aTypical Joe: a gay New Yorker living in the rural South
Tuesday, August 09, 2005
KUTZTOWN, Pennsylvania—They’re being called the Kutztown 13—a group of high schoolers charged with felonies for bypassing security with school-issued laptops, downloading forbidden internet goodies and using monitoring software to spy on district administrators.
The students, their families and outraged supporters say authorities are overreacting, punishing the kids not for any heinous behavior—no malicious acts are alleged—but rather because they outsmarted the district’s technology workers.
Now get this:
The trouble began last fall after the district issued Apple iBook laptops to every student at the high school about 50 miles northwest of Philadelphia. The computers were loaded with a filtering program that limited internet access. They also had software that let administrators see what students were viewing on their screens.
But those barriers proved easily surmountable: The administrative password that allowed students to reconfigure computers and obtain unrestricted internet access was easy to obtain. A shortened version of the school’s street address, the password was taped to the backs of the computers.
Hell, why not just tell the kids the password and say that you’ll arrest them if they use it!?!
This is outrageous. They’re charged with a felony!
Xeni Jardin at Boing Boing pointed to this story in June.
Friday, August 05, 2005
More on the Weather Bug LAWYERS!
Back in April, more or less in passing, I mentioned that my colleagues wanted me to trash the Weather Bug. Yesterday I got an email from Jay Hoffman, Manager, WeatherBug Customer Support…
So began my original post. And this is where I planned to quote the email touting the features of the WeathrBug. I even thought I’d put the whole thing in the extended entry. Then I read the footer:
This message (including any attachments) is a confidential and privileged communication of AWS Convergence Technologies, Inc. and intended only for the addressee. Any unauthorized use, distribution or copying of this message (or any attachment) is prohibited. If you are not the addressee or a person authorized to receive messages for the addressee, you have received this message in error. In that case, please delete this message and call us at 800-544-4429 so that we can correct our records in order to avoid this mistake in the future. Thank you.
Prior to reading that I had a nice back and forth with Jay and planned a WeatherBug post. It was my impression that he wanted me to post again; his original goal was to leave a comment! [Recall please my earlier comment troubles]
So I asked Jay’s permission, wondering if he was even authorized to grant that permission. He replied asking that one line be left out. For the time being I’m choosing not to post any of it because I’m so riled.
It strikes me as highly objectionable/questionable that someone can send me an unsolicited “communication” and then make it “privileged and confidential” and prohibit my using it. The copyfighter in me is absolutely positively totally outraged.
UPDATE: Ok. It’s later and I’m calmer and I get it. If someone sent me an unsolicited book it wouldn’t give me license to print it.
It was just weird to realize that I could have innocently gone ahead and unthinkingly posted the whole email and then find myself in violation of an agreement I didn’t even know I had entered into.
Tuesday, August 02, 2005
Google’s ad patent claim
Almost missed this:
Google is claiming that it has invented a unique way to distribute online advertising via syndicated news feeds--and it wants a patent for the technology.
If granted, the patent would presumably give Google the exclusive rights for “incorporating targeted ads into information in a syndicated, e.g., RSS, presentation format in an automated manner,” according to its patent application titled, ”Embedding advertisements in syndicated content.”
The Monsanto pig (patent pending)
Brian sez, “Monsanto is seeking to patent not just the breeding methods for a specific herd of pigs, but the herd itself and all its offspring. If you breed a pig with similar characteristics, you may owe royalties to Monsanto—for characteristics they didn’t invent, bred by techniques they didn’t invent, simply because they’ve claimed the patent rights: the pigs are not genetically engineered, and their genetic makeup bears nothing original to Monsanto Corporation. Scary.”
The patent applications were published in February 2005 at the World Intellectual Property Organisation (WIPO) in Geneva. A Greenpeace researcher who monitors patent applications, Christoph Then, uncovered the fact that Monsanto is seeking patents not only on methods of breeding, but on actual breeding herds of pigs as well as the offspring that result.
“If these patents are granted, Monsanto can legally prevent breeders and farmers from breeding pigs whose characteristics are described in the patent claims, or force them to pay royalties,” says Then. “It’s a first step toward the same kind of corporate control of an animal line that Monsanto is aggressively pursuing with various grain and vegetable lines.”
