Trollgate: Cultural Production, Amen to That – Culture, the Public Domain, and the Rights of the Artist in the Digital Age – Towards a Copyright of Creativity

asdf [cca2.0 knipstermann]

Full groove ahead, or the end of the public domain?                                         [cca2.0 knipstermann]

Lucia, possibly the smartest lady in the blogosphere [her partials are just as strong as the boys’] has had a series of posts up recently at her climate oriented blog The Blackboard that strays from her usual blog-fare:  toy worlds and the intricacies of modeling thermodynamic systems; betting quatloos on the monthly UAH temperature anomaly; how-to sessions on anti-bot script writing for self-hosting WordPressians; and knitting.

The subject of this series of posts at The Blackboard is one Linda Ellis, author of the 1996 inspirational poem The Dash, and her propensity to use the Digital Millennium Copyright Act  and the OCILLA code to guard – very closely – the unauthorized use of her work on the internet.  Ms. Ellis’s behavior has been described by some in the blogosphere as “trollish“, and by some others as a “shake-down operation“, though I’m sure if you asked Ms. Ellis she would say she is only defending the integrity of her intellectual property and trying to make a living from her work.  To find out more about the specifics of the controversy at Lucia’s peruse the relevant blog posts of: 18 February, DMCA Takedown: Linda Ellis;  March 19th [which seems to have disappeared from the front page of The Blackboard], Don’t Post Linda Ellis’s ‘The Dash’; and March 27th, Linda Ellis DMCA follow up.  Lucia loves a puzzle and the most recent post from her fits that tendency to a T.  Lucia is also: feisty, smart, and doesn’t like the idea of someone gaming her.  There are some very good comments so it is worth at leas skimming those as well [Lucia attracts very smart commenters].

It is not the intent of this post to discuss the specifics of the legalities or even the ethics of the ‘trollgate’ controversy [feel free to comment at Lucia’s], but in the usual Meme Merchants fashion take a slightly tangent tack and look at a few of the deeper issues of culture and society that form the basis and rational for intellectual property rights and law.

It is usual Meme Merchants editorial policy to link to all of the original sources under discussion, but in this case we are going to follow Lucia’s advice from her post of March 19th, “…don’t link to the stupid poem in the first place,” and not post Linda Ellis’s ‘The Dash’ or even link to her website – a link, to a link, to a link will have to do if you aren’t previously aware of Ms. Ellis’s oeuvre [if not join the club].  We are doing this for several reasons: a] to avoid the legal debris field rapidly orbiting the blogosphere [don’t feed the trolls!]; b] to maintain solidarity with Lucia; and  c] we would rather not send our own readers to the site where Ms. Ellis is so actively flogging her own work [because she seems to expect everyone else to do this].

Wygart has his own opinion of the subject, which he left in comments at Lucia’s, summarizing The Dash’s literary merit as: “… a literary one-liner – totally Hallmark®.”  As for myself Ms. Ellis’s work had not previously risen to my attention – or more accurately, permeated the cracks in the rock strata down to my subterranean library – but having now read the piece find that the space on my shelf of inspirational poetry along side: my Khalil Gibran, my Coleman Bark’s editions of Rumi, my Schiller and Novalis; my Donne and Whitman remains secure.  Even the space space on the wall opposite the commode in the Meme Merchant throne room is fully occupied [see bottom].

It seems that Ms. Ellis’s attitude has unexpectedly [for her] spawned a host of emulators, such as this piece by Ron Tranmer, who as a poet seems to take a very use with attribution attitude towards his works for non-commercial use.

The Dash Between

I knelt there at the headstone
of one I love and cried.
Name with dates of birth and death
were perfectly inscribed.

I pondered these two dates
and how little they both mean
when compared to the tiny dash
that lies there in between.

The dash serves as an emblem
of our time here on the earth
and although small, it stands for all
our years of life and worth.

And our worth will be determined
by how we live each day.
We can fill our dash with goodness,
or waste our life away.

To ourselves, as well as others,
let’s be honest, kind and true,
and live our lives in the way
we know God wants us to.

Let’s look for opportunities
to do a worthy deed,
showing love and understanding
to those who are in need.

For If our hearts are full of love
throughout our journey here,
we’ll be loved by all who knew us
and our memory they’ll hold dear.

And when we die, those memories
will bring grateful loving tears
to all whose lives were touched
by the dash between our years.

~Ron Tranmer,

So there we  have it, it seems almost anyone can come up with a reasonable facsimile of Ellis – just you try that with Donne.

Now that we are, presumably, all up to speed as they wish to be on the issues that instigated this discussion I will now go into some further depth into some points that Wygart brought up in comments at The Blackboard on March the 19th.  This will attempt put in a deeper cultural and societal context some of the issues that are presently working their way through society in the digital realm, and our legal system.

It’s interesting to note that Dorf, my usual go-to-guy on the law, does  not seem to have picked up on the issue of DMCA trollishness – maybe because it has not yet risen to Supreme Court level.

