But one practice that’s common among Free Republic denizens, who like to call themselves “FReepers,” is something you don’t often find on other bulletin boards: Free Republic’s discussions are full of the complete texts of other sites’ news articles, cut and pasted from the original Web pages into archived postings on the Free Republic boards. Often, the re-posted articles are grabbed in raw HTML format — which means that they’re formatted exactly as they originally appeared, sometimes even including the original graphics. (Full disclosure: Salon articles have on occasion received this treatment from Free Republic, and we have protested to its webmaster.)

This practice is what has brought down the wrath of the two newspapers, who have sued Free Republic for copyright infringement. Free Republic says its postings are legal under the concept of the “fair use” exemption from copyright rules — which allows the limited reuse of copyrighted material for purposes like criticism and comment.

Who’s right? Is this a case of “big boys” picking on a plucky grass-roots operation, as Matt Drudge would have it? Or are the newspapers just cracking down on a flagrant violation of the law? The Free Republic suit has significance that goes beyond the immediate emotions of this scandal-stoked moment. The law always lags behind technology, and the rules that govern copyright today have yet to establish clear lines of legality for use and reuse of material on the Web — so cases like this are likely to have a major impact in shaping the medium’s future.

Free Republic’s webmaster, Jim Robinson, a Fresno, Calif., retired software executive, has posted a barnburning editorial on his home page that quotes the First Amendment and then argues: “Any man, corporation or government entity who wants to challenge our right to discuss news accounts (copyrighted or not) of public policy issues or political events or of government corruption, etc., in our non-commercial, not-for-profit, public electronic townhall forum should first examine each and every word of the First Amendment above and then tell us which words they don’t understand.”

You go, Jim! Robinson is right that First Amendment protections apply most strongly to political speech, which is definitely what Free Republic traffics in — and that fair use claims are bolstered by his site’s noncommercial nature. On the other hand, nobody is trying to stop the FReepers from “discussing” news accounts. The issue is whether they can republish them in their entirety.

Here’s where a close look at the fair use standard — courtesy of the legal encyclopedia on Nolo Press’ Web site — helps. Nolo lists several tests for determining whether a use is a “fair use.” Free Republic fails most of them.

One test is, “Are you just copying or creating something new?” Though the FReepers do sometimes comment on and criticize the stories they post, they don’t “transform” the articles in any significant way. Consider this re-post of a Jan. 24, 1998, Washington Post article about Lucianne Goldberg by Howard Kurtz and David Streitfeld — duplicated on the Free Republic site down to the Post’s copyright line. The sum total of commentary on the piece consists of a single post from one Free Republic member that reads: “Hey Kurtz, you lickspittle!!! You left out the part where Georgie Stephanopoulus [sic] tried to shout down Bill Kristol!”

Another test that Free Republic fails is “The more you take, the less fair your use is likely to be.” A random dip into the Free Republic boards shows that they are chock-full of stories copied from all over the Web.

But the killer test here is the one that says, “Don’t compete with the source you’re copying from” — don’t “impair the market” for the original work. This is undoubtedly where the newspaper lawyers will be building their case — since Web surfers reading the stories on the Free Republic site will not be visiting the newspapers’ own sites to do so.

Both the Post and the Times are now charging small fees for access to their archived stories. I think that’s a bad strategy, and I doubt either company will ever make much money this way. But I have no doubt that Free Republic, by hosting a kind of do-it-yourself archive of news stories copied from the newspaper Web sites, is brazenly ripping these companies off.

Free Republic and its lawyer have charged that they’re being sued because of their political bent. The site certainly takes a dim view of the mainstream media as, in Robinson’s words, a “liberal propaganda machine whose goal is to continue the expansion of a collective state and to control every aspect of our lives and fortunes.”

But I don’t think the Post and the Times give a hoot where Robinson falls on the political spectrum; they’re just protecting their property. And if you look deeper into the motivations in this dispute, they’ve got a point.

The glaringly obvious question here is, “Why don’t the FReepers just link?” The Web is a uniquely flexible medium for people who want to do lots of line-by-line close critiques of news stories — which is what Free Republic says it’s up to in its quest to root out “the socialist government propaganda slant on the news.” On the Web, you don’t have to photocopy or republish; links do the job without infringing on anyone’s copyright. (It’s true that links to current stories in the Washington Post and the L.A. Times expire after a couple of weeks, when the newspapers move the articles into their pay-per-view archives; but that would still give the commentators on Free Republic’s fast-moving boards plenty of time to dissect them for bias.)

