abstract: 26/06/02

The art of sampling, or creating music from sections lifted from a pre-existing composition, was brought to public recognition and popularity by the ‘scratch’ DJs of the late 1970s, whose technique centred on mixing short segments of recognisable tunes, or instrumental sections as ‘breaks’, on top of the record that they were playing. In its early days, many decried sampling as piracy, yet it has become a backbone of contemporary dance styles. With the advances in music technology through the 1980s and 90s, the technique developed into complex forms such as jungle, and indeed many of the dance anthems of the 1990s, such as Orbital’s “Halcyon & On & On”, would not exist without sampling technology. Yet sampling is not a new idea. Since the Middle Ages, composers freely made use of quoted material. The masses of Guillame Dufay (c.1400-1474) were all based on popular melodies, or open segments lifted from another composer’s composition. Later, Bach, Mozart and Handel all made use of fragments of music written by their contemporaries, or even made reference in their music to their own prior compostions. This practise continued into late 19th and 20th century classical music, and was not considered to be lacking in originality or violating a composer’s rights, but was in fact seen as a form of homage. Likewise, in literature, in the days before mass-production was possible, when the cost of creating one single book by a scribe was enourmous, revisions were made by adding comments in the margins and all were free to add or amend the text. This practise, known as ‘marginalia’, is very close to the principles of the free software movement today, where researches distribute programs along with their source code, under a licence that permits modification and redistribution of the program so that developers may learn from each other’s work.

Copyleft traces the evolution of copyright law and its coincidence with the beginnings of mass-production of music and the rise during the last century of corporate music giants such as Sony, Bertelsmann and AOL/Time/Warner whose influence now controls the music industry and an artists means of generating income. The book asserts that copyrighting material is not so much a concern with originality or the intellectual property of the artist, but about financial control over what has become a valuable and marketable commodity.

While sampling is now acknowledged as being a creative art form in its own right, it still creates legal nightmares for an artist wishing to use these techniques within the current system of copyright law. The irony is that these laws, which exist for the protection of an artist’s so-called intellectual property, often lead to the artist him/herself making little or no money, as the vast majority of royalty fees are consumed by the record companies themselves. On average, an artist receives around one dollar from each CD sold, and even then, these royalties must be offset against advances and production costs (Stallman, R.M. “Free Software and Beyond”, presentation at The Wizards of OS conference, July 1999). It is very common even for high-profile artists to make a loss after the production of a top-selling CD, as Mariah Carey found in her recent legal battles with EMI (Reuters, Dec. 28, 2001). In addition to this, an artist’s creativity is limited due to the heavy royalties imposed upon the use of samples, or sometimes outlawed altogether, as in the case of Negativland’s release “U2”. Negativland were threatened with legal action by the Record Industry Association of America (RIAA) over their release “U2”, a satirical work which consists of comment added by the band over a quote of the entire U2 song “I still havent found what i’m looking for”. The band also found their master CDs seized at the pressing plant by the RIAA, who are now seeking to prosecute any pressing plant reproducing CDs containing unauthorised samples. In a complex defence, Negativland asserted that sampling constitutes Fair Use under the existing copyright laws, and successfully had the motion defeated on these grounds (Negativland, “Do We Have to Sue the RIAA?”, press release 17 August 1998, http://www.negativland.com/riaa/dowesue.html).

The Australian band The Avalanches found the release of their recent album “Since I Left You” threatened, as their unique style hinges upon a complex layering of samples. The release was delayed for months while the band had to hire a specialist lawyer and an SEO company to detect and authorise the hundreds of samples used on the album. Some artists, frustrated by the limitations that the current interpretations of Fair Use laws impose upon their work, have in retaliation turned to deliberately breaking copyright law as a form of protest against the restrictions that it places upon their creativity. The record label “illegal art” (http://www.detritus.net/illegalart/) is home to a group of artists who quite deliberately, yet carefully, break these laws - although their work is still restricted due to the necessity for them to obscure the samples so as not to be prosecuted (Penrose, C. “A Note for Lawyers” on “After the Taj Mahal”, http://www.music.princeton.edu/TajMahal/after_lawyers.html).

