This would be funny if it weren’t such a sadly chronic misunderstanding of copyright. Engadget reported yesterday that Richard Charkin, the CEO of Macmillan Publishers, stole a couple of laptops from the Google table at the BookExpo American convention, returning them later
noting that “there wasn’t a sign by the computers informing him not to steal them.” This was a painfully misinformed commentary on the Google Books project, where Google is working to scan all printed books in order to make a searchable index of all written literature. (I have commented on this case before, at InsideHigherEd, if you want background.) This is yet another example of the painfully endemic assumption, one especially shared by and perpetuated by the content and publishing industries, that copying=theft. (Here’s just one example I’ve been writing about: click on “what is piracy?” to see what I mean.) Its not true, at all, in a legal sense or in a cultural sense; Lawrence Lessig goes point by point on how wrongheaded the parallel Charkin is making is. Maybe these kind of puerile antics are common inside of the corporate spaces into which I rarely venture, or maybe we really still are in the very heart of the copyright wars, or maybe book publishers are just now experiencing the shock + outrage + haughtiness + opportunism that the software, music, and movie industries already got over. But as a language game, the claim that copying=theft is a powerful discursive tactic, one that is going to have more consequence than any particular case or piece of software will.

I’m still trying to tease out the exact contours of the issue, but there is an article and discussion at Playlist that suggests that the new 7.2 upgrade of iTunes, which ushers in the long-awaited DRM free tunes made available by EMI, also comes with a hitch. It always used to be the case that if you bought music from iTunes, which has FairPlay DRM on it, you could burn the music to a CD and rip it back into the unprotected MP3 format, thereby getting rid of the restrictions. With the latest version of iTunes, apparently, if you do this, you will find that you cannot then put those MP3 versions onto your iPod. There is some discussion following the article as to the specific details of this, and more importantly, whether this was Apple’s attempt to close the loophole or just a glitch that will quickly be repaired; a follow up to the article suggests that it is a bug, and can be worked around by recreating your iTunes library.

People are just waiting to see whether Apple and EMI are being as benevolent, or at least user-friendly, or at least attuned to the market value of consumer goodwill, as they say they are; you can feel the critics chomping at the bit, and this detail, though minor and maybe unintended, was just the kind of bait-and-switch they were anticipating. Another article at Playlist and a post at Ars Technica note what I think is a more important observation, which is that the new DRM-free tracks are not unmarked MP3s, they are restriction-free AAC files that include, in the metadata, the name and email of the person who purchased it — making it very easy to track who is making those files available on peer-to-peer networks, and very dumb to do so unless you know how to scrub that data (by, for example, burning them to a CD and ripping them back into MP3 format, per above.)

But not only is this a great example of my favorite topic, the way use can be carefully and subtly choreographed inside of the workings of a technology, it highlights a different issue about iTunes and networked culture more generally, one Fred von Lohmann is also pointing out over at EFF: the way software upgrades represent an ongoing relationship with a content provider or distributor, one that allows them to change the rules of the game part way through the transaction — and for content you already purchased. (In fact, it is not technically correct to call it a purchase: like most digital content, you are not buying music from Apple so much as licensing it, which gives them legal standing to make changes like these, so long as it says they can in the End User Licensing Agreement [EULA].) Computer software and networked devices tether us in new ways to the institutions that rpovide us the devices and the content, making room for these 11th hour switcheroos. Rather than being “yours” the cable box under your TV and the music software remain “theirs”. This of course has value — an upgrade rarely arrives without the promise of some improved feature — but also raises a new kind of risk, where the terms upon which we initially agree may not be the terms we end up living with. And while we could always refuse to upgrade our iTunes, if we’re aware of the tradeoff we’d be making in time, there is a cost: not only do we not benefit from the new features, and whatever features follow in subsequent upgrades, but eventually our software will be unsupported, even by as user-friendly a provider as Apple.

