To my swing-dancing friends, who make up the bulk of my
personal friends, here is an illustration of "Free Culture",
the single issue I am running for U.S. Senate on:
You make a video of a swing routine and post it online.
Perhaps it is a routine you've spent months choreographing
and practicing, or perhaps it was one of those magical
moments of an improvised dance where everything "just
clicked", and you danced awesome. You post the video online
so others may enjoy it, others may learn from it, others may
be inspired by it.
After posting the video, the Recording Industry Association
of America (RIAA) contacts you about the copyright
infringement of the song that is playing to your dance.
Normally, they just ask you to take it down, but perhaps the
RIAA is feeling particularly vindictive today, or they want
to make an example of you (like they did with Joel Tenenbaum
and Jammie Thomas), so they proceed directly to a lawsuit.
They sue you for the legal maximum of $150,000 in damages
for "willful copyright infringement". Is that right?
You could think about defending yourself, perhaps saying
that your video is protected by "fair use", but do you
really have the tens of thousands of legal fees it will cost
to fight the RIAA in court? Can you risk the up to $150,000
judgment if you lose?
You might mute the audio track, hoping to avoid direct
confrontation with the RIAA. But that might be removing an
essential part of your dance -- maybe the reason your dance
is awesome is not because of any particularly awesome moves,
but because you've put together standard moves in a way that
"goes" with the music in a particularly awesome way.
But here is where things get even crazier: Even with the
audio muted, the video your choreography, being based on
copyrighted music, is a "derivative work", and copyright law
protects the copyright owner against unlicensed derivative
works. (This is why a movie must buy the rights to a book.)
Even with the audio muted, you could still be sued by the
RIAA for copyright infringement, again for up to $150,000.
Once again, you could think about fighting in court. To my
limited knowledge, nobody's ever been successfully sued for
"derivative work" copyright infringement for the video of a
dance to music. Maybe there's a provision in the law, or
some a previous court case which established precedent. But
once again, can you afford the thousands of dollars of legal
costs to fight off the RIAA?
So it looks like, if you really don't want to risk getting
sued and losing tens of thousands of dollars whether you win
or lose, it's better not to post the video of your dance
online at all. Now the question is, is the world a better
place because fear of the RIAA has thwarted you from sharing
the video your dance?
Of course, this has been a parable. The moral of the story
is, the power and extent of intellectual property owners has
grown tremendously (historically) in recent years, so much
so now that it is stifling creativity and squashing
innovation, the two greatest forces for good and progress in
human civilization. The fear and uncertainty, the worry of
being sued, is causing people to be cautious about their
creativity, choosing not to share, choosing not to build.
But let's end this story on a bright note. What happens
when culture is instead allowed to be free? Let's take a
look at jazz.
Probably by tradition, and because the RIAA did not exist in
the early days of jazz, musicians in jazz were free to build
upon the works of other jazz musicians and composers. And
of course swing dance, which co-evolved with jazz, dancers
were free to copy, build upon, and develop old and new swing
moves. Dance can be copyrighted, but they didn't. Where
would Lindy Hop be today if there were a copyright on the
swing-out, and anyone who performed it had to negotiate a
license with the creator of the move? Where would swing
dance be today if every swing band had to negotiate a
"derivative work" copyright license for every familiar
"standard" they performed? Or wanting to avoid extortion by
the copyright owner, every band had to have a completely
different repertoire, never "covering" another song with
their interpretation?
The "free culture" of jazz, the ability to share and build
upon other's creativity, has given us a live an active swing
dance community, a community I am thankful to be a part of,
given me so many friends, and something I do for fun
sometimes every night of the week.