Sunday, February 08, 2009

On Avoiding the Three Second Rule


Tonight prior to posting this I took a surfing tour through the legal authorities on fair use and sampling. Because I am an attorney, and because it is my observation that attorneys generally come off seeming a bit silly whenever they take the witness stand or give legal advice on the internet, I'm never very excited about the idea of holding forth on the legalities of Creative Commons licenses. Suffice it to say that touring pre-CC legal authorities is much less fun, say, than listening to the surf music of the Ventures or to Danger Mouse.

In 1934, there was talk of a 20-second rule. Later, talk of a "three second rule" came--and went. It's all a complicated story. The doctrine of "fair use" becomes an exercise in theology and in epistemology as well as an issue of copyright. The only thing remaining exquisitely alive about the music of 2 Live Crew is the live controversy about how much one can sample and what winds sail one into Pirate Bay.
I'll not bore anyone with any history or legal analysis on all this.

I also hasten to say that I am fully comfortable with the existence of a comprehensive copyright law. If I were given a choice of sharp instruments to take to the existing statutes, I'd vigorously use a scalpel rather than heedlessly use an axe. I favor a complete restructuring of how creators of media and consumers of media interact--but I don't need Congress or Parliament or even the dreaded BUMA to "save us" in order for this "velvet revolution" to occur. I see the revolution as unstoppable, and the legalities as mere way stations on the way to a sharing economy.

I therefore support the right of each of our creators to apply NC licenses to works. I apply them myself, at our netlabel and in individual things I create. I don't see CC as one more dogmatic way for well-meaning people to reduce options for artists. I see CC licenses as tools to increase the options for artists. I am all for mixters being able to reserve the right to license and sell their work. I have even sold a CD or two of my work in the past, as implausible as that may be to anyone who has heard my work. All of that is good.

Similarly, I do not want to criticize any mixter for any license applied to any work in the past. I do not want to cut into the legal and moral rights of anyone to control those property rights granted by our current laws. I want a velvet revolution, and not an armed revolt. I get bored of needless contention. I bathe in conflict, and shower it off at the end of the work day.

Yet so often I see ways that we in the future can, as a community, help one another out. As we move into a "brother can you spare a dime?" phase in our nation's history, we have an historic opportunity to spread music "free as in beer, free as in speech, free as in our hearts and minds and the beats we tap". Some of us--not me, by choice-- can even profit gently from this sharing. But we must work together.

My gentle plea is this:

If you have the killer 'pella that might be something you want to use in a work for sale someday, then by all means license that NC. Similarly, if you do what odd guitar magazines call "shredding", but what I call "being nearly half as cool as Bill Nelson", then license that NC.

But if you are posting a building block sample, like a quick hit or sound, then I ask that you license it BY when you post it. For that matter, as someone who has successfully sold DIY poetry, I suggest that if you have a spoken word track, license it BY, because it's better to be a well-known poet than to be one who obscurely sold a single sample for 100 dollars.

I also suggest that we all begin a dialogue on how, without undue labor or needless organization, we can create an entire soundpool of completely BY samples.

You see, my fellow mixters, I see us as a community of activists, who are all in this together. We are seeing our works go out into the ether as if we were the revolutionaries we intended to be.

All we need is the building blocks to sample to go to places we have never been. Some of us, like mostly me, will never transcend the day job, except as a labor of love. But some of us could take these mixes and go places.

I suggest we begin a dialogue about using the BY license, to help mixters use BY and fly into the popular culture.

We can share music, we can create new music, and we can fulfill dreams. Yet the path to do this lies through the BY license. We ought not have to write one another e-mails (charming as each of you have proven to be) to use 3 second samples of kicks and 7 second guitar lines.

Can't we get BY into a more fun sample place?


spinmeister said...

very well put, Mr. G.! I wholeheartedly concur with you on the rights of the artist to chose licenses according to their own hearts. However, as you know, I'm also rapidly warming up to the idea of using BY much more often. In some cases it would be a straightforward gift. In addition it might give emerging artists more shots at making a name for themselves.

However I do have questions around multi-generational attribution. i.e. what happens to attribution in the case of a remix of a remix? I've tried to ask the question at what I thought was the right place, but to my growing disappointment it seems to be pretty quiet over there.

Why does this matter? In the case of short samples, those are highly likely to just melt into multiple generations. So if BY is single generational, then it looses its currency in a real hurry. So then why not just make short samples public domain, rather than bothering with BY? The difference becomes relatively small.

However if BY is multi-generational, then it becomes more complicated to remix a remix. I would have to figure out, if the part of the remix I'm remixing actually contains one or more of the samples attributed in the remix I'm using. This can become onerous in a hurry. Things are arguably much more straightforward for most vocal works, because they (mostly) hold a more unique and special place in works that feature them.