In one application (WO 2005/015989 to be precise) Monsanto is describing very general methods of crossbreeding and selection, using artificial insemination and other breeding methods which are already in use. The main “invention” is nothing more than a particular combination of these elements designed to speed up the breeding cycle for selected traits, in order to make the animals more commercially profitable. (Monsanto chirps gleefully about lower fat content and higher nutritional value. But we’ve looked and we couldn’t find any “Philanthropic altruism” line item in their annual reports, despite the fact that it’s an omnipresent factor in their advertising.)
According to Then, “I couldn’t belive this. I’ve been reviewing patents for 10 years and I had to read this three times. Monsanto isn’t just seeking a patent for the method, they are seeking a patent on the actual pigs which are bred from this method. It’s an astoundingly broad and dangerous claim.”
Sunday, July 31, 2005
Regular readers know I’m no fan of copyright as practiced today. So it won’t surprise you to learn I don’t like the patent practice (copyright on steroids) much either, most particularly as manifested in the software patent.
Today Randall Stross writing in the Times looks at how Microsoft is going about achieving its goal of 3,000 patents. He includes this background:
All software published in the United States is protected by strong copyright and trademark protection. Microsoft Excel, for example, cannot be copied, nor can its association with Microsoft be removed. But a patent goes well beyond this. It protects even the underlying concepts from being used by others - for 20 years.
As recently as the 1970’s, software developers relied solely upon copyrights and trademarks to protect their work. This turned out rather well for Microsoft. Had Dan Bricklin, the creator of VisiCalc, the spreadsheet that gave people a reason to buy a personal computer, obtained a patent covering the program in 1979, Microsoft would not have been able to bring out Excel until 1999. Nor would Word or PowerPoint have appeared if the companies that had brought out predecessors obtained patent protection for their programs.
The legal environment changed not because of new legislation, but by accident. One important ruling here and another there, and without anyone fully realizing it, a new intellectual-property reality had evolved by the end of the 1980’s. Now software could enjoy the extraordinary protection of a patent, protection so powerful that Thomas Jefferson believed that it should be granted in only a few select cases.
So where did Microsoft get the number 3,000?
“We realized we were underpatenting,” Mr. Smith [the company’s senior vice president and general counsel] explained. The company had seen studies showing that other information technology companies filed about two patents for every $1 million spent on research and development. If Microsoft was spending $6 billion to $7.5 billion annually on its R&D, it would need to file at least 3,000 applications to keep up with the Joneses.
That sounds perfectly innocuous. The really interesting comparisons, though, are found not among software companies, but between software companies and pharmaceutical companies. Pharma is lucky to land a single patent after placing a multihundred-million-dollar bet and waiting patiently 10 years for it to play out. Mark H. Webbink, the deputy general counsel of Red Hat, a Linux and open-source distributor, said it was ridiculous for a software company to grab identical protection for work entailing relatively minuscule investment and trivial claims. He said of current software patents, “To give 20 years of protection does not help innovation.”
If Congress passed legislation that strengthened and expanded copyright protection to include design elements as well as software’s source code, formalizing the way the courts interpreted the law in the 1970’s, we could bring an end to software patents and this short, unhappy blip in our patent system’s time line.
Somehow that scares me too.
Friday, July 29, 2005
Brew, get your camera
In February I posted on the amateur photographer stopped from snapping pictures in Chicago’s Millennium Park because he didn’t have a permit.
My bet is the claim here will be about preventing terrorism.
I’m an architecture buff, so much so that I once had my own walking tours of Manhattan. Post 9/11 I wouldn’t be allowed to do it.
Back then you could walk in and around buildings and security guards would talk with you about them. We’re in a different time. It’s sad, unnecessary and not likely to be effective.
UPDATE: Thomas reports that “shooting One Bush Street was a complete piece of cake.”
Wednesday, July 27, 2005
I had a student spend hours and several phone calls to Apple trying to get the two songs he had lawfully purchased from the iTunes Music Store onto his new iPod. The iPod was a gift, he doesn’t have a computer, so he came to the lab to load it.
The 2 songs he bought were on the iPod, but wouldn’t play. We updated the iPod and the computer’s operating system. Still no luck. Tech support told him to erase his iPod and start over. He didn’t.
CLARIFICATION: I’m generally favorable toward the iPod, iTunes and the iMusic Store, and I am not an anti-DRM absolutist. Reasonably priced easily accessible consumer friendly digital media is fine by me. Still, I think a healthy Free Culture movement will only improve iPod usability.
