AI – rules after opening Pandora‘s box? – Part I

Disclaimer: This text has been written 100% without the help of an LLM or the services of an AI/Machine Learning platform. You have to take my word for it (which can be a deceptive misinformation, of course). This article by itself represents a pastiche, a bricolage or mix of sources dealing with and expanding on the theme. It is, nevertheless assembled and edited by a human, the author, and wants to pose as an example of human writing, sampling other human writing, checking, editing and reasoning until it becomes a “creative work” or “artistic work”.

Photo from pixabay, CC0

Scott Dadich wrote in the magazine Wired in 2016: “It’s hard to think of a single technology that will shape our world more in the next 50 years than artificial intelligence. As machine learning enables our computers to teach themselves, a wealth of breakthroughs emerges, ranging from medical diagnostics to cars that drive themselves. A whole lot of worry emerges as well. Who controls this technology? Will it take over our jobs? Is it dangerous?!”

Does copyright subsist in works created by the new breed of systems, such as DALL·E 2, Midjourney and Stability Diffusion? Here there is the extra complexity of whether a user’s text prompt is sufficient to meet the originality threshold for copyright in an artistic work.

Isn’t this just the old discussion about remix cultures, tape loops, samplings, collages and fair use to perform some kind of poetry with existing material? Isn’t it a viable and common “artistic practice”?

Let’s jump back 63 years to see if a question resonates already in the 60s – and it does, actually.

Tape Mark 1

In 1961, Italian poet and writer Nanni Balestrini, at that time in his prime, thought of using this computer to recombine pieces of different poems by other authors in new and unexpected ways, thus generating a flow of new and ever-changing verses. This event called “Tape Mark 1”, which took place in December 1961 in the basement of the Cassa di Risparmio delle Provincie Lombarde in Via Verdi in Milan, was also attended by Umberto Eco and the musician Luciano Berio.

Based on an algorithm, devised by Balestrini himself, which mixes sentences according to established rules and random factors, the computer generated a long printout from which the poet selected some particularly significant verses. The name of the new poem was taken from the name of one of the magnetic tapes of the IBM 7070 computer, which was used as mass storage during the experiment.

At the time, the bank’s newly opened data processing centre had an IBM 7070 system connected to 14 magnetic tape 729/II units, and 2 IBM 1401 systems. Originally, Balestrini, with the help of IBM engineer Alberto Nobis, transformed the combination rules he had drawn up into a flowchart, from which he proceeded to the ‘minutation’, i.e. the transformation into instructions in symbolic ‘autocoder’ language on 322 punch cards. The computer, reading the cards, converted this into 1200 machine code instructions. Subsequently, a magnetic tape was prepared containing the programme to be executed and the data on which to operate (three fragments of pre-existing texts chosen for the combination: Diary of Hiroshima, by Michihito Hachiya; The Elevator Mystery, by Paul Godwin; Tao Te Ching, by Lao Tse). [1, see LINKS below]

At this point the computer comes into play, which does nothing more than take parts of these poems, write them in temporary memory locations, move them to magnetic tapes, reread other parts, recombine them with each other, rewrite them on magnetic tapes, and so on, at the rate of 6 minutes for each stanza until the final result, printed at the rate of 600 lines per minute on tens of meters of paper.

From the entire printout, Balestrini picked out a fragment of six consecutive stanzas that were particularly interesting. Here is an example verse from the Cybernetic Serendipity catalogue, where a verse‘s start and finish is indicated by double lines:

In the blinding fireball || I envisage

their return || when it reaches the stratosphere ||

while the multitude of things come into being || head pressed

on shoulder || thirty times brighter than the sun ||

they all return to their roots || hair

between lips || takes on the well-known mushroom shape.

[2]

One can be struck by the fact that this experiment was carried out 15 years before the so-called computer revolution, at a time when there were very few computers in the whole of Italy, and almost 10 years before the term ‘Computer Art’ (Cybernetic Serendipity, 1968) became widespread.

It may be not so interesting if Balestrini made an artistic work at that time, but more, if it can be considered “original”. If we answer yes or no – it brings us to the realm of considering or objecting  to the use of other people’s creations for forming something “new” and potentially valuable in an artistic or commercial sense.

