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?