0:00:00.057,0:00:03.454 [Bell][br][Announcer] This is Duke University. 0:00:05.957,0:00:10.128 (The Center for the Study of the Public Domain presents: "Theft! A History of Music"[br]17 November 2010 - Duke Law) 0:00:10.128,0:00:14.038 [James Boyle] Welcome to this lecture put on by the Center for the Study of the Public Domain. 0:00:14.038,0:00:20.047 We bring - as part of our Center, we bring some of the leading figures in intellectual property 0:00:20.047,0:00:23.065 to come and speak here and today, the same is true, 0:00:23.065,0:00:25.327 but in this case we are introducing one of own: 0:00:25.342,0:00:28.924 Jennifer Jenkins is the director of the Center for the Study of the Public Domain. 0:00:28.924,0:00:32.630 She is a lecturing fellow, a senior lecturing fellow at the Law School, 0:00:32.630,0:00:35.579 teaching classes in Intellectual Property, the Public Domain and Free Speech, 0:00:35.579,0:00:37.248 and in music's copyright. 0:00:37.248,0:00:40.085 She's also the author of a number of things: 0:00:40.085,0:00:45.420 a comic book, which she co-authored with me and another one that she's going to talk about today, 0:00:45.420,0:00:52.339 and an article - a very prescient article - on the American system of protecting, or in this case, 0:00:52.339,0:00:56.487 not protecting fashion designs in intellectual property. 0:00:56.487,0:01:01.850 Jennifer is a frequently quoted academic in the media. 0:01:01.850,0:01:05.168 She has recently appeared in the New York Times, Newsweek, and on NPR. 0:01:05.168,0:01:13.303 And today, she's going to be talking to us about her research project on the history of music. Jennifer. 0:01:13.303,0:01:22.500 [Applause] 0:01:24.458,0:01:28.369 [Jennifer Jenkins] Hem... so. 0:01:28.369,0:01:35.265 Why did Plato argue that remixing music should be banned by the state? 0:01:35.829,0:01:40.498 Why did the Holy Roman Empire encourage the use of musical notation? 0:01:41.032,0:01:47.633 What threats were jazz and rock 'n roll supposed to present to society in mainstream culture? 0:01:47.647,0:01:54.111 Would the development of genres like jazz and soul even be possible under today's legal regimes? 0:01:54.470,0:01:58.887 These are some of the topics I'm going to talk about today, but with a twist: 0:01:58.887,0:02:03.600 I'm going to describe to you a research project 0:02:03.615,0:02:06.789 that Professor Boyle and I have been working on for about four years. 0:02:06.789,0:02:11.041 A project that focuses on the history of musical borrowing, 0:02:11.041,0:02:20.360 an over 2000 year exploration of the way that norms, aesthetics, law, politics, technology, economics 0:02:20.360,0:02:25.002 have influenced the conditions of creativity in music 0:02:25.002,0:02:30.486 and tried to limit the mutability of musical forms. 0:02:31.363,0:02:34.591 The project has taken us in some interesting directions. 0:02:34.591,0:02:38.829 For example, in 2006, we co-authored with professor Anthony Kelly 0:02:38.829,0:02:45.265 who is in this room, a course composed of half law students, half graduate level composers 0:02:45.265,0:02:50.507 that examined the way that musicians, on the one hand, and copyright law, on the other hand, 0:02:50.507,0:02:53.333 view different types of musical borrowing. 0:02:53.333,0:02:58.753 But the component of the project that I'm going to talk about today is a little bit different. 0:02:59.584,0:03:05.624 So, as anyone of our students' generation knows, we are currently in the midst of the musical wars. 0:03:05.624,0:03:08.869 On the one side, you hear about a whole generation of law-breakers, 0:03:08.869,0:03:11.559 pirating and remixing music without authorization, 0:03:11.559,0:03:14.114 completely indifferent to authors' needs. 0:03:14.114,0:03:17.069 On the other hand, you hear about record companies 0:03:17.069,0:03:20.122 resorting to the law to prop up an obsolete business model, 0:03:20.122,0:03:25.892 while trying to criminalize new forms of creativity and access enabled by technology. 0:03:25.892,0:03:33.055 And what our research showed us is that both of these accounts are both inaccurate and a-historical, 0:03:33.055,0:03:36.624 and that the history of music that I'm going to talk about, 0:03:36.624,0:03:41.256 can actually teach us a lot about today's debates. 0:03:41.994,0:03:46.612 So we wondered, how should we present all of these findings to the public? 0:03:46.612,0:03:52.036 So, one of the goals of our Center is - and of the Law School as a whole - is translation: 0:03:52.036,0:03:56.862 taking abstruse legal or academic findings and research, 0:03:56.862,0:04:01.844 and making those findings available and accessible to a wider audience. 0:04:01.844,0:04:09.734 So, the form that we chose for translation in this instance is one that we used successfully in the past 0:04:09.765,0:04:14.286 to explain Fair Use and copyright law to documentary film makers, namely - 0:04:15.710,0:04:17.073 a comic book! 0:04:17.748,0:04:22.736 That's - he's very generous, by the way - that's me, that's Professor Boyle flying in his - 0:04:22.736,0:04:27.343 actually this suit looks very much like the one he's wearing here, [laughter] that's amazing! 0:04:27.343,0:04:36.675 That's actually Professor Kelly and these are all the warrior zombies. [laughter] 0:04:37.352,0:04:40.850 So, the comic book is called "Theft, A History Of Music". 0:04:40.850,0:04:46.705 It's being co-authored by Professor Boyle from the Law School, by me and by professor Keith Aoki 0:04:46.705,0:04:50.951 who works at the University of California at Davis, 0:04:50.951,0:04:55.242 and while I'm going to tell you a little bit about our findings on musical borrowing, 0:04:55.242,0:05:00.977 I'm also going to tell you about the adventures, frustrations, delights, 0:05:00.977,0:05:05.400 of trying to present 2000 years of history in the form of a comic book. 0:05:10.539,0:05:17.432 (The struggle to control music is a very old one)[br]So my first theme today is that the struggle to control music is a very old one. 0:05:17.432,0:05:21.616 There is something different about music. 