My hunch about what’s really going on here is that the folks at Free Republic hate the “liberal media” so blindly that they don’t want to contribute to the traffic on the newspapers’ sites. If they link to a media site, they contribute to that site’s traffic, which helps that site sell ads and possibly even make some money. Why help your enemies make a buck when you can violate their copyrights instead? And so the FReepers betray one of the most fundamental principles of conservative thought — the protection of property rights — rather than add a few clicks to the L.A. Times’ and Washington Post’s totals.

The same address will also let you download the two most amazing music collages you cannot buy but must possess: John Oswald’s “Plunderphonics,” a monumental collection of pastiches of pop, classical, jazz and beyond from the Toronto-based pioneer and theorist of recombinant music; and Negativland’s “U2,” the most notorious celebrity-subversion prank to date in this new field.

The form of the music available from Detritus.net and the mode of its marketing dovetail. Recombinant tunes — taken from anyone you choose and distributed through the last unregulated channel — are the only outlaw sound left.

Detritus.net is one project of Steev Hise, sometime student of experimental-music pioneer Morton Subotnick, Web designer, media hound and self-described “computer geek.” Besides the essential music downloads, the site includes a spiffy multimedia bibliography and linkhouse (get the lowdown on Chumbawamba’s suppressed liner notes), gateways to a sneak peek at several kinds of digitally “Distorted Barbie” (including the original, attacked by Mattel) with a distort-her-yourself kit and the usual communication channels to build a virtual community of art pirates.

Detritus.net is exactly the kind of information wellspring the Internet supports best. The Net is the only way to distribute banned music without incurring shipping and handling costs and setting up a physical plant that can be easily shut down. Forget the legally or illegally downloaded regular recordings music corporations and retailers fret about now; underground albums like “Deconstructing Beck” will be the quintessential Internet sound product.

Hise is gutsy and on-target to set up Detritus.net. But the site’s impudent tone of the bad boy who broke the copyright window (as a fighter in the “intellectual property wars”) is not the most interesting justification for recombinant art on the Web. The really exciting promise is that the outlaw sound system may reopen the aesthetic territories that hip-hop and sampling originally surveyed — and extend them in new directions.

Still, the copyright-is-theft crowd does have one salient
point: Copyright restricts artworks most when the material is a corporate
gold mine of some kind — copyright-holders don’t devote the same energy to
protecting the castoffs or detritus left behind the refrigerator of
culture. In other words, copyright-is-theft has more to do with Barbie than
Beck.

When a copyrighted item is not so much a pseudopopulist property like Barbie, the morality of sampled art is no more easily resolved than the propriety of bootlegs of concerts and unreleased material. Funk overlord George Clinton became so annoyed with rappers’ sampling his beat science that he released a series of CDs composed of snippets he invited folks to borrow if they paid him. It did not take off as a solution to sampling. Current rapper-with-the-Midas-tongue Puff Daddy’s blatantly unreconstituted samples all over his hit tunes have thrown the piggyback aspect of the practice into high relief — but all his borrowings were paid for and legit. Should recombinant art belong only to those who can afford to buy nearly any snippet they want, if they don’t do anything too scandalous with it?

There is an art to recombinant music that’s often neglected in discussions of its trangressions. Negativland’s “U2″ savages Bono’s pomposity in its first section — but it cuts far deeper in its second half by letting “sewer mouth” Casey Kasem hang himself with his own recklessly taped four-letter words. The band chronicled its troubles and offered some worthy thoughts on the use of copyrighted material in 1995′s combined book and CD “Fair Use: the Story of the Letter U and the Numeral 2.” But brilliantly scampish as Negativland can be, the principals’ concern with undermining consumerist culture can only carry the sounds so far. There has been zero legal flurry from cola conglomerates over Negativland’s new “Dispepsi” — at least partly because this time, unlike on “U2,” the polemics overwhelm the artistry of the sound mosaic.

Music, of course, may be the last thing on litigants’ minds. The legal buzzards at Island Records swooped down on the “U2″ EP at least in part because they claimed the cover art — with the U2 name and a U-2 spy plane far more prominent than the Negativland credit — might confuse consumers who thought they were buying music by Bono and company. Sometimes it doesn’t matter if the recombinant art is not even for sale. One suspects that in the case of Oswald’s “Plunderphonics,” Michael Jackson was more incensed by the cover art — his head and the black leather jacket from “Bad” superimposed over a full frontal nude white woman’s body — than he was by the 10,000 sampled Michaels singing “bad-bad-bad” on the track “Dab.”