I’ve been an intermittent blogger so far, getting used to the rhythms of blogging, finding the ways in which it can fit into the patterns of my work life without swamping it. I’m getting there. But I did want to at least try out one popular convention among academic bloggers, that is, posting from a conference during a conference. I’m currently sitting in on a panel addressing critical responses to Web 2.0, part of the conference Media in Transition 5: Creativity, Ownership, and Collaboration in a Digital Age, fifth in a series of conferences set up by Henry Jenkins and David Thorburn in the Comparative Media Studies program at MIT. The conference has been quite good, if not perfect; if nothing else, it has been one of those conferences where enarly everyone here is on the same page in terms of what phenomena we’re looking at and the general methodological approach as to how we might address them. It may suffer from some of the same drawbacks of that same quality. But except for a first few panels poorly chosen, the papers I’ve seen have been excellent, the plenaries even better. And, just to say it, my paper on industry anti-piracy campaigns was well received, and part of a panel that was both consistently good and refreshingly cohesive, a rare experience.

I don’t want to be too navel-gazing here, but one thing I’m struck by is the relative difficulty of incorporating my own online activities into the conference. MIT, natch, has a comprehensive and free wireless network, so many of us are on our computers during and between panels. There’s a gentle competition for plugs, especially in the larger auditorium where the plenary sessions are held. I’m finding both great value, in that much of what people are talking about are online, so I can do a quick look at materials, grab a video, etc. But that temptation drifts into the appeal of checking email, downloading videos, surfing the web, and — what do you know — writing blog posts. I am certain that I didn’t get much of the intellectual value of the last talk, which is certainly not to suggest that there was no such value. I suspect this will change over time, for me and for as a social convention, but I wonder whether the other people in the room with their laptops open are struggling with the same tension.

This is potentially very big news for those who care about copyright and digital culture. EMI has announced that it will allow Apple to sell nearly all of its catalog, with the exception of the Beatles, without any DRM copy protection imposed. This is an obvious follow up to Steve Jobs’ manifesto against DRM (which I commented on last month). The one catch is that the DRM-free singles will cost more than the ones with copy protection ($1.29 instead of $0.99), at least when they are purchased as singles; if you buy an entire album, the price is the same if you want DRM or not, and is not being increased. (I’m not sure who would then purchase a DRM-ed album, but stranger things have been known to happen.) Interesting little pricing move, a subtle way to urge people back to buying albums just as digital music has made purchasing individual songs so appealing, and a way to bump a single price that Apple has been resistant to raise.

A few things to watch for. First, what will Jobs do? Some criticized Jobs for his critique of DRM, saying that even though some artists and labels had said to Apple that they could sell their music in unprotected formats, Apple had refused. This was seen as evidence that Apple actually prefers DRM, because it tends to lock iPod users to the iTunes store. With EMI, a major, giving Apple the OK, it will be publicly embarrassing if Job nevertheless wraps their tunes in enough DRM to lock it to the iPod, even if it has no copy restrictions. The EMI press release, which quotes Jobs, suggests that Apple will let these tunes out, which is a good sign. Second, will other labels follow suit? Will they adopt EMI’s pricing scheme, or will they come up with their own? And third, undoubtedly there will be much discussion and analysis to follow, focusing on what happened to EMI’s catalog. Did it sell more than it would have otherwise? Were more albums bought? Did their music show up on peer-to-peer file trading networks more rapidly, or more thoroughly? These are of course hard things to prove, because it’s hard to estimate what would have happened otherwise, but many people make their living trying nonetheless.