The Amen Break

The basis for this discussion came to the Meme Merchants a number of years ago in the form of a video presentation by Dr. Nate Harrison, an artist and writer who works in the field of “intellectual property, cultural production, and the formation of creative processes in modern media.”[1]  The discussion is wrapped around the history of a very small piece of digital media, a six second sample of a percussion break from a 1969 recording: Amen, Brother by the long dedefunct funk and soul music band The Winstons.  This break has become known popularly as the Amen Break.

I invite you to take the 18 minutes time out of your busy life to watch it now, you may find it fruitful.

The presentation, Video Explains the World’s Most Important 6-Sec Drum Loop can be found on YouTube here:

Ok, you’re back – or not.

Briefly, the Amen Break began it life as a four bar break on the B-side of a Grammy winning single by an already defunct music group, but unexpectedly in the late 1980’s with the rise of digital samplers it became the staple in the rhythmic constructions of several underground electronic music scenes and has since spawned a number of musical subcultures.  Eventually the Amen went main stream and edged anonymously into popular music and was thus necessarily picked up by the madmen of Madison Ave as an injectable to help push what ever it was that they were pushing that day.  Things start to become interesting, and relevant to those outside of the electronic music scene, when the Amen was hoovered up, by certain audio production companies, packaged into collections of audio samples and then sold back to the musicians and DJ’s who were involved in producing the new music scenes in the first place.

It is worth noting that, aside from the original recordings, neither the copyright owner Richard L. Spencer or the performer G.C. Coleman has ever received payment for the use of the sample of the Amen Break – nor has either of them sought royalties.

Cultural Production

It’s interesting to note that with the Amen Break the musical appropriation under question was at most a six second sample that was susually then uniquely changed, distorted, or elaborated upon and embedded within a complete new work, to the point that the original sample was sometimes cut apart into its individual drum hits and rearranged to form entirely new rhythmic patterns.  This was not musical plagiarism in any normal sense of the word but something quite else.  This type of musical appropriation was not even functionally similar to the standard musical cover version that we are probably a familiar with.

A cover song, for those who do not understand the biz, is a legal, though not necessarily authorized new version of an existing musical work that is made legal and royalty paying to the copyright holder via an agreement, or a so called mechanical license, which serves the same purpose when there is no agreement between the original author and the new artist.  The mechanical license is interesting because it can be created without the copyright holder’s permission or even knowledge and its use arose out of the government’s attempt to prevent monopolistic attempt of one company to corner the market in player piano music scrolls in the 19th century.

Harrison make his position statement about the importance of “cultural production” to a vibrant public domain at minute 15:00 of the video:

To trace the history of the Amen is to trace the history of a brief time when it seemed digital tools offered a potentially unlimited amount of new forms of expression.  Where cultural production, at least musically, was full of possibilities by virtue of being able to freely appropriate from the musical past to make new combinations and thus new meanings.

Very interesting, more interesting than that, though, is the notion that culture is something that can be produced, a conscious product of art and human activity.  This is a very American notion, actually it is a modern notion, but in many quarters these rather different notions: American and modern, have become conflated.

Cultures that are pre-modern in origin are of a type based upon ancient tribal, ethnic, or religious identities that may have over time conflated themselves with national identity as well.  Most of the so-called cultures of Old Europe are of this type, having cultures long linked to Blut und Boden and with an intellectual, if not political, aristocracy to perpetuate, and conserve it.  To such an old world culture a culture of the modern type, one based on the cultural production of a nation of immigrants of diverse origins and a rationally modern and anti-aristocratic outlook, would necessarily seem contrived, mechanical, and cobbled together.  What a premodern culture cannot envision is that American culture, as a product of the world’s first modern nation, represents a new type of culture, one that was not handed down from antiquity, or inherited from the DNA, but produced by the conscious striving and participation of its people as a whole – as opposed to held in trust for the volk by aristocracy or an ethnic majority.

As an aside, this conflation of modern culture with American culture seems to be one of the sources, and enduring appeals of Anti-Americanism world wide.  Don’t like modernity? you probably won’t like America either and might feel tempted to make one the poster-child for the other.

One can however, make some general statements about the differences between modern and pre-modern cultures and leave if for people to decide which they prefer.   Any old skool, tribal, ethnic, or religiously based culture necessarily has to take a rather conservative view of cultural change, cultural membership, and maintain some type of authoritarian structure to manage all of these things – including any minority cultures – lest culture become degraded or diminished.  Old culture almost by definition is already perfected, it can’t really be improved.  Thus old culture is necessarily suspicious of modernity and often develops reactionary tendencies when confronted with it.

To paraphrase the venerable Jorge of Bergos from Umberto Eco’s The Name of the Rose, ‘There is no progress in culture, only sublime recapitulation.’

In a modern culture, on the other hand, nobody is in charge of the culture, consequently everyone has equal claim to membership and everyone has the freedom to access and operate and change the cultural operating system.  The real downfall of this freedom is that the cultural operating system tends to have a lot of [new] bugs in it, where as the old skool culture’s bugs have been there for generations and have now become some completely enshrined as part of the culture and thus culturally unassailable, or even unidentifiable.

