Should conservatives support criminalizing the genre of music in which (arguably) the most innovation is taking place?

I’m talking about the remix, of course, and by the way the question is asked one might say I’ve already staked out something of an opinion. A member of the pro-IP faction now on its heels after the EU Parliament overwhelmingly rejected the Anti-Counterfeiting Trade Agreement might prefer: Should conservatives condone the rampant theft of the creative products of artists, both domestically and abroad?

Matt Lewis takes up the question:

“[W]hat’s happening to sampling, it’s now become for the elite,” says Hank Shocklee in a promo for the forthcoming documentary, ‘DUST: the Art of Sampling’. “Jay-Z and Kanye can afford to pay the sample rates, but not the kids starting out in their own little home studio in their house.”

Though there is a good argument that the regulations are forcing new artists to be more innovative, Shocklee argues the laws are “holding back creativity.”

Regardless of how one might feel about patents and intellectual property rights, it is clear this law acts as a barrier to entry, thus benefiting incumbent stars like Kanye — while punishing upstarts who might want to unseat him.

Still, one wonders if the laws might some day change as public attitudes regarding the use of intellectual property evolve? As Shocklee says, “a lot of these things are still not even laws, they’re just precedents set by certain courts…”

Tim Carney adds:

We can set aside the question of whether these laws are just or prudent for a moment, and conclude that, for better or for worse, they help the big guys and hurt the small guys. That doesn’t tell us whether we should change the law. But it at least informs the debate over the law, and reminds us that the standard narrative of regulation — that it curbs the excesses of big guys and protects the little guys — is a myth.

The best book for laypeople I’ve read on this subject is Kembrew MacLeod’s Owning Culturewhich provides a litany of copyright-related absurdities, including an explanation for why you’re not supposed to sing “Happy Birthday” in MacDonalds (Company policy. The actual copyright status of the song is somewhat uncertain, but it has earned millions in royalties for Warner Music Group).

The birthday song is a useful if overdone anecdote because it illustrates the distinction Lewis and Carney are trying to make; copyright law protects entrenched institutions and interests, often to the neglect of–and in the case of remixes, at the expense of–the innovators. The motivation for having copyright terms at all; to ensure a modicum of success and perhaps a little something to pass along to an author’s progeny, made a lot of sense at one time, and copyright terms were written accordingly; life plus a certain number of years. Today’s fixed terms mirror the shift to companies accruing mountains of ancient revenue-generating copyrights.

The recent lawsuit against the Beastie Boys over Trouble Funk samples from their first two albums was initiated by the publishing company without the band’s knowledge. Chris Richards writes:

Lawsuits like these aren’t just courtroom showdowns that force producers to pay off musicians and their record companies. With little regard for the hip-hop community and how producers use vintage recordings to craft new music, the law has changed the sound of the genre forever. Today, if you want to sample — just as Kanye West does in his recent chart-topper “Mercy” — you need to be able to afford it.

Tuff City’s suit can be traced to a 1991 U.S. District Court case — Grand Upright Music, Ltd. v. Warner Bros. Records Inc. — that made artists responsible for getting the thumbs-up from the musicians they sampled. Goofball rapper Biz Markie was at the center of the case after he sampled soft-rocker Gilbert O’Sullivan’s “Alone Again (Naturally)” for his song “Alone Again.”

No court decision has changed the sound of pop music as much as this, before or since. Before the ruling, albums such as Public Enemy’s “It Takes a Nation of Millions to Hold Us Back” and De La Soul’s “3 Feet High and Rising” became hip-hop landmarks with the help of dozens upon dozens of samples. By assembling snippets of sound into dizzying new configurations, these recordings defined an era.

Then the courts made the building blocks that formed those songs prohibitively expensive. A new genre’s sonic signature had, more or less, been outlawed. Imagine a court ruling that banished the saxophone. Or the wah-wah pedal. Or the ukulele.

But the government can’t throw every amateur bricoleur in prison. Sampling is with us, and there is nothing the government can do to stop that.

What interests me most about the current framework of intellectual property regulation is the impact it has on the music itself. An artist who wants to sample has three options: (1) use the clip and don’t pay, but bury it studio effects so nobody will catch you, (2) use the clip, don’t pay, and release your music for free too (call this the Girl Talk option), or (3), bite the bullet and pay a thousand dollars for that five-second tom fill that you just had to have. None of these are appealing choices, and all of them require making some sort of compromise that wouldn’t be necessary in the absence of a government-granted monopoly.

Music fans look at this sad state of affairs and observe that many sample-heavy classic hip-hop albums like Paul’s Boutique or Public Enemy’s It Takes A Nation of Millions to Hold Us Back could never be made today due to the impossibly high cost of clearing samples. This is where I think Lewis and Carney have the strongest argument; the remix used to be a relatively free medium, but in the last 30 years or so the regulatory framework has tipped in favor of Big Entertainment.

Thomas Jefferson had some notably ambivalent thoughts on intellectual monopolies in an 1813 letter:

Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

Jefferson recognized that the only basis for intellectual property rights was utilitarian. Which raises the question, what good are sample clearinghouses, Warner Music Group, Elvis’s estate, and all the other beneficiaries of our copyright system doing for society? Would we be better off without them?

Sheldon Richman at TAC on copyright.