of every song on Hot97.7.

In the struggle for a liberated culture of critical creativity, the hip-hop mixtape economy deserves to be supported and lauded as an example of bottom-up media democracy in action.

Update: Be sure to visit DJ Ripley’s blog for valuable further discussion.

Rather than reduce the term of copyright and create incentives for the creation of a more democratic media ecosystem, UK minister for creative industries James
Purnell has voiced support for doubling the duration of copyright protection on pop music to 100 years.

“Bands like Coldplay will make enough money for their company to help them discover around 50 or 100 bands,” says Purnell.

Even with a ringtone topping the UK charts, extending the term of copyright protection is not the right path to a greater diversity of voices pop music. It will instead achieve the opposite effect by encouraging the perpetuation of a non-competitive music industry presently failing to properly compensate artists or satisfy consumers.

According to the following email requoted from Stay Free blog, Christo’s indulgent ambition extends beyond his beautiful installations to the design of fantastical IP protection schemes.

Christo’s publisher claims a vast new degree of copyright and trademark protection. They claim they will prosecute anyone who sells their own original photos of The Gates; who makes and sells a drawing of The Gates or who even uses the words, The Gates, without their permission….They also claim to have an agreement with the media that media sources may only use news photos of the gates for the period the installation is up. That after that the media will only be allowed to use “official” photos of The Gates.

If this is the case, it seems to upend the assertion on Christo’s website that following the deployment of “the Gates”(tm)(c), “The people of New York used the park as usual.”