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Foto: dpa
Foto: dpa
Kraftwerk 2013 beim 47. Montreux Jazz Festival

Kraftwerk's journey into the realm of contemporary copyright

OK. So what’s the difference between Melania Trump's speech at the Republican National Convention in summer 2016 and Michelle Obama’s speech from the Democratic Convention of 2008? The answer: almost nothing. The eerie situation in our post-modern info overloaded culture is that within minutes of Trump's plagiarism going live on every possible media outlet, there was a direct confrontation with the fact that Trump had directly copied material from Obama and the basic premise that plagiarism was critiqued by people all over the world using the web. That’s a good thing.

We live in a knowledge based economy that is unprecedented in human history. Knowledge requires sharing. There's no question that the copyright industries have been blocking and undermining pro-user reforms for decades. The main issue I want to highlight here is that public speech/public expression in the political domain was a was of the national discourse around originality, authenticity, and what it means to use other people’s words and creative expression in the public domain. The internet is built on copying. So is all digital music. Imagine this: On a fundamental level, as packets of data are sent through the fiber optic cables and satellite transmissions that hold the modern world together, they are copied from one ISP to another and by the time they reach the "end-user" the data has been replicated many times. It's also true with how our culture uses the Internet: everyone is constantly sending copies over the networks, whether partial fragments, edits, or entire pieces. It's a "problem" if you view copyright as a fixed intellectual monopoly that gives content creators the power to prevent copies being made and transmitted. Amusingly enough, this simply means that everyone, everyday is breaking the various laws of copyright all the time as an informal aspect of everyday culture.

What does this have to do with Kraftwerk's lawsuit?

First the basics: In Germany and all over the world, Kraftwerk is one of the leading forerunners of electronic music and hip hop. From Afrika Bambaata's "Planet Rock" on over to the scratch routines and computer influenced sounds of almost any song in 21st century music, their impact is undeniable. After more than 10 years, the Bundesverfassungsgericht (The Supreme German Constitutional Court) overturned a lower court’s ban on a song that used a two second sample of a Kraftwerk recording. In 1997, Moses Pelham used a clip from Kraftwerk’s 1977 song Metall auf Metall his a song he produced entitled Nur Mir (Only Mine) that was sung by Sabrina Setlur. Ralf Huetter, the lead singer for Kraftwerk sued Pelham and in 2012, he won a case for copyright infringement in Germany's Bundesgerichtshof (Federal Court of Justice). He won damages and a block on further distribution of Nur Mir. Pelham and his team appealed the decision. After years of being batted around the Germany legal system, on May 31, 2016, eight judges of the First Senate of the Federal Constitutional Court decided that the lower court did not consider if the impact of the sample on Kraftwerk might be "negligible."

What makes the ruling and its impact in the European Union and beyond, was the basic premise that all music is iterative and involves building on previous songs, lyrics, and rhythm patterns. To me, everything is connected. All stories are worth sharing. All ideas are part of the collective base of humanity's quest to better understand the world. To me, that means any creative artist can and should be able to look at the commonly held ideas of "artistic freedom" as a series of building blocks.

All innovation is built on previous innovations: the way we live now and the way laws are written have parted ways. Why? Because copyright was conceived three hundred years ago in an analog world where objects were scarce and copies were easy to detect and police - imagine hiding a printing press! In the 21st century, creativity has been democratized and it’s no longer under the control of specialists.

Creativity now is a reflection of the messages we send, the videos we upload and the comments on articles like what you are reading now. What makes the Kraftwerk versus Pelham copyright dispute interesting for this context is a basic fact that Pelham took a short sample, and looped it, without much editing and without engaging Kraftwerk. Appropriation is as old as language itself. It does not ask permission and it never gives permission. It is basically creativity as a verb instead of an adjective. It is continuous and unrelenting. A sample is a collision between context and content. It’s a fragment taken out of context and juxtaposed wherever the artist wants to put it. Imagine if you had to clear every piece of a collage? So too with remixing and sampling online in the 21st century. In a world of copies, an "original" is an atavistic throwback to a time when the fiction of individual creativity were a norm. We've moved from "genius" to "scenius" as Brian Eno once said.

Marshall McLuhan theorized in his book "Understanding Media - The Extensions of Man" that a lightbulb was a great example of the collision between content and context. Take the light bulb as an example and compare it to the medium of digital music production. A light bulb doesn't have content in the way a magazine has articles or TV has programs, but it is a medium with a social effect, a light bulb allows people to create dimensionality. It creates spaces at night that would be in darkness without the light. McLuhan liked to think of the light bulb as a medium without content: "a light bulb creates and environment by it’s mere presence." So too with a sample. Is a record a document that can generate other documents (recordings) or a static dead space in the culture?

What happened between Kraftwerk and Pelham is more than a simple copyright infringement issue. It was a collision between value systems based on whether people can think of music simply as music, or music as an information system. Norbert Weiner, the mathematician who coined the term "cybernetics" had a great obseration when he pointed out at the dawn of the information age after World War 2: "Progress imposes not only new possibilities for the future, but new restrictions." His insight was meant to show that information requires structure and redundancy and that innovation requires rules.

Where does the lawsuit between Kraftwerk and Pelham end? Not in the courtrooms of the government, but in the hearts and minds of people who use digital media everyday in every aspect of our information and data driven society. The alogorithms that drive all aspects of internet culture are just as much a part of a larger collision between code and culture as the computer systems and hardware that are the backbone of the 21st Century info society. Where the judges of the Bundesverfassungsgericht (The Supreme German Constitutional Court) observed that "artistic freedom" was an aspect of the ability to sample previously made "found sound" one could argue that the merits of being able to look freely through the collective archive of digital society is just as much a part of that essence of "freedom."

Perhaps Nieztsche was on to something when he wrote a manifesto looking at some of the same ideas about freedom and restraint in his 1881 opus Morgenröthe – Gedanken über die moralischen Vorurtheile) "Dawn: Thoughts on the Prejudices of Morality" that "the real world is much smaller than the imaginary…" To me that means that sampling, collage and the infinite possibilities of remix culture to outweigh the original objects, songs, and artworks in the archive of digital media are all reflections of the infinite possibilites that are available to us if we can update our vision of copyright law. That is the new freedom, perhaps, implied by the judges of the Supreme German Constitutional Court.