So while I'm increasingly warming to it, I'm also not entirely happy with BY. And to my own chagrin, BY-NC ends up being a bit of a safety valve given the possibly cloudy state of BY. It's definitely better to have it than not to, because at least it gives you a chance at re-assembling the heritage of a multi-generational remix. So if you like that 7 second riff a lot, you can probably track down the original contributor of it -- at least in the context of ccMixter. But ccM may also be the only place where that is mostly possible. And even there it would probably fail if someone in the middle of a multi-generational remix chain removes their upload.

Also, I don't think it's currently that easy to change something from BY-NC to BY in ccM. I believe one has to ask an admin to do that.

marco said...

good post. I like BY-SA a lot too. great for samples.

don't like the fuzziness about NC though. that totally feels like asking for permission all the time.

gurdonark said...

@Spin--within mixter, my view is that
the trackback itself is sufficient. I used to be troubled about this, but I came to the view that Victor's approach is the most elegant solution to solve the multi-generational issue.

Outside mixter, I think that one just copies and pastes the same information up the generational tree, which, in all but the most extreme cases, is much less problem than one might otherwise imagine. I can conceive of a remix of a remix of a remix of a remix which could get complicated, but 2 or 3 generations is usually the norm, and copying the "samples used" list is usually not much trouble with the computer.

I know that I've read that consideration was given to a PD license, and it would be great to just see a sample pool of PD created by the mixters themselves, so that the "provenance" of the material as PD would be established. Still, I think that BY is the most useful for
routine samples as mixter stands now.

@marco that fuzziness is what concerns me, too. It can (sometimes) be hard to contact the licensor, which makes NC one more exercise in all those rights clearance things. In my mind, it is one thing when it is an elegant vocal from a singer, which can justify NC, and another when it is a cymbal crash or 3 notes from a piano.

spinmeister said...

SA isn't problem-free either - it just doesn't mix well with other CC licenses like Victor explains in chapter 3.7.2 of his ccMixter biography and this Creative Commons License Compatibility Chart also illustrates. For that reason I'm hesitant to use SA licensed material very much, and I specifically avoid it for my work.

zotz said...

A few thoughts.

The big problem I have wrestled with at ccMixter from the beginning is the lack of BY-SA as an option and how that pushes some of us to use NC where we might not want to.

I know SA has its own problems even outside of the ccMixter space and special ones inside of the space but I would still like to see it. Either that, or parallel ccMixters.

Forgetting the lesser promoted licenses, right now ccMixter has:


right now this could be changed to:


without hurting the flow of how things work at ccMixter.

Parallel ccMixters could have:

1. BY and BY-SA (The Free Mixter)
2. BY and BY-NC-SA (The NC Mixter)

Or the present ccMixter could just offer:


and when a track was uploaded and the parents pointed to, the site could determine if the licenses were compatible and accept the upload or explain the problem.

In fact, the site could have a form to list tracks one wanted to use in a mix and it could tell you if it was cool or would run into license issues.

I have given up calling for this change however. A few years of effort is enough.

I am doing more playing these days over at kompoz where BY-SA is an option.

What I finally settled for here is to put up some tracks that I have licensed BY-SA over at the internet archive and license them BY-NC here. I have two tracks used in remixes so far and am happy with the results musically, but NC is such a dead end for everyone else in the world.

What I have decided to do going forward as well is to put up shorter portions of some (all?) of my stuff that is NC here as plain BY. So if I have a complete spoken word lyric licensed BY-NC here, I may put up just one verse or just the chorus with a BY license.

I think that I am also going to try and license one complete work a month BY and see what happens.

Has anyone else from ccMixter ever done the RPM Challenge?

We shall see.

all the best,


fourstones said...

I think we are going to offer CC0 (zero) to free things up even more. I know this doesn't require attribution but I think that point is made throughout the site.

A remix made from parts downloaded from ccM that results in a copyright violation will happen OVER MY COLD SCATTERED ASHES.

zotz said...

"A remix made from parts downloaded from ccM that results in a copyright violation will happen OVER MY COLD SCATTERED ASHES."

fourstones, I am not sure what the point of this comment is.

Perhaps is everything on the site was CC0 you would have a chance.

As it is, you and everyone else lacks the power to do anything about this.

If someone *wants* to create a remix of ccM parts that causes a copyright violation, it is a simple matter.

Download BY and BY-NC stuff and upload it to some third site or as a torrent listed at pirate bay and license it BY or BY-SA or BY-ND or ...

Presto. a copyright violation in a remix made from parts downloaded from ccM.

all the best,


zotz said...

Forgot a part,


"Download BY and BY-NC stuff and upload it to some third site or as a torrent listed at pirate bay and license it BY or BY-SA or BY-ND or ..."


Download BY and BY-NC stuff and upload a remix made from them to some third site or as a torrent listed at pirate bay and license it BY or BY-SA or BY-ND or ...

fourstones said...

Download two samples from ccMixter and make a remix. Stop.

