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 For immediate release 8/17/98 From: Negativland In a surprising, shocking, and probably totally illegal turn of events, recent actions by the RIAA have intimidated the company that presses Negativland's CDs into refusing to press the new Negativland CD "OVER THE EDGE Volume 3 - The Weatherman's Dumb Stupid Come-Out Line", originally slated for an August 17 release. The point of this lengthy press release is to publicize the fact that a situation now exists that is no longer about an individual record label or publisher going after an individual "copyright infringement" as has happened to Negativland and many others in the past. We are now faced with the very real situation that the ENTIRE corporate music industry (via the RIAA) is preventing an ENTIRE aesthetic, completely circumventing our legal system, and keeping the raging debate over the re-use of our common culture from ever reaching a public or legal forum. The original intent of copyright law was to promote a public good, not a private one and no matter how valid the original intent of our nations copyright laws may have been, they are now clearly being subverted. Negativland is continuing their search to find a plant willing to press their latest CD, but so far have had no luck. WHAT IS THE RIAA? RIAA is an acronym for the Recording Industry Association Of America, Inc. They are a lobbying and enforcement arm of the Big Five multi-national entertainment companies: Sony, Time-Warner, Universal/Polygram, BMG, and EMI. The RIAA is known more publicly for their attempt to impose a flat tax added onto the price of blank cassettes, their efforts to stop the consumer use of DAT tapes, closely advising the government about conservative new copyright legislation, and busting down the doors of suspected music bootleggers and pirates in the real world and on the Internet. They also hand out all those gold and platinum records to the music biz's bestsellers. WHAT IS NEGATIVLAND? Negativland is an experimental-music and art collective that has been recording and self-releasing music/audio/collage works since 1979. Negativland has become, by necessity, interested in copyright law and the "fair use" statute within it. What began as a natural attraction to found sound in a society overflowing with disposable media has now become a conscious desire to show by example the crucial difference between pirating or counterfeiting anothers work straight across in order to profit from the saleability of that single source, and the creative transformation of material from multiple sources into new, "original" works. This is known in the art world as COLLAGE and it has had an undisputed legitimacy in virtually all art forms since the turn of this century. However, the owners and operators of mass marketed music, being the latest medium in which collage is being practiced, continue to naively attempt to criminalize the technique of audio collage as if it was an illegitimate intruder on originality and nothing more than a form of theft. WHAT HAPPENED? On July 29, 1998, the CD pressing plant that Negativland has been using for the last four years demanded that Negativland provide proof that the samples on their new CD had been cleared and paid for. While doing the digital transfer to prepare the CD pressing master they had noticed some chunks of music mixed into the sound collage that were appropriated from Pink Floyd and The Village People. In all the years that Negativland has been releasing CD's full of creatively appropriated found sounds on their own Seeland Records label, this issue has never come up with the CD plant. In the ENTIRE corporate mainstream and independent music industry, the "problem" of clearing a sample has always been an issue between the labels, the artists and the publishers, NOT THE MANUFACTURERS (this is one of the reasons why Negativland runs their own label). But apparently, that has now changed. GUIDELINES FROM THE RIAA The RIAA has issued guidelines to CD plants on what to look out for to prevent CD piracy and counterfeiting, and, since June of this year, is now "advising" CD manufacturers that they need to look out for samples as well. CD plants are specifically advised to (emphasis added)-
1 Conduct routine review of all orders to determine legitimacy. Negativland has no problem with any of this being applied to counterfeiting and piracy. But according to Dave Williamson of Disctronics CD Replication, the RIAA recently informed him that an uncleared sample was as illegal as copying an entire song, that an uncleared sample was automatically a copyright infringement, and that Disctronics could be sued for up to $100,000 per infraction. Cinram CD Replicators recently turned over suspected master recordings to the RIAA and the RIAA destroyed them. NEGATIVLAND SPEAKS TO THE RIAA Negativland's Mark Hosler spoke to Matt Oppenheim of the RIAA about this. Mr. Oppenhiem is one of the RIAA's civil litigation attorneys and handles lawsuits against CD pressing plants. He told Mark told that "the RIAA does not tell plants one way or the other what they should or should not do, but we do advise plants that they are liable