0:05:21.616,0:05:24.617 As we did our research, one of the things that struck us most 0:05:24.617,0:05:30.156 was that music arouses very strong fears and very strong feelings 0:05:30.156,0:05:36.818 that lead to persistent, repeated attempts throughout history to regulate and control music, 0:05:36.818,0:05:40.237 whether legally, aesthetically or culturally. 0:05:41.637,0:05:45.121 This is especially true when it comes to remix. 0:05:45.121,0:05:47.088 Throughout history, there has been a persistent urge 0:05:47.088,0:05:51.670 to police the boundaries of musical forms and genres. 0:05:51.670,0:05:56.393 So, to take one example, here is Plato, as promised, 0:05:56.393,0:06:02.322 inveighing against the dangers of musical music over 2000 years ago. In Plato's words: 0:06:02.322,0:06:05.888 "This is the point to which, above all, the attention of our rulers should be directed: 0:06:05.888,0:06:12.088 that music, and gymnastics,be preserved in their original form, and no innovation made. 0:06:12.088,0:06:16.173 Any musical innovation is full of danger to the whole state 0:06:16.173,0:06:19.287 and ought to be prohibited." 0:06:20.687,0:06:28.536 So, Plato's arguing that musical innovation should be banned by the state. 0:06:28.536,0:06:33.472 Now, the mixing of ancient musical modes, such as the Dorian, Phrygian, Lydian etc., 0:06:33.472,0:06:39.662 is obviously not the same as ...... to known mashing ups, radio head and jazzy (Jaycee?) radio head, (6:38) 0:06:39.662,0:06:42.110 or DJ Earworm mashing up the year's greatest pop hits, 0:06:42.110,0:06:45.887 but it's still fascinating to find that over 2000 years ago, 0:06:45.887,0:06:50.226 people were still arguing about banning a form of mash-up. 0:06:51.949,0:06:55.472 So, why would that be? 0:06:55.472,0:07:00.316 (comic: "Remember that to the ancient Greeks, Music was part of a set of universal norms ... a deep logic of the universe which combined geometry and sounds, ethics, politics and beauty.")[br]Well, if you see music as a reflection 0:07:00.316,0:07:03.623 of the order of the cosmos, as the Greeks did, 0:07:03.623,0:07:09.478 or as a mode of communication that can jump the firewall of the brain 0:07:09.478,0:07:13.688 and communicate directly to the emotions, 0:07:13.688,0:07:18.755 then of course, you would worry about remix, because the results of the wrong remix - 0:07:18.755,0:07:23.105 (Comic: "Mixing musical forms was actually meddling with ethos, and the order of this cospos. It threatened Anarchy. So Plato did want some kinds of "sampling" forbidden. But not because of "property rights.")[br]could be dramatic. [laughter] 0:07:23.105,0:07:28.359 Star-spangled Banner not being well received by the ancient Greeks. 0:07:28.359,0:07:37.703 So now, the Platonist view of music may seem outmoded - pun - so to speak. 0:07:37.703,0:07:40.125 Most of us aren't Platonists anymore. 0:07:40.125,0:07:46.115 But the belief in music's subversive power, about the danger of crossing musical boundaries, 0:07:46.115,0:07:47.915 is an enduring one. 0:07:47.915,0:07:52.083 So, these boundaries might be religious as with contrafactum (?) 0:07:52.083,0:07:55.191 and sacred-secular borrowing in the Middle Ages, 0:07:55.191,0:08:00.046 or cultural, or even racial 0:08:00.046,0:08:04.085 (Etude Music Magazine: "Jazz Problem - Opinions of Prominent Public Men and Musicians" August 1924) 0:08:04.085,0:08:08.695 So, this is the cover of the 1924 Etude Magazine that was brought to my attention, 0:08:08.695,0:08:13.291 actually given to us by Professor Anthony Kelly here, from the Music Department, 0:08:13.291,0:08:16.024 featuring the "Opinions of Prominent Public Men" 0:08:16.024,0:08:19.085 - there were actually women featured in there, but the cover says "Men" - 0:08:19.085,0:08:22.742 "and musicians on the Jazz problem". 0:08:23.773,0:08:25.503 What's the problem? 0:08:27.474,0:08:30.305 Here is a quote that I'm going to read from one composer, 0:08:30.305,0:08:35.995 with rather racist concerns about stylistic mingling. He said, just from this issue: 0:08:35.995,0:08:40.621 "Jazz is to real music what the caricature is to the portrait. 0:08:40.621,0:08:44.126 Jazz originated from the dance rhythms of the Negro. 0:08:44.126,0:08:49.177 It was at least interesting as a self-expression of a primitive race. 0:08:49.177,0:08:52.551 When jazz was adopted by the highly civilized white race, 0:08:52.551,0:08:56.897 it tended to degenerate it towards primitivity." 0:08:56.897,0:09:03.466 So here the boundaries that are being policed are as much racial as they are musical. 0:09:03.466,0:09:06.214 And this theme continued, whether it was composers such as this one, 0:09:06.214,0:09:10.297 worrying about the corrupting powers of jazz on white music in the 1920's, 0:09:10.297,0:09:14.316 or a few decades later, the segreationists in the American South, 0:09:14.316,0:09:20.434 that wanted rock 'n roll banned, because they saw it as a subversive crossing of lines 0:09:20.434,0:09:22.301 by Black R and P (?) music (9:21) 0:09:22.301,0:09:25.163 that might corrupt, among other things, white womanhood 0:09:25.163,0:09:31.134 and fill their heads with pounding rhythms and an attraction for African American performers. 0:09:31.134,0:09:34.963 (Comic: "It wasn't only Hazz that made people scared... Here's George Wallace's speech writer, Asa Carter, on Rock and Roll...'[Rock is the heavy beat music of the Negroes. It appeals to the base in man; it brings out animalism and vulgarity...'"[br]These are real quotes - I don't know if you can see them - 0:09:34.963,0:09:37.890 from Isa Carter, who was George Wallace's speech writer. 0:09:41.182,0:09:46.947 In other words, the segregationists thought that this was a form a musical miscegenation 0:09:46.947,0:09:50.377 that would lead to actual miscegenation. 0:09:50.377,0:09:55.344 Musical lines were race lines, and crossing them was dangerous. 0:09:55.344,0:10:01.002 (Cartoon: "And peddling paranoia was a big business... 