Yochai Benkler of Yale (and, Charlie Nesson says lightly in his introduction, he hopes someday maybe of Harvard) begins with a video of DangerMouse’s Gray Album, which mixed the Beatles’ White album and Jay-Z’s Black album.

Then he shows something “not so complimentary”: “The Mashin’ of the Christ.” It mashes clips from Jesus flicks on top of a “Christianity is stupid. Communism is good” soundtrack.

He gives an example of using these techniques to critique the media representation of news from CapedMaskedAndArmed.

He shows a couple of others, but I didn’t get enough info to be able to link to them. Anyway, they were impressive examples…

[Technorati tag: s2n]

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Wayne Marshall traces the movement of one particular musical idea, the “mad mad” of Reggae, used in Alton Ellis’ Mad, Mad, Mad in 1967. [Technorati tag: s2n] [Technorati tags: s2n reggae]

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Terry Fisher runs a panel.

Bill Alford wrote a book about the Chinese views of “intellectual property,” called To Steal a Book Is an Elegant Offense. He says that the Chinese have a sense of the past as a living, shared context. One makes one’s mark not by breaking from the past (as our Romantic geniuses do) but by making it one’s own. “Copying doesn’t carry the same dark implications as in the West.”

Unfortunately, I missed most of what Matthew Pearl, author of The Dante Club, had to say. When I came in, he was speaking charmingly about noticing that his book had been slapped with a “all similarities to people living or dead is purely coincidental.” In his book, the similarities aren’t coincidental at all. His publisher allowed him to re-write it since he’s a grad of Harvard Law.

Lawrence Ferrara is chairman of the dept. of music and performing arts at NYU, as well as a pianist. He explains the law around basing one musical work on another. [There is no chance I would represent his views accurately, so I’m not going to try.] He thinks that even tiny samples should be paid for, although he says he’d like to see some “common sense” applied so that “minimal” samples don’t have to be paid for; but he thinks that a three note arpeggio, even if digitally transformed, isn’t minimal enough [I think]. It can be hard to determine that something is a sample in the final recording but, he says, when you get the ProTool file, you can tell precisely. [Remixers take heed.]

Q: Is there any point at which a sample is so altered that it no longer is the same sample?

Lawrence: It probably wouldn’t be picked up. But if it were, the record companies would want it to be licensed.

[Lawrence’s disquisition is learned and subtle. But is the world better if his regime continues to win?]

[Technorati tag: s2n]

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There’s a PDF of a “briefing book” for the conference with articles about fair use, sampling, fan fiction, and more.

John Palfrey is blogging the conference, too. [Technorati tag: s2n]

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The second Signal to Noise conference begins to the sound of “Sexy Jesus” beating through the Ames Courtroom in Austin Hall at Harvard Law. The conference — sponsored by Berkman, Journal of Law and Technology, the Harvard Committee on Sports and Entertainment Law and Gartner G2 — has something to do with remix culture. About a hundred of us are sitting in an auditorium, facing forward, which seems at odds with the aims of the get-together.

Charlie Nesson begins by saying the aim of law is to create a culture in which we can have freedom and creativity in peace. He talks about copyright’s original balance being continuously upset by Congress’s one-side expansion of the length of copyright’s protection. He points to the expansion of copyright across space as well, beginning with Reagan linking copyright to trade expansion.

Eric Hellweg interviews Mike Doughty . Mike says he learned how to write songs by learning the 4-5 basic rock riffs. He quickly goes through a half dozen songs that use the basis C-F-G structure: Louie Louie, Wild Thing, Good Lovin’, etc. He talks about how what he listens to affects the songs he writes. E.g., his new single simplifies the chord structure Iron Maiden’s “Number of the Beast” — “just enough to get past the lawyers,” but for aesthetic not legal reasons. (He points out that it’s actually basically the same as “Oh When the Saints Go Marching In.”)

He says one band listed literally every sample, including a single snare drum hit, that would have been $1.2M in clearances. As a result, they never put out an album. Implicit advice: Don’t declare it unless you can get caught. Mike says that when he was the frontman for Soul Coughing, they did an album in ’93 that heavily sampled lots of tracks. “There are samples on our first album that we didn’t declare that it blows my mind we haven’t been caught on.”

He points out that the labels don’t care how many samples a band uses because the money for rights comes out of the artists’ pockets.