if they press infringing material". So, the "industry experts" of the RIAA issue specific guidelines to the plants, tell plants that they could be liable for up to $100,00 per unpaid and uncleared sample infraction, consider this to be "not telling the plants one way or the other what they should or should not do" and fail to help the CD replicators distinguish between the proper and improper use of copyrighted materials. The RIAA's position is that it's ALL copyright infringement without any room for protected speech. The CD plants are not informed that copyright law specifically permits the fair use of copyrighted material in certain circumstances and, in cases of sampling, the plants are put into the untenable position of having to act as judge and jury on all incoming releases. THE RECORDING INDUSTRIES DIRTY LITTLE SECRET As an ironic aside here, it should be pointed out that, contrary to what the corporate music biz and the RIAA would have you believe, Top 40 major label recording acts DO NOT CLEAR ALL THEIR SAMPLES. Such huge acts as Nine Inch Nails, Beastie Boys, Beck, Public Enemy, Soul Coughing and many, many others only clear those samples they use that are RECOGNIZABLE. If they are altered or mutilated enough so as to be unrecognizable, almost no one bothers to clear their samples or pay sampling clearance fees. The supposed industry wide practice (and standard contractual obligation) of clearing ALL your samples is simply not followed. It's all done with a nod and a wink. When they are cleared, it has nothing to do with ethics or the law or ideas of right and wrong, as the RIAA and the mainstream music industry would have you believe. It only has to do with what you think you can or cannot GET AWAY WITH. If these acts were honest about all the samples they REALLY use, then, according to the new guidelines of the RIAA, none of their CD's could be pressed any longer either. SOME BACKGROUND Right now CD plants in North America (especially the larger ones) are extra cautious about avoiding any trouble - recent lawsuits by the RIAA against CD replicators DMI and AmericDisc for pirating and counterfeiting CD's (for $4 million and $7 million respectively) have sent the intended chilling message throughout the entire CD replicating industry - YOU WILL BE HIT HARD IF YOU COUNTERFEIT! Negativland is strongly AGAINST the pirating and counterfeiting of other peoples CD's, but the RIAA is tarring sampling and audio collage with the same pirate brush. Negativland's CD plant was not interested in the fact that Negativland knew that their transformative re-use of the sampled material was a fair use under copyright law or that Negativland was quite willing to defend this re-use as a fair use in a court of law. They did not care that Negativland had already indemnified them or that their refusal to press the CD because of fear of the RIAA could be seen as being what is legally known as "prior restraint" and therefore illegal. The pressing plant was not interested in hearing any of this, and quite understandably so - it simply wasn't worth the financial risk for them to take Negativland's little 2000 copy CD pressing job when the RIAA, representing the five biggest multi-national record labels in the world, is breathing down their necks. Once the plants are put on notice that a particular action (like pressing a Negativland CD) is potentially infringing, they are at risk of being held liable for what is legally known as "contributory infringement". Most plants are entirely dependent on the members of the RIAA for their livelihood and dare not cross them even in the face of outrageous and oppressive behavior. As we said earlier, this creates a situation in which the issue is no longer about an individual record label or publisher going after an individual recognizable "infringement" as has happened to Negativland and many others in the past. This is now about the entire corporate music industry preventing an entire legitimate aesthetic (see NEGATIVLAND'S TENETS OF FREE APPROPRIATION and NEGATIVLAND BIO on their website for more on this - http://www.negativland.com), completely circumventing our legal system, and keeping this raging debate over the re-use of our culture from ever reaching a public or legal forum. AN ANALOGY An analogy might be this - should a printing press be held legally responsible for the content of everything it prints? If a newspaper printed something libelous or untrue and you wanted to stop them, who would you sue? The printing press? No, you would sue the newspaper publisher and/or the author of the article. You would not punish the printing press. Is AT & T held legally liable because the Oklahoma City bombing was partially planned out over their long distance phone lines? No, they are only the carrier. Is an Internet Server Provider in the U.S. held accountable for the content of the e-mails transmitted through its system? The Telecommunications Act of 1996 says no. PRIOR RESTRAINT Let's look up some definitions of "prior restraint" in Black's Law Dictionary - "a system of 'prior restraint' is any scheme which denies use of a forum in advance of its publication. The First Amendment prohibits the imposition of a restraint on a publication before it is published without there first being a judicial determination that the material does not qualify for First Amendment protection. Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights." And The Oxford Companion To The Supreme Court Of The United States says "The prohibition on prior restraints on speech or press lies at the very core of the First Amendment....prior restraint has been equated with censorship." Intellectual property attorney Alan Korn, who has worked with Negativland in the past, agrees that efforts to suppress the manufacture of works protected as fair use under copyright law may constitute prior restraint. (See Supreme Court Reaffirms Rejection Of Prior Restraints in CBS Inc. v. Davis, ___ U.S. ___, 114 S. Ct. 912, 127 L. Ed. 2d 358, 22 Med. L. Rptr. 1285 [1994] Judge Blackmun. An article about this case is on Negativland's website). CONSTITUTIONAL LIABILITY Civil rights and intellectual property attorney Paul Rapp tells Negativland that "the RIAA, by actively policing federal copyright laws on behalf of its members, is performing a governmental function, and this may expose them to constitutional liability." In a claim of constitutional liability against the RIAA, the Courts would examine the extent to which the RIAA works with the government. Although the RIAA itself is not a governmental entity, the RIAA has, for almost 30 years, worked in tandem with law enforcement on all levels, including training and education of law enforcement personnel, supplying expert witnesses, and the preparation of legal briefs for the government to use in the prosecution of pirated recordings. This long- standing symbiotic relationship with the government, in addition to the RIAA's independent efforts to police federal copyright laws on behalf of its corporate members, opens up the RIAA to liability for constitutional violations arising from its activities. RESTRAINT OF TRADE And finally, contract attorney Hal Stakke adds that "the actions of the RIAA may also constitute unlawful restraint of trade and interference with business and contractual relations." The RIAA heavily lobbies state and federal officials on behalf of corporate monopolies that control 90% of all recorded music in this country and thus the RIAA's abilities to suppress the manufacture and distribution of material it does not approve of is enormous. PRE-EMPTIVE CENSORSHIP The actions of the RIAA are an act of pre-emptive censorship. They deny musicians, record labels and music publishers the opportunity to work out issues of fair use in a court of law and create a situation in which, if they successfully intimidate both large and small CD pressing plants all over the U.S., Negativland and many others will no longer be able to press ANY of their current, future or past CD's. A truly disturbing scenario. The profits from sales that allow Negativland to continue to exist have always been marginal and Negativland's ability to keep releasing new work has always hung by a slender thread. This thread now appears to be breaking. BUT WHAT DOES THE RIAA HAVE TO SAY? In the rest of the half-hour long conversation with Matt Oppenhiem of the RIAA, Negativland's Mark Hosler tried to describe the troubling situation that Negativland was in (though in the conversation Mark only identified himself as running a small label with 25 releases.....Negativland wasn't quite ready to make itself a martyr for this cause just yet). Mark told him that they had taken the "offending" release to four different CD pressing plants and been turned down by them all and Mr. Oppenhiem replied "Well, that tells me that we are doing our job." He then said "This should tell you that you need to try and get this sample cleared". When Mark tried to explain that he felt that his transformative re-use of copyrighted material for parody, critical or other creative purposes was a fair use, the conversation took a nose dive. The idea that anyone could suggest that there was any possible conceivable instance in which re-using a fragment of someone else's material could be done WITHOUT getting permission and WITHOUT paying sampling clearance fees was obviously totally insane to Mr. Oppenheim. "Are you a lawyer?!", he demanded to know. "Because fair use is not a right, it's a defense!" Clearly, the RIAA believes that their interpretation of copyright and fair use is the ONLY interpretation, and are not interested in any other point of view. Fair use IS raised as a defense when one is involved in a lawsuit for copyright infringement, but it is also one of the MAJOR EXCEPTIONS to a copyright owners exclusive monopoly of a copyrighted work....and if fair use is seen ONLY as an affirmative defense, then this interpretation of fair use creates a situation in which prior restraint and self-censorship is inevitable. When Mark suggested that what the RIAA was engaged in DID amount to an act of censorship, Mr. Oppenheim became furious. "You are making this into a political issue and accusing us of being censors!" When Mark suggested that if the RIAA could not be reasoned with, then perhaps the only thing to do was to sue the RIAA, Mr. Oppenheim hung up the phone. WHY