In recent years peer-to-peer file sharing technology has mushroomed across the internet, leading to high profile cases such as that which lead to the closure of Napster, and its reintroduction as a pay-per-use system. Despite attempts to control peer-to-peer technology through the threat of continued lawsuits, it is widely acknowledged and accepted in the software industry that file sharing is here to stay, and that it is unlikely that anyone will completely manage to shut it down (Cochrane, P. “Napster, Just the Beginning”). Likewise, reverse engineering and software ‘piracy’ will always continue. As soon as one pirate site is shut down, another springs up in its place - there will always be another skript kiddie willing to have a crack at a copyright protection key or dongle. The loss of revenue to ‘piracy’ may seem great: it was estimated by the BSA Piracy Report that in the year 2000, worldwide losses in the software industry due to all forms of ‘piracy’ were estimated at around $12 billion. This is indeed a substantial figure, but when measured against global software sales, which today reach in excess of $100 billion, or against the annual profits of a single company such as Sun Microsystems ($17.6 billion in 2001) or Microsoft ($13.6 billion), the realistic percentage loss due to ‘piracy’ is in fact quite low, probably around a similiar level to average in-store losses to theft. It is also safe to assume that a significant portion of annual losses occur due to commercial resellers of pirated copies, rather than through peer-to-peer distribution. We are living in a commercial age, where people like to buy their software shrink-wrapped and attractively pre-packaged off the shelf, with technical support included “in the box”. Does file sharing really pose such a threat to income? The continued prevalence of file sharing applications such as KaZaa, Audiogalaxy, Spinfrenzy.com and Junglemonkey.net has not, as yet, been proven to have caused great losses in software sales. These applications have been more difficult to shut down than Napster, as the technology does not rely on a central server, but links one home machine with another, making it impossible for anyone to take around 100 million worldwide internet users to court (Cochrane, P., ibid.). In the business environment, companies continue to purchase licenses legally, under fear of software audits and strict penalties. The distribution of pirated software via file sharing applications primarily occurs among those who would not have the money to purchase the software anyway, and so a realistic figure of the actual loss of revenue due to ‘piracy’ is difficult to quantify. Some argue that in fact the unauthorised distribution of software through peer-to-peer systems has acted as a form of sales promotion, since it has acheived an unforseen level of market penetration (James, M. “Used and Abused”, in Visual Systems Journal, Feb 2002).

In the performing arts, the issue is deeper felt, as it is argued that file sharing and sampling not only cause loss of revenue through lost sales and royalties, but infringe the artists own ‘intellectual property’. The question constantly arises of how best to protect an artist’s rights, or to ensure that the artist earns their rightful share, given that, as mentioned above, an artists’ gross income, before offsets against production costs, is less than ten percent of the sales of their music.

‘Copyleft’ proposes that a possible solution exists in the free software movement, and that there is much to be learned from the legal precedences set by Richard Stallman’s ‘copyleft’ licenses such as the Gnu General Public License (GPL). Stallman designed these licenses and the concept of ‘copyleft’ when he became frustrated with the restrictions which prioprietary software places on a programmer’s freedom to learn and develop new ideas. Later, he worked together with Eben Moglen, paralegal representative for Gnu.org to ensure that his license was legally watertight. Stallman established the Free Software Foundation, an organisation dedicated to providing software under such licenses, which permit resale, modification and reverse engineering of the product, practises normally outlawed in commercial software distribution. The one condition under which Stallman licenses his software is that any redistribution must be under the same license, and any modification of the software must be fed back to the community, effectively meaning that his own rights as the author of the original material are never infringed. Software published under GNU Licenses must also be provided for free download from the internet, although the distributor is permitted to charge for the costs of manufacturing packaged copies. Copyleft licenses still protect the intellectual property of the creator, but are designed in order to allow others the freedom to study, learn from, and modify the designs so that research may be furthered. There have been some attempts already to publish material other than software under copyleft licensing, such as the Open Audio License and other licenses for artistic material listed on the Electronic Frontier Foundation’s website (http://www.eff.org).

