―2003: The United States Supreme Court upholds the CTEA as constitutional in Eldred v. Ashcroft. Lessig, the primary counsel for the plaintiff, argued that, “If Congress can extend copyright terms so extensively like this, then what’s the point of copyright terms?” The Supreme Court’s argument, boiled down to, “Congress has always extended copyright terms. Why should they stop? Also, as long as the term is not explicitly ‘forever,’ we should be fine.”
Lessig, while crushed by the defeat, had been pushed into the limelight as a leader in the movement against inordinate copyright restriction. Eldred v. Ashcroft, he claimed to me via email, was the “trigger event” for the free culture movement.
In 2004 Lessig published Free Culture, a book that served as both a mission statement and a rallying cry. It coins the term “free culture” as a sort of umbrella for the ideal end result of the trouble he and others have had with modern copyright law. Though Lessig has recently stepped out of the free culture arena and shifted his attention on political corruption, the fight for fair copyright law is something he still takes very seriously. When asked what the strongest coup in favor of free culture has been, given the immense success of free culture projects such as Wikipedia and his own Creative Commons license, he replied, “We don't yet have coups. We have a movement that is slowly demonstrating to the world the importance of free culture.” And he added, “We are winning, and if we work very hard, we will prevail.”
People deal with free culture more frequently than they likely realize. Wikipedia’s enormous user base is one example. The advancement of remixes is another, with seemingly everyone from Avril Lavigne to 36 Mafia licensing at least one for each of their singles. The vast majority of photos uploaded to the popular archival site Flickr are licensed under Creative Commons. In particular, using peer-to-peer file sharing networks such as BitTorrent or Soulseek puts the user at the center of the free culture controversy.
Major content providers have demonstrated in court that they want this reproduction stopped completely, at all costs, regardless of what is being reproduced, be it feature-length movies or notes for college courses. Free culture proponents think such legal methods would poison the well, impeding the immense amount of help digital technology lends to artistic innovation and productivity. All art builds off the past, they claim, and inhibiting ways in which it’s able to do so may cost us dearly. Imagine rock and roll taking off without the blues, hip-hop taking off without any sampling. More specifically (and infamously), imagine Mickey Mouse being what he is today without Steamboat Bill, Jr, the near-forgotten Buster Keaton vehicle of which Mickey’s breakout performance, Steamboat Willie, was a knockoff.
It seems easy to dismiss free culture as, among other things, an argument in favor of illegal file sharing. Every major free culture proponent I talked to and read about, however, seemed genuinely against piracy, or the illegal and uncreative theft of licensed content. In other words, Lessig and friends sincerely believe that downloading a song and using it in the same way you would have if you had bought it should occupy a completely different legal territory than making use of a sample in which you can (or, in some cases, can’t) recognize a copyrighted work.
In Free Culture, Lessig notes that his idea of a free-cultural utopia is a situation in which content is so easy to pay for digitally that the inconveniences and dubious morality of piracy make it irrelevant. Many have dismissed this as a pipe dream, and the continuing actions of the MPAA and RIAA suggest they firmly believe that piracy isn’t going away unless they litigate it away.
Gregg Gillis has never been sued in his life which, when you think about it, seems downright baffling. Gillis, a/k/a Girl Talk, played a sold-out Avalon last time he came through town. His most recent album, Night Ripper, has garnered much critical praise (Pitchfork Media: “Girl Talk absolutely detonates the notions of mash-up”) and it wouldn’t be a stretch to call him one of the more popular independent musicians in America. Night Ripper, as well as the two Girl Talk LP’s that came before it, consists entirely of sampled popular songs layered on top of one another. The growing success of music like this is the kind of thing that keeps pro-copyright lobbyists awake at night. If certain people had their way, Gillis wouldn’t be able to show us what the Notorious B.I.G. sounds like rapping over Elton John without paying lots and lots of money or, perhaps, just wouldn’t be able to at all.
Such pop-combinations are nothing new, with such acts as 2 Many DJ’s, Danger Mouse, and Hollertronix establishing their legitimacy. But the scale and popularity of Gillis’s recordings are unsurpassed by anyone else in the genre (Pitchfork again: “[Before Night Ripper] everyone on the block was mix-matching hip-hop to electro and indie rock”). Oddly, however, he has received no legal warnings. “There's an underground full of legally-questionable music,” he says via email, “but once all of the heavy press [regarding Night Ripper] hit, it became a bit more stressful.”