There is a great deal of literature out there on digital copyright, and while much of it requires you to already be deep in the discussion, familiar with case law, and technically savvy, there are a select few pieces that attempt to situate the case and its significance in broader terms. I hope that my book, or at least the first few chapters, do this, but it is a very difficult thing to do: talk to the uninitiated without losing them, or talking down to them, or being useless to those more familiar with the issue. I would say that Jessica Litman’s book Digital Copyright is one of the best in this regard, just in terms of being introductory and comprehensive while also taking her reader right to the edges of the question. Lawrence Lessig’s book Code, and Other Laws of Cyberspace is a close second, valuable because it not only addresses copyright but the broader issue of what shapes Internet activity more generally, but less perfect because it moves quickly from providing introductory ground to the argument itself. For the specific issue of “digital rights management” as an outgrowth of the copyright controversies, Mike Godwin’s essay “What Every Citizen Should Know About DRM, A.K.A. ‘Digital Rights Management’”, written for Public Knowledge, is an excellent primer. But my new favorite essay for this task, especially when educating non-lawyers on the subject, is

Healy, Kieran. 2002. “Digital Technology and Cultural Goods.The Journal of Political Philosophy 10(4): 478-500.

Healy’s discussion of the copyright controversy is comfortably situated in the sociological literature on technology, without it becoming a lesson in theory. Like Paul Starr’s The Creation of the Media, he gently puts the focus on how choices made around a technology like the Internet are consequential for the practices that follow, and tend to settle in as norms and arrangements that can be hard to undo, or even recognize, later on:

In this article, I have emphasized the importance of basic choices about the architecture of the Internet, the system of property rights governing it, and the kinds of laws regulating it. These choices will greatly affect how art and culture are consumed, the kind of work that artists can do, and the rewards, financial and otherwise, that consumers, artists and others will be able to reap from the Internet. Yet the success of new technologies tends to obscure the choices made about them. Once the opportunity passes, it can take a great deal of scholarly and imaginative effort to reconstruct just what the alternative possibilities were during a technological revolution. Constitutive choices about digital technologies are being made now. We should make sure we know which — and whose — principles these choices further, before we forget that alternative paths ever existed.

This is not revolutionary insight if you’re in the midst of this literature, but Healy presents it as beautifully as anyone I’ve seen. His discussion of these constitutive choices focuses on three levels: decisions about the architecture of the Internet, the social organization of ther medium, and the symbolic choices of individual users — often scholarship in this area have trouble taking all three of these seriously in the same breath. He also frames the discussion of copyright with a quick attention to other kinds of dilemmas involving the “politics of information”: the problem of how content is located, the “daily me” problems raised by Cass Sunstein, the politics of moderating online discussion, censorship and Internet filtering, and open access publishing. Its a two-page primer on the sociology of technology, a survey course on the sociological issues of digital culture in ten pages, and then a smart discussion of copyright, DRM, the DMCA, and the premise of copy protection.

(This post was substantially updated on February 28th.)

Democratic Representative Rick Boucher (from Virginia’s 4th district — the fightin’ 4th!) has joined with California Republican John Doolittle to send to the House HR 1201, the “Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007.” Get the acronym? The bill, available at EFF (a thanks to Miguel for pointing this out), is described as an amendment to the Digital Millennium Copyright Act. The DMCA, for those who don’t know, makes it illegal to circumvent technical protection measures that lock up digital content. The DMCA claims that its provisions should not constrain our ability to make fair use of protected content, but evidence plainly suggests that it does. As Boucher’s press release puts it,

“The fair use doctrine is threatened today as never before. Historically, the nation’s copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public’s right to fair use,” Boucher said. “The FAIR USE Act will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work,” Boucher explained.

This is certainly not new terrain for Boucher, who sponsored similar bills in 2003 and 2005, then titled the “Digital Media Consumer’s Rights Act”. Boucher has been a persistent critic of the “copyright maximalist” approach espoused by the major U.S. content industries and by most of his Congressional colleagues.