Tuesday, July 12, 2005
Public Domain as “unfair competition”
The BBC is being attacked by UK record companies for giving away public domain recordings of Beethoven. According to the record companies, such offers are “unfair competition.”
Ludicrous Permission Culture
We’ve been talking here for some time about using your fair-use rights so that you don’t lose them (Fair Use It or Lose It). But what happens if you do what the copyright maximalists appear to encourage and ask permission for every use of copyrighted material—even the most defensible private home use?
She points to JD Lasica’s experiences asking movie studios for permission to include small clips of movies in a home video he’s making with his 5-year-old:
As I wrote in Darknet, four of the studios refused outright, two refused to respond, and the seventh wobbled (see below).
This is the quandary millions of us face today: The Hollywood studios demand that we ask for permission to borrow from their works - and then they deny our requests as a matter of course.
He details his experiences: Universal, “$900 for each 15 seconds.” Warner Bros., “does not wish to license film clips.” 20th Century Fox, “does not approve the use of any.” Columbia TriStar, “We do have a problem with that.” MGM & Paramount both declined to answer.
Then there’s Disney:
Due to the growing number of requests that we are receiving from individuals, school groups, churches, corporations and other organizations that wish to use clips from our productions as part of their video projects and other similar uses, we have had to establish a general policy of non-cooperation with requests of this nature. Unfortunately, we simply do not have the staff necessary to oversee and review all of the details of each specific request that we receive in order to determine whether the request uses fall within acceptable guidelines or whether talent, music or film clip re-use payments to those featured in the footage and other legal clearances would be necessary to obtain before permission for requests of this nature can be granted.
There should be no permission necessary for the creation of works in which there is no public distribution. Life would be much simpler and just.
Tuesday, July 05, 2005
A pol who’s a Fair Use fan
Rep. Rick Boucher is a rarity in Congress when it comes to digital media. He’s taken the side of consumers—not Hollywood and the music industry—in the sundry controversies surrounding digital entertainment.
When it comes to file sharing, Boucher says he’ll fight attempts to stifle it.
He thinks tech companies shouldn’t be held liable for products that can be used for unlawful purposes, like pirating media.
He says the balance of copyright law has tipped too far toward the entertainment companies’ interests, hampering consumers’ rights to use digital media.
And he wants government sponsorship of universal broadband.
Read the full Wired interview. He’s a rural southern Democrat to boot!
Friday, July 01, 2005
We the media
The future of television is not about interactive commands that let you buy Jennifer Aniston’s sweater. It’s about putting a blasting cap to big media’s strangehold on our nightly viewing habits by opening up the television experience to the multitude of niche media that ordinary citizens are beginning to create.
The future of movies is not about digital delivery of Hollywood entertainment at the multiplex. It’s about instant access to Hollywood classics, new releases, indie fare and grassroots films, at any time, on any device.
The future of music is not about finding a silver-bullet DRM solution for secure delivery of megastar content. It’s about building new platforms for recommending and filtering thousands of new voices and creative talents that would never make it through the record labels’ sausage factory.
As the cost of the tools of media creativity continue to plummet and ease of use increases, millions more of us will begin taking part in the personal media revolution. And when that happens, as it inevitably will, the laws and structures built for the analog era—such as the DMCA’s provisions to prop up the business model of today’s music industry—will begin to totter, and then topple.
Friday, June 17, 2005
Rush Limbaugh, copyfighter?
But I just want to tell you we’re continually working on it, which at this point simply means monitoring developments in this whole copyright and piracy law. I know the Millennium Copyright Act is what this is all about, and until that’s changed, none of this is going to change. In fact I just saw a story in my RSS reader today that Sony is coming out with a new system to copy-protect their CDs. There’s software on their CDs that will allow a maximum of three dubs, three copies, and then it shuts down. So if somebody goes and buy a CD, they can copy it three times, but that’s it and it’s not on all their CDs. It’s a new technology that they are embedding in the CDs, and of course the DVD industry has gotten even much tougher than the music industry has, but it’s a huge deal and we have looked at it in every which way and that’s what we have been told by the legal eagles.
I keep getting questions, “Why no music?” Let me go through this once again… We simply don’t have the license to give away somebody else’s product, which is what we’d be doing if we downloaded music… We’re always trying to change these things and get permissions from various entities to include their work, but we’re running up against a brick wall because so much piracy is going on out there, and once you steal something, it’s easy to spread it around to your friends and they’re just trying to get a handle on this. So that’s why. If we wanted to write and produce, create our own bumper music and do that, we could, if we wanted to give that away, but somebody else’s we just can’t. So for now it’s audio only.