'Rock and Roll inflames and excites youth like jungle tom-toms.'")[br]This is a preacher from the same amount of (?) time, and that's one of his quotes. 0:10:01.002,0:10:04.313 'Rock and Roll inflames and excites the youth like jungle tom-toms.' 0:10:04.313,0:10:11.701 So, as you can see, Plato has had many strange intellectual companions over the years. 0:10:13.547,0:10:16.605 So, another thing we want this comic book to show 0:10:16.605,0:10:24.149 is the way that policies lines between the musicals runs as without actually seen as having a vital cultural role (??? 10:23) 0:10:24.149,0:10:28.787 Now, related to remix is the phenomenon of musical borrowing. 0:10:28.787,0:10:34.672 So these days, certain forms of borrowing - certain forms of music 0:10:34.672,0:10:35.616 that relied on "borrowing" in quotations are seen as high culture. 0:10:35.616,0:10:39.385 Take classical music. 0:10:39.385,0:10:45.134 Here is Brahms, whose First Symphony ..... (?) so many similatities to Beethoven's works 0:10:45.134,0:10:49.655 that the conductor Hans von Bülow called it Beethoven's Tenth [laughter] 0:10:49.655,0:10:51.251 much to Brams's annoyance. 0:10:51.251,0:10:55.403 There is - there are many translations of that particular quote and, you know 0:10:55.403,0:10:58.316 I had to chose this one, but I wasn't able to find the definitive translation. 0:10:58.316,0:11:01.452 But you get the gist: he didn't like it. 0:11:01.452,0:11:04.686 And of course, this is only one of thousands of examples, 0:11:04.686,0:11:09.920 because many forms of borrowing were accepted as fundamental compositional techniques 0:11:09.920,0:11:13.679 during the various eras of classical music. 0:11:13.679,0:11:20.899 There are actually distinct types of borrowing, each viewed as legitimate in its own way. 0:11:20.899,0:11:26.141 So, how are we going to present this musical research in comic book form? 0:11:26.141,0:11:28.315 We went with the classics 0:11:28.315,0:11:35.116 (comics page)[br][laughter] Super Mario brothers, except for it is Super Berio Brothers.[br] 0:11:35.116,0:11:40.006 Berio is a 20th century composer whose composition Sinfonia borrowed from everyone. 0:11:40.006,0:11:45.121 I'll just list a few: Mahler, Schoenberg, Debussy, Verdi, Brahms, Ravel, Stravinsky, Beethoven, Strauss, Bach - 0:11:45.121,0:11:47.658 just to name a few composers. 0:11:47.658,0:11:49.684 Ehm - Super Mario brothers. 0:11:49.684,0:11:52.584 (comics page with types of borrowing)[br]So in these slides, you see 0:11:52.584,0:11:54.859 - we tried, we tried to be faithful to the game - 0:11:54.859,0:12:00.255 we describe some of the different types of borrowing, such as modeling, for example. 0:12:00.255,0:12:06.503 So, John Williams theme from Star Wars is on Holst's composition "The Planets". 0:12:06.503,0:12:15.919 Or quotations: Tchaikovsky's "1812 Overture" conjures the Russian and French armies 0:12:15.919,0:12:18.354 by including their national anthems. 0:12:18.354,0:12:24.285 So, extensive borrowing has been a part of many genres. 0:12:24.285,0:12:30.221 Take Jazz - that's another example where borrowing and quotation were essential to composition. 0:12:30.221,0:12:33.386 (Comic: trumpet player saying "You can't steal a gift!")[br]Dizzy Gillespie - a pretty good rendition, I think. 0:12:33.386,0:12:36.090 Famous quote: "You can't steal a gift!" 0:12:36.090,0:12:40.702 So, of course now, we see many of these kinds of borrowing as high art, 0:12:40.702,0:12:45.548 not as something that is shady or reprehensible. 0:12:45.548,0:12:49.790 But years from now, will this also be the fate of today's hip hop art, 0:12:49.790,0:12:52.334 whose borrowing through sampling is often condemned... 0:12:52.334,0:12:57.933 (Comic: 1. Woman: "But Jazz was just as controversial in its Heyday!" Man: "...makes you wonder how people will be talking about rap in 200 years..." 2. court scene read aloud by Jenkins afterwards )[br]... as theft? 0:12:57.933,0:13:04.245 [Jenkins, reading] "Your honor, what I am doing is really no different than what the esteemed Snoop Dog or Ul' Wayne did in the early days of the 21st century..." 0:13:04.245,0:13:09.930 "You dare compare yourself to a classical rapper!!!!!???" [laughter]. 0:13:10.569,0:13:13.871 We shall see if this is the future we have to look forward to. 0:13:13.871,0:13:17.629 So, the first theme today, is the struggle to control music, 0:13:17.629,0:13:21.038 it's a long one and has patterns that repeat. 0:13:21.038,0:13:27.047 And the struggle frequently has overt political or cultural overtones. 0:13:27.047,0:13:30.446 It is a battle over the shape of culture, 0:13:30.446,0:13:35.824 and persistent concerns about remixing music, all the way from Plato to the present, 0:13:35.824,0:13:41.347 have existed alongside a long and rich tradition of borrowing in music. 0:13:41.347,0:13:47.117 So, that's our first theme, leading on to my second theme: technology. 0:13:47.117,0:13:51.805 (Technologies are unruly, and we are bad at predicting their effects...)[br]Technologies are unruly. 0:13:51.821,0:13:55.767 So the history of music is bound up with technologies that enable its production, 0:13:55.767,0:13:57.952 its reproduction, its distribution. 0:13:57.952,0:14:01.371 And I mean technologies in the widest sense: 0:14:01.371,0:14:06.943 everything from musical notation to player pianos, grammophones, high quality printing presses, 0:14:06.943,0:14:10.351 all the way through to peer-to-peer file sharing. 0:14:13.443,0:14:18.742 So one conclusion that emerged from my historical research in this area is that 0:14:18.742,0:14:27.460 we, our society, our lawmakers, are remarkably bad at predicting the effects of new technologies. 0:14:27.460,0:14:32.116 So, one great example is the process of musical notation itself. 