Mike recorded an acoustic album in the mid-90s that was rejected by his label, Warner. Years later, he was at a concert where people were singing songs from the album because it had been Napterized. “The thing about the file-sharing era is that it’s a great time to be me,” because he was already in a position to build a touring career. The file sharing helps build that. But he worries about new artists. “Autotune is going to get so good in the next five years that you won’t even have to be able to sing as well as Jennifer Lopez.” (AutoTune transforms your warbles into in-tune melodies.) These “artists” won’t be able to support themselves singing live. [I somehow don’t have a lot of concern about the ability of bad singers to make a living as singers.]

He says that on his blog, he has an “amnesty for file sharers” link that takes you to Musician’s Assistance Program.

Eric points us to Paul’s Boutique, a site that tries to decode all the samples in the work of Paul of the Beastie Boys. [So, Beastie Boys and “Sexy Jesus” both mentioned in a single JOHO blog entry.]

[This session was a terrific reminder that remixing, in one for or another, is a prerequisite for the existence of culture. Also, a really enjoyable conversation.] [Technorati tags: s2n Doughty remix]

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This one looks different — Fan fiction, dance, machinima, deviant art, remixing, mashups, On Friday. Open to all ($20 admission fee) but you need to register ahead of time because the space is not infinite. [Technorati tags: berkman s2n]

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(After a morning with no women speakers or questioners, we now have a panel with a woman on it. Yay.)

J.H. Snider moderates. [Sketchy coverage follows…]

Varinia Robinson is in charge of Philadelphia’s municipal wifi project. You have to get your muni wifi in by Jan. 1, 2006, or else you have go to your local provider. This was done to protect “competition.” The city thinks it’ll cost $10.5M to build it and $1.5M annually to maintain it. It will cover 45 square miles and provide a mnimum of 1mb up and down. It’s an ubiquitous indoor network. To break even, they have to make it available indoors. They’re looking at providing broadband access at dialup prices. (Harold Feld points out that the incumbent got a $600M incentive for moving their hq downtown, yet they yelp about a $10M network.)

Dewayne Hendricks, who has a habit of providing telecommunications infrastructures in unregulated areas — Tonga, Indian reservations, etc.) is now working on providing wireless networks that cover hundreds of square miles. He’s hopeful that we’re going to keep matching wireless speeds with the speeds we need on our computers. He also talks about “smart dust”: Radios that are like grains of sand that mesh automatically. Dust Networks in the Bay area is already doing this.

Ben Scott: In state after state, there are grass roots efforts fighting the incumbents’ attempts to put through favorable legislation.

Harold Feld: Municipal wifi could be like taxis: You have the basic service available to anyone, but there’s room for higher-end services such as limos. [Technorati tags: f2c philadelphia]

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As far as I can tell, Andrew McLaughlin is the only person who has to been to all four of the same conferences I’ve been to this month: The Madrid conference on democracy, security and terrorism; O’Reilly Emerging Tech; Esther Dyson’s PC Forum; David Isenberg’s Freedom2Connect.

It’s been a total pleasure to get to spend some time with Andrew, but all I can say to him is: Andrew, you’re going to way too many conferences! [Technorati tags: AndrewMcLaughlin pcf05 etech05 f2c]

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[NOTE: This is live blogging. It is not close to a transcript, nor is it comprehensive. Finally, I’m hindered by having only a sketchy sense of what they’re talking about.]

Charlie Firestone of the Aspen Institute moderates a debate. Resolved that the Communication Act’s stovepipe, vertical regime ought to be replaced by a horizontal regime.

Rick Whitt (MCI and author of “Taking a Horizontal Leap Forward“)
Tim Wu (U of Va law prof)
Randolph May (Progress and Freedom Foundation)
James Gattuso (Heritage Foundation)

Rick Whitt: The basics of the Net are at odds with the Communications Act: Layers, agnosticism of IP, transparency of the layers (= end to end). The CA views it vertically: Title II covers voice, Title II covers audio/video, etc. Vertical regulation stifles innovation. In fact, a packet is a packet and thus upsets the silo-ization: an audio packet is the same as a video packet. The horizontal approach regulates by layer: content layer, application layer, transmission layer, physical layer. [I’m not sure I’ve gotten this right] and an intermediate one is consistent with the architecture of the Net. It also gives you more granularity.

May: The horizontal approach is based on techno-functional capabilities. But tech changes rapidly, so you don’t want to lock in public policy framework based on technology? We’re not going to have agreement on the layers. Fundamentally, this is not worth overturning the stovepipes to move3 to this place. We need to be in a better place: A regime that would look at services offered by providers in a market and to see whether those providers have market power, and if so what type of reglation you would apply based on market power.

