Girl Talked: Remix, Reproduction, and a Recipe for Copyright Stew

Even though I’m off to Japan at the beginning of September, which will prove to be an epic and unforgettable experience, I have to deal with news about events, activities, and orgies that I’m missing out on while across the Pacific. Brings a tear to my eye, really (especially those orgies). To be frank, though, I really am bummed about having to skip out on a specific concert to be performed on BU campus in late September: Girl Talk.

Girl Talk, or Gregg Gillis, the engineer-turned-DJ (though he’d rather call himself an artist), remixes clips from a variety of popular songs to create new songs clips of songs glued together by a common BPM. Honestly, it’s nothing special, but there’s something appealingly freakish about it that I’ll keep his MySpace page on loop for a good hour at work. It’s like the nineties joined up with the 00s and drove a car through the panoramic window of my storefront. It’s music improbable to dance to yet so possible that I find myself dancing anyway. You can actually buy Girl Talk’s latest album, “Feed the Animals”, for any price.

Well, Girl Talk’s been all the… talk… on the Students for Free Culture national mailing list for the past week or so. The issue: Girl Talk’s defense of fair use to create his music without having to deal with musical industry copyrights. Tech Dirt explains Girl Talk’s theory: Girl Talk uses a Creative Commons Attribution-Noncommercial license for Feed the Animals, even though the songs on the album were made by using hundreds samples from other artists. Gillis claims his songs are fair use on the basis of being transformative and because the clips used are very short. TechDirt mumbles about the definition of transformative, but Girl Talk is furthering the production of a newly popular, cultural, musical genre and form: remix, also known as the mash-up. The New York Times uses the term collage, which I find fitting.

The problem I have with Girl Talk with regards to copyright license: the copy.

In one interview, Gillis explains the effort required to put together one of his CDs, Night Ripper.

Pitchfork: The samples are very specific– when you listen to a song for the first time do you know which lines you want to pick out immediately?
GG: Sometimes. Anyone can make a mashup in 30 seconds but that record took me– outside of collecting the samples– at least a year of putting everything together. It’s always just trial-and-error, I get all the loops and mix-and-match them on my computer.”

Girl Talk mixes hundreds of fragments of songs together — a process which has been thoroughly documented on Wikipedia, such as on Feed the Animal‘s page. The wonderful power of the Internet has even provided the initial play times of every sample included in each track. This last point is the key to unlocking the copy. Well, no, I would consider it to be more the tumblers of the lock.

The ultimate key that moves those tumblers is the creative environment, specifically software. Special thanks to Tim Hwang for helping me realize this (look out for future related awesomeness on his part). The improved availability of software and ever-lowered ability requisite of the user to operate said software will complicate copyright beyond anything we’ve seen yet.

To explain my idea, I’ll ask a simple question: What if you produced an exact copy of a song, but without actually copying and pasting the original music?

By this I mean creating a cover of a song, entirely self-produced, but one that exactly (read: PERFECTLY) matches the source material. Of course, such a dream is impossible: no garage band will ever replicate the exact twang of a Hendrix guitar or a flawless warble akin to that of Johnny Cash. When we use our own instruments, musical covers will remain covers, ever removed from the classic prototype that retains the value. And according to copyright law, royalties are due to the original musician if you decide to market a cover song.

However, what if you’re provided with the materials, so that you avoid having to reproduce anything? Here’s where the trouble lies.

Girl Talk licenses his latest work with a Creative Commons license that prohibits others from garnering money from the retail of his music. I cannot download his CD and sell it to another person. However, assuming that Girl Talk’s claim to fair use upholds, then I also may use fair use to put any clips of music together to create another song. If I decide to choose the same original songs as Girl Talk to create the same tracks on his CD, then I have not copied or reproduced his work as long as I have personally toiled to put together each song.

Props to the new genre of remix, because musical recognition is simpler than ever before. The recirculation of cultural works (read here: music) into the mainstream (or even tributaries of popoular culture) certainly seems beneficial to a generation branded as “unable to create any new meaning.” Girl Talk mirrors the Internet: he’s making ideas available. If a young kid of this decade listens to Feed the Animals, he’s likely to miss most of the references to the popular songs of an older generation. However, Girl Talk refreshes the material, while at the same time refreshing the genre. Yet even if Gillis were not indirectly advertising music from the ’70s, ’80s, and ’90s, technology has kept up with the pace. A program called Listen on the iPhone will analyze a piece of music and identify the name of the song, its composer, and the track’s album.

