A congressman from PA defends the right to mash-up.

Congressman Doyle: Mr. Chairman, I want to tell you a story of a local guy done good. His name is Greg Gillis and by day he is a biomedical engineer in Pittsburgh. At night, he DJs under the name Girl Talk. His latest mash-up record made the top 2006 albums list from Rolling Stone, Pitchfork and Spin Magazine amongst others. His shtick as the Chicago Tribune wrote about him is "based on the notion that some sampling of copyrighted material, especially when manipulated and recontextualized into a new art form is legit and deserves to be heard."

In one example, Mr. Chairman, he blended Elton John, Notorious B-I-G, and Destiny's Child all in the span of 30 seconds. And, while the legal indie-music download site eMusic.com took his stuff down due to possible copyright violation, he's now flying all over the world to open concerts and remix for artists like Beck.

The same cannot be said for Atlanta-based, hop-hop, mix-tape king DJ Drama. Mix-tapes, actually made on CDs, are sold at Best Buys and local record shops across the country and they are seen as crucial in making or breaking new acts in hip-hop. But even though artists on major labels are paying DJ Drama to get their next mixed-tape, the major record labels are leading raids and sending people like him to jail.

I hope that everyone involved will take a step back and ask themselves if mash-ups and mixtapes are really different or if it's the same as Paul McCartney admitting that he nicked the Chuck Berry bass-riff and used it on the Beatle's hit "I Saw Her Standing There."

Maybe it is. And, maybe Drama violated some clear bright lines. Or, maybe mixtapes are a powerful tool. And, maybe mash-ups are transformative new art that expands the consumers experience and doesn't compete with what an artist has made available on iTunes or at the CD store. And, I don't think Sir Paul asked for permission to borrow that bass line, but every time I listen to that song, I'm a little better off for him having done so.

Until our questions about the future of music get answered, we first have to look at the future of radio... (and then he wraps up his talk with a few words about the Webcast issues of the day)...

Music

...and some of its former biggest boosters are out to kill it. First example, Viacom asked a federal court to order YouTube to pay it more than $1 billion in damages for videos that Viacom claims it owns and have been uploaded to YouTube. As Lawrence Lesig points out in this insightful article , YouTube is following the DMCA. The laws says that once notified an service provider must take down the offending material. YouTube, owned by Google, says it is willing to do that if Viacom notifies them. Viacom says this is too hard. They want to push the job off on YouTube, forcing YouTube to police its uploads and remove material that Viacom deems unlawful before Viacom sees it. Of course, there's lots going on underneath this. Viacom has a deal with Joost to supply video so the last thing they want is YouTube competing with them. Costing YouTube money helps either in a lawsuit or by forcing them to expend effort policing uploads helps Viavcom's deal with Joost. Big media's answer to their problems with the DMCA will turn out to be more DRM, but that won't work well and the battle will continue. I think the best answer may be compulsory licensing. If a reasonable license fee were set for the distribution of digital media so that anyone who paid could distribute the material in any form they wanted, everyone would make money. The fee would have to be set by Congress of a public commission and not the media moguls. It would have to be low enough that mash artists and start-ups could afford it, but high enough that the content producers would go along. It's unlikely to happen as long as the content mavens think they can control the distribution of digital material. We're likely to see more technically lame DRM attempts and more bad laws for quite a while.

The second nail in the DMCA's coffin came from the NFL. The NFL is aggressive about controlling the distribution of NFL sanctioned material. Boing Boing reports that the NFL is ignoring the DMCA's dispute resolution system by sending a second takedown notice to YouTube demanding that it censor Wendy Seltzer's clip from the Superbowl. Wendy, a former EFF lawyer posted a clip of the NFL's copyright warning. The NFL sent a takedown notice to YouTube, Wendy sent a counter-notice, and now the NFL is supposed to go to court to pursue its claim. Instead, the NFL sent another takedown notice and YouTube waffled and deleted the video. It seems like the NFL, like Viacom, wants others to do their work. Posting the copyright notice probably falls under fair use, but big media seems to want absolute control over digital material even it means not following the rules they helped create.

The DMCA is dying, but like the creature in a bad horror film, it will rise again in a more hideous form.

DMCA