An Uphill Struggle and Downhill Battle

By ZP Heller, AlterNet. Posted March 8, 2005.

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.

Downhill Battle's view of the four-label monopoly (Sony/BMG, EMI, Universal, and Warner) is perhaps best summed up in an essay featured on their site entitled "The Problem With Music," which was written by Steve Albini, the record producer who was responsible for Nirvana's In Utero, among others. Albini imagines the process of bands signing with a major record label as swimming through a trench "filled with runny, decaying shit." At the other end, an industry lackey waves a contract to be signed along with the false glimmer of success. Since major record labels dominate the airwaves by paying radio stations more money than independent labels can afford (the so-called pay-to-play radio), Downhill Battle has sought to make file sharing easier though Blog Torrent, an easy-to-use file sharing program that relies upon peer-to-peer software.

While Downhill Battle's mission has primarily been to give parity to independent record labels and airtime to their artists, they have also come to the aid of other artists struggling against copyright laws. A recent project of theirs that coincided with Black History Month was "Eyes on the Screen," which promoted the landmark documentary series which chronicled the Civil Rights Movement, Eyes on the Prize. The company that produced this film, Blackside, was unable to afford licensing renewals after 1995 for much of the archival footage that was used in the documentary. Subsequently, this vital film has been largely unavailable to the general public for a decade. Copyright restrictions prevent the film from airing on television (PBS lost the right to air it in 1993), the VHS version is out of print, and releasing the film on DVD would require a re-licensing agreement. To Wilson, this problem "really shows how ridiculous copyright laws are." For "Eyes on the Screen," Downhill Battle organized over 100 screenings around the country, and briefly made the documentary available for download on its web site. An effort is also underway in Congress to re-secure the rights to the film.

Downhill Battle's war on copyrights couldn't have been better timed, with issues of intellectual property laws taking center stage and copyright cases spinning out of control. Recent rulings from the U.S. Court of Appeals have only tightened the record industry's grip on sample-based music. Decisions from Newton v. Diamond and Bridgeport Music v. Dimension Films, which involved music samples made by The Beastie Boys and NWA, respectively, concluded that music samples must be insignificant to the point that they are unrecognizable. Moreover, the artist using the sample must pay the record company, regardless of the sample's length. Record labels are making it either illegal or prohibitively expensive to produce sample-based music.

According to Hwang, these rulings are "out of synch with how a 19-year-old kid thinks of technology, and out of synch with how most artists want to be moving in the world." Hwang's plight to promote awareness of the Negativland lawsuit, then, seems all the more critical. While the internet and organizations like Downhill Battle have made file sharing easier, and have publicized copyright cases to the point that record labels cannot quietly bully independent artists, these suits are not going away any time soon. But neither is Hwang, who has moved the auction of his Negativland iPod to his own web site, and is encouraging bidders to support Downhill Battle. The auction will end on March 14, but the struggle for music accessibility continues.

Zack Pelta-Heller is a freelance writer living in Astoria, N.Y. Currently, he's an assistant editor for Dell Magazines.

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