0:14:32.116,0:14:37.360 The ancient Greeks and Persians had musical notation of a sort and in fact, 0:14:37.360,0:14:38.770 (Greek MS entitled "Song A - P. Yale CtYBR inv. 4510)[br]some of the manuscripts are remaining: 0:14:38.770,0:14:43.540 this is an actual manuscript of early Greek notation, 0:14:44.894,0:14:47.939 though there is some debate as to whether we can actually read that notation 0:14:47.939,0:14:49.808 and figure out what the music sounded like, 0:14:49.808,0:14:54.814 (Comic: "So the Greeks certainly had notation, though it seems to have been used infrequently - as a historical record of songs, not something musicians used every day." "We used to think we'd never know how these tunes sounded - Now, some scholars think they can make a pretty good guess").[br]This is how we described it in the comic book. 0:14:54.814,0:14:56.971 But the skill of notation, after that, was lost in the West 0:14:56.971,0:15:01.937 and wasn't reinvented until sometime in the Ninth Century. 0:15:02.629,0:15:05.021 (A hand with musical staffs and Latin words under them)[br]So here is the Guidonian hand: 0:15:05.021,0:15:10.138 a Twelfth Century mnemonic device to help singers sight-sing from notation. 0:15:11.307,0:15:12.776 Why was notation reinvented? 0:15:12.776,0:15:19.912 The Holy Roman Empire played a prominent role in spreading and encouraging the use of notation. 0:15:19.912,0:15:27.145 Its goal was a simple one: uniformity and control over sacred Church music. 0:15:27.145,0:15:32.357 So, until the reinvention of notation to ensure a standard form of music, 0:15:32.357,0:15:34.657 they actually sent around a standard reference choir 0:15:34.657,0:15:36.601 to sing in each of the cathedrals of the Empire 0:15:36.601,0:15:40.310 to make sure that it was one Church, one Mass, one song. 0:15:41.556,0:15:44.377 Notation meant that they didn't have to do this anymore. 0:15:44.377,0:15:49.148 It meant that the Church dictates about music - only monophonic music, only the human voice, 0:15:49.148,0:15:54.989 no accompaniment, only the approved tunes and chants - could be imposed form afar, 0:15:55.004,0:16:00.556 bringing musical uniformity to the breadth of the Empire. Or so they thought. 0:16:00.633,0:16:04.265 (Comic: "Though it's not clear how precise the notation was... At first, it was simple signs like this above the words to indicate when the tune went up or down.[br]But notation actually helped people supplement, innovate... and then preserve an transmit tunes they created)[br]By the way, we time-travel in the book. 0:16:04.265,0:16:06.980 and we do so and the doctor who taught us, 0:16:06.980,0:16:11.425 which is hurtling into space there - another one of our decisions in presenting it - 0:16:11.425,0:16:16.187 So, in fact, of course, notation did something very different as well. 0:16:16.187,0:16:19.890 It allowed composers to experiment in ways that they could never have done before, 0:16:19.890,0:16:23.841 particularly in polyphonic music, music with multiple melody lines. 0:16:23.841,0:16:29.095 It allowed the sharing and the borrowing of music by people who had never met face to face, 0:16:29.095,0:16:31.974 or ever heard the same live piece of music. 0:16:31.974,0:16:38.616 So notation, a technology intended to produce uniformity, to squelch experimentation and remix, 0:16:38.616,0:16:41.827 actually ended up enabling all of those things. 0:16:42.935,0:16:48.513 So, time and time again, our confident predictions about the effects of new technologies and regulation 0:16:48.513,0:16:51.701 on music turn out to be outdone by events. 0:16:51.701,0:16:56.413 And it's not clear that we're much better today in predicting the effects of technology 0:16:56.413,0:17:00.103 than we were in the Holy Roman Empire. 0:17:00.103,0:17:04.701 So, a slightly more recent example, from the early 1900's: 0:17:04.701,0:17:11.762 (Slide: read aloud by Jenkins:)[br]Now it seems (?) "When technologies change the patterns of costs and benefits, 0:17:11.762,0:17:14.745 incumbents turn to the state for recourse" 0:17:14.745,0:17:19.840 So in the late XIXth century, the disruptive technologies of the day were player pianos. 0:17:19.840,0:17:22.004 Has anyone ever seen...? 0:17:22.004,0:17:25.548 I always talk to my students about that as some people have heard of them, some people haven't. 0:17:25.548,0:17:27.941 It's a little mechanical piano roll, 0:17:27.941,0:17:33.357 and it actually makes the piano play the ragtime music or whatever it is that you're into. 0:17:33.357,0:17:39.853 So, at the time, copyright law only covered the printing and public performance of musical compositions. 0:17:39.853,0:17:44.915 It did not cover the mechanical reproduction from making a player piano roll 0:17:44.915,0:17:50.565 or a disc or cylinder for phonographs or grammophones. 0:17:52.134,0:17:55.304 (Comic: about player piano and Edison's invention of the phonograph)[br]Here's some of the techology that we are talking about. 0:17:57.166,0:18:02.181 So the composers and music publishers, when these new technologies came out, 0:18:02.181,0:18:08.269 went to Congress, claiming that these technologies were effectively stealing their property 0:18:08.269,0:18:14.178 and demanding that the law - the copyright law - should be changed to reflect that fact 0:18:14.178,0:18:19.837 and insure remuneration for every one of the piano rolls or discs that was produced. 0:18:19.837,0:18:23.926 So here is composer John Philip Sousa, who you may be familiar with: 0:18:23.926,0:18:26.133 His marches, which are played in marching bands, 0:18:26.133,0:18:31.062 at least I did - have you been unlucky enough to be subjected to that in high school ? - 0:18:31.062,0:18:33.683 (Comic)[br]So, here is John Philip Sousa. 0:18:33.683,0:18:38.524 (Jenkins reading slide) [br]"These companies" - the people producing these piano players pianos grammophones - 0:18:38.524,0:18:41.911 "take my property and put it on their records. 0:18:41.911,0:18:47.244 That disk as it stands, without the composition of an American composer like me on it, 0:18:47.244,0:18:49.413 is not worth a penny. 0:18:50.510,0:18:55.035 Put the composition of an American composer on it and it is worth $1.50." 