So is it that the media cartel just “trying to get a handle on it” or is Rush beginning to understand what’s really going on?
The music industry considers the seemingly innocuous act of duplicating a music CD for someone else ``casual piracy,’’ a practice that surpasses Internet file-sharing as the single largest source of unauthorized music distribution. After fits and starts, the industry’s largest players are taking measures to place curbs on copying.
It’s surprising to me that the Mercury News has accepted the record labels’ terminology in this matter. Piracy refers to making unauthorized reproductions of digital media for financial gain - or, stretching the term, for indiscriminate distribution. It is not piracy - “casualÃ¢â‚¬Â� or otherwise - when you buy music and make a few copies for close friends.
Quoting Jessica Litman, author of “Digital Copyright,” in her law review article “War Stories,” 20 Cardozo Arts & Entertainment Law Journal 337 (2002):
Under the old way of thinking about things, copying your CD and carrying the copy around with you to play in your car, in your Walkman, or in your cassette deck at work is legal. Borrowing a music CD and making a copy on some other medium for your personal use is legal. Recording music from the radio; maxing different recorded tracks for a ‘party tape,’ and making a copy of one of your CDs for your next-door neighbor are, similarly, all lawful acts. The copyright law says so: section 1008 of the copyright statute provides that consumers may make non-commercial copies of recorded music without liability. Many people seem not to know this any more.
We’re losing because most of us are completely unaware:
This latest bit of news comes on top of the restrictions placed on other uses of digital media:
- it’s a federal offense to back up a copy of your DVD;
- it’s illegal to copy a purchased computer game with DRM onto your laptop or desktop;
- the new generation of digital television may impose similar limits on how you can copy or burn Hollywood programming.
Ernest Miller has more, and expects we won’t bow down to the record companies:
All this DRM will accomplish is to encourage people to bypass it, to download the inevitable DRM circumvention devices. They might be illegal, but they’ll be available on the internet. Or, it will encourage people to use P2P programs to download the music they’ve already purchased. And, once they’re on the filesharing network, why not download a few songs they haven’t purchased? After all, if the record companies are going to make life hard for them with regard to music they’ve acutally spent money on, they might rationalize that they’ve earned some free music.
In other words, record labels will only succeed in encouraging disrespect for copyright law. Thanks a lot, you bunch of short-sighted morons.
Thursday, June 16, 2005
Custom cakes that violate copyright
Clay Shirky via Xeni Jardin at Boing Boing:
Here’s the sign I saw yesterday morning when getting the daily bread at College Bakery, our beloved local purveyor of pre-Atkins goodies.
Now the decor and ambience of College Bakery are echt Old Brooklyn, so it’s an unlikely front in the copyfight, but the staff said they had to bust out the magic markers because they’d been roped in as the front line of defense against non-licit images of Dora the ExplorerÃ‚Â® and Thomas the Tank EngineÃ‚Â®. I was struck enough by the sign to Flickr it immediately, and it’s stuck with me since then, for several reasons.
First of all, disappointing children is a lousy tactic for a media company. If a child loves Nemo so much she wants a clownfish birthday cake, it’s hard to see the upside in preventing her from advertising that affection to her friends. Second, and more worryingly, this is the very sort of chilling effect that has always been recognized as a significant risk in First Amendment protections. How cool would it be to do a drawing with your kid and have it show up as a cake the next day? Well forget it.
What College Bakery is saying with that sign is “The risk of being sued is so high that we’ll give up on helping paying customers create their own cakes.” This is Trusted Computing for frosting.
Read on. I bet they’d happily assess a per cake license fee… Grr!
UPDATE: WOW! The cake store was such a perfectly illustrative example that it set off a great back and forth thread. Counterpoint: “what you have here is one company (even though it is a small one) stealing from another company (even though it is a large one).” I urge you to read it. I quote only my favorite concluding comment from Eff‘s Jason Schultz in the extended entry. If you can read nothing more, please read it…
Monday, June 13, 2005
An ominous encroachment on the First Amendment
Forty-four states now enforce some version of the Uniform Trade Secrets Act, first drafted in 1979 by the National Conference of Commissions on Uniform State Laws. According to the NCCUSL, the law classifies as “trade secrets” company information “of commercial value” that “is not generally known to others and is not readily ascertainable by proper means.” According to an excellent March 28 article in the Mac-oriented publication MWJ, those laws and related court rulings have established that “trade secrets are information, and information is property.” Publishing or even sharing that information, then, is legally tantamount to abetting theft.