With new technologies, composition is also easier than it ever once was. Given the availability of open source software (eg. audio programs like Audacity) and the ease-of-use provided by these new software, it does not take much effort to (re)create Girl Talk’s music while avoiding literally copying and pasting it. In fact, I could probably spend much less time producing my own songs compared to Girl Talk’s “at least a year,” since I have a storyboard for each song on Wikipedia, samples available on Pandora, free editing software available online, and the optimum cheat sheet, Girl Talk’s compilation. If Gillis had decided to sell his CD for the ’90s average price of $12, an unemployed, middle-school-based teenager could spend an afternoon recreating the music, possibly even extending the production to suit his own needs.

This post has been about copyright, but instantly the issue has evolved into a debate over intellectual property. Does Girl Talk have legal rights to protect his idea to mash together a bunch of previously-released songs (down to each second that he switches to a new sample on each individual track)? Or do we have to start from the beginning by ruling Girl Talk’s appropriation of songs as illegal?

Compared to composing an academic essay, obviously we cannot copy the words of another person and claim it as our own. The MLA would kick our ass (I mean, that’s why we’ve been writing citations pages, right? because we’re afraid?). However, I can write a book while quoting other people and still sell my book without paying royalties. If we read music like words, Girl Talk has already plagiarized, although he has created a new idea out of it. So, by creating my own (identical, but personal) version of Girl Talk’s music, I am plagiarizing from the artists’ original songs from which I take the samples, but am I also plagiarizing Gregg Gillis?

Or, to spin these questions another way: what if an eight-year old kid did all of this? Well, not entirely similar, but we’ve already seen some teeth bared.

A Quick Update

Well, I completed my third year at Boston University last Thursday, after passing in my final exam for Literary Theory (EN406.A1). At the moment, I’m attempting to continue accruing content for my internship with ByStudents, as well as catch up on the feeds in my GoogleReader, and on top of it all begin reading the books I’ve bought throughout the semester but never got around to reading (first on the list: Convergence Culture: Where Old and New Media Collide, Henry Jenkins). I have an unsorted mass of potential blog posts to compose, especially after compiling page after page of ideas regarding ROFLCon and the lectures I attended at MIT this semester.

Looking towards the near future, on Thursday and Friday of this week, I’ll be over at Harvard attending Berkman@10, a conference on the future of the Internet, hosted by the Berkman Center for Internet and Society (Harvard Law School). I’m glad that the summer is finally starting. Although I have to continue searching for jobs, I’ll be living at Harvard (while volunteering for another consecutive year at Harvard-Radcliffe Summer Theatre), preparing panels for Otakon and Connecticon, and organizing articles for this blog.

Notes from the Q&A with RIAA Reps @ Boston University

On Thursday, the Office of the Dean of Students hosted a panel discussion and Q&A with two members of the RIAA. Besides my surprise at the scarcity of scathing questions, the panel was informative yet also rhetorically dissuasive.

In terms of this post… I took more extensive notes at the event and will post them below. At the moment, I’m still ambivalent over the issue of liveblogging. I recently came across some liveblogging over on a post on Sam Jackson’s blog (about the college admissions process and his experiences at Yale), and I am still irritated with the compositional style. For now, I’ll be “note-ing,” I suppose. And by that, I mean I’ll simply copy and paste my unformatted, transcribed notes, unedited from the time written. I suppose it would be easier on you readers if I were to organize my note structure so that you could derive the maximal message from these briskly-typed words and erratic punctuation. If I agree with myself in the near future, I will. For now, my notes…

Notes from “RIAA Presentation w/Q&A” at Boston University

(G) Mitch Glazier – Executive Vice President, Government and Industry Relations
(L) Jonathan Lamy – Senior Vice President, Communications
(P) a professor at the College of Communications (whose name I didn’t record)
(Q) questions from the audience

G: music industry: in place in history of great transition: have to implement enforcement program against individuals (unexpected, didn’t ‘want’ to do it); position: if have to do it, done in way that’s fair/effective

worked on: judiciary committee: has jurisdiction over intellectual property issues; about same time: Napster commercialized; misimpression: enforcement is what we do; 3-5% of time spent on enforcement;

