One of the notable sub-themes in the early episodes of Ken Burns’ “Country Music,” covering the music’s roots and formative decades, is the extent to which the various genres that make up the category — country, western swing, blue grass, honky tonk — emerged from a musical commons.
All of them drew on older musical traditions, some of it brought to America by Old World immigrants and diaspora. Melodies were borrowed and fitted to new lyrics; lyrics were set to new melodies; licks were re-used. And everyone borrowed from African-American blues, which provided the Ur scale and chord changes for American folk and popular music, and which itself coalesced out of a deep musical commons.
Though notable, the importance of the commons in the development of both blues and country music is not surprising. That’s how folk art forms work. The works themselves are expressions of a tradition, not simply isolated examples of it, and their authorship is in an important sense a collective product of that collective tradition.
The introduction of commercial recording and radio’s abandonment of live performances in favor of playing records changed all that for country and other folk forms of music.
The fixed nature of a recording isolates a work from its own history. I never changes. It transformed what had been an expression of a collective tradition into an individuated example of it. It gave individual authorship reputational value worth defending, and copyright law gave authorship economic value worth protecting.
Though producing records would eventually develop into an art form in its own right, recording technology, bolstered by copyright law, inevitably touched off a gradual enclosure of the folk musical commons. Melodies and lyrics were no longer to be considered cultural property but individual works of authorship, and borrowing or copying them could have legal consequences.
The creative and cultural value of the commons has a way of reasserting itself, however.
Today, it’s recording artists themselves who have evolved a kind of creative commons. Artists today routinely incorporate bits and pieces of other recordings into their own. DJs assemble new recordings by mixing and mashing up dozens, even hundreds of separate recordings. Elements for new recordings — beats, stems — are widely available and easily incorporated into tracks.
Many recordings today are credited to multiple authors reflecting the multiple tracks they drew on.
Even country music’s biggest hit of 2019, Lil’ Nas X’s “Old Town Road,” was in part a product of the commons. It began with a purchased beat, which was used to create a TikTok meme, which then became popular on YouTube turning the track into a hit in its own right, which led to its being re-recorded with Billy Ray Cyrus, which turned it into an even bigger hit.
The difference this time around, of course, is that the commons culture has evolved within a wholly commercial context, in which notions of authorship and legal ownership are well-established and expected to be followed.
That juxtaposition has worked to heighten the tension between the generative quality of the commons and the proprietary purposes of fixed authorship, leading to sometimes absurd outcomes.
Earlier this year, for instance, the 1970s electro-pop group Kraftwerk won a decades long lawsuit in the European Court of Justice against hip-hop producers Moses Pelham and Martin Haas over the unlicensed use of a two-second sample of a Kraftwerk song.
That tension has also kept some popular musical forms off commercial streaming platforms, such as DJ sets, which mash together dozens, sometimes hundreds of individual tracks. The financial cost of obtaining individual licenses for all of those tracks, assuming the appropriate rights owners can even be located, would be so high that commercial release is generally out of the question.
The tension has even spilled over into cases that do not involve direct sampling of recordings but seek to claim ownership over the basic building blocks of music itself.
In August, a court ordered Katy Perry and her co-authors to pay $2.8 million to the Christian rapper Flame for purportedly lifting a three note base riff from Flame’s “Joyful Noise” for Perry’s “Dark Horse,” despite it being played at a different tempo and in a different key.
Notably, Perry and her co-authors claimed they had never heard “Joyful Noise” before writing “Dark Horse,” and therefore did not have the access to a work that is typically required to sustain a claim of plagiarism. But the court accepted Flame’s argument that “Joyful Noise” was so widely played on streaming services that Perry couldn’t not have heard it and therefore had the required access.
The snake eats its tail.
Next week, an en banc panel of the Ninth Circuit Court of Appeals is scheduled to hear oral arguments in the long-running case brought by the estate of a member of the band Spirit against Led Zepplin for allegedly ripping off the descending chromatic scale that makes up the intro guitar line to “Stairway to Heaven.”
