Grey Tuesday is Silly

I'll spare you the long-drawn out description of the situation: suffice to say "The Grey Album" falls to an extreme end of constant pressure that sampling has put on music (and thus, on IP law) by being both of artistic merit and entirely comprised of samples from two albums with no rights permission to do so. While the musician has decided not to fight the requests of EMI, others in the anti-RIAA circuit have taken it upon themselves to keep the distribution of artist's work going.

If you boil through Downwardslide.org's rhetoric and their use of the "evil corporation" as a strawman for the need for copyright reform, you find their argument boils down to two weak points (which they never bother to provide the real counter-arguments for.) Let me try to both make their argument and provide a rational counter:

Argument #1: There should be compulsory licensing of sound recordings. If an artist wanted to do a "cover version" of a Beatles song, there's nothing EMI could do about it, but the performer would owe songwriter royalties. Sound recordings, however, are like books and films: the intellectual property is protected in that fixed form, and a license must be sought (or "fair use" established) to use it. Buried in greytuesday.org is the guts:

"And without a clearly defined right to sample (e.g. compulsory licensing), the five major record labels will continue to use copyright in a reactionary and narrowly self-interested manner that limits and erodes creativity."

Counter to Argument #1: There is compulsory licensing for sound recordings for performance. If Danger Mouse were performing in a live venue (who was paying their BMI/ASCAP licensing) he could perform The Grey Album to his heart's content and there would be nothing EMI could say about it. In fact, I imagine it would be one of the more impressive acts of DJing I'd have seen in a while. Of course, that's not the same thing as a "right to sample" (which is really a way of saying "right to create a derivative work".) But Danger Mouse released a limited-edition album, and the MP3s around the Web are rips of that ... there's not a live performance in sight to pin the compulsory licensing to.

Arugment #2: Copyrights were designed to encourage creative expression, and the record companies are using it to stifle creativity instead. By saying that The Grey Album can't be distributed, they are acting as censors of other people's creative work. As well-meaning Techdirt expressed the meme:

"As many people have pointed out, the point of copyright is to encourage creativity - and this episode has shown how it's being used to stifle creativity instead."

Counter to Argument #2: Woah, did you misunderstand what copyright is about. I don't mean to sound snide, but you're applying words in the wrong context. Copyright is indeed about encouraging creativity, by asserting that the rights to what is created vest in the creator. The way this creativity is supposed to be encouraged is by letting you know, as a creator, that other people (such as big evil entertainment corporations) won't just take your creation away from you, at least not until you're long dead in the ground. The exclusivity is the encouragement, straight from Article 1 of the U.S. Constitution, which says that Congress shall have the power:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

The idea that this "exclusive right" (dare I say "this Constitutionally-protected exclusive right") is now stifling other's creativity is a twisted word-puzzle of redirection.

Ultimately, I think some of these activists have gotten so wrapped up in their own word-puzzle of copyright revisionism that they've slipped into thinking that copyrights are something that corporations wield over poor defenseless artists (rather than part of the tool that protects artists from their machinations, unless they are foolish enough to assign those rights to those companies.)

Oh, wait ... that's exactly what the founder of Creative Commons thinks the evil corporations should do, or at least how Wired News quoted him:

"With all that hype, 'Why not just sign the guy?' asks the Creative Commons' Brown. 'Why not license the record, and have everybody make a bunch off of it?'"

The wonderful thing about copyright (the way it mostly is now) is that it protects the artist's right to make even as bad a decision as the one that Mr. Brown suggests.