0:18:55.035,0:18:56.950 Things were cheaper, back then. 0:18:56.950,0:19:00.684 "What makes the difference? The stuff that we write." 0:19:00.684,0:19:02.976 You should have to pay us for making these things, right? 0:19:02.976,0:19:05.824 We should change the law to reflect that fact. 0:19:06.297,0:19:11.236 Now, the nascent recording industry, the people who were making these new technologies, disagreed. 0:19:11.959,0:19:15.798 First of all, they denied that there was any theft 0:19:15.798,0:19:18.398 (Comic: Congress hearing with two quotations read just afterwards by Jenkins) [br]going on, and they rejected the notion of absolute property rights.[br] 0:19:18.398,0:19:25.928 They argued that copyright was a creature of statute, already reflecting in carefully balanced strucs (?) like Congress (?) 0:19:26.744,0:19:31.463 So, here is Philip Mauro of the American Graphophone Company Association (reads from comic:) 0:19:31.463,0:19:43.174 "All talk about "dishonesty" and "theft" in this connection, from however high a source, is the merest claptrap, for there exists no property in ideas, musical, literary, or artistic, except as defined by statute." 9:59:59.000,9:59:59.000 Second, they did not think that copyright holders should automatically reap the benefits 9:59:59.000,9:59:59.000 of an entirely new market that didn't exist before, 9:59:59.000,9:59:59.000 that had been created by technological innovation, the innovation of the companies that they represented. 9:59:59.000,9:59:59.000 So the piano roll industry representative pointed out 9:59:59.000,9:59:59.000 that new tech - new recording were not doing any harm to composers. 9:59:59.000,9:59:59.000 "It is therefore perfectly demonstrable that the introduction of automatic music players 9:59:59.000,9:59:59.000 has not deprived the composer of anything he had before their introduction" 9:59:59.000,9:59:59.000 The composers were still being paid for sheet music, right? 9:59:59.000,9:59:59.000 They are in the status quo, they are the same as before. 9:59:59.000,9:59:59.000 Why should we have to pay them for an entirely new market that we came up with? 9:59:59.000,9:59:59.000 And here is a quote that's not on there. This is Philip Mauro again, from the Graphophone Association - 9:59:59.000,9:59:59.000 ... very awkward back then: 9:59:59.000,9:59:59.000 "The composers and publishers have not contributed in the slightest degree to this change. 9:59:59.000,9:59:59.000 Yet the publisher does not scruple to demand radical change of legislation 9:59:59.000,9:59:59.000 in order to give him the entire monopoly of the benefits resulting from these changed conditions, 9:59:59.000,9:59:59.000 and has the effrontery to apply vituperative epithets to those who venture to oppose his scheme of greed." [laughter] 9:59:59.000,9:59:59.000 Good, ha? So, yes, in this case, the recording industry was siding with new technologies 9:59:59.000,9:59:59.000 and the freedom to copy, and against copyright extension. 9:59:59.000,9:59:59.000 So, what's fascinating, besides that fact, about these debates, 9:59:59.000,9:59:59.000 is the depth of discussion about how to allocate the new surplus, the new benefits 9:59:59.000,9:59:59.000 that are created by new technologies. 9:59:59.000,9:59:59.000 In this case, before these new technologies, 9:59:59.000,9:59:59.000 if you want to hear a song, you had to sing it or you had to play it, right? 9:59:59.000,9:59:59.000 You didn't intermediary - I mean, it's hard to imagine now. 9:59:59.000,9:59:59.000 But that's how, would you like to hear that song now? (?) 9:59:59.000,9:59:59.000 Well, do you have an orchestra? Tey can play it for you. [laughter] 9:59:59.000,9:59:59.000 Now, with these, you could actually listen to it without a human intermediary, and that's pretty neat. 9:59:59.000,9:59:59.000 And so these discussions actually talked about policy, new revenues that ought to automatically flow 9:59:59.000,9:59:59.000 to the copyright holders or to the technologists. 9:59:59.000,9:59:59.000 Right there (?) there was a policy debate that took into account the dangers of monopoly, 9:59:59.000,9:59:59.000 the benefits of technological progress, the public interest, 9:59:59.000,9:59:59.000 and the advancement of knowledge and culture. 9:59:59.000,9:59:59.000 And ultimately, Congress compromised. 9:59:59.000,9:59:59.000 It issued a compulsory licensing that once a composer allowed a song to be recorded, 9:59:59.000,9:59:59.000 anyone could record it and make one of these piano rolls or one of these discs, 9:59:59.000,9:59:59.000 as long as they paid a standard flat fee: at the time, two cents. 9:59:59.000,9:59:59.000 How did we present this compromise in the comic book form? 9:59:59.000,9:59:59.000 (Comic: [can't read])[br]We wrote a little ditty. [inaudible: "buzz buzz buzz Boyle"?] 22:30 9:59:59.000,9:59:59.000 We are a little silly sometime in the comic. 9:59:59.000,9:59:59.000 We're sort of very - one of my students said: 9:59:59.000,9:59:59.000 "You're puns remind me of the kind of puns my uncle makes." 9:59:59.000,9:59:59.000 And I was like, "Your uncle must be a very, very funny man" [laughter] 9:59:59.000,9:59:59.000 I don't think he intended it as a compliment but I took it as one. 9:59:59.000,9:59:59.000 So: first we talked about remix and borrowing, and now technology seems - (?) 9:59:59.000,9:59:59.000 Technologies are unruly - we are bad at predicting their effect - 9:59:59.000,9:59:59.000 and they change the pattern of costs and benefits. 9:59:59.000,9:59:59.000 And when this happens, the incumbents tend to try to grab the full scope of the new surpluses, 9:59:59.000,9:59:59.000 or the new benefits, but externalize the costs. 9:59:59.000,9:59:59.000 Now, if I were advising a music clan, I may very well take that position: it would benefit my clan. 9:59:59.000,9:59:59.000 But it's not the only position. 