[rumori] What is wrong with copyright law? (was: copyright protection on hard drives)

From: Every Man (every.manATpressthebutton.com)
Date: Thu Dec 21 2000 - 11:08:48 PST

I figured there already had to be tons of sane and legally applicable
outlines out there about what we're doing, but came across this on the
droplift website. Seemed appropriate to paste it here.

>From Negativland's Changing Copyright:

In an attempt to suggest a culturally sane solution to the continuing legal
confrontations between owners of copyrighted cultural material and others
who collage such material into new creations, we advocate a broadening of
the copyright concept of Fair Use. We want the Fair Use statutes within
copyright law to allow for a much broader variety of free, creative reuses
of existing work whenever they are used in the creation of new work. The
world wide corporate assumption of private cultural ownership is now
fencing off such timely artistic directions by using copyright law to
assert that virtually any form of reuse without payment or permission is
theft. From their economic point of view, cultural owners now use copyright
law as a convenient shield from "direct reference" criticism, and a legal
justification for total spin control and informational monopolization in
the marketplace.

However, from an artistic point of view, it is ponderously delusional to
try to paint all these new forms of fragmentary sampling as economically
motivated "theft", "piracy", or "bootlegging". We reserve these terms for
the unauthorized taking of whole works and reselling them for one's own
profit. Artists who routinely appropriate, on the other hand, are not
attempting to profit from the marketability of their subjects at all. They
are using elements, fragments, or pieces of someone else's created artifact
in the creation of a new one for artistic reasons. These elements may
remain identifiable, or they may be transformed to varying degrees as they
are incorporated into the new creation, where there may be many other
fragments all in a new context, forming a new "whole". This becomes a new
"original", neither reminiscent of nor competitive with any of the many
"originals" it may draw from. This is also a brief description of collage
techniques which have developed throughout this century, and which are
universally celebrated as artistically valid, socially aware, and
conceptually stimulating to all, it seems, except perhaps those who are
"borrowed" from.

No one much cared about the centuries old tradition of appropriation in
classical music as long as it could only be heard when it was played live
in front of your ears. But now all music exists as a mass produced,
saleable object, electronically frozen for all time, and seen by its owners
to be in continuous, simultaneous economic competition with all other
music. The previously interesting idea that someone's music might freely
include some appropriated music of another has now been made into a
criminal activity. This example is typical of how copyright laws now
actually serve to inhibit or prevent the creative process, itself, from
proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative
technique of appropriation has jumped from the mediums in which it first
appeared (principally in the visual fine arts of painting, printmaking, and
sculpture) to popular, electronic mass distributed mediums such as
photography, recorded music, and multimedia. The appearance of
appropriation techniques in these more recent mass mediums have occasioned
a huge increase in owner litigations of such appropriation based works
because the commercial entrepreneurs who now own and operate mass culture
are apparently intent on obliterating all distinctions between the needs of
art and the needs of commerce. These owners of mass produced cultural
material claim that similarly mass produced works of appropriation are a
new and devastating threat to their total control over the exclusive
profits which their properties might produce in the same mass marketplace.
They claim that, art or not, an unauthorized appropriation of any kind can
not be allowed to directly compete in the appropriated material's avenue of
commerce, as if they were equal in content, and equal in intent. The degree
to which the unique nature and needs of art practice do not play any part
in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal
in music unless the artist can afford to pay for each and every fragment he
or she might want to use, as well as gain permission from each and every
owner. Consider how this puts a stop to all independent, non-corporate
forms of collage in music, and how those corporately funded collage works
which can afford the tolls had better be flattering to the owner in their
usage. Where does such a routine thwarting of common free expression lead
to? Society does not thrive on commerce alone, and an enlightened one would
have long ago established the legal primacy of artistic intent and
authority to be at least equal to that of private commercial activities
when these two social forces come to blows within our free market system.
One feeds the mouth, but the other feeds the spirit, and either one without
the other can only be seen as a form of societal decline. And if you don't
think the overwhelming colonization and monopolization of creative formats
by economic interests has had a debilitating effect on the very practice of
creativity, you have already succumbed to that homogenized haze of
inconsequence which commercial media surrounds us with day in and day out.

Because art is not defined as a business, yet must compete for economic
survival in the business marketplace, we think certain legal priorities in
the idea of copyright should be turned upside down. Specifically, a
revision of the Fair Use statutes should throw the benefit of the doubt to
artistic reuse and place the burden of proof on the owner/litigator. When a
copyright owner wished to contend an unauthorized reuse of their property,
they would have to show essentially that the usage does not result in
anything new beyond the original work appropriated. However, if the new
work is judged to significantly fragment, transform, rearrange, or
recompose the appropriated material, and particularly does not use the
entire work appropriated from, then it should be seen as a valid fair use -
an original attempt at new art whether or not the result is successful and
pleasing to the original artist, the owners of his or her work, or the court.

This would fully protect the owner's undisputed right not to be bootlegged,
and it's NOT difficult to determine! Think of any past or present examples
of unauthorized bootlegging, and any past or present examples of artistic
appropriation, and you will find it is always perfectly obvious which is
which. The difference between any kind of fragmentary transformation of
existing work, and the unmanipulated presentation of whole works by others,
which is required for successful bootlegging, would be as clear to courts
and juries as it is to us. But this is precisely the crucial distinction in
methodology which present law seems unwilling to acknowledge, thus throwing
all kinds of valuable creative techniques and motivations into the same
criminal hopper with economically motivated ripoffs. Both our courts and
our corporations are now in the untenable position of assuming that once a
work becomes a saleable object, that becomes its only significant roll in
society, and that roll is the only one the law should be concerned with.