RIAA: tradegroup: represents major record companies and labels; federal/state/artist/industry relations; only a few artists make the money that people associate with top artists; creators: make little money, rights they have to make this amount: important; advocating for those rights: then becomes important
also run Gold/Platinum Record program
on lobbying side: tradework: to make sure artists have access in new markets, work against piracy of American products abroad

L: job: put happy face on unpleasant task; how we got to where we are today in terms of lawsuits: we didn’t want to do it, reluctant: came to point 2002/04: industry had lost 1/3 of revenue, had to lay off thousands of people; pursued Napster/Kazaa, some success: piracy still prevalent; penetrated public consciousness
also: educate: younger kids; try to offer music in legal ways: 3-4 years ago: crit: industry: not moving fast enough; now: untrue; marketplace will only work if distanced from methods to get music for free;

G: record company: used to be marketing/distribution company; now: not distribution company (Apple, Amazon, Microsoft); record companies: good news: more people innovating, RIAA: can only license them to do it; licensing: can’t control it; biggest complaints: not against music or record companies; used to be: intellectual property: used to be niche piece of law, now: comm/IP law: blended together; business models that work in legal standpoint: must be created
in standpoint: must find new business models while keeping law
effects of lumpy period: lawsuits

Q: why aren’t going after companies (ie. Kazaa) instead of individuals:

L: we are: lawsuit against Napster: successful; Kazaa: settled; Grokster: went to Supreme Court in 2006: court ruled in RIAA favor: BearShare/eDonkey, etc: worked out deals; lawsuit: pending for Limewire;
answers: 1) it is preference for what want to do

G: users: who are actually stealing; right/wrong: based in individuals; pulling down estimated $10 mill/month; users: benefitting as time goes on; going after services: absolutely necessary: but not going to solve problem by itself
any other industry in US: if had lost 1/3 industry in 5 year period: would have been widespread panic

Q: fair/efffective/reasonable: damages: can exceed $750/song; legitimate purchases of media: when downloaded: not intentional act; fair to be punishing them? tendency of individual to share; where is the incentive for the RIAA to seek a new business model; overall question: why make media?

L: not money making exercise: lose money in lawsuits; how to manage program w/ effective deterents but with sense of reasonableness about it; allow people to settle; up to $4/5k if case goes far; minimum under law: $750 per infringement: will use that amount even if user has thousands of songs;

G: do want deterrents; this IS theft: we and artists view this as theft; coming up w/ reasonable way to enforce: kind of anomaly; have to respect fact that people are in certain income bracket/demographic; when RIAA goes looking on public networks: don’t know who person is, just have number; if have lawsuit: against number; may know if at university or organization or commercial organization (.uni, .org, .com); don’t know who in household could download it, just IP at a computer;
tactic: send letters to universities before have to deal with IP addresses: to settle before we have to approach you directly

Q: don’t always specify damages: $220,000 situated by jury in Jamie ~ case

L: RIAA: didn’t ask for specific amount, left it up to the jurors

G: watch interviews w/ jurors

Q: jurors didn’t just come up with a number

L: judge gave them range under law, jury decided based on variety factors

P: bad experience with jury duty: don’t entrust your case to a court jury

Q: look at statistics for piracy; bulk: occurs overseas; what is RIAA doing to pursue these interests?; why haven’t seen same sort of enforcement in sp. China?

G: time spent in China; IFPI in London: part of big national group; ARIA: RIAA equivalent in Asia; spend so much time through lobbying and trade pressure: to put intellectual property provisions in government

L: RIAA/U.S. just sued China, we’re threatened trade sanctions; China: focused on image; huge: censorship issues; dealing with market where only 2% of artists can be shown; benefit of US: intellectual property engine: produce most information that people want; problem: rest of the world: the user, US: the owner; short-term: when trying to bolster economy: doing it on counterfeiting: works; long-term: will fail

Q: lawsuits: not moneymaking exercise; do you make money off of lawsuits, where does money go?