That has to result in a legal remix. That's my bar. Anybody can abuse any license or agreement, but the REMIX itself has to be legal.

Introduce SA and that standard is no longer met. Sorry, that is totally unacceptable to me.

You can make up any other scenario you like, I'm talking about the one we are ASKING people to do. It's really very, very simple. We've been having this "debate" for four years and I'm happy to continue another four years -- or until I die, whichever comes first. After I'm dead, the rules can change, I won't care about it then.

zotz said...

Now I understand you comment fourstones.

This did first come up between you and I a long time ago.

I gave up on trying to get a plain BY-SA in the mix at the normal ccMixter. I do get your reasons and they are certainly valid ones.

I think Creative Commons is making a mistake though in having an BY and BY-NC mixter and not also having a BY and BY-SA mixter run at a different site. Say ccFreeMixter. I don't recall ever suggesting this at the ccMixter site after you first sent me to the cc lists for such discussions.

I reluctantly stayed away from ccM for a long time until I could work out a way to take part there under the terms that exist there.

I have done that in a way that I can live with. (Not totally thrilled with my decision, but I can live with it and am participating. I have uploaded a number of spoken word tracks and have two remixes so far.) I am also seriously considering doing one plain BY work a month to see where that takes me.

There is one licensing adjustment that I think ccM could easily make and still meet your stated goals and that is to phase out BY-NC in favour of BY-NC-SA.

If ccM offered BY and BY-NC-SA, any two such tracks could still be legally remixed.

End of small suggestion for improving ccM.

Separately. And this is a general statement and a suggestion to Creative Commons and not a call for any change in ccM. If Creative Commons were also to fund and support and give its blessing to ccFreeMuxter which only offered BY and BY-SA licenses, on that site also, and two tracks could be legally remixed.

Please understand though, neither this post, or any other post you may see around ccM by me is or will be calling on you to allow BY-SA and any By-NC tracks on ccM itself. You were clear on that years ago, I gave up on doing that years ago, and I respect your position.

I am happy to be able to participate there and look forward to doing so in the future. I have featured several ccM BY songs on a local radio show here in the Bahamas and look forward to featuring more in the future. (I also feature BY and BY-SA tunes from kompoz, jamendo, and macjams and have Simuze and the Internet Archive on the list and am on the lookout for more repositories.

all the best,


fourstones said...

The answer to the 'free' site is also exactly what is was when it first came up: built it. CC sposoring yet another music community is still a non-starter.

I think the rest of this conversation kind of points up the idea that you kind have to make decision right up front: do you publish NC or SA. As I've said I would use SA for all my stuff given the chance. Biting thr hand that geeds me: I'm pretty sour on NC.

zotz said...

"The answer to the 'free' site is also exactly what is was when it first came up: built it. CC sposoring yet another music community is still a non-starter."

Just to be clear, I am not asking you to have any involvement in any Free Mixter site fourstones.

I will not be building such a site, at least not any time soon. I am involved in other efforts and it is likely not my most skill friendly area.

I still think CC is making a mistake in not having one, but I am not on some constant crusade to try and force them to do something they do not wish to do.

I do mention the concept from time to time when it comes up though.

For myself, I do my BY-Sa thing in several places.

The internet archive:"drew Roberts"

Packet In:

and most recently, Kompoz:

What I have done so far with ccM is to take some of my BY-SA stuff from the internet archive and post it as BY-NC at ccM. I don't really want to do lots of stuff as BY at ccM and so I am using a license which I don't particularly like for my stuff there and I would be quite happy for people to use my stuff at least commercially but that is not in the game. Whatever. It is the best I can see myself doing for now except as I say, I am seriously considering doing one larger BY work a month. I am also considering taking a smaller part of my BY-SA tracks at ccM and making them BY.

"I think the rest of this conversation kind of points up the idea that you kind have to make decision right up front: do you publish NC or SA. As I've said I would use SA for all my stuff given the chance. Biting thr hand that geeds me: I'm pretty sour on NC."

As I explained above, for my original stuff I am doing the dual license in two places thing with BY-SA at the internet archive and BY-NC at ccM.

I will give it some time to see how things work out.

In any case, all the best,


gurdonark said...

I prefer BY above all, though I see the point of BY NC. I support folks using NC who might benefit from it, though I prefer BY.

I understand the theory behind SA,
and it's not at all a bad theory,
but I'd much rather see BY than BY SA and BY NC SA seems to me a cumbersome license.

The theory of "I will let you use my work for attribution only, provided that you make your work available for sharealike on the same basis" is certainly an understandable desire, but it gets cumbersome in the same way that NC gets cumbersome. I favor reducing the encumbrances where possible, and sending a lot more things to BY.

Sarah Hall said...

It's good that you guys can share music, create new music, and fulfill dreams. The same situation is with they make absolutely original projects and this way help poor students academically succeed:)