In May 1998, for example, the Cincinnati Enquirer ran a damning 22-article investigation of the Latin American activities of Chiquita Banana, the company whose checkered history south of the border originally inspired the term banana republic. The series, which alleged bribery, cover-ups, and other malfeasance, was never challenged on the facts. Yet the paper retracted the whole package, apologized, and handed Chiquita a $14 million settlement after the company falsely accused reporter Mike Gallagher of “stealing” 2,000 internal voice mails. (He had actually obtained them from a willing inside source.)
Gallagher was summarily fired. Far from defending him, the nation’s journalism reviews and media critics joined Chiquita and the Enquirer in denouncing his “ethics.” ("On the question of stealing voice mail,” Pulitzer Prize-winning Los Angeles Times media critic David Shaw told Editor & Publisher, “you don’t do it.") No major newspaper, to my knowledge, ever followed up on Gallagher’s reporting.
They’re all working for giant companies that have plenty of their own trade secrets. Like my friend, they think this an entirely reasonable First Amendment exception, “That’s capitalism, that’s how the market works.”
So on the blogger as journalist question, do we restrict the protections to journalists?
I think the First Amendment should be applied as broadly as possible, I want the government to have less power to compel information from citizens, and I want maximum latitude in my work...If bloggers are left unshielded, that will only serve to enlarge an already conspicuous paradox: that the people with the most press freedom seem the least willing to use it.
Wednesday, June 08, 2005
The theory is wrong
If DRM is any part of Apple’s motivation - which I very much doubt - the reason can only be as a symbolic gesture of submission to Hollywood. One of the lessons of DVD copy protection is that Hollywood still seems to need the security blanket of DRM to justify accepting a new distribution medium. DVD copy protection didn’t actually keep any content from appearing on the darknet, but it did give Hollywood a false sense of security that seemed to be necessary to get them to release DVDs. It’s awfully hard to believe that Hollywood is so insistent on symbolic DRM that it could induce Apple to pay the price of switching chip makers.
Most likely, Apple is switching to Intel chips for the most basic reason: the Intel chips meet Apple’s basic needs better than IBM chips do. Some stories report that Intel had an advantage in producing fast chips that run cool and preserve battery power, for laptops. Perhaps Apple just believes that Intel, which makes many more chips than IBM, is a better bet for the future. Apple has its reasons, but DRM isn’t one of them.
Ok. Maybe. I don’t know enough about it to say. But I stand by my Steve/Bill comparisons.
Monday, June 06, 2005
Short posts (& what I forgot to say about Steve & Bill)
Believe it or not, I have read that the secret of A-list bloggers is lots of short posts. Still, long as my last post was, I left out this…
In the minus column for Steve: because he was unhappy with an unauthorized biography, iCon, Apple pulled all books by John Wiley & Sons from Apple Store shelves, which occasioned much chatter in the blogosphere and articles like Steve Jobs Buys a Washing Machine. (He bought a European machine.)
In the plus column for Bill, Jason Calacanis had a chat:
So, I was chatting with Bill Gates (huge name drop, I know.. but there is a point coming) at the *amazing* WSJ D Conference on Sunday night. Bill was talking to me about the comments on Engadget’s coverage of the XBox 360 (yes, he reads the comments). Since I only get to speak F2F with Bill every two or three weeks I figured I would tell him about Microsoft sending us some legal letters about a screen shot of some mobile software we covered.
He was really concerned, but I cut him off and said “don’t worry, I just talk to Robert Scoble when I have an issue with Microsoft.”
He smiled and nodded his head. Bill gets bloggingÃ¢â‚¬Â¦ it was a stark contrast to Steve Jobs who is busy suing bloggers to get their sources while knowing full well the impact that could have on freedom of the press. On that note, Steve Jobs was clearly conflicted-looking almost embarrassed-when he explained his lame reasons for suing bloggers. Jobs says he thought the case could go to the Supreme Court, but you could see the wheels spinning while the audience shock their heads at him in disapproval.
Via Thomas Hawk, who adds: “Bill Gates does get it. You can’t buy the kind of publicity to get Jason Calacanis to write things like that.”