We acknowledge there are some complex difficulties in delineating exactly
how fragmentary appropriation and esthetic motivation might be defined and
allowed within revised Fair Use statutes. But awkward as that process may
seem, we think that effort is possible. We presently see neither wisdom nor
integrity in a set of laws that, except for very narrowly interpreted "fair
use" allowances, simply ignores the validity, even the very existence of
various established and valued art practices based on "direct referencing",
(Surrealism for example) which have evolved through art formats of all
kinds since the turn of this Century, yet do not necessarily fit within the
Fair Use guidelines. Now it is implied that artists should actually strive
to fit within the narrowly specified "Fair Use" government guidelines
whenever attempting to use appropriated elements in new work. But when you
become aware of the tiny sliver of specific artistic activity which Fair
Use now allows, it doesn't take an artist to see that there is much more to
be done with all the media influences which surround us. These ideas range
far, wide, and weird, not always following the strictly defined "rules" of
parody or carefully controlled commentary which the tiny tunnel of Fair Use
statutes now provide for.

Please consider the ungenerous and uncreative logic we are overlaying our
culture with. Artists will always be interested in sampling from existing
cultural icons and artifacts precisely because of how they express and
symbolize something potently recognizable about the culture from which both
they and this new work spring. The owners of such artifacts and icons are
seldom happy to see their properties in unauthorized contexts which may be
antithetical to the way they are spinning them. Their kneejerk use of
copyright restrictions to crush this kind of work now amounts to corporate
censorship of unwanted independent work. Unlike the basic thrust of all the
rest of U.S. law, copyright law actually assumes that all unauthorized uses
are illegal until proven innocent, and any contested "fair use" always
requires a legal defense, which remains beyond the financial grasp of most
accused "infringers". This financial intimidation results in the vast
majority of art appropriators caving in and settling out of court, their
work being consigned to oblivion, and the "owners" having it all their way,
including their expenses paid under the guise of "damages".

The question we want you to consider is this: Should those who might be
borrowed from have an absolute right to prevent any such future reuses of
their properties, even when the reuse is obviously part of a new and unique
work? Do we want to actually put all forms of free reuse under the heading
of "theft" and criminalize a valuable art form such as collage? - A form
which may involve controversial social/cultural references and cannot
operate true to its vision when permission is required. Present copyright
prohibitions appear unable to appreciate the flow of the art forest because
they are forever fixated on the money trees. One might say that Soviet
Communism finally fell because it insisted on ignoring the human nature of
its own citizens. Here in the land of the free, as well as everywhere else,
it is basic to human nature to copy for our own creative purposes - in
fact, it's how we got to this level of civilization. This ageless aspect of
human creativity is nothing but desirable and need not be criminalized when
the motive is to create new work.

The law must acknowledge the logical and inalienable right of artists, not
publishers and manufacturers, to determine what new art will consist of.
The current corporate control over our technologically based culture has an
ominous feel to it because these private owners of our common cultural life
have succeeded in removing the concept of culture from a pluralistic
dispersement of esthetic ideas, born and realized by individual creative
impulses, and given it over to fewer and fewer corporate committees of
molders and marketers who are driven only by an over riding need to
maintain an ever rising bottom line for their shareholders in the culture
market. Is the admittedly pivotal role which society places on commerce
really so unassailably useful when it begins to inhibit and channel the
very direction of an "independent" art form, "allowing" it to evolve this
way, but not that way? Is the role of Federal Law to serve the demands of
private income, or to promote the public good through free cultural
expression? Both?

Then the crux of the debate we hope to raise is how are we going to
maintain reasonable forms of fair compensation for artists and their whole
parasitic entourage of associated agents without inhibiting, stifling, or
criminalizing perfectly healthy and valuable forms of independent music/art
practice which arise out of new, enabling technology? We believe the
promotion of artistic freedom should, for the first time, find a balanced
representation with the purely commercial guidelines which now dominate
copyright law.

Finally, this shift in the mental paradigm which now deifies all-
encompassing private ownership must be forged and supported in all the
little areas which now attend it. For instance, contract clauses between
music labels and their artists which assert the label's exclusive right to
market the artists' work could conceivably be renegotiated by fair use
supporters to include the possibility of a subsequent fair use of the
artist's work by anyone else. The clear and crucial distinction between
bootlegging and fair uses, and the change in attitude towards the artistic
legitimacy of Fair Use, should be reflected in the very legal documents of
private enterprise which occasion all these lawsuits in the first place.
Contracted artists who support Fair Use could begin demanding such clause
adjustments in their contracts now, and in fact, this would be an
interesting means for the traditionally "helpless" artist to actually begin
affecting this artistically desirable change in our present legal system,
as they are apparently the only people involved who are capable of putting
art before profit, and no one else involved appears willing to push this
convention challenging juggernaut into reality.

For more thoughts on audio collage and copyright law, try "Plunderphonics,
or Audio Piracy as a Compositional Prerogative" at
Negativland's "Fair Use" essay at http://www.negativland.com/fairuse.html,
or Crosley Bendix "Discusses The US Copyright Act" at

Every Man every.manATpressthebutton.com
Press The Button, Midnight - 3 am Sundays
WRUW, 91.1 FM, Cleveland, OH
NETCAST http://www.wruw.org
HOMEPAGE http://www.pressthebutton.com

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