As music, is “Deconstructing Beck” worth half a sawbuck? Oh, hell yes. Is it the life-enhancing sound maelstrom hopeful John Oswald fans dream of? Not even close. Three of the 13 cuts are fabulous toys, to be wound up over and over. Jane Dowe’s “Puzzles & Pagans” inverts and knots “Jackass” from “Odelay,” highlighting the delightful chiming-guitar sample from Them’s “It’s All Over Now Baby Blue” (itself a Dylan cover — piling up layers of re-versions is half the fun here). Dowe’s other track, “Bust a Move,” takes over Beckian notions of rhythm and words for her own (gently satirical) purposes. Nicely enough, Steev Hise’s contribution, “Stuck Together, Falling Apart,” shows meticulous attention to, if not total respect for, Beck’s ways. If I wanted to show what “Deconstructing Beck” was all about, J Teller’s “Fat Zone” and the Evolution Control Committee’s “One Beck in the Grave” would be useful additions.

The rest amounts to filler. Some cuts are distracting enough shards falling through space, but with no discernible relation to the source material. What good is outlaw art if it doesn’t matter where it was swiped from? Whether recombiners like it or not, they must have some fruitful relation to the object of their appropriation. They have to obsess on their source material as fervently as Mattel obsesses on Barbie — but in a different way.

The desirable target of recombinant music is not to pry away the grip of copyright as an end in itself, but to allow any schlub in his basement with the proper equipment to cut, paste and manipulate whatever sounds he needs into his dream. You listen to certain snatches of music so much, you own them with your interpretation, whether you can afford to legally sample them or not. At an earlier stage of technology, the Jamaican reggae industry named this process “version.” And of course similar appropriations infused hip-hop from the moment the Sugarhill Gang used Chic’s “Good Times” as the foundation of “Rapper’s Delight” in 1979. “Version” is potent because the skeleton of the old music is given new flesh, which in turn can be re-stripped by others.

Author Dick Hebdige explained the esthetic rationale of “version” in his 1987 book “Cut ‘n’ Mix”: “In order to e-voke you have to be able to in-voke. And every time the other voice is borrowed in this way, it is turned away slightly from what it was the original author or singer or musician thought they were saying, singing, playing … It’s a democratic principle because it implies that no one has the final say. Everybody has a chance to make a contribution. And no one’s version is treated as Holy Writ.”

If private control of art is to be overthrown, it must be done in the name of creativity. Beck and Michael Jackson, and even Casey Kasem’s cuss words, belong to the community — but only to those in the community who have the skills to change them into something rich and strange and new.

Still, information’s new freedom — hell, its profligacy and libertinism — can still take one aback. Consider the case of Salon 21st’s Haiku Error Messages — a hugely popular installment of our 21st Challenge contest series that inundated us with hundreds of entries. We posted the results on Feb. 10. A week later, Charlie Varon — who with his writing partner, Jim Rosenau, creates and judges the Challenge — received an e-mail from his brother-in-law containing the entire list of error message haikus. Charlie’s relative had received the haikus — stripped not only of any reference to where they’d originally appeared but also of the individual names of their authors — from a humor mailing list; oblivious to their origin, he thought they’d make a good idea for a new 21st Challenge contest.

Now, if you’ve been online more than a nanosecond you know that funny stuff will make the rounds on the Net and there’s nothing anyone can do about it: It’s too easy to press the “forward” button; there are too many newsgroups and mailing lists; office life is often so dull that we grasp at any amusing diversion. Furthermore, as last summer’s “Kurt Vonnegut” graduation speech incident showed, funny writing will circulate much faster if you remove the original byline and append that of some beloved popular author.

Nobody claimed that our haiku error messages were written by Kurt Vonnegut. But somewhere along the line in the first couple of days after we posted our contest results, somebody did cut and paste them into an e-mail — and laboriously removed the names of each haiku’s author. Information, apparently, also wants to be anonymous.

Within 48 hours of our Web page’s posting, the error haikus were hopping from mailing list to mailing list and newsgroup to newsgroup. They wound up on alt.support.headaches, misc.fitness.weights, rec.arts.poems, alt.fan.tom-robbins and alt.fan.pratchett (where the poster announced she’d “nicked these from a professional list I subscribe to”). Sometimes they were credited to Salon, but the original removal of the writers’ names was never remedied.