WE THINK THIS IS HAPPENING In effect, the RIAA is attempting to strong-arm manufacturers into seeing the issue from only its perspective, without technically violating any laws. Is Negativland being singled out here in some way? We don't think so. Besides stopping pirating and counterfeiting, the corporate music industry has always wanted to stop unpaid sampling in music. Into the 90's it might appear that they were fighting a losing battle because unpaid sampling was continuing to bubble up from the underground of techno, collage and hip-hop in all kinds of freely appropriated forms. And some of the more notorious users like Negativland actually had the nerve to publicly claim that it was ART, it was SURREALISM, it was COMMENTARY, it was SATIRE, it was FAIR USE, and it was NOT piracy or counterfeiting (which, in Negativland's opinion, is the only thing this presumptuous organization should be "legally" concerning itself with anyway). Worst of all, using this annoying "art" terminology (not to mention the amusing and interesting works that have been created this way) has probably begun to legitimize this practice in the public mind (exactly one of Negativland's tactics for the last six years). Suing artists in public can create bad "anti-art" publicity for the litigators, thus undoubtedly preventing them from threatening or suing every usage they would like to (it is perhaps because of the publicity Negativland generated around the U2 lawsuits that Negativland has NOT been sued for continuing to do the same thing they got sued for in 1991). Their methods were inconsistent and getting more so. But now, via the RIAA, the Big Five has discovered an effective end run around the "art" barrier that prevented their omnipotent control over ALL possible uses of their very public private property. Intimidating the CD pressing plants into filtering out any and all unpaid uses prevents ANY appearance of this type of material in the marketplace which has not been cleared and paid for. Anyone who can still discern a difference between art and commerce knows that the RIAA's actions will even further reduce any form of sampling or sound collage work because artists both outside and inside corporations, or out on culture's fringe, will simply not be able to afford the going rates charged for using this stuff. Or they will be refused outright because their use annoys the sample owner. EVERY USE will be scrutinized and runs the risk of being censored prior to its coming into existence for whatever reasons might enter the unknown mind of the person listening at the pressing plant (!) who will be initially monitoring this. Negativland's last studio recording, DISPEPSI, could be refused because the pressing plant would demand proof in writing that PepsiCo had given Negativland permission to use bits and pieces of their commercials ( PepsiCo did NOT give Negativland permission, HAS heard the CD, and has publicly stated their decision to do NOTHING about the release. This is a perfect example of "fair use" in everyday practice, recognized even by PepsiCo as no big threat to their wealth and as being legally defensible as found sound social/cultural commentary). ENOUGH ABSURDITY Well, enough absurdity! This is clearly unacceptable in terms of both freedom of speech and freedom of expression. Copyright is a LIMITED right. It is NOT an exclusive property right. Copyrights exists to protect intellectual property and encourage expression by allowing the creators to profit from their creations, but it is a LIMITED RIGHT (look it up!) because if protection and control under copyright go too far, then creativity and free expression is DISCOURAGED. In the anti-art interests of maximum profit, the RIAA, their lawyers and those who they represent have conveniently forgotten all of this and appear to be accountable to no one. Even if you don't care about copyright issues, intellectual property law, the evolution of art and ideas and culture, or the ominous feel of having corporations own and control all of your culture, consider this - do you want to see a situation in which transnational corporations are telling manufacturers to decide what is and is not acceptable art? Where will they intrude next? Shouldn't these issues be decided in the public eye and in a court of law? No matter how valid the original intent of our nations copyright laws may have been, they are now clearly being subverted when they are used to suppress the public need to reuse and reshape information, to censor resented works, and to garner purely opportunistic incomes from any public use of previously released cultural material which is, in fact, already publicly available to everyone. The original intent of copyright law was to promote a public good, not a private one. NO ONE SHOULD BE ALLOWED TO CLAIM PRIVATE CONTROL OVER THE CREATIVE PROCESS ITSELF. WHAT CAN I DO TO HELP? This issue is far too big for Negativland to take on alone. If anything is to be done, then we need someone to organize and keep track of all those folks out their who are concerned and outraged about this. Perhaps the RIAA can be reasoned with to re-think their tactics, but, with their track record, we kind of