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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at
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Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect. We take you behind the firewalls and conference room doors to show you how experienced lawyers deal with these issues and help you prepare for the new challenges we all face. For more, see our introductory post.
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April 26, 2005

Steve Gadd, the Culture of Drumming, Creativity and Copyright Control

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Posted by Dennis M. Kennedy

My wife, my daughter (the young drummer) and I recently went to the St. Louis stop on the Steve Gadd drum clinic tour (details here). Gadd, perhaps the most respected drummer in the music business today, played drums and answered lots of questions.

Of special interest to me were his comments about the culture of drumming and creativity. He explained how he used to play records at slow speeds to learn how drummers played on certain tracks. He talked about all the drummers he had learned from, drummers he borrowed ideas from and how drummershave always shared ideas and techniques and learned from each other.

He stressed the notion of a great continuing conversation between drummers and that the learning of drumming was transferred by drummers talking to each other and sharing what they knew.

He painted a picture of an exciting, creative space where drum ideas were put out into the world at large and used and modified by other drummers to create an evolving, vibrant music.

He pointed to a number of his tracks that were subtle variations on other drum tracks and how ideas were incorporated into some of the most famous drum tracks in popular music.

When people talk these days about the “remix culture,” I see the world of drumming that Gadd described. With a culture of sharing, music and art grows, evolves, honors the past and creates the future. And that’s how it’s been for thousands of years.

Today, we look at “intellectual property rights,” digital rights management,” ownership and control with a such a fierce determination and a fixation on “property” that I worry about whether we’ll be left owning bundles of more and more elaborate IP rights to less and less interesting works and leave a legacy of art and culture that is much poorer than when it was turned over to us so that we could leave our own mark on human culture.

Laws have consequences, often unintended ones. Let’s be very careful out there. Marty points to efforts to control and exploit for financial gain the ownership of weather data. Maybe it’s important. Maybe it’s very important. But I can’t say that it’s not important. Try explaining to your children how someone can “own” the weather information.

In fact, there’s an important kind of creativity based on reorganizing, recasting and repositioning existing ideas and materials in new and unexpected ways that let us see new connections and see with “new eyes.” Are we now in danger of legislating and litigating this type of human creativity out of existence?

What is the value of your song if you’ve made it so only a few can hear it? I can’t dance to a copy of your copyright registration form.
Monetarily, it might be greater, at least by record company calculations, but the musicians I’ve known want as many people as possible to hear his or her song. It’s about hit records and hearing your song played and enjoyed by people.

Let’s not forget that there is a lot at stake in almost every intellectual property legal issue we face today. I hope we are not creating a world where my daughter can’t learn Steve Gadd’s drum techniques or play his tracks and try to evolve them into her own without having lawyers negotiate for her rights to do so.

Note: This post was inspired by my first listen to Bruce Springsteen’s new Devils and Dust CD.

Comments (2) + TrackBacks (0) | Category: Copyright


1. AJT on April 27, 2005 11:32 AM writes...

Steve Gadd describes an informal "open source" style of agreement between drummers to share ideas and learn from each other. This type of comaraderie and willingness to share is why, IMHO, open source software (e.g. Linux) has really become (more) mainstream in the past four or five years.

The "reorganizing, recasting and repositioning [of] existing ideas and materials in new and unexpected ways" is what open source is all about and antithetical to restrictive closed source licenses.

As the public in general gets more computer/internet savvy and as more people get "connected" to the net, businesses will have to rethink the "restrictiveness" of their licensing. In ten years, will people be willing to pay Microsoft 300 bucks to upgrade to the next version of Windows and another 400 bucks to use MS Office when there is a free (or low cost) alternative in Linux and OpenOffice? Will people be willing to pay Apple 2 bucks for an protected AAC file that can only be played on an iPod and a handful of computers?

I think that we are at the beginning of the public's exhaustion with restrictive licenses (for software, music, or whatever) that are completely unintelligible to the layperson. Even as a lawyer, I have to sit down and spend way too much time figuring out what is permitted and what isn't for a 50 dollar piece of software.

I'm not saying that business shouldn't make any money. I'm not saying business should just "give away" its software. But it is inevitable that lawyers are going to have to figure out how to make open source work for businesses so that they can be profitable. And I am not convinced that simply buying an open source project and hiring its developer is the way to go (see From my perspective, the key is in the service offered with the product. I would and I have paid 50 or 60 bucks for open source software for the technical support. That, to me, is the "value" that I get for my money.

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2. TOC on April 30, 2005 10:04 PM writes...

Intellectual Property, Digital rights are essentially just another word for patents:
"A grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time."

So, essentially, these are rights to stop the free use of innovation. You might think that this is radical, but patents were first given out by royalty to keep their interests in the patents they issued.

What was and is important here is not innovation and the sharing of ideas but the control of trade. Once you take this view of Patents and "Intellectual Rights", I have always loved that one, then you begin to understand that the whole purpose of the system is to stifle creativity.

Now one might say that these rights are necessary so, say, drug companies can afford to do more research, but what is really happening is that whole areas of innovation are blocked by patents.

I could go on and speak about the Third World being bludgeoned into accepting intellectual property as a concept in order to gain access to world markets, the patenting of common plants that forces growers of plants in contries where they are endemic, to pay fees to intellectual property rights to "owners" of these rights in the developed world, but the list goes on and on.

I have had a lot of experience with patents and the more you know about them, the less you like them. By the way, they are getting to the point that they are not policeable, anyway.

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