On Critical Race Theory and the need for Free Licenses

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Hello, Nick here, and, embarrassingly this is my first post for the Music Manumit Lawcast Blog.

As listeners to the show know by now, I'm Doug's co-host, and my interest in copyright and intellectual property issues plays second (tenth?) fiddle to my interest and professional work on social justice and issues of racial disproportionality.

So what brings me to work on this project in the first place? There is the notion that free speech is of limited value when the ability to actually communicate meaningfully is truncated, and that important voices of dissent will be quashed if we don't continue to fight for the kind of balance of control and freedom that is embodied in Free Culture licenses like Creative Commons, and Free Software licenses like GPL, but ultimately my interest in the legal mechanisms behind this kind of controlled sharing are simply a matter of the coincidence that occurred when I happened to familiarize myself with Free Culture and Free Software during my time in law school. Because there are important legal mechanisms behind each, and because I was in the process of becoming a legal professional, this material sunk its hooks into me, and this project seemed like a natural step.

And, as Doug mentioned during our Earth Day show, we wouldn't need to bother with any of this legal BS if there wasn't material of substance and importance that needed to be communicated in ways that differ from the ways that Gene Simmons prefers (this may be the topic of another blog post actually - if I remember the quotation that set off all the rancor against Gene Simmons accurately, I actually think it's a wholly accurate statement that I would not be surprised to hear from someone on "our side".... but I digress). I am all for reaching a point where we don't need to bother with all this legal BS, so in the meantime, let's communicate substantively, and, if they're useful, let's use the right legal tools to communicate effectively.

In an earlier post, Doug mentioned that we had planned a show to provide an overview of the Public Domain for this weekend, which we wound up postponing (cancelling? Cancelponing?) because my internet went down the morning we had planned to record, and stayed unreliable until.... What he did not mention, unless I missed it, is that we planned to work in a very brief discussion of a very interesting article by Cory Doctorow which makes a lot of eye opening statements about the uniqueness of music as a copyrightable form, and is worth a read. The particular portion that Doug and I were drawn to, however, was the fourth paragraph, in which Doctorow takes a sort of Critical Race Theory approach to copyright protection of music:

The part of a song that is ‘‘musical’’ is totally up for grabs, and changes from society to society and age to age. The European tradition has tended to elevate melody, so we think of ‘‘writing a song’’ as ‘‘writing the melody.’’ Afro-Caribbean traditions stress rhythms, especially complex polyrhythms. To grossly oversimplify, a traditional European song with a different beat (but the same melody) can still be the same song. A traditional Afro-Caribbean song with a different melody (but the same rhythm) can still be the same song. The law of music – written by Europeans and people of European descent – recognizes strong claims to authorship for the melodist, but not the drummer. Conveniently (for businesses run in large part by Europeans and people of European descent), this has meant that the part of the music that Europeans value can’t be legally sampled or re-used without permission, but the part of the music characteristic of Afro-Caribbean performers can be treated as mere infrastructure by ‘‘white’’ acts.

Doug and I still may touch on the Critical Race issues of this piece in a future podcast. I think it is accurate to say that I am one of the most situationally privileged people in the world. To make that point, I am a young healthy white American man with a professional education. I have also put myself in the position of trying to identify systemic racism - that is to say, the racism within a system regardless of who is in control of that system; this means that in the District of Columbia, I am likely to wind up in the position of saying - from my position of tremendous privilege - to government decision-makers who are people of color that the decisions they have made disadvantage people of color, and perpetuate disparate impacts emerging from the historical culture of Anglo-American legal ferment. Remember the blog post in which Doug traced US Supreme Court case law back to pre-revolutionary England? While this is a nation of immigrants from all corners of the globe, and on one block I can eat English, Chinese, Middle Eastern, Japanese, Spanish, Korean, Belgian, West African, German, Carribean, Mexican and Indian food (I probably left some out - I'm thinking of the 1300 block of H Street NE, for anyone who knows DC - I may also be inadvertently lumping in restaurants from the 1200s), our system of laws is Anglo-American, and that is the cultural context on which we have built our expectations of what the law should deem our rights and responsibilities.

There is a lot more to explore there, and, as a white male - married to a black female - who spent the first 25 years of his life in a state that is 93% European-American, then studied law in a Critical Race aware HBCU in 50% African-American DC, now working for TimeBanks USA's Racial Justice Initiative, I will definitely be going back to Critical Race Theory both in regard to Doctorow's dissection of copyright in music, and in regard to my own personal and professional life.

However, I want to pick up on another important, perhaps slightly hidden statement about copyright protection within the Doctorow quote: something about a song is up for grabs. In particular, it is whatever about a song a given perspective says is less unique. That's in fitting with the notion that copyright protects creative work, but of course wherever there is ambiguity about what is or isn't creative work, cultural ferment demands that some aspect of a song be available for reuse. Before ending this rambling blog post, I just think it's important to those of us who know that certain things need to be communicated with a legal tool to control sharing to say that everyone - musicians only in this instance - who creates does so from someone else's work to some degree, and that - while we always need to exercise care in identifying the aspects of previous work that can and should be shared - Free Culture licenses give us tools that help us to communicate more clearly how we want our work used and adapted. Any license does this, of course, but the simplicity and widespread use of Creative Commons means that an author's intentions will be more likely to be identified and followed.