REVOLUTION 9

It may also be informative to the discussion at hand about what is original and what is a mere “copy” that it is already taking place in the early 60s, far away from the remix and sample culture of the 80s and 90s and 2000s. Artists have already adopted techniques for looping sounds and glueing magnetic tape together, like the Beatles with their experimental song Revolution 9, a sound collage that appeared on the eponymous release popularly known as the “White Album” in 1968. The composition, credited to Lennon–McCartney, was created primarily by John Lennon with assistance from George Harrison and Yoko Ono. Lennon said he was trying to paint a picture of a revolution using sound. The composition was influenced by the avant-garde style of Ono as well as the musique concrète works of composers such as Edgard Varèse and Karlheinz Stockhausen, but was essentially a sequence of sampled pieces strung together artistically by the trio:

The recording began as an extended ending to the album version of Lennon’s song “Revolution“. He, Harrison and Ono then combined the unused coda with numerous overdubbed vocals, speech, sound effects, and short tape loops of speech and musical performances, some of which were reversed. These were further manipulated with echo, distortion, stereo panning, and fading. At over eight minutes, it is the longest track that the Beatles officially released during their existence as a band.

This was not new in 1968, as the example of Balestrini shows. The cut-up technique (or découpé in French) is an aleatory literary technique in which a written text is cut up and rearranged to create a new text. The concept can be traced to the Dadaists of the 1920s, but it was developed and popularized in the 1950s and early 1960s, especially by writer William S. Burroughs. It has since been used in a wide variety of contexts. For example, Cut-up is performed by taking a finished and fully linear text and cutting it into pieces with a few or single words on each piece. The resulting pieces are then rearranged into a new text, such as in poems by Tristan Tzara as described in his short text, VIII – HOW TO MAKE A DADAIST POEM as part of his Dada Manifesto On Feeble Love And Bitter Love (1920). [3]

A precedent of the technique occurred during a Dadaist rally in the 1920s in which Tristan Tzara offered to create a poem on the spot by pulling words at random from a hat. Collage, which was popularized roughly contemporaneously with the Surrealist movement, sometimes incorporated texts such as newspapers or brochures. The approach was used from the 20s onwards in literature, film and music.

Let’s be clear with the “sample/sampling” example: for quite a while there was fair use being applied and well-known loops found their way into commercial songs and albums, unhindered. Sampling has influenced many genres of music, particularly pop, hip hop and electronic music. The Guardian journalist David McNamee likened its importance in these genres to the guitar’s importance in rock. In August 2022, the Guardian noted that half of the singles in the UK Top 10 used samples. [4]

Sampling is a fundamental element of remix culture. The musical culture based on tape got superseded by digital production and the facilitation of “sampling” by a 1:1 copy of the (already digital) source material on CD or .mp3. The computer made it possible that every layman could easily sample his or her favourite songs. The reuse of a portion (or sample) of a sound recording in another recording. Samples may comprise elements such as rhythm, melody, speech, sound effects or longer portions of music, and may be layered, equalised, sped up or slowed down, repitched, looped, or otherwise manipulated is a common method, legally constrained in many countries for commercial use. But, in a normative way, a remix should be seen as a transformative work of creativity that forms part of the fabric of our wider cultural environment – not just a derivative repetition. [5]

In 1991, the songwriter Gilbert O’Sullivan sued the rapper Biz Markie after Markie sampled O’Sullivan’s “Alone Again (Naturally)” on the album I Need a Haircut. In Grand Upright Music, Ltd. v. Warner Bros. Records Inc, the court ruled that sampling without permission infringed copyright. Instead of asking for royalties, O’Sullivan forced Markie’s label Warner Bros. to recall the album until the song was removed.

Since the O’Sullivan lawsuit, samples on commercial recordings have typically been taken either from obscure recordings or cleared, an often-expensive option only available to successful acts. According to the Guardian, “Sampling became risky business and a rich man’s game, with record labels regularly checking if their musical property had been tea-leafed.” The use of samples commercially is tricky, Youtube is searching for copyrighted material and flagging it, ironically with the help of AI, and most of the fair use is restricted to “de minimis” (small enough to be trivial) and could be not more than 2-3 notes, if they do not comprise a recognisable pattern. This got overturned in the USA with a case in 2005, Bridgeport Music, Inc. v. Dimension Films. The hip hop group N.W.A. were successfully sued for their use of a two-second sample of a Funkadelic song in the 1990 track 100 Miles and Runnin. The United States Court of Appeals for the Sixth Circuit ruled that all samples, no matter how short, required a license. A judge wrote: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” [6]

Sampling and the rise of the remix cultures has raised the legal and ethical issues of becoming a freer rider or freeloader on top of original work, sometimes painstakingly put together (created) by another artist.