Though it’d be easy to fulminate about the evil practice of grabbing copyrighted material and reposting it across the Net, it’d also be futile. And though Salon would certainly prefer that folks read what we publish on Web pages that we serve, we aren’t likely to sic lawyers on people who recirculate our material when they’re not doing it for a profit.

What still puzzles me is the motivation of the original poster, the ur-copyist who carefully excised the names of the haiku writers. Why take the extra time to, uh, anonymize these ditties? Was he concerned that leaving the names in would somehow make him more culpable for his little act of information liberation? Would the names interfere with readers’ enjoyment of the humor? Or did he just want the haiku to look like instant Net folklore?

Of course, the deeper you dig into a story, the more ambiguous everything gets. In the course of researching this column my searches turned up an example of an error message haiku that predates our contest. This version of a “404 File Not Found” message was posted to a mailing list in 1996 (it originated at a server at MIT):

I ate your Web page.
Forgive me. It was juicy
And tart on my tongue.

Honest, no one at Salon was aware of this page’s existence until yesterday. But given this evidence, we can hardly claim to be the first to conceive of this delightful form. Nonetheless, just as we have linked here to our MIT source, simple courtesy suggests that you tip your hat to the creator of something that charms you enough to want to share it with your friends. The same technology that makes it so easy to forward funny tidbits makes it just as easy to preserve their credits.

Come to think of it, “Information wants to be free” didn’t just spring out of the anonymous ether. It seems to have been first used — or at least first committed to print — by Stewart Brand in his 1987 book “The Media Lab”: “Information wants to be free because it has become so cheap to distribute, copy, and recombine — too cheap to meter.” There is a corollary, too, often forgotten by those who quote the line: “[Information] wants to be expensive because it can be immeasurably valuable to the recipient.”

I won’t presume to know whether our error message haikus themselves want to be free or expensive, anonymous or attributed. But if you receive them from a mailing list, tell the forwarder that you know where these poems live and who wrote them, would you?

Now I don’t know what kind of rosy-colored, Prozac-in-the-water planet I live
on, but I wasn’t expecting violence at the Million Man March. It was exactly
the moving, spiritual event I thought it would be. And I didn’t need
“Waiting to Exhale” to show me that most black women are striving and succeeding,
despite racism. I know plenty of women like that. If black America thinks the
nation needs those affirmations, I’ll concede that my notion of where we’re at
racially might suffer from liberal white-girl optimism. But I won’t cede my
right as a female to observe that the male-bashing taken to an extreme in
“Waiting to Exhale” is starting to seem a little like crack for the female psyche,
exhilarating in the short-term but ultimately crippling and dangerous.

Attacks on the film have centered on the bleak portrayal of black men, but black
women don’t fare much better. Three of the four heroines are
trouser-chasing, champagne-swilling, bustier-wearing whiners who make obviously
wrong choices and then blame the nearest available target — black men, white
women, gay men, their mothers — for their troubles. The movie made me want to
run an outreach and intervention program for women leaving theaters across
America, to counteract the values portrayed on screen. My program would be
based on the following five principles:

Nobody is obligated to love us. At least two of the women in the film are patently unloveable unless they spend some time on the couch, or with a minister, a
shaman, or a straight-talking girlfriend who helps them work through the
combination of immaturity and female rage that’s driving their bad choices. No
healthy man, black, Chinese or purple, is going to put up with their
drama.

Contempt is not an aphrodisiac. Several of the audience’s favorite scenes
involved our heroines having extremely bad sex with selfish men, the type who
get on top and grunt for a while and roll off — wham-bam without the
thank-you-ma’am kind of lovers. This is portrayed as typical of the injustice
our girls must endure. But the women in question don’t much like the men they’re
bedding in the first place. In one really disturbing scene, which the audience
howled at, the lover-to-be is a short, fat, bespectacled brother who was extremely
dark-skinned, in contrast with the gorgeous light-skinned heroine — an ugly touch, I thought, in a black movie. She swallows her revulsion and fakes an orgasm, and later fakes love, because the overweight
lover’s got a nice big…house. Why do these women expect good sex from men
they don’t like? Which leads to my next principle:

It takes two people to have bad sex. I learned this in my 20s, and I haven’t
had bad sex since. These women seemed to think their role in the act involved
lying around looking pretty in a push-up bustier, like a hormone-enhanced turkey
on a platter. As RuPaul says, “Girl, you better work.”

Married men who cheat on their wives are bad bets for a commitment. Enough said.