Apple & Intel, Steve & Bill
It’s official, Apple plans to switch from I.B.M. to Intel chips.
So, where’s the friggin’ lawsuit against C|Net to find out who leaked? Where is the judge who is going to claim that what C|Net published was “stolen property”?
Will someone please explain to me the difference between what C|Net has done and what happened in Apple v. Does?
Which brings me to a tale I’ve been meaning to tell…
While I was in Philadelphia recently friends from New York came down for dinner. I had my nifty new iBook and they were eager to know all about it. They’re switching to Mac.
“Why,” I asked?
“To get away from Bill.”
“These days Steve’s no better,” I proffered, noting the above mentioned friggin’ lawsuit.
The table grew quiet. We moved on.
But what I wanted to say is that when it comes to megalomaniacal moguls, it looks to me like Steve’s on the way up, and Bill’s, er, burnishing his image. His charitable giving—“John D. was a piker compared to Bill Gates”—is impressive. His legions of Microsoft Millionaires have come of age and are out there spreading the good word.
Among competitors, Microsoft is still respected, but it’s not feared the way it used to be. It has become a sluggish, bureaucratic company that, for instance, is going to be at least a year late with a new operating system, called Longhorn. Microsoft stock hasn’t moved in years.
But it’s really about Hollywood: Apple’s looking to transform the movie industry the same way the iPod and iTunes changed the music business.As initially reported, there are a couple of big problems with Apple moving to Intel. The biggest is shifting all the Mac software to a new platform. Apple apparently mulled moving to Intel a few years ago, when Motorola’s chip development fell woefully behind, but Steve Jobs nixed it because of the massive disruption it would cause developers.
What’s new this time is a fast, transparent, universal emulator from Transitive, a Silicon Valley startup...If Apple has licensed QuickTransit for an Intel-powered Mac, all current applications should just work, no user or developer intervention required.
The move would be as painless (!) “as the recent move from OS 9 to OS X.”
But why would Apple do this? Because Apple wants Intel’s new Pentium D chips.
Released just few days ago, the dual-core chips include a hardware copy protection scheme that prevents “unauthorized copying and distribution of copyrighted materials from the motherboard,” according to PC World.
Intel’s DRM scheme has been kept under wraps—to prevent giving clues to crackers—but the company has said it will allow content to be moved around a home network, and onto suitably-equipped portable devices.
And that’s why the whole Mac platform has to shift to Intel. Consumers will want to move content from one device to another—or one computer to another—and Intel’s DRM scheme will keep it all nicely locked down.
Presumably, Jobs used his Pixar moxie to persuade Hollywood to get onboard, and they did so because the Mac platform is seen as small and isolated—just as it was when the record labels first licensed music to iTunes. The new Mac/Intel platform will be a relatively isolated test bed for the digital distribution of movies and video.
Will current Mac users like this new locked-down platform? I doubt it, which I guess is why it’s going into consumer devices first.
The moral of this story? We need an architecture of freedom now more than ever!
UPDATE: The two things I forgot.
Tuesday, May 24, 2005
Norah & Peanuts
Yet another occasion to call attention to Malcolm Gladwell’s Something Borrowed. Please read that article.
From Xeni at Boing Boing:
Mark Ebner at Hollywood Interrupted asks, “Was a Norah Jones hit ripped from Charlie Brown theme music? You decide… This video file offers a side-by-side comparison of Don’t Know Why and Christmas Time is Here. Do Norah and her hit songwriter owe Vince Guaraldi royalties?”
...these patterns of influence--cribbing, tweaking, transforming--were at the very heart of the creative process. True, copying could go too far. There were times when one artist was simply replicating the work of another, and to let that pass inhibited true creativity. But it was equally dangerous to be overly vigilant in policing creative expression…
This era we’re living in--of patenting ideas, trademarking phrases and copyrighting everything--has gone way past protecting a creator’s work. Instead we’re stifling creativity in the interest of corporate commerce.
Sunday, May 22, 2005
A flap has emerged in Israel over the popular song “Jerusalem of Gold.” Composed after Israel captured East Jerusalem in the Six-Day War, the song quickly became a sort of second national anthem. On her deathbed, the composer confessed she hadn’t really written the melody, but taken it directly from a Basque lullaby. The revelation has set off a round of introspection and recrimination.