Descending chromatic scales have appeared in musical compositions going back at least to the time of Johann Sebastian Bach, and probably much earlier. But Spirit claims that playing one in a certain key before Jimmy Page could think of it made them the authors.
The disputes have grown so absurd that even some who have benefited most from copyright and the primacy of authorship have grown concerned enough about preserving enough of the musical commons to start pushing back against enclosure.
As Bloomberg reported this week, a group of composers and music industry types has begun meeting over breakfast most Monday’s out in Malibu to discuss how to head off, or at least get out of the way of the building tsunami of lawsuits over the use of common elements of the musical and recording dictionary.
“The Beatles got inspired by so many black artists, then came hip-hop, then everybody got sued,” one member of the Malibu group, Malte Hagemeister, told Bloomberg. “It’s just fascinating that we all stand on the shoulders of giants.”
The Recording Industry Association of America and the National Music Publishers Association filed a join amicus brief with the Ninth Circuit in the “Stairway to Heaven” case arguing that composers “need copyright law to let them create new music incorporating ideas from the vast cultural library of past musical works…Authors, including composers, must and should use unprotectable elements created by those creators coming before them.”
That’s a remarkable turnaround by those associations from their usual copyright maximalism.
Tension between the commons and private property rights goes back at least as far as the English Enclosure Movement beginning in the 13th Century. But recording technology has evolved to the point where it now provides both the stuff of the commons and the means to enclose it.
That’s a new one.
Un-American
How the EU is rerouting the Information Superhighway
The internet was largely an American invention. Many of the companies that have come to dominate how much of the world uses it are also made in America.
There are a lot of reasons for that — cultural, economic, political, technical — but the net effect has been to give the whole gestalt of the internet a distinctly American air, from its governance, to its commercial and economic arrangements, to its libertarian-cum-libertine ideology.
That never sat well with the world’s more authoritarian regimes, such as China and Russia, which from the start sought ways to wall their societies off from its influence. But neither has it sat well with many of the world’s more market-oriented and democratic societies such as those that make up the European Union.
Over the past four years or so, however, the EU has found a way to use its combined market power to impose a more European sensibility on how the internet — or at least internet companies — operate.
The EU’s Digital Single Market strategy, adopted in 2015, provided the roadmap. But much of the fuel came from European distaste for how the mostly American technology giants that dominate commercial activity on the net were running things and their presumption in imposing their methods on Europeans.
The aim of the DSM was to give the EU the same heft in global digital markets that it had achieved in the market for physical goods through its customs union and by enabling the free flow of goods throughout the 315 million person bloc.
One of the first real fruits of the DSM strategy was the adoption in 2016 of the General Data Protection Regulation (GDPR), which took effect in May 2018. The rules required that nearly every internet company that operates within the EU and collects even the most basic data on its European users, from the smallest website to the largest platforms, would have to meet much stricter standards for how they managed, transferred and disclosed the data they collect.
The GDPR forced major operational changes on American companies like Facebook, Google and Amazon, which have built their businesses on collecting vast amounts of data on their users and then doing pretty much whatever they wanted with it, generally without disclosing what they were doing.
Equally important, however, has been GDPR’s impact outside the EU, including in the U.S. Faced with the potential expense of maintaining two different internal data-management systems, most U.S. companies chose to alter their processes worldwide to more closely conform with the EU standards. The GDPR, in other words, quickly became something of a global baseline for how internet companies collect and use personal data regardless of where those companies are headquartered.
Another effect of GDPR has been to embolden regulators and legislators in the U.S. and elsewhere to take data privacy far more seriously and begin to turn their scrutiny to Facebook, Google and other web giants. Just this week, the Federal Trade Commission settled its investigation into YouTube’s handling of data it collects on children by imposing a $170 million fine on the company and forcing substantial operational changes on how it uses those data.
