See Infra

Digging at the confluence of culture and everything else

Tag Archives: free speech

Irreverant Bastards and Covers (Part II)

I’m writing this post while away with spotty access to the Internet, so you’ll have to excuse the lack of citations.

On Tuesday, I talked a little bit about some of the broad cultural barriers and incentives involved in the production of covers. Today, I’d like to drill down into the way the American copyright regime alters the incentives in covers.  So, have some dry background.

Being a property owner under American law is usually a pretty sweet deal. Ownership of a thing generally entitles you to posess that thing, freely exploit that, exclude other people from having that thing, and even the ability to destroy that thing. American law also centers around the idea that one of the most important rights is the ability to give up your rights, the so called right to contract. For example, you can agree to sell your property, giving up your exclusive right to possess, exploit, exclude, destroy, etc for money. Or you can agree to rent your property, giving up your exclusive right to possess, but retaining most of the rights to exploit, exclude, destroy, etc. That is the general rule. There are of course exceptions. For example, the government can condemn your land and take it without your consent under certain circumstances, but not without compensating you – vindicating your economic rights, or economic interests – in your real property. And for most physical things and land, property, and its rights and limitations on rights are generally pretty intuitive.

Intellectual property is considerably stranger. When I have a peice of personal property – say a hammer – my right to exclude you from posessing it is pretty closely tied to my right to exploit it. After all, if you have my hammer, I can’t use it. However, if you grab and copy of my Starline Vocal Band’s Greatest Hits CD (I have no idea if this object exists) I have the same ability to use that CD and its music as I did before. For that matter, if you copied my hammer, I’m not going to care much if you deface your copy of that same hammer. The same could not be said of you deface a copy of a photograph of my wife. Perhaps for these reasons, the various laws that cover intellectual property, patent, trademark, and copyright, limit the usually absolute property rights in various ways. With copyright, the property rights are limited to a time determined by law, and have certain exceptions for “fair use” but within those restrictions, are very strong. Your property right in copyright includes the ability to exclude other people from copying your works. So again, intellectual property owners get a pretty sweet deal. Except when it comes to music.

Considering the incredible power of the music industry and the lawsuit happy RIAA in particular, this might strike you as odd, but there is actually a giant gaping hole in the side of the copyright protection for music recordings known as the mechanical license. You might imagine the proccess getting a license – that is, permission – to record a cover version of a song, involving contacting the owner of the music and negotiating a fee. That is how it works for everything else. With covers, you simply contact the Harry Fox Agency and cut them a check for the appropraite amount. The only limitations? The cover cannot change the essential nature of the work, and the cover has to be produced for sale. This is a pretty unusual piece of law.

Imagine for a moment an alternative law, where the mechanical license was not contingent on the not changing the “essential nature” of a work produced for sale, but instead by the would be cover artist convincing the appropriate neutral party that the art was good. “You can cover Rolling in the Deep” you can imagine the judge saying “but only if you add something to our listening experience sufficient to justify taking artistic control away from Adele”

In my experience there are two common reactions to a proposed scheme like this. One is positive. “Of course” someone might say “musicians should be able to better control their work and not let a bunch of college kids half-ass their way through medicore imitations. Another is strongly negative, “absolutely not!”  someone might respond “there is no way we can trust the state (or anyone else, really) to decide what kind of music is valuable and what kind is not!” You might however, imagine a slightly different reaction to it. “Hold on. Maybe by letting anyone produce terrible covers, letting anyone try and fail, and fail, and fail and fail and fail, we let people produce great music? Maybe you have to be terrible before you are good.”

And this is where we wrap back around to free speech, because covers are actually a decent stand in for speech in general but with some of the parties moved around. Maybe you think can trust the state, or someone else to decide what kind of speech is sufficiently valuable to protect or allow, especially when some of the parties are more or less powerful.  Maybe you think there is no way you can trust the state. Or maybe you think even if the state can be trusted to figure this out, there is a bigger goal in mind in the long run.

That, I think, is where I ultimately come down on issues of bad speech. I don’t have a problem with the idea that there is some speech that is pretty obviously bad, just like there are some covers that are really bad, and we should all say so when they are. Maybe however, we should accept that in order to get something good, we have to allow, even freely encourage people to produce any speech, because a world with too much quiet can be just as impovrished as one with too much noise.