White women are not the problem. The film opens with a black man — a cardboard
cut-out, filthy-rich scumbag — leaving Angela Bassett for a white woman. I
won’t minimize the pain in that, nor deny the creepy social and psychological
factors that propel some black men to marry outside their race. But the
simplistic, good and evil portrayal of black-white relationships is appalling.
Normally, racial scapegoating in films follows a predictable, morally reassuring
if unrealistic trajectory: In the end the character realizes that the race of
his or her adversary isn’t really the issue, and comes to some new
self-awareness. Not in this film. Relationships between black men and white
women are depicted as just plain wrong, sick, revenge against black women, case
closed, and there’s absolutely no insight or epiphany to soften that kneejerk
judgment. In fact there’s a disturbing psychological subtext — The only good
white woman is a dead white woman — when later in the film Bassett hooks up
with a black man whose white wife is dying of breast cancer.

Male-bashing can be good, clean fun after a hideous breakup. Personally, I
enjoyed the scene where Houston dumps a drink in her married lover’s lap –
there are several men in my past whose laps are still crying out for a nice,
cold drink after all these years. But as a way of life, a philosophy of relationship, it’s
destructive. It exonerates women from the bad choices we make, and lets us
forget that we usually get the men we deserve.

Unfortunately, we get the films we deserve, too, and the fact that women of every race are flocking to “Waiting
to Exhale” is a disturbing glimpse of our unreadiness for movies that tell the
truth — ensuring we’ll get more cheap thrills and psychological lies
masquerading as social commentary.

–Joan Walsh

Getting clear on copyrights

Important causes don’t always get to choose their adherents. That’s why politics often makes for such strange bedfellows.

Ironically, the Church of Scientology, certainly no bastion of individual liberty and social conscience, has drawn attention to an important emerging DigiCulture issue: copyright protection on the Internet. In some ways, this reality summons the same knee-jerk reaction I had when I heard that the ACLU was going to court in Skokie, Illinois, a few years back to help the American Nazi Party defend its right to demonstrate in the faces of Holocaust victims. I was sickened at the prospect of agreeing with these residents of the Conscience-Free Zone, but I knew I would be even sicker if I threw out the First Amendment just because I didn’t agree with them.

In case you are unaware of it, the Church of Scientology is a strange little cult founded by a science fiction novelist named L. Ron Hubbard. It believes, among other things, that its basic teaching texts should not be freely distributed like the Bible, the Koran and other sacred writings, but rather must be meted out carefully to those who have been properly initiated in some unspecified mysteries. To that end, the church has taken a number of highly unusual steps, including copyrighting all of the books containing their fundamental principles. A number of prominent former Scientologists, motivated variously by avowed disgust with the teachings and deep concern over the church’s socio-political agenda, have been uploading these documents to the Internet. The response by the church has been swift, direct, and frighteningly efficient. Local and federal law enforcement officers have raided the homes and offices of these dissidents and seized all of their computer equipment and records — actions, at first blush, that are reminiscent of strongarm Gestapo tactics.

It does seem strange that a church should be in the forefront of this fight.
After all, if I believed that my spiritual institution held the key to salvation or whatever spiritual balm it was offering, I would want people to receive its teachings, so much so that I would make them freely distributable. I certainly wouldn’t try to protect them with the tainted civil laws of copyright, would I? A quick trip to the religion section of my local bookstore proved me wrong — every single sacred text there has a copyright notice. Indeed, it turns out that if you want to use extensive quotations from the Bible in any version but the King James, you’d better get permission from the copyright holder, who presumably would look unkindly on the prospect of allowing you to upload its contents in their entirety to a news group on the Internet or offer a text file for free download from your Web site.

However, at least those teachings are available to the public. The church of Scientology maintains it is not interested in suppressing dissent, only in protecting its copyrights — but it would be a lot easier to believe this if you could walk into a bookstore and buy their books, thus honoring the copyright. Clearly they have other, less clearly delineated agendas.

Despite that, I cannot, in the final analysis, bring myself to harp at the church or its leaders for attempting to protect their lawfully (if mystifyingly) copyrighted materials from indiscriminate publication and dissemination. The bottom line is that protecting the principle of copyright supercedes other concerns. The blinding speed and utter secrecy with which one can capture, store, and forward confidential or copyrighted material to thousands of different points on the Internet must ultimately alter how copyright and other intellectual property protection evolves in the United States and, indeed, throughout the world.

–Dan Shafer