Berkman Summer Interns 2008

Last week I was listening to the radio and heard a crazy electro-pop song I had never heard – a song that once I heard the hook, I had to find out who the artist was. A couple days later, I found the song (“Vanished,” by Crystal Castles) on iTunes and, without hesitation, downloaded the song.

But I wasn’t quite satisfied with purchasing just one song from the new Crystal Castles album. After previewing several of their other songs, I began reading reviews by other iTunes users. Several five-star reviews were sharply contrasted by single-star reviews, most of which alleged that Crystal Castles had “stolen” much of their music from artists who had posted various 8-bit music samples on Creative Commons, subject to a CC license. The reviews, of course, were scathing, intending to deter potential buyers from supporting artists who steal from others. I decided to dig a little deeper.

As it turns out, Crystal Castles had created several songs which sampled several 8-bit music samples from a group of artists who had formed a collective, 8bitpeoples. Their website allowed visitors to download their music for free, subject to a CC license. The license allows for free copying, distribution, and transmission of the works in question, provided the person doing the copying/distributing/transmitting:

1. Properly attributes the work
2. Does not use the work for commercial purposes
3. Does not “alter, transform, or build upon” the work

Artists can waive any of the above conditions by giving their permission for other artists to do so.

The Crystal Castles controversy began in May, with the bad publicity becoming so destructive that Crystal Castles was forced to publicly respond. Surprisingly, they admitted to taking the samples without permission, but maintained that they had not used any of the samples in their album. Crystal Castles member Ethan Kath told Pitchfork that the infringing songs were either too “awful” to include on the album or were too difficult to clear with permission from the artists of the samples. The only song with infringing material available to the public was posted on their record company’s MySpace page by a record company rep. Pitchfork approaches the whole situation from a legal angle:

So yes, Crystal Castles did create derivative works based on the music of chip music artists without proper attribution (though the attribution wasn’t the band’s doing)–two Creative Commons agreement no-no’s. But since they didn’t release or perform the works — and deny that they were responsible for disseminating them — it would be hard to mount a case for the third Creative Commons violation (“commercial gain”). And indeed, even the other two Creative Commons conditions wouldn’t apply to experiments that were intended to remain in the bedroom/studio.

We may very well take Pitchfork for their word. But for me, there were other, more personal implications. Should I buy the album? The music was made by artists who clearly had not taken the time to seek permission for the use of these samples, let alone given them credit for the use. As a consumer who understood some of the implications, did I have a responsibility to boycott the album?

Creative Commons certainly has its critics, and those critics would be quick to point out a situation like this — where CC has created a set of rules that may be unmanageable and not complied with. But it is up to artists, as a community, to respect the rules of the Commons, and to act by an ethical code that goes above and beyond legal liability. It is also up to consumers, as a group, to bring attention to instances in which the code has been broken, and for which there may be no legal consequences. At the very least, consumers can create economic change through protest.