I heard the story, which includes the offending clip from the song along with the Basque lullaby, but what I didn’t hear is a deathbed confession. The Forward reports it this way:
In the spring of 2004, however, as she was dying of cancer, she wrote to Aldema that she needed to tell the truth. “The whole thing was a terrible accident,” she wrote. At some point in the mid-1960s, “my friend [and fellow songstress] Nehama Hendel visited me and apparently sang the well-known Basque song to me. It must have entered one ear and gone out the other one, but in the winter of 1967, as I was laboring on ‘Jerusalem of Gold,’ it must have unconsciously crawled back into my mind.”
It sounds to me like the woman was tortured by the possibility that something she once heard crept into the writing of her own song. It sent me right back to Malcolm Gladwell’s wonderful New Yorker article from last year, Something Borrowed: Should a charge of plagiarism ruin your life?
I went to see a friend of mine who works in the music industry. We sat in his living room on the Upper East Side, facing each other in easy chairs, as he worked his way through a mountain of CDs. He played “Angel,” by the reggae singer Shaggy, and then “The Joker,” by the Steve Miller Band, and told me to listen very carefully to the similarity in bass lines. He played Led Zeppelin’s “Whole Lotta Love” and then Muddy Waters’s “You Need Love,” to show the extent to which Led Zeppelin had mined the blues for inspiration. He played “Twice My Age,” by Shabba Ranks and Krystal, and then the saccharine seventies pop standard “Seasons in the Sun,” until I could hear the echoes of the second song in the first. He played “Last Christmas,” by Wham!, followed by Barry Manilow’s “Can’t Smile Without You” to explain why Manilow might have been startled when he first heard that song, and then “Joanna,” by Kool and the Gang, because, in a different way, “Last Christmas” was an homage to Kool and the Gang as well. “That sound you hear in Nirvana,” my friend said at one point, “that soft and then loud, kind of exploding thing, a lot of that was inspired by the Pixies. Yet Kurt Cobain"--Nirvana’s lead singer and songwriter--"was such a genius that he managed to make it his own. And ‘Smells Like Teen Spirit’?"--here he was referring to perhaps the best-known Nirvana song. “That’s Boston’s ‘More Than a Feeling.’” He began to hum the riff of the Boston hit, and said, “The first time I heard ‘Teen Spirit,’ I said, ‘That guitar lick is from “More Than a Feeling.”’ But it was different--it was urgent and brilliant and new.”
He played another CD. It was Rod Stewart’s “Do Ya Think I’m Sexy,” a huge hit from the nineteen-seventies. The chorus has a distinctive, catchy hook--the kind of tune that millions of Americans probably hummed in the shower the year it came out. Then he put on “Taj Mahal,” by the Brazilian artist Jorge Ben Jor, which was recorded several years before the Rod Stewart song. In his twenties, my friend was a d.j. at various downtown clubs, and at some point he’d become interested in world music. “I caught it back then,” he said. A small, sly smile spread across his face. The opening bars of “Taj Mahal” were very South American, a world away from what we had just listened to. And then I heard it. It was so obvious and unambiguous that I laughed out loud; virtually note for note, it was the hook from “Do Ya Think I’m Sexy.” It was possible that Rod Stewart had independently come up with that riff, because resemblance is not proof of influence. It was also possible that he’d been in Brazil, listened to some local music, and liked what he heard.
My friend had hundreds of these examples. We could have sat in his living room playing at musical genealogy for hours. Did the examples upset him? Of course not, because he knew enough about music to know that these patterns of influence--cribbing, tweaking, transforming--were at the very heart of the creative process. True, copying could go too far. There were times when one artist was simply replicating the work of another, and to let that pass inhibited true creativity. But it was equally dangerous to be overly vigilant in policing creative expression, because if Led Zeppelin hadn’t been free to mine the blues for inspiration we wouldn’t have got “Whole Lotta Love,” and if Kurt Cobain couldn’t listen to “More Than a Feeling” and pick out and transform the part he really liked we wouldn’t have “Smells Like Teen Spirit"--and, in the evolution of rock, “Smells Like Teen Spirit” was a real step forward from “More Than a Feeling.” A successful music executive has to understand the distinction between borrowing that is transformative and borrowing that is merely derivative…
If you missed his article and are interested at all in the topic, you must read it. Everything’s derivative in one way or another. This era we’re living in --of patenting ideas, trademarking phrases and copyrighting everything--has gone way past protecting a creator’s work. Instead we’re stifling creativity in the interest of corporate commerce.