Wu: The layers model need not be complicated. The one we’re proposing is the same as the model in the heads of the best FCC regulators. It’s based on the distinction between transport infrastructure and applications. Contol over the physical infrastructure restricts market entry. People are upset about this because the layers approach would remove the incumbents’ ability to block market entry. We need to control the physical layer because that’s where the bottleneck,

Gattuso: We agree that there’s a problem. But the Layers approach is muddled; people disagree about it. The key factors that should drive regulation: Competition and choice. Layers can inform you about what the market might be, but it’s not definitive. Competition should be the key consideration. Public policy should look at the actual problems we’re facing, not as a secondary consideration.

Whitt: May, the CA is not techno-functional. Yes, tech will change over time, but the layers have survived for four decades. The point isn’t to replicate the OSI stack but to give regulators a way to think about this. What we’re proposing to Congress is a two-layer approach. The main dispute goes to the broadband layer: MCI belives there’s concentration of broadband suppliers. Even Michael Powell thinks there’s an issue.

May: When you have a model that leads things unclear, you’re inviting litigation. The FCC is trying to look at services to see if they’re in the same marketplace. That doesn’t involve a technical-functional distinction.

Wu: Any telecommunications legislation will have classification. The point of layers is to minimize them and have them make sense. The vertical model muddles the question. Would a market or anti-trust approach be simpler? No, you have the same problem of market definition with anti-trust. It’s even more complex. Leaving it to anti-trust is just a way of saying that we should just leave the incumbents alone. Anti-trust courts rarely do anything.

Gattuso: Regulation ought only to look to whether competition is working. We’re actually talking about whether cable companies have market power over consumers. That’s what the discussion ought to be about. I worry that with Layers model in 15 years we’ll be arguing over the layers instead of over the real question which is whether consumers have choices. And when Rick says “it’s hard to imagine” that tech will change, that’s exactly the problem we’ve had with communications acts.

May: Rick may be coming over to our side. In his new handout he says that all entities should be free to compete within and across layers without regulation. I don’t think Prof. Wu agrees. If this is nothing but a market power test, that’s what James and I are saying.

Firestone: There’s agreement that: A. The existing regime is too restrictive. B. Extreme market power is bad and we want some kind of anti-trust. C. We want to get to a place where there’s more competition and consumer choice. Whitt says we should get there by changing the scheme so there are basically two layers. Gattuso wants a strict competitive approach, getting more competitors into the market.

Wu: If we all agree on an anti-trust framework and principles, then you realize that the Layered model deals with a repeated anti-trust issue, i.e., the abuse of the physical layer to restrict competition. It’s a way of dealing with a repetitive anti-trust problem. People who believe in anti-trust principles ought to be on our side.

Q&A

Frankston: Layers are a great talking point but there’s no reality to them. We’re starting with the assumption that regulation makes sense. Maybe we should recognize that provisioning bits isn’t a good business.

Whitt: The regulators don’t think about it as bit pipes. The Layers approach tries to shatter that way of thinking. It’s about political feasibility.

Tim Denton: If we put the four of you in a room, you could come up with the right legislation.

May: Yes, but our side wouldn’t put in language about layers.

Isenberg: Can Randolph and James put forward some simple principles to make sure we get the best network, given today’s reality of big honking companies that have captured the regulatory apparatus.

Gattuso: I’d make sure that one set of big honking companies can compete to provide alternatives; you want them to go after each other. I’d make sure people can get a foothold in the market; that may be in conflict with uniform connectivity and universal standards. I tend to favor approaches where the regulator is more general, e.g., Federal Trade Commission, not the FCC.

Richard Levine: In the European model, you define anti-trust markets and whether a single firm dominates; if so, then you do something about it. E.g., UK has a market called “broadband access” and British Telcom has a dominate position.

Joel Plotkin: The Baby Bells have privatized a public asset and are blocking competition.

Jerry Gleason: You’re talking about competition but you’re funded by the incumbents. [They disagree.]

Fred Seignor: How long will the layers model survive with Verizon buying MCI.

Wu: At a conceptual level, anti-trust and European model are attractive. The question whether practically they are excuses for doing nothing. The MCI 2-layer model is real legislation to combat abuse of the physical infrastructure.

May: If you believe that generally that competition is better than regulation, and that you have to provide incentives for people invest and innovate. You do that, you don’t take over their property. Just by calling them “incumbent,” that’s not a policy. [Technorati tags: f2c mci]

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Terry Huval tells about the battle for Lafayette, LA, where a citizen desire for broadband access (via fiber to the home) was opposed by the incumbents who proposed legislation to maintain their monopoly. A judge finally ruled that the public ought to be able to vote on it. [Technorati tags: f2c lafayette huval]

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