clap clap blog: we have moved

Monday, January 01, 2007
I know, I'm shut down, but there's something I want to say, and it won't be relevent in two weeks.

You remember those old stickers that said "Skateboarding is not a crime"? Those always annoyed me. Skateboarding is a crime, because there is a law that says so. That is the only thing that determines whether or not something is illegal. We can talk about whether or not skateboarding should be a crime, we can talk whether it's moral or not (although morality isn't really the issue, the common good is), but there's no argument about whether or not it's a crime. The state says it is, so it is.

I'm reminded of this because of the whole outcry surrounding DJ Drama getting arrested. Yes, it sucks. Yes, he should be freed; someone should not be put in prison for making music. But what he was doing was illegal, and so to pretend shock that he would be arrested for doing what there are laws against doing is absurd. Making mixtapes and then duplicating them and selling them is against the law. The practice is supported by the labels, it's supported by the artists, it's supported by the retailers. But they can support it all they like implicitly; they have done nothing to change the law, and so it is still illegal, and people can and do go to jail for doing it.

You can rail all you want against the RIAA. What they are doing is stupid and wrong, yes, but that doesn't change the fact that it's (almost) entirely legal. If it wasn't, they wouldn't be able to continue raiding people's homes and suing them and sending them scary lawyer letters. Posting MP3s without the explicit consent of the copyright holder--which 99% of the time is the label, and which does not take the form of an e-mail from some low-level digital marketing lackey--is illegal. Downloading music you have not paid for is, broadly speaking, illegal. Making mixtapes with uncleared samples or songs not owned by you and then selling them is illegal. The labels may like you doing these things or they might not. But having their implicit consent doesn't matter when it comes to the law. If you do these things, you can get sued or put in jail. There are fair use exceptions, yes, but almost all the possibly illegal activity online involving music simply falls outside the definition of "fair use."

The point is not that you shouldn't be doing it because it's illegal. (This is what your mom would say, but what does she know about modern music, after all?) The point is not that it's morally wrong, or that it hurts the artist, or that the labels don't want you to do it. All these things have been debated endlessly, and frankly, no one has any idea whether they're true or not. But one thing is a fact: it is against the law, and when something is against the law, the law can punish you for doing it.

Laws are made by the state, but the great thing about democracies is that you are the state. You can work to change the laws. If you think all this shit is wrong, don't spend your time decrying the RIAA, or loudly proclaiming that music should be free when bands ask that you please not post the music they have made, or pretending that all your disclaimers and justifications make what you're doing legal. Pressure labels that support mixtapes and MP3blogs and mashups and all those sorts of mutually beneficial uses of copyrighted material to lobby to have the laws changed. You have a relationship with labels? Great. Write them an e-mail and tell them to support copyright reform. Tell them that the double standard they've supported lets them have it both ways while sending mixtape makers to prison. The labels have a relationship with consumers that the RIAA does not, and the status as copyright holders to ask the government to make room in the legal code for these uses. They have a real need to do something about this and the ability to make a change. All they lack is the will.