An Uphill Struggle and Downhill Battle

At the end of 2004, capitalizing on the enormous success of its iPod portable music player, Apple issued the iPod U2 Special Edition. It was "special," principally, because of aesthetic differences – jet-black exterior with a red click wheel as opposed to Apple's iconic white, with the band's signatures engraved on the back. One consumer, Francis Hwang, found Apple's U2 iPod particularly intriguing. "I just thought that of all the bands for Apple to choose," Hwang said, "U2 was an odd pick."

Hwang's puzzlement dates back to the 1991 case of Island Records v. Negativland, when U2's label, Island Records, sued the band Negativland for using an unauthorized sample of U2's "I Still Haven't Found What I'm Looking For." The lawsuit, which was eventually settled out of court because Negativland could no longer afford the legal battle, was what Hwang, a director of technology at Rhizome, has called "an internet-era intellectual property case before the internet." Music sampling has been under particularly close scrutiny by record labels recently, as they seek to exploit vague copyright laws in order to prevent their music from being sampled by DJs and hip-hop artists.

As an ironic comment of "the ongoing struggle between those who would confine culture and those who would free it," Hwang purchased a U2 iPod and doctored the box with pictures of both bands, entitling it "U2 vs. Negativland," He then loaded the iPod with several Negativland albums (Apple's U2 iPod did not include any preloaded music, but rather, a coupon for $50 off U2's recent box set on the iTunes Music Store), and put it up on eBay for sale. Hwang's plan was simply to promote public awareness of the Negativland suit, to let his art piece stand as an historical connection, especially as the record industry seems to be tightening its grip on sample-based music.

Hwang also felt that, having bought the iPod, "this thing that I'm selling is mine to do so," as he told Wired News. Money was not a motive: "The idea of getting attention for this case seemed worthwhile, but not making a profit." To that end, all proceeds from Hwang's eBay auction were slated to go to Downhill Battle, a nonprofit organization devoted to music activism.

One day before Hwang's eBay auction ended, however, eBay canceled the sale, notifying Hwang in an automated e-mail that their action came at the request of Apple. Hwang tried to contact Apple numerous times, but to no avail. "When I first decided to put my iPod up," he said, "I thought I might get into trouble." Yet Hwang never received any additional word from Apple, neither in the form of an explanation or as a notice of any copyright infringements.

Apple does not have a good record when it comes to digital rights, recently arguing in a case against three bloggers who revealed information about unreleased products that free speech protections afforded to print journalists do not apply to online journalists.

Downhill Battle's co-director, Holmes Wilson, seemed even more upset by Apple's flexing of corporate muscle, lamenting the fact that there wasn't a "public process" to eBay's removal of Hwang's doctored iPod. "Using Apple's [product] in that way," Wilson contended, "was clearly meant as a parody and should therefore be protected, but Apple threw their weight around." Wilson believes that there are enormous paradoxes when it comes to the ownership of ideas. "The original reason for copyrights was not just to make money for artists," he said, "but to promote creativity rather than inhibit it."

Launched in 2003 with the explicit purpose of decentralizing the music industry, Downhill Battle is no stranger to defending artists against monopolistic record labels and outdated copyright laws. In 2004, when EMI attempted to censor Danger Mouse's Grey Album, which sampled both Jay Z's Black Album and the Beatles's White Album, Downhill Battle staged a day of civil disobedience to promote the album, which they called Grey Tuesday. EMI claimed a copyright on the White Album (which has been disputed by legal analysts at the Electronic Frontier Foundation), and threatened Downhill Battle and other sites attempting to share the album. Over 100,000 copies of the Grey Album were downloaded on Grey Tuesday, marking the protest a huge success. Downhill Battle even took their fight against music censorship a step further, creating Banned Music to share music being censored by record companies.