9:59:59.000,9:59:59.000 And comparing some of the current debates going on, 9:59:59.000,9:59:59.000 as we speak about new intellectual property legislation, 9:59:59.000,9:59:59.000 to the debates in 1909, it seems as though we might have been more sophisticated back then. 9:59:59.000,9:59:59.000 Third theme. We've done remix, we've done technologies, and now we're on to - 9:59:59.000,9:59:59.000 Dollar! The most exciting part. I can really race, you know, in a tree, like you put the slowest guy (?) 23:38 9:59:59.000,9:59:59.000 Here's the wall, it is actually pretty cool (?) 23:39 9:59:59.000,9:59:59.000 (Slide: text read by Jenkins)[br]So: "Our generation has a different relationship to musical culture than any other in history." 9:59:59.000,9:59:59.000 When did intellectual property loss start getting involved in this whole scheme, 9:59:59.000,9:59:59.000 and regulating music? 9:59:59.000,9:59:59.000 Music has not always been subject to copyright protection, 9:59:59.000,9:59:59.000 nor have there always been copyright laws 9:59:59.000,9:59:59.000 and the kind of copyright protection we are accustomed today 9:59:59.000,9:59:59.000 has only regulated music for a tiny, tiny sliver of its history. 9:59:59.000,9:59:59.000 So now, after the printing press was developed in around Renaissance, 9:59:59.000,9:59:59.000 states did grant - 9:59:59.000,9:59:59.000 (comic: score + texts: "Wait, this music we're in is patented!" "Not the music. Printing musical scores was hard in the 16th century. Petrucci had an intricate but accurate way to do it. He asked for a 20 year monopoly over all musical print in Venice as a reward.")[br]- look how cool that is: it's early printed music from the early 1500's - 9:59:59.000,9:59:59.000 - they did grant certain printing privileges. 9:59:59.000,9:59:59.000 So, the Italian music publisher Petrucci, who developed an intricate, 9:59:59.000,9:59:59.000 laborious and innovative way of printing music, 9:59:59.000,9:59:59.000 actually got an exclusive right for 20 years of all musical printing in Venice. 9:59:59.000,9:59:59.000 [inaudible] that's another one of Boyle's jokes. 9:59:59.000,9:59:59.000 But these printing rights went to the publishers, ok? 9:59:59.000,9:59:59.000 Not to the composers, not to the authors. 9:59:59.000,9:59:59.000 (Slide: Statute of Queen Anne)[br]It was in 1710 - those of you who are taking copyright know - 9:59:59.000,9:59:59.000 that the first copyright law, the Statute of Anne in Great Britain actually gave the rights - OK - 9:59:59.000,9:59:59.000 over their creations. 9:59:59.000,9:59:59.000 But this new law was not applied to music until 19 - I mean, 1777, 9:59:59.000,9:59:59.000 (Comic [copy texts?])[br]when J.C. Bach, the English Bach - 9:59:59.000,9:59:59.000 he was the 18th, 18th child - busy guy - of J.S. Bach brought a lawsuit. 9:59:59.000,9:59:59.000 And the court found that musical compositions could actually be writings that were covered by the Statute. 9:59:59.000,9:59:59.000 But the Statute only covered the reprinting of music. 9:59:59.000,9:59:59.000 It did not cover the kinds of borrowing that we've been talking about, 9:59:59.000,9:59:59.000 that you saw in the Super Berio brothers' example. 9:59:59.000,9:59:59.000 You only needed permission to reprint entire musical works, 9:59:59.000,9:59:59.000 you did not need permission to borrow fragments of musical works 9:59:59.000,9:59:59.000 or even to perform musical compositions. 9:59:59.000,9:59:59.000 (Comic: JC Bach's tombstone center. Texts: "Didn't do him much good. He died penniless a few years later. His creditors tried to sell his body to medical schools to cover his debts" "Wow, I thought the RIAA was hardcore" "So what did these copyrights cover?" "Basically just reprinting. You could perform the music without permission, you could borrow fragmentsfrom the music, you just couldn't reprint the entire work.)[br]More of our senseless sense of humor here. 9:59:59.000,9:59:59.000 I mean, amazing details when you research these people: 9:59:59.000,9:59:59.000 the poor guy died so poor that his creditors had to sell his body to medical schools to cover his debts. 9:59:59.000,9:59:59.000 Man. So even did - he won the case but didn't really do so well in the long run. 9:59:59.000,9:59:59.000 OK. That's sort of a very, very brief run through the history of [inaudible] copyright law, [26.19] 9:59:59.000,9:59:59.000 you know, start swimming in this, and this musical poor. 9:59:59.000,9:59:59.000 In the first place, in the US, there was a blip (?) too, 9:59:59.000,9:59:59.000 our first copyright act was passed in 1719, 9:59:59.000,9:59:59.000 did not explicitly cover musical compositions until 1831, and then, by analogy to books. 9:59:59.000,9:59:59.000 So, where are we now? A very different world. 9:59:59.000,9:59:59.000 (slide, read aloud:)[br]"We have begun to regulate music at the atomic level." 9:59:59.000,9:59:59.000 So, as I described, music has a rich and long history of borrowing, 9:59:59.000,9:59:59.000 and I talked about classical and jazz, but of course, this is as true across genres and subgenres. 9:59:59.000,9:59:59.000 (Cartoon: no text)[br]Take the blues, which draws from a rich commons of - oops 9:59:59.000,9:59:59.000 (Cartoon:"It's very difficult for me to talk about Chuck Berry because I've lifted every lick he ever played... This is the gentleman who started it all!" "Bye (?) Keith, if you tried to give Rock and Roll another name, you might call it Chuck Berry) 9:59:59.000,9:59:59.000 (Comic: "It's the DNA of the blues)[br]of scales, core percussions, standards. 9:59:59.000,9:59:59.000 I think this is a particularly beautiful image. 9:59:59.000,9:59:59.000 This is our - this is our professor Kelly [inaudible "charactered in"?] with Robert Johnson 9:59:59.000,9:59:59.000 and the DNA of the blues slowing (?) out oftheir instruments. 9:59:59.000,9:59:59.000 (Comic: same Keith Richards' quote about Chuck Berry as before)[br]Ehm - or take Rock 'N Roll. 9:59:59.000,9:59:59.000 Recognize these guys? One of them just wrote a book, one of them just had a birthday. 