Week 2 Post on Boyle

(Note on this weeks post: I wrote my post and then caught gz's comments on our posts. I will adjust my posts in the future.)

     It is difficult to argue with James Boyle's (2008) assertions in, The Public Domain: Enclosing the Commons of the Mind.  After all, he is a professor of law and he works extensively with copyright and intellectual rights.  Throughout the book, Boyle references Thomas Jefferson warning on intellectual rights approximately twenty-five times  according to the index (p. 307).  One of Boyle's strongest arguments seems to be if the law does not pass the Jeffersonian warning, then it should not be passed.  His main assertion is that intellectual property rights should be limited in duration and last only as necessary.  The idea should then pass into the public domain where other innovators can create and improvise from the idea (p. 21).  I can agree with Boyle that intellectual property rights are fundamentally different from property rights.  One protects creative ideas that someone else may have discovered if given time.  The other protects a physical asset that one can own and cannot be given away or taken without the person losing the property.  

     I agree with, and even appreciate his allegory of the farmers'  tale used throughout chapter five to explain the impending lock down of the internet and the public domain.  Indeed, I too became concerned that the figurative use of wire cutters were declared illegal (p. 85).  I lamented the fact that I cannot fast forward through the obligatory copyright warning and/or advertisements that the video maker deems I should watch in their entirety if I want to view the movie.  As the lock down became about what the industry wants rather than what is best practices for intellectual copyrights, I also wondered how intellectual property rights began looking more like a physical asset.  His arguments remain compelling and I catch his sense of urgency that our rights as the public are being curtailed when the rights of the entertainment industry and other corporate industries lock down the public domain.  I agree with Boyle that when an industry can determine which devises can legally access their copyrighted material then the balance of the copyright holder's control has tipped too far in their favor at the limiting of the public domain. 

     When I began reading chapter six entitled "I Got a Mashup", I was expecting to once again cheer Boyle's efforts to protect the rights of the public.  I fully expected to once again agree with his assertions.  This did not happen.  His use of the Ray Charles story of the song "I Got a Woman" helped to illustrate his point that without public domain and a limited term for the copyright coverage of music, our culture stands to lose out on a generation of being able to create as freely as the previous generation. 

     The story, as told by Boyle, explains how Ray Charles began by imitating the style of Nat King Cole.  This is common practice for artists and occurs in most fields.  Ray Charles, as is usually the case, decided to create his own style of playing.  He used a public domain song to create a derivative work that helped launch his career to a new level.  All is well.  

     Where it breaks down, I believe, is when Boyle maintains that once a musician composes a song and records it, others should be able to use parts of the recorded music to create something new.  He maintains it is just like what Ray Charles did with his music.  I do not agree with this assertion.  If you want to play and record the notes and imitate a musicians style this should be allowed.  Once an artist records a song, it becomes more than an intellectual property.  Becca Scott (personal communication, April 18, 2013), a composer, stated, "It's not imitation; it's not even impersonation.  It's more like identity theft when someone takes notes you have played and tries to say they are creating something new."  Each musician has a unique way of playing that belongs to them.  We can usually recognize our favorite artists' style even before we hear their names.  Just because the internet and technology allow for easy copying, does not mean the sound of a musician should be considered public domain.  Their music, yes.  Let the mixers create their own tracks and play the five notes on their own.  This is what occurs when text is quoted.   The musician should be able to control when and where their voice or their performance of a piece of music is used.  Mixers are not imitating like Ray Charles.  They are not reworking a piece of music to make it their own creation.  Mixers are actually pretending to be other musicians.  They then claim they are creating something new.  Perhaps they are, but then so is the identity thief who steals your information. 

      With that said, I also think my argument needs a caveat. There should be defined times when the works of others can be used without worry of copyright infringement. The two instances I can name would be for educational purposes and for personal use. The reason being, the use of material in both of these instances typically is not for monetary gain and those using the work lack the resources or the means to recreate the material. When students create a video for class, they should be allowed to upload it with music that helps them express their ideas. Teachers should not have to spent hours determining if their students have infringed on a copyright law.

Week 1: Lessig

     The book Remix by Lawrence Lessig (2008) offers a compelling argument against the direction of the current copyright laws and regulations.  For example a few years ago, I attended a birthday party at a home that was out of my normal socioeconomic status.  This home had a music room where all the party goers gathered so that some of the guests could entertain the rest of us.  No one was excluded from performing, but the majority of us did not actively participate on the program other than as audience. 

     Lessig referred to this as the RW culture.  The performers were interacting with created works to make something new.  According to Lessig, this is the type of activity that should be allowed to occur. Indeed, it was not unlike what Lessig said Sousa insisted should be allowed to occur (p.25).
  

     I think before the advent of RO technology, this was the norm.  Sousa, Lessig maintained, felt that once the amateur began comparing his performance to the professional, this type of activity would cease to exist.  I am not sure though that looking at the copyright laws of today, there weren't multiple copyright law infringements that day because someone captured the performances on video.  Thus the RW culture clashed with the RO culture as this creative performance copied the works of others.
 

     In Lessig's book, the most compelling evidence that something is wrong with current copyright laws and the wars being waged occurred in the introduction to the book. My sense of fairness fairly bristled when I read about the mom who videotaped her son dancing to a song he heard. The ensuing legal battle because she posted the video on YouTube for family to view left me speechless.  Then, as he explained the war on our youth and their label as pirates, thieves, and so forth, I suddenly became interested in what I thought would be a casual conversation about a dry subject. 

     As Lessig went on to explain the difference between the RO and the RW cultures, I became increasingly alarmed. The RO culture refers to read only and is when a creative work is created and others view it, read it, or engage with the material as it is and as the creator deemed the work be shared. The RW culture  refers to the ability to both read and write. The process of interacting with the creator's work can occur at multiple levels.  It could be sharing the work in its entirety, breaking apart the creator's work and making something new from this work or performing the work (p. 28).
 

     The copyright war is all about protecting the rights of innovators and creators of knowledge. The current war, as it is being waged, if won, will do so at the expense of losing the right to protect our culture and the sharing of our culture.  I found, I too, wanted to take the side of those who have been deemed pirates.  As I realized the support of the RO culture at the expense of the RW culture would bring about a less vibrant culture, the topic became about gaining knowledge so that I could teach others about the ramifications of what is occurring in our nation's capital. 

     Currently, according to Lessig, the law makers are creating laws that declare war on this country's citizens and legally allow corporations to harass individuals who chose to interact with the culture of their day when they post a video of their son or daughter with a copyrighted work within the video.  I think we all need to become aware of what is happening and work to ensure changes in copyright laws that protect our culture and our right to interact with it in appropriate ways.   

Source information:

Lawrence, L. (2008). Remix. New York, NY: Penguin Books.