I mentioned in class that De La Soul gave away their entire catalog on Valentine’s Day. This is fascinating in the context of Lanier’s work. Arguably, De La Soul is frustrated with their predicament where they have not been able to get their music released digitally. Their early work used many samples, so in order to release it digitally, their record label must get permission and negotiate a payment for the use of each sample. And digital sale of music that includes samples is frequently treated differently than physical sales. So their music has languished, available only in physical form, while music sales have shifted to digital.
This is caused in part by the lack of a “statutory rate” for music sample clearance. In covering another artist’s song, there is a Congressionally set rate that you must pay to the copyright holder of a song for each sale of your cover. This is a statutory rate. Along with that, after the first performance of a new song, the owner of the copyright cannot prohibit others from covering it (this is a “compulsory license”). And there is also a “performance” compulsory license and statutory rate (for using a song on the radio, or TV, or streaming), and several clearinghouses (ASCAP and BMI) that audit radio and TV stations to get them to pay the performance royalties to copyright holders. It’s basically a half-century old micropayment system. Given today’s NYT article on the Content Creators Coalition protesting the way these royalties get paid, it seems that the jury is still out on whether this system is a good thing.
However, sampling is not treated the same way. There is no set rate for sample use, so each sample use must be negotiated individually. Also, a copyright holder of a work does not have to agree to allow anyone to use the sample. The Beatles, for example, have never allowed anyone to use samples of their music. De La Soul happened to sample The Beatles, so I imagine that’s part of their non-starter.
Lanier might argue that sample clearance should be part of his universal micro payment system. It’s an interesting case, because supply and demand runs into a basic math problem: when supply is equal to zero, there is no way to set a price. Assuming The Beatles have a valuable and popular catalog, but they will not sell it for any amount of money, then their product is fundamentally unsuitable for the micropayment system unless the micropayment system can coerce them to provide it. In this regard, it’s a similar situation to the camera surveillance proposal that Lanier mentioned–many people will never consent to having their physical presence constantly monitored, and not for any amount of money, so their data is fundamentally unsuitable for the micropayment system. In order for a micropayment system like his to work on a broad scale, it practically must have compulsory licensing of the content that it sells. So a big question emerges: is compulsory licensing suitable for all kinds of data and content? Would you consent to compulsory licensing of your child’s physical location? Compulsory licensing of your psychological health records? Compulsory licensing of your art?
As the the article also mentioned, it is interesting that (so far) De La Soul has not been sued. It’s possible that this is an industry stunt, engineered by their labels for maximum effect. But there are certainly other recent cases of artists making saleable music that samples music without clearance (e.g. Girl Talk). Is this just the race to the bottom that Lanier predicts will happen to all content as it is devalued by our system, or is it something else, something better?