9:59:59.000,9:59:59.000 Keith Richards and John Lennon celebrating the contribution of Chuck Berry to Rock 'n Roll 9:59:59.000,9:59:59.000 and to their music in particular, 9:59:59.000,9:59:59.000 and Professor Aoki, our artist, just really [inaudible: "controlled artist"?] 27:33 9:59:59.000,9:59:59.000 I think these are particularly good renditions. 9:59:59.000,9:59:59.000 So, across genres, we have seen this long history of musical borrowing 9:59:59.000,9:59:59.000 and until relatively recently, for a variety of reasons, 9:59:59.000,9:59:59.000 the law as a general matter has not interfered with these practices. 9:59:59.000,9:59:59.000 But this changed with the practice of digital sampling. 9:59:59.000,9:59:59.000 Today, rap musicians, indeed, all musicians, are told to license the tiniest, shortest sample 9:59:59.000,9:59:59.000 when they make songs using fragments from prior ones, 9:59:59.000,9:59:59.000 even though music has relied on borrowing throughout its history. 9:59:59.000,9:59:59.000 What was considered creativity and now may be considered high art, 9:59:59.000,9:59:59.000 is now condemned as theft. 9:59:59.000,9:59:59.000 What happened? 9:59:59.000,9:59:59.000 (Several comic pages with no text)[br][inaudible] samples right here (28:17) 9:59:59.000,9:59:59.000 It started in 1991, with a case called Grand Upright 9:59:59.000,9:59:59.000 in which the rapper Biz Markie borrowed quite a bit, actually, from Gilbert O'Sullivan's "Alone Again", naturally. 9:59:59.000,9:59:59.000 And the judge in the case - 9:59:59.000,9:59:59.000 (Comic)[br]- decided the case with the quote "Thou shalt not steal!" 9:59:59.000,9:59:59.000 has been an admonition followed since the dawn of civilization. 9:59:59.000,9:59:59.000 citing to the Bible - always got to cite your sources - [laughter] 9:59:59.000,9:59:59.000 Did the judge discuss any copyright law? No. [laughter] 9:59:59.000,9:59:59.000 Ten Commandments. Sampling was theft, pure and simple. 9:59:59.000,9:59:59.000 So, that was the first case, and the second case at a district circus in 2005, 9:59:59.000,9:59:59.000 was where a Federal Appeals Court famously announced: "Get a license or do not sample!" 9:59:59.000,9:59:59.000 So all samples should be subject to license, to payment and to getting permission. 9:59:59.000,9:59:59.000 In this case, the rap group NWA digitally sampled a 2-second, 3-note guitar riff. 9:59:59.000,9:59:59.000 So, here is the original guitar riff - George Clinton, but he doesn't own the rights, 9:59:59.000,9:59:59.000 a company called Bridgeport Music owns his rights, 9:59:59.000,9:59:59.000 and [inaudible] 9:59:59.000,9:59:59.000 [guitar riff excerpt: wobbling screech][br][inaudible: "that's it, in a loop"?] 29:42 9:59:59.000,9:59:59.000 That's what they sampled. 9:59:59.000,9:59:59.000 Now try - try to hear it in the background of the NWA song called “A 100 Miles and Runnin’” 9:59:59.000,9:59:59.000 [song excerpt - words inaudible, accompaniment made of several samples] 9:59:59.000,9:59:59.000 Ehm, we cut out some of the obscenities [laughter] 9:59:59.000,9:59:59.000 you know, for the benefit of the audience, there is an unedited version. 9:59:59.000,9:59:59.000 NWA changed the pitch and the tempo 9:59:59.000,9:59:59.000 to the point in which it sounds kind of like a police siren in the background, 9:59:59.000,9:59:59.000 but it's not even recognizable as the original riff, as the original guitar riff. 9:59:59.000,9:59:59.000 They were sued. 9:59:59.000,9:59:59.000 And you may think that this kind of appropriation, this kind of taking is too trivial to care about. 9:59:59.000,9:59:59.000 And in fact, in copyright law, we have a doctrine called "De minimis", 9:59:59.000,9:59:59.000 which is Latin for "too trivial to care about", [laughter] you know. 9:59:59.000,9:59:59.000 So, in this case, you're like well, it was three notes, it was two seconds, right, 9:59:59.000,9:59:59.000 so if anything is going to be "de minimis", this sounds "de minimis" to me, 9:59:59.000,9:59:59.000 but the court said no. 9:59:59.000,9:59:59.000 How much would count as "de minimis" copying? 9:59:59.000,9:59:59.000 The court said: really, one note, maybe, based on the definition of the Copyright Act. 9:59:59.000,9:59:59.000 So, what's happening here? 9:59:59.000,9:59:59.000 This level of granularity - licensing 2 or 3 notes - is completely new, right: 9:59:59.000,9:59:59.000 if we look at this history, this is a new kind of regulation. 9:59:59.000,9:59:59.000 IP rights are being applied literally down to the atomic level of culture 9:59:59.000,9:59:59.000 and tiny fragments of music come loaded with demands for payment and copyright protection. 9:59:59.000,9:59:59.000 And so the result is a king of stratified culture. 9:59:59.000,9:59:59.000 You might say: "But people are sampling all the time". 9:59:59.000,9:59:59.000 They are. Musicians are still sampling and experimenting under the radar. 9:59:59.000,9:59:59.000 But the music being produced by the labels are following industry norms of licensing of samples. 9:59:59.000,9:59:59.000 And this actually changes the music that we get. 9:59:59.000,9:59:59.000 It changes the way the music sounds. [31:40] 9:59:59.000,9:59:59.000 So the sample-heavy wallops sounds (?) music from groups like Public Enemy in the 80's 9:59:59.000,9:59:59.000 sounds completely different than, for example, whatever his name is, Puff Daddies (?) 31-51 9:59:59.000,9:59:59.000 "I'll be missing you", which has the Police's "Every Breath You Take" 9:59:59.000,9:59:59.000 just leaping up on and on in the background, right? 9:59:59.000,9:59:59.000 There's one sample going on and on, not hundreds or thousands of samples, 9:59:59.000,9:59:59.000 creating this brilliant sonical sound (?) 9:59:59.000,9:59:59.000 And so the licensing practices actually are changing, they are changing the conditions of creativity, 9:59:59.000,9:59:59.000 and they are changing the way that music that we get, at least from the mainstream outlets, 9:59:59.000,9:59:59.000 And the question is, will this kind of licensing practices, will this kind of cases -- 9:59:59.000,9:59:59.000 are they going to give us more culture, more art, more creativity? 