L: back into program

Q: not given back to artists

G: doesn’t even pay for program

Q: large sums of money made/lost: whatever profit goes back into simply RIAA or record labels

L: not profit, helps pay for program, doesn’t cover cost of program

G: program: not self funded; RIAA: subsidizes the program

Q: how do companies generate revenue? ie. Limewire

G: changed business model; a lot of people pay Limewire $29 for use of limewire client with no advertising; used to sell upgraded version: no advertising, no software client (aka spyware client); spyware: bugs, privacy issues, also responsible for crashing computers; Limewire: new business decision: instead of making money simply through advertising, switched to offering ad-free version for a fee; millions: pay $29 to exchange files w/ other people w/o burden of advertising; now how they mostly make their money; past: banners, spyware, & alternate version; now: from $29 program

Q: give us timeline of how to find someone illegally downloading, send out notification, when it gets to person, when people go to court

L: daily basis: online investigative team: anonymous sweep: can’t target any university or particular person; once evidence is collected: ie user uploading # of songs: after weeks: new wave of prelawsuit letters: will be included in that wave; entity: will show IP: letters sent to IT person at university: forwarded on to student or faculty: given 20 days to contact RIAA and hopefully resolve problem: from when letter is sent (not received); encourage university to forward letters: why deprive student opportunity to settle?; if not heard from, RIAA goes on john doe front: look at IP, try to subpoena university to find person’s identity; if letter is still ignored: will file named complaint: filed in federal court that says you’re sued;

Q: when would the settlement be off the table?

L: original settlement: 20 days to contact; after next letter: original settlement is off the table; costs more money to go to court

Q: why 20 day period?

G: have to pick period: talked to universities: what’s process, how long is reasonable to be forwarded

Q: IT guy: student doesn’t even start clock; time period in past: 30 days starts after student gets letters; BU needs time to
last set of letters: came with 20 day period w/ no explanation; wanted to push back to 30 days: needed time to find student, contact parents/lawyer, etc; can time period change back to 30? because once period is gone, settlement is off the table; w/ short window: doesn’t give student enough time to consider settling
how long does it take at BU? — goes through IT, general council office, dean of students office (who sends out actual letters); students receive letters; emails/phone calls exchanged for technical & legal questions; BU: tries to do it as fast as possible; 2-4 days before student even hears

L: wants contact information for BU IT guy

Q: “worst company”; angered people; lost fans for musicians; what is endgame? where will you be in 10 years?

G: multiply new marketing strategies & business models by 10 or 100: so many new ways to approach situation; endgame: business models that come from consumer demand, that match technological capabilities that mirror those available in the market; working with licensing & distribution partners: necessary;

L: before began litigation: P2P traffic: growing; now: flatter: partly reflection of RIAA’s action; now: public awareness of what you can/can’t do; legal marketplace: grown: 2/3 years ago: revenue streams: zero, now: 25%; legal marketplace: given footing to succeed; had nothing happened: P2P piracy: more significant; people: not buying based on perception of RIAA

Q: detection methods: not stated by partners

G: how to discover violations: P2P open network: advertising infringement to rest of world; would they explicitly state their methods? crawler technologies;

Q: education: most people not education about copyright law, even lawyers: not educated; how will consumer know if website is properly licensed? how many people know how to share their songs, etc legally?

G: P2P: legal technology; not that itself, but if you’re abusing technology to achieve end; media & even academic articles: question: whether or not business model of these companies: “legal”? surveys done by RIAA: people said: looks like it was legitimate; general confusion about if OK to take files/someone else’s work; consumers: duped; [section 106/107 of copyright act]

P: question of whether P2P was legal: debate: substantial non-infringing use? judges: 3 said yes, 3 said no, 3 said maybe;

L: no dispute over law that is clear; we’re enforcing our rights based on law; what we’re bringing lawsuits about is clear-cut: pure old copyright law; no court: has rejected any cases

G: 1995: intellectual property treaties; US: signed onto treaty: demand that countries signed: making available right; US: took pronounced position: don’t need to amend laws because have already right of publication; publication/distribution: synonymous?

Q: clarification: how you determine if you were actually infringing; ie. wireless routers; UMG v. Lindor

L: not interested in suing someone not liable for their actions; want to determine actual infringer

G: also don’t want to provide game map for beating the system; ultimately: important to enforce rights against the correct person

Q: digital marketplace correcting itself; cooperation with users; DRM & the future of linking to music

G: most of linked sites now: licensed sites; future of digital marketplace: will exist of many sites/services by small innovators and others who achieve licensing & who work to distribute with creators in an official way;
record companies: own the copyrights
notice of takedown: website or service is free from liability, until receive notice: then lose immunity & can be taken down for liability