Boucher has once again pursued his legislative strategy of cloaking big changes inside of what looks like smaller potatoes. The older versions of the bill cleverly focused on a small issue (requiring CDs with copy protection to be labeled as such) but slipped in two bold statements at the end — that would allow circumvention for fair uses and allow circumvention tools capable of substantial noninfringing uses (a rendition of the Sony standard that many have argued is dead and gone in the Internet age). This time around, the bill claims that it is largely ratifying exceptions to the DMCA already put forth in the rulemaking of the Librarian of Congress and the Copyright Office: allowing users to skip commercials or objectionable content, to transmit content across a home network, to gain access to work that has fallen into the public domain and most recently, allowing librarians and educators to circumvent to make compilations for educational purposes. (Why, thank you. If only I had the legal tools to do it.) The new bill would put these exceptions into law, and add one to allow libraries to circumvent technical protections when an original is lost or damaged.

But in and amidst these exceptions is one that did not appear in the Copyright Office’s rulemaking, in fact one they specifically rejected:

The prohibition contained in subparagraph (A) [of the DMCA] shall not apply to… an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research

This represents a reasonably serious attempt to put the language of fair use explicitly into the law anti-circumvention. Of course, the DMCA already says it should not inhibit fair use, and this exception still doesn’t deal with the problem of how one might make a fair use if the tools to do so are illegal. But the gesture of saying it out loud as an affirmative protection is arguably a big deal. Interestingly, Boucher’s press release suggests that the bill will does not create a fair use exception — more cover?

The FAIR USE Act differs fundamentally from H.R. 107 and H.R. 1201, as proposed in the 108th and 109th Congresses, respectively, by Representatives Boucher and Doolittle. In an effort to address the concerns expressed by content owners, the FAIR USE Act does not contain provisions which would have established a fair use defense to the act of circumvention.

There is also a provision limiting liability for technologies:

No person shall be liable for copyright infringement based on the design, manufacture, or distribution of a hardware device that is capable of substantial, commercially significant noninfringing use.

Some will argue is a revival of the Sony standard, but notice it only applies to hardware, not software. Problematic.

To focus on ratifing the exceptions already put into place by the Copyright Office seems to me a sign that Boucher and Doolittle want this bill to pass, to seem like mere legislative housecleaning. The bill has the support not only of the American Library Association and the Home Recording Rights Coalition, but also the Consumer Electronics Association and the Computer & Communications Industry Association — perhaps because of the emphasis on technical innovation. The bill may have its best chance yet to pass, though my guess is it’s still unlikely. But would it be a substantive victory if it passed, (at least symbolically) reasserting fair use for the digital age, or a merely pyrrhic one, an empty gesture that again says fair use should be honored, but still not daring to make the tools it would require legal?

I am just beginning a significant revamp of my course “Mass Media and Society” for next year; the course will be retitled “New Media and Society” (with a humble nod to the journal of the same name) and will be a course that serves both the Communication department and the program in Information Science here at Cornell. The idea will be to introduce students to some of the classic questions addressed by sociological approaches to media, and address them to emerging new media forms. Do the old concerns persist, or do they need to change?

So as I go, I’m going to use this blog to highlight what I find to be compelling work in this area. This is not intended to exclude readers who aren’t academics; one of the criteria for selecting essays to point to here (and for inclusion in the syllabus) is that they speak clearly to a much wider audience who just happens to be interested in such things.

Much of the academic scholarship that addresses new media and society suffers from one or several of the following failings: (1) embracing the hype around new media and technologies, at the expense of critical and thorough scholarship, (2) accepting uncritically the distinction between “new” and “old,” thereby presuming that the history of these forms and the research that addressed them have nothing to offer to current cases, (3) making the opposite assumption, that nothing of substance has changed, (4) merely attempting to document the phenomenon without any attention to the context, the implications, the shifting paradigms, (5) leaning uncritically on quantitative methods merely because digital tools allow so much data to be gathered automatically, and (6) falling back on reductive versions of the ‘effects’ approach to media that existing communciation scholarship has already shown to be problematic and ideologically fraught. It is surprisingly difficult to gather a semester of readings that avoids all of these pitfalls, both because of the sheer quantity of this clumsier work, and because the stuff that does succeed in tackling these questions with subtletly and insight tends to be scattered acorss mutliple fields, approaches, and topics.

