In the case of the written word, I can quote a few words from the latest best-seller and know that I am legally protected by the doctrine of fair use. In the case of digital media, the US 6th Circuit Court of Appeals ruled that no such fair use exists at all when it comes to sampling. In the case of the written word, it is possible to quote and rearrange concepts as a form of criticism, satire, parody, or public discourse, but the record industry claims there is no such right when it involves quoting from their music catalogs. In the case of the written word, it is possible to draw inspiration (and characters) from multiple sources and to bring those characters together in a new context to reveal new truths (or at least discussions) about the human condition, but when this is attempted with musical materials (such as Danger Mouse’s The Gray Album), the music industry demands no less than total destruction of all such works.
Whatever freedoms have been won when it comes to the textual world of the printing press have been forfeited when it comes to the digital presses of the musical world, which is surprising because both the written word and the musical sound are fundamentally covered by precisely the same law: copyright. Why should copyright treat one expression, one media so differently than another?
In the US Constitution copyright law is predicated on the belief that such law will have the effect of “promoting science and the useful arts”. It is a bargain, refereed by the government, between a private interest and the public’s interest. The Creative Commons community has argued long an eloquently how much the terms of the bargain have shifted over the past 100 years to favor the private parties over the interests of the public and I shall not repeat those arguments here. But I will point out a voice that made these same arguments in the 1960s, years before modern technologies and a runaway legal system produced the copyright nonsense that is systematically and comprehensively destroying our cultural vitality: Glenn Gould.
Gould knew that music gives voice to the composer, that the instrument gives voice to the artist, and that the concert hall provides a space in which music and artistry can be experienced: a moment of the sublime. More than most artists at the time, Gould recognized the power of a recording studio to honor music and artistry, but also to employ such technology that moments of the sublime can be captured, imagination can become reality, and intention can be expressed beyond the limits of a single space, a single audience, a single moment in time. Such has always been the highest aspiration of any recording project.
But such aspirations are not without their own self-made challenges. As Gould wrote in his essay The Prospects of Recording “Recordings deal with concepts through which the past is re-evaluated, and they concern notions about the future which will ultiumately question even the validity of evaluation.” Gould suggest that the solution to this problem lies not with the composers, performers, or engineers per se, but with the listeners themselves:
At the center of the technological debate, then, is a new kind of listener—a listener more participant in the musical experience. The emergence of this mid-twentieth-century phenomenon is the greatest achievement of the record industry. For this listener is no longer passively analytical; he is an associate whose tastes, preferences, and inclinations even now alter peripherally the experiences to which he gives his attention, and upon whose fuller participation the future of the art of music waits.
He is also, of course, a threat, a potential usurper of power, an uninvited guest at the banquet of the arts, one whose presence threatens the familiar hierarchical setting of the musical establishment. Is it not, then, inopportune to venture that this participant public could emerge untutored from that servile posture with which it paid homage to the status structure of the concert world and, overnight, assume decision-making capacities which were specialists’ concerns heretofore?
We can well imagine why the existing establishment may not welcome such participation from the listening audience, but what about culture itself? Culture should welcome any participation that promotes progress in the arts!
Gould also says this:
The keyword here [in the immediately preceding quotation] is “public.” Those experiences through which the listener encounters music electronically transmitted are not within the public domain. One serviceable axiom applicable to every experience in which electronic transmission is involved can be expressed in that paradox wherein the ability to obtain in theory an audience of unprecedented numbers obtains in fact a limitless number of private auditions. Because of the circumstances this paradox defines, the listener is able to indulge preferences and, through the electronic modifications with which he endows the listening experience, impose his own personality upon the work. As he does so, he transforms that work, and his relation to it, from an artistic to an environmental experience.
Gould’s essay from 1966 ends with this thought: “The audience would be the artist and their life would be art.” But this can never happen as long as copyright law dictates that being a listener makes one a priori eternally beholden to all that is first listened to. Our current copyright regime denies as a fact the very idea of a free culture, because it prohibits that which can be heard from being transformed and transmitted anew, at least not without signing legal agreements every single step of the way. And as many of the cases have shown, even that is not enough, you have to sign and agreement and then win the right in court to use what you paid for. In such a world, the audience and the artist alike become the defendants, and their life is not art, but trials and punishment. That is not the sustainable basis for any culture, other than a culture of fear.