DJ Shadow said that artists tended to either see sampling as a mark of respect and a means to introduce their music to new audiences, or to be protective of their legacy and see no benefit. [7] Record companies and those artists benefiting and making their livelihood with royalties see that possibly differently…

This would usually mean that use is only permitted with the consent of the author.

Not having consent is impressively demonstrated by the example of a two-second rhythm sequence from the song Metall auf Metall by the electro-pop group Kraftwerk, as this has been a concern in the courts for more than 20 years.

The legal dispute is between Kraftwerk and hip-hop producer Moses Pelham. In 1997, the latter placed a short sequence of the group under the song “Nur mir” by singer Sabrina Setlur without obtaining permission in advance. Since then, this case has occupied numerous courts in all instances – sometimes even several times. There has already been a total of ten judgments on the legal dispute, including from the Federal Constitutional Court and the European Court of Justice. The ECJ must, among other things, comment on the question of what exactly is meant by a pastiche.

Since June 7, 2021, German copyright law has provided for regulations for pastiche. The Hamburg Higher Regional Court came to the conclusion that corresponding regulations can also be applied to sampling, meaning that use has been permitted again since they came into force.

It is currently unclear whether this legal assessment will remain in this form, as Kraftwerk has once again filed an appeal against the OLG’s ruling. The BGH (and subsequently the ECJ) must therefore clarify whether a sample is a pastiche. [8] A final clarification is still pending.

CONCLUSIONS I

What does all that have to do with the last developments in Machine Learning in 2024? A lot, because we cannot be oblivious about the history of copy/paste, cut up techniques, bricolage, pastiche, collages, sampling and the legal frameworks dealing with those developments when we look at the dawn of a “new” Machine Learning paradigm, which is hailed as the dawn of Artificial Intelligence emerging from its so called “winter”, maybe even creating a technological “Singularity”.

Whether AI rules, or we rein its use in with rules, is up to the regulating bodies, political will and the assessment of courts independent from vested corporate interest. Until it is decided or remains undecided, we will live with the ambivalence and sword hanging over our heads – and yes, it hangs also over start-ups who would need a deregulated market to succeed.

LINKS
  1. Museo Interattivo di Archeologia Informatica (MIAI), Cosenza https://museo.freaknet.org/it/tape-mark-1-nanni-balestrini-ricerca-ricostruzione-storica freaknet, admin. 30 June 2017. Retrieved 27 March 2024.
  2. Clements, Wayne, Tape Mark 1, A version of Tape Mark 1, by Nanni Balestrini. Reprogramming projects notes by Wayne Clements at http://www.in-vacua.com/cgi-bin/tapemark.pl 2013. Retrieved 27 March 2024.
  3. “manifestos: dada manifesto on feeble love and bitter love by tristan tzara, 12th december 1920″. 391. 12 December 1920. Retrieved 27 March 2024.
  4. Jones, Rhian. “‘Common decency’: Beyoncé’s Renaissance sparks debate about the politics of music sampling”The Guardian. 5 August 2022. Retrieved 27 March 2024.
  5. Remixing Culture And Why The Art Of The Mash-Up Matters“. TechCrunch. Archived from the original on 12 February 2020. Retrieved 27 March 2024.
  6. Gardner, Eriq. “Madonna gets victory over ‘Vogue’ sample at appeals court”The Hollywood Reporter. 2 June 2016. Retrieved 27 March 2024.
  7. DJ Shadow on sampling as a ‘collage of mistakes'”NPR. 17 November 2012. Retrieved 27 March 2024.
  8. “Sampling: Gemäß Urheberrecht legal?” by Nicole P.  https://www.urheberrecht.de/sampling/ 23. October 2023. Retrieved 27 March 2024

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Peter Muttcoin
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