doubt that will happen. Music producers and consumers might need to consider organizing to bring a class action suit against the RIAA that allows them to CONTINUE their efforts to stop piracy and counterfeiting and bootlegging, but STOPS them from interfering with sampling, STOPS them from interfering with the re-use of our common culture and STOPS THEM from blocking the fair use rights the U.S. Copyright Act gives every citizen and creator. The RIAA has no business being art police. If you are a lawyer, a label , a musician, an artist, a CD broker, a CD replicator, a writer...anybody who feels as freaked out about the implications of this as Negativland does, please add your name to our announce list (see below) to be kept informed about what happens next and how you can help....and please talk to each other and PLEASE write a thoughtful letter to the RIAA. These issues are not about to go away..... ______________________________________________________________________ ___ For their help in preparing this press release, Negativland would like to thank attorneys Alan Korn, Paul Rapp, Hal Stakke and Rod McCarvel. Also thanks to Susan King, Gadgetto, David McConville, Jon Land and Brian Myers for research assistance. To be kept up to date on these issues and ways that you can help, please subscribe to the Negativland Forklifters Club Announce List at - http://negativland.com/touch.html To send a general message to the RIAA please write a THOUGHTFUL AND CONSTRUCTIVE LETTER, and send to the following list - hrosen@riaa.com, sdonofrio@riaa.com, fcreighton@riaa.com, jbetts@riaa.com, sfabrizio@riaa.com, jflatow@riaa.com, dincorvaia@riaa.com, jbendall@riaa.com, clawhorn@riaa.com, jhenkel@riaa.com, lpelliccia@riaa.com, jberman@riaa.com, csherman@riaa.com, nashby@riaa.com, lbocchi@riaa.com, pbrooks@riaa.com, jegas@riaa.com, jfleming@riaa.com, jganoe@riaa.com, hkim@riaa.com, smarks@riaa.com, hmccaffrey@riaa.com, jmilbauer@riaa.com, rmorgan@riaa.com, moppenheim@riaa.com, mpetersen@riaa.com, brobinson@riaa.com, lsalet@riaa.com, msimcik@riaa.com, tsites@riaa.com, dstebbings@riaa.com, btenor@riaa.com, nturkewitz@riaa.com, dvaldez@riaa.com, awalsh@riaa.com, fwalters@riaa.com, jwhitehead@riaa.com, wyascur@riaa.com Or send to - Recording Industry Association Of America 1330 Connecticut Ave. NW Suite 300 Washington DC 20036 RIAA fax: 202 775-7233 RIAA phone: 202-775- 0101 For more information on the RIAA go to - http://www.riaa.com To reach individuals at the RIAA via e-mail- Hilary B. Rosen President and CEO hrosen@riaa.com Frank Creighton Senior Vice President, Director of Investigations fcreighton@riaa.com Steven J. D'Onofrio, Esq. Executive Vice President, Director Anti-Piracy sdonofrio@riaa.com Jennifer Betts Coordinator, Special Anti-Piracy Projects jbetts@riaa.com Steven B. Fabrizio, Esq. Sr. Vice President, Director, Civil Litigation sfabrizio@riaa.com Joel L. Flatow Vice President, Government Affairs and Artist Relations jflatow@riaa.com Denise Incorvaia, Esq. Anti-Piracy dincorvaia@riaa.com Jennifer L. Bendall, Esq. Sr. Vice President, Government Affairs jbendall@riaa.com Charles A. Lawhorn, Esq. Vice President, Anti-Piracy Criminal Litigation clawhorn@riaa.com John Henkel Coordinator, Artist Relations jhenkel@riaa.com Alexandra M. Walsh Vice President, Media Relations awalsh@riaa.com Lydia G. Pelliccia Assistant Director, Media Relations lpelliccia@riaa.com Jason S. Berman Chairman jberman@riaa.com Cary H. Sherman Sr. Executive Vice President and General Counsel csherman@riaa.com Neal Ashby Director, Creative Services nashby@riaa.com Linda R. Bocchi, Esq. Vice President Royalty Administration and Associate General Counsel lbocchi@riaa.com Philip R. Brooks Investigative Associate pbrooks@riaa.com Jack Egas Application Specialist jegas@riaa.com James F. Fleming Director, Technology jfleming@riaa.com John H. Ganoe Vice President, Member Services jganoe@riaa.com Heather H. Kim Assistant Director, Royalty Administration hkim@riaa.com Steven M. Marks, Esq. Vice President, Deputy General Counsel smarks@riaa.com Howard McCaffrey Director, Information Systems hmccaffrey@riaa.com Jean R. Milbauer, Esq. Director, Royalty Administration and Associate General Counsel jmilbauer@riaa.com Robert L. Morgan Assistant Financial Director rmorgan@riaa.com Matthew Oppenheim Associate Counsel, Civil Litigation moppenheim@riaa.com Marilyn G. Petersen Administrative Assistant mpetersen@riaa.com Barry K. Robinson, Esq. Vice President, Deputy General Counsel brobinson@riaa.com Lee Z. Salet Vice President, Administration lsalet@riaa.com Mary Beth Simcik Assistant to the President and CEO msimcik@riaa.com Tim Sites Sr. Vice President, Communications tsites@riaa.com David W. Stebbings Sr. Vice President, Technology dstebbings@riaa.com Brigette N. Tenor Assistant Director, Member Services btenor@riaa.com Neil Turkewitz, Esq. Executive Vice President, International nturkewitz@riaa.com Donald J. Valdez, Esq. Vice President, Anti-Piracy Legislation dvaldez@riaa.com Frank D. Walters Coordinator, Investigative Operations fwalters @riaa.com Jonathan Whitehead, Esq. Assistant Anti-Piracy Counsel jwhitehead@riaa.com Wendy Yascur Evidence Control Manager wyascur@riaa.com |