Here’s one:

Turow, Joseph. 2005. Audience Construction and Culture Production: Marketing Surveillance in the Digital Age. The Annals of the American Academy of Political and Social Science 597(1): 103-121.

This essay comes from a special issue of the Annals, edited by Eric Klineberg, on “Cultural Production in a Digital Age,” and the entire issue is excellent, including notable pieces by Gina Neff, Phil Howard, Siva Vaidhyanathan, and Mimi Ito. But Turow’s piece stands out for me
because it skillfully makes an argument about change without fetishizing “new media,” it maps a coherent history connecting mass media forms to the current moment, and it highlights technological change without slipping into determinist thinking. It also offers one insight into a phenomenon that I think is one of the most pressing questions of media and society in the current moment.

Turow’s premise is that the practices of advertisers are changing in part because their notion of who the audience is and what their doing is changing. Marketers once focused on simply reaching the largest possible audience for their pitch, a tactic both driven by and reinforcing the move towards national brands. This fit well the belief that radio and television were bringing together a single audience. This tactic shifted in the latter half of the 20th century, as marketers began to fret that the increasing proliferation of media choices meant they would never again reach the massive audience they once did. Their anxiety about narrowcasting and niche audiences became a strategy: market more accurately to exactly the demographic or interest group you want, reaching, if a smaller audience, than an audience more likely to be interested in and willing to buy the particular commodity being pitched. This “market segmentation” led, in Turow’s view, to advertisers thinking of audiences not as a mass, but as an increasingly complex diversity of publics and interests groups.

With the rise of TiVo, DVRs, online file-trading, pop-up blockers, and the like, marketers began expressing a new anxiety: viewers were skipping the ads altogether. Once again, the concern led to a re-framing of the audience itself: marketers began describing audiences as fickle, as having little allegiance, as lacking in attention span, as unwilling to be sold to. This frame also begat a strategy: address individuals, enlist their participation in an ongoing relationship, wall them into branded spaces — and most of all, encourage them to give up valuable personal information by turning privacy into a commodity: for the right “price” (discounts, personalized content, entry into a social network), consumers will reveal their buying habits, preferences, and financial resources. This data can be used to develop personalized ads and promotions that seem to speak more directly to their wants and desires, that maintain consumers as life-long buyers, and that feel less intrusive by comparison.

Clearly, traditional commercial forms in conventional media still represent by far the most prevalent approaches in the first decade of the twenty-first century. Nevertheless, marketers in the early twenty-first century believe firmly that the genie is out of the bottle. They insist that the difficulties of targeting in a hypersegmented media world combined with new digital technologies that allow for the elimination of commercials mean they must be prepared to use new ways to ensure that consumers attend to their electronic solicitations. Increasingly, they are turning to alternatives to standard advertising as instruments to force consumer attention.

As these separate sets of activities develop, they are coming together in a new industry strategy for reaching the public that holds important implications for information privacy and ad-induced anxieties… American consumers, they say, are willing to allow advertisers and media firms to collect data about them and track their activities in return for relatively small but useful benefits that make their frenetic, attention-challenged, self-centered lives easier—discounts, entries to media channels, or similar special attention. Converging media and marketing activities based on this proposition are leading to an emerging set of strategic logics in favor of an emerging culture-production system in which surveillance marketing is deeply embedded. (112-113)

Turow’s essay sheds light on a troubling phenomenon that many have noticed but few have explained — the willingness of consumers, especially the young, to volunteer private information with little concern for how it might be used, and their seeming naivete about where that information may end up. Despite an increasingly vocal criticism of the privacy implications of digital, networked culture, there seems to be a significant disconnect for younger users. Much of this, I believe, has