A cultural point of view is like a crystal, you have an amorphous cultural medium which at certain temperatures will form a crystal of cultural convention – if you will.  And, within the geometry of that crystal certain things make sense and certain things are excluded from making sense.
~ Terence McKenna [2]

Which kind of culture would you really want to live in? which is better which is worse?  Think about it then tell me about it in the comments section.

What is the future for cultural production?  Harrison continues at 15:47: [my bold]

As we go forward, examples like the Amen Break will become more rare, if nonexistent.  A sixth circuit court of appeals ruled in September of this year [2004] that recording artists must pay for every sample they use [that is] not in the public domain regardless of the length and recognizeability of the samples in question.

This is very bad news for anyone with an interest in an open source, democratically created culture with a vibrant and growing public domain.  The cited ruling answers legally, if not morally or ethically, a very interesting question: how small of a unit of culture is legally enforceable by copyright protection, as now seems to be the case, essentially any amount that can be detected.  It seems that now there is in essence no quanta of information in a copyrighted work that is trivial enough, in consequential enough, derivative or precedented itself of other works to be legally appropriated – made one’s own.  This has not always been the case.

Think about that for a moment, collage is out under those rules – unless you obtain licenses for every scrap of magazine cut-out you glue to the board, so then is dada as an aesthetic movement, Joyce becomes a villain – and many others.  Where do you end the madness?  In court obviously.  One reason to take a slightly lax attitude towards copyright infringement, if no other, is to reduce the burden to society of an excess of litigation over trivial matters.

The point of art particularly, or culture generally is to influence the audience, to change them or make them new in some way.  It is hoped by the author that some set of ideas he expressed in a published work should gain some traction inside the audience members imaginations.  It might be reasonable, even in the legal sense, therefore to expect the audience to make it their own – appropriate that set of ideas at some level, even if they don’t make complete copies of the work and start selling them themselves.

As I might say to Ms. Ellis, its the unanticipated cost of success to an author, the audience’s desire to make some part of your work their own.  Sing Kookaburra sits in the old gum tree often enough as a school child and you might want to weave some small element of it into your new song expressing your enthusiasm for the idiosyncrasies of the culture of Australia.  Just hope that the new copyright owner of the work doesn’t take an avaricious view to your new bit of cultural production.

Harrison Continues at minute 16:08:

Because of various changed to US copyright laws for example the Copyright Act of 1976 and the Sonny Bono Copyright Extension Act of 1998 which extends [existing 1923 and later] copyrights into the mid 21st century, virtually all 20th century cultural output has been locked away from the public domain, barred from sampling unless one has deep pockets and expensive lawyers.

If the previous example showed courts fixing an infinitesimal length for the unit of copyright, then here we see the duration extended towards the infinite. After the Copyright Term Extension Act of 1998  copyrights became, generally, the life of the author plus 70 years and for works of corporate authorship 120 years after creation or 95 years after publication, whichever endpoint is earlier.

In general the Copyright Act of 1976 and the 1998 Copyright Extension Act are considered to come down heavily in favor of the copyright owner, which is not necessarily a bad thing in and of itself, but the Act makes no distinction between copyright owners who are the original author and who may still have a stake in the enterprise of creating new works, and copyright owners who own large back catalogs of works they may never have created but have an overwhelming self-interest in maintaining to the determent of creative authors and society in general.

Harrison concludes at minute 16:33:

So it seems, a company like Zero G with its attempt to regulate the use of and profiting from the use of the Amen Break is helping to secure the supremacy of copyright laws, while the company’s success, itself occurred because of the lack of strict copyright control surrounding break beat sampling.  In other words not only does innovation within culture grow when copyright is flexible, so do its markets and capital….  Money is exchanged all in the pursuit of new forms and experiences…

Is this good or bad?  Hard to say, opinions abound, but what can be said is that the situation seems to have spurred a trend for many of the most creative of cultural creators to move away from traditional copyright structures almost entirely.  On the one hand there has been the Open Source movement and then on the other hand its evil twin in the pirate BitTorrent movement.  Something is happening – cultural evolution in progress.

It seems that this essay has sprouted, to keep this post to reasonable length I will attempt to wrangle the remaining topics and thousands of words into one or two future posts.  More to follow.


  2. Terence McKenna, Eros & the Eschaton, Seattle, 1994

P.S.  from the Meme Merchant cabinet de toillette:

“Until one is committed, there is hesitancy, the chance to draw back, always ineffectiveness. Concerning all acts of initiative (and creation), there is one elementary truth that ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then Providence moves too. All sorts of things occur to help one that would never otherwise have occurred. A whole stream of events issues from the decision, raising in one’s favor all manner of unforeseen incidents and meetings and material assistance, which no man could have dreamed would have come his way.

Whatever you can do, or dream you can do, begin it. Boldness has genius, power, and magic in it. Begin it now.”


This quotation from William Hutchison Murray’s The Scottish Himalayan Expedition (1951) is usually misattributed to Goethe, in fact only the terminal couplet [a rather loose translation] is found in John Anster’s 1835 edition of Faust.


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