It is clear that an open licensing system could well be financially viable, since it has already proved itself through its most famous example, the GNU/Linux operating system. Many large companies worldwide distribute GNU/Linux under various names: Red Hat, Mandrake, SuSE; and can afford to support a group of programmers through their profits, despite the availability of the GNU/Linux systems for free download. Record companies would perhaps not be happy with such a system, as they are the ones who receive the majority of revenues from sampling, not in fact, as the case is usually made, the much-maligned artist. Ironically, if sampling had not been permitted under the current complex system of royalties, then many of the major record labels would not be making money out of Top 40 artists such as Steps, Missy Elliot, Orbital, and Puff Daddy, amongst others.

But the crux of the issue lies not in whether an open licensing system could actually create revenue, but in basic human rights such as free speech and freedom of thought. Do we really want not only our software, but all of our intellectual and creative output locked away by patenting so that research into improving these ideas is outlawed, being classified as reverse engineering? To examine and redevelop a piece of proprietary software is illegal, yet understanding the design of a piece of software is the only way progress can happen without constant reinvention of the wheel. It has already been proven that sampling has lead to evolution in musical style during the late 1980s and 1990s, and in the arts such styles as Dada and Pop Art would not have existed without techniques of collage and the copying of recognisable logos. It is only in the corporate climate of recent years that creative use has been restricted, as companies wise up to the idea that their patent or trademark may be used to create substantial revenue in the form of royalties. It is quite likely that today, under similiar royalty laws, Andy Warhol might have found himself sued for painting an everyday object such as his can of Campbell’s Soup, once hailed as an icon of Pop Art and postmodernist culture. To lock away the right to examine, sample and modify a piece of music may well be preventing important developments in contemporary music.

Professor Edward Felten was prevented from presenting his scientific study of flaws in the DVD decryption software DeCSS by the Secure Digital Music Initiative - the very organisation that challenged researchers to see if they could crack the SDMI code. With the support of the Electronic Frontier Foundation (http://www.eff.org) he challenged the RIAA and SDMI with a lawsuit under the grounds that the DMCA (Digital Millenium Copyright Act US 1201) was in contravention of the First Amendment, which provides for an American citizen’s right to free speech. First Amendment legislation provides a good foundation for American citizens to explore invention in freedom, but these rights cannot be relied on worldwide as a means of protection from prosecution. Unfortunately, Felten’s suit was dismissed by the judge, despite strong grounds that the threatening letters he received from the RIAA and SDMI were illegal under American law. Even so, the introduction of software patenting in America has meant that former public domain methods such as CGI, TCP/IP and internet RFC’s such as network address translation are being grabbed by the major software companies in what can only be described as a frenzy of greed, feeding on information which rightly belongs in the public domain.

‘Copyleft’ rises controversially against the concepts of so-called ‘piracy’ and ‘intellectual property’, believing that these words are in fact propoganda, devised by the corporations which make money off the artists’ backs, and are rarely in use by artists themselves (see http://www.gnu.org/philosophy/words-to-avoid.html). To quote Richard M. Stallman, “piracy is storming a ship”: he believes that all materials should be free to share, in the same way that, on purchasing a book, one is free to lend it to friends, read from it in public, or donate it to a secondhand bookstore where another person may benefit from buying and reading it. Under copyleft licensing, one is free to do all this and more, in order that society may benefit from the learning experience.

Information is not just a privelege, but a basic human right, and our rights to education are threatened by the rise of so-called ‘Digital Rights Management’ laws. What is at stake is whether we wish to have not only our software and creative artwork, but also our hobbies, our culture and the music that we listen to controlled by multinational corporations and force fed to us in sanitised, pre-packaged and politically acceptable forms, becoming as it were a method of propaganda akin to the control in which Communist governments of the Cold War era asserted over the thinking of their populations. Is it possible for us to preserve our rights to freedom of information, freedom of thought, and freedom of speech through a licensing system that better provides for learning, understanding and progress in invention? Copyleft asserts that this is possible through the use of free licenses such as the GPL.

‘Copyleft’ in itself is a unique book, as it will be released under the copyleft principles of the GNU licenses, and available concurrently with book sales for free download from the Internet. Verbatim copying of the book will be freely permitted, as long as any quotation or reproduction is itself subsequently permits redistribution. By setting an example through the use of this license, the author seeks to demonstrate that such an idea has legal precedence and can be practically applied in not only in the software industry but also in the arts and creative media.

‘Copyleft’ is to be published by GNU Press in 2003..

Copyright ©2002 Miriam Rainsford.

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