9:59:59.000,9:59:59.000 After all, that's the purpose of copyright law, 9:59:59.000,9:59:59.000 to encourage and promote the production of art and creativity. 9:59:59.000,9:59:59.000 I don't think so, if we look at this history, which has blues, rock, soul, 9:59:59.000,9:59:59.000 any of these genres have developed the same way as they did under this kind of legal regime? 9:59:59.000,9:59:59.000 Probably not. 9:59:59.000,9:59:59.000 (Get a license or do not solo) 9:59:59.000,9:59:59.000 (Unlike prior generations, our contemporaries' music may be legally off limits for us to build on, absent permission or payment)[br]So, in the last section of this talk, first theme, 9:59:59.000,9:59:59.000 we have these cases that are regulating music down at the atomic level. 9:59:59.000,9:59:59.000 That's one unique feature of our current copyright scheme. 9:59:59.000,9:59:59.000 The other is that copyright will last a long, long time. 9:59:59.000,9:59:59.000 To quote Professor Boyle, we are the first generation in history to deny our culture to ourselves. 9:59:59.000,9:59:59.000 What does that mean? 9:59:59.000,9:59:59.000 Until 1978, the copyright term in the US was 28 years, with the option to renew for another 28 years, 9:59:59.000,9:59:59.000 and most rights holders did not renew because they were of course not making money anymore (?) 33:25 9:59:59.000,9:59:59.000 So, what would be the point? 9:59:59.000,9:59:59.000 So after 28 years, works were falling into the public domain, you could freely do any of these things 9:59:59.000,9:59:59.000 without having to worry about it as the works were no longer subject to copyright protection (33:35) 9:59:59.000,9:59:59.000 Now, the copyright term is the life of the author plus 70 years 9:59:59.000,9:59:59.000 or in the case of corporate works, works owned, you know, by Disney, by labels, 95 years from publication. 9:59:59.000,9:59:59.000 So that's a long time. If people in this room were, say, 30, and you lived to, say, 90, 9:59:59.000,9:59:59.000 if you write something right now, 130 years from now, 9:59:59.000,9:59:59.000 that's when your work is going to go in the public domain. 9:59:59.000,9:59:59.000 That's very different from 28 years. 9:59:59.000,9:59:59.000 As a result, music published since 1923 is presumptively off-limits, 9:59:59.000,9:59:59.000 and if you just think about the law in 1978, under the law then, 9:59:59.000,9:59:59.000 most music would go in the public domain after 28 years. 9:59:59.000,9:59:59.000 And so, works from the early 80's would be free again. 9:59:59.000,9:59:59.000 Even if the term was renewed, works from 1953 forward would be in the public domain. 9:59:59.000,9:59:59.000 So, copyright term is much longer than it used to be 9:59:59.000,9:59:59.000 and perhaps even more interestingly, these terms have been retrospectively applied. 9:59:59.000,9:59:59.000 (Van marked © stops in graveyard. Big bloke says "He needs more copyright" "Get out the paddles". Applies reanimation paddles to a composer's tomb. Attendant 1: "Still, no response." Attendant 2: "OK, let's give him another 70 years". Bloke with paddles: "yeah yeah".Dead composer: "Don't they know the difference between composing and decomposing?")[br]not just prospectively, 9:59:59.000,9:59:59.000 to new works that are being created, but to works that are already out there, already created, 9:59:59.000,9:59:59.000 in many cases, applying to dead musicians. 9:59:59.000,9:59:59.000 How did we present that in our comic? 9:59:59.000,9:59:59.000 This is our adventures - you know, we know the stuff, we research the stuff [inaudible] work: 9:59:59.000,9:59:59.000 "Can we come up with a funny way to present it visually?" 9:59:59.000,9:59:59.000 I think "Don't they know the difference between composing and decomposing" is actually - 9:59:59.000,9:59:59.000 that's Boyle again: I do the nerdy research and then he comes up with these brilliant bulls 9:59:59.000,9:59:59.000 but I particularly like that one. 9:59:59.000,9:59:59.000 So, two changes: regulating music at the atomic level, copyright term lasts a long, long time 9:59:59.000,9:59:59.000 (Comic: Hand holding egg: "Traditionally we had a thin layer of intellectual property protection surrounding a large and rich public domain." "It didn't cove very much, and it didn't cover it for very long." Hand crushes egg: "Now the balance between what is and isn't protected has been upset, copyright law may no longer serve the interests of creators.")[br]- this is from our previous comic book, colorized - 9:59:59.000,9:59:59.000 perhaps upsetting the careful balance - we saw the balance invoked in the 1909 debates 9:59:59.000,9:59:59.000 that was built into copyright law, between control of works on the one hand, 9:59:59.000,9:59:59.000 and freedom to use those works on the other. 9:59:59.000,9:59:59.000 So, if we look around this audience, absent is a conspicuous choice: 9:59:59.000,9:59:59.000 those of you who write music, putting it under a Creative Commons license, for example, 9:59:59.000,9:59:59.000 no piece of culture produced by anyone in this room 9:59:59.000,9:59:59.000 is going to be part of the culture on which you can build - logical matter (?) 35:51 9:59:59.000,9:59:59.000 That wasn't true for Brahms or for Beethoven, 9:59:59.000,9:59:59.000 and when you combine the longer copyright term and the increasingly strict licensing practices that I talked about, 9:59:59.000,9:59:59.000 you could say that this also wasn't true for Dizzy Gillespie or Robert Johnson, 9:59:59.000,9:59:59.000 the giants of jazz or blues or rock 'n roll. 9:59:59.000,9:59:59.000 And so we do live in very unique times in terms of the legal regime that regulates music. 9:59:59.000,9:59:59.000 Now, again, maybe this change is a good one, 9:59:59.000,9:59:59.000 maybe extremely long copyright terms and licensing practices will give s better music 9:59:59.000,9:59:59.000 than that created by all our forbearers, but I'll have to say I am doubtful about that. (36:24)