The first part of Remix focuses on how we can regain today a culture of our past—amateur interactivity and creativity with expressive works, what Lessig characterizes as the Read-Write (“RW”) culture, meaning that the individual can do more than just read the content—the person can also “write” to it (28-29). Remix is one form of writing to content in which other people’s works are transformed in a new creation, but RW culture encompasses amateur or user interactivity with content more broadly.
Lessig uses the example of John Philip Sousa’s outcry against phonographs in 1906 as an example of our past culture that valued amateur engagement with creative works. Sousa believed that the ability of machines to play songs for people simply to listen to would dampen people’s singing of those songs and learning of music. As Sousa decried, “The child becomes indifferent to practice, for when music can be heard in the homes without the labor of study and close application, and without the slow process of acquiring a technique, it will be simply a question of time when the amateur disappears entirely” (26).
So what do kids singing songs have to do with remix today? According to Lessig, the connection is that, in both cases, “the RW creativity does not compete with or weaken the market for the creative work that gets remixed” or sung. Both activities of singing “the songs of the day” and remixing other people’s work involve acts of creativity for the person engaged in the endeavor that can complement the original work.
One might find it strange that the tech-savvy Lessig gives so much prominence to the old Sousa example throughout his book. To some, Sousa may sound like a Luddite, which Lessig is not. Lessig does not question the basic premise of Sousa’s attack against record players for allegedly dampening singing and the learning of music. The argument raises an empirical question that probably is unanswerable today for lack of data, but one might surmise that many people sang along with the record player (as they do today with the radio and karaoke machines) and with a greater number of songs at their disposal. And some people may have been inspired to become musicians or write music after listening to music played on the “infernal machines” that they might not have otherwise been able to hear. It is not so clear that Sousa himself would have embraced today’s remixing of music by DJs like Girl Talk.
Yet Lessig remixes the Sousa example. What Sousa feared was the amateur’s loss of active engagement with musical works: instead of singing or performing them, amateurs can just listen to them. That passive state of receiving content like an inert receptacle (read: couch potato) is what Lessig calls the Read-Only (“RO”) culture. People can only read the work, but not add to it. For much of the twentieth century, the technologies of content dissemination (phonograph, radio, tape recorder, TV, CD) really only allowed RO culture. In other words, the machines made people passive. But the Internet changed everything. It makes being passive passé.
Thus, the lesson of Sousa is still relevant today. As Lessig notes, “ironically for Mr. Sousa, [the] new infernal machines . . . will enable an RW culture again” and foster the kind of amateur interactivity with culture that Sousa lauded (33). Lessig picks up on a key part of Sousa’s testimony before Congress in which he said, “I have never known that it was unlawful to get together and sing” (32). The testimony was a not- so subtle rebuke of expansive views of the public performance right to reach even “singing in the streets” by the public (32). Even Sousa, a famous composer of copyrighted works, recognized the need for limits to copyright, so as not to stop such amateur activity and engagement.
In reading this section, I could not help but be reminded of the somewhat recent example of the chorus of fifth graders from PS22 in Staten Island. Although the story of the PS22 chorus became famous after Lessig’s book, it is exactly what Lessig’s talking about.
The PS22 kids are led by Gregg Breinberg. Breinberg started teaching the kids pop songs, both oldies and recent hits. In 2006, he began posting on YouTube a few videos of the chorus’s rehearsals at school. He also blogged about the chorus on his own blog, with videos of the kids embedded. Then, at the end of 2008, the PS22 chorus had its “YouTube moment.” Gossip blogger Perez Hilton saw videos of the kids’ performances of Tori Amos’ songs and liked them so much he started blogging about them. Soon, Amos herself heard about them, and arranged to hear the chorus in person. Upon hearing the kids perform one of her songs live, Amos was so moved that she was brought to tears. Said Amos, “The fact that the children are so versatile—I didn’t expect this level of ability from a children’s choir and was really blown away, touched, thrilled and inspired all at once.” Stevie Nicks, of Fleetwood Mac, had a similar emotional experience hearing the kids perform her “Landslide” on video, as did Suzanne Vega in watching the chorus perform her “Language.” The accolades from the artists soon brought the kids huge media attention, appearances on Nightline and Good Morning America, and performances for New York Mayor Michael Bloomberg and U.S. Senator Charles Schumer. If you recall, this phenomenon by the end of September 2009, the PS22 chorus videos generated over 9 million views on YouTube.
The sheer joy the kids’ singing has brought to people and even to the artists of the music themselves would lead one to believe that the kids’ activity is all legal under copyright law. The only problem: it’s not, or at least it’s not clear it is legal. Technically, the playing of the music video on YouTube and any performances to the public or at a public place would constitute public performances of the song, which would require permission (whether express or implied) from the copyright holders unless it is fair use. Creating copies of the video would also implicate the right to copy. Although there is a clear exemption for singing “in a classroom or similar place devoted to instruction” for learning’s sake, the publicly available videos of the kids’ singing on YouTube fall outside this classroom exemption.
My question for the class is: So is it fair use? How would Lessig have used this example if the book were written after these events?
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