In an interview published this week by Willamette Week, Oregon senator Ron Wyden (D) went so far as to suggest Facebook CEO Mark Zuckerberg ought to face prison time for lying repeatedly about how the company uses the data it collects.
When it comes to data privacy, U.S. regulators and lawmakers are increasingly taking their lead from Europe.
EU Copyright Directive
A similar dynamic is now emerging with respect to the relationship between online platforms and copyright owners.
In the wake of the adoption of the WIPO Copyright Treaties in 1996, most countries adopted some form of safe harbor for online service providers, such as those set out in Section 512 of the U.S. Digital Millennium Copyright Act.
The harbors shielded service providers from liability for copyright infringement committed by their users so long as they followed strict procedures for removing infringing content from their platforms once notified by the copyright owner.
The provisions allowed user-generated content platforms such as YouTube, Facebook, Instagram and Twitter — again, mostly American — grow to enormous size and global power. But creators and rights owners have long complained bitterly that the cumbersome, post hoc procedures for notice-and-takedown made protecting their copyrights from infringement virtually impossible, leading to an enormous “value gap” between rights owners and platform providers.
With the passage of its Directive of Copyright in the Single Digital Market earlier this year the EU aims to close that gap by draining much of the safe harbors.
Under the directive, which won’t be fully implemented until 2021, online service providers (with some exceptions) will not be able simply to wait to be notified of infringing content and removing it after the fact. Instead they will now have to take proactive steps to prevent infringing content from being uploaded to their platforms in the first place, and ensuring that content that gets removed cannot be reposted.
It also requires search engines and news aggregators (looking at you, Google) to obtain licenses from publishers before displaying snippets of their news stories in search results.
The net effect will be to invert the current burden of proof. Instead of requiring rights owners to police the millions of hours of music and video that gets uploaded to platforms like YouTube every day, looking for unauthorized uses of their content, or allowing search engine from diverting eyeballs and advertising from publishers, the new rules will compel online service providers to police and monitor their own platforms on behalf of rights owners and to obtain licenses before displaying their content.
As with GDPR, the EU Copyright Directive is likely to produce echoes in the U.S. and elsewhere. In order to comply with the new rules, user upload platforms are expected to deploy some sort of content filtering system analogous to, if not quite as capable as YouTube’s Content ID system. Once those tools are in place in Europe, the pressure on the platforms, both internally and externally, to deploy them to the U.S. and elsewhere will only increase.
Pro-filtering sentiment is already growing in the U.S., in fact, as seen in a recent letter from a bipartisan group of lawmakers to Google CEO Sundar Pichai urging YouTube to expand access to its Content ID system to a wider group of copyright owners.
Rights owner groups in the U.S. have stepped up their public campaign to revise the current DMCA safe harbors to put greater responsibility for policing infringement on platform providers, and have seized on growing antitrust scrutiny of the major technology giants — again, coming in the wake of similar moves by EU regulators — to argue that their dominance leaves rights owners at a disadvantage in negotiating licensing agreements.
Major news media organizations in the U.S. have begun to explore how to extend the EU Copyright Directive’s licensing requirement for search engines to the U.S., huddling with their European counterparts to strategize.
As with filtering, their complaints are finding more fertile ground in the U.S. on the heels of the EU developments. In June, the House of Representatives began hearings on the growing influence of Google, Facebook, Amazon and Apple, focusing in part on their impact on the news media.
The fact that the technology platforms that will be most heavily impacted by the EU’s Copyright Directive are the same, American-made platforms most affected by GDPR is very likely not a coincidence.
Both initiatives stem from a desire among EU policymakers to push back against the prevailing American-derived paradigm of internet governance and regulation. Increasingly, Europeans see American internet companies as a kind of colonizing force that is disrupting European culture and cultural industries, and they seem increasingly prepared to use the EU’s market power to try to rewrite the rules.
Given the enormous scale and influence of the tech giants the EU alone may not be able to achieve all of its goals. But their efforts increasingly are finding allies in North America and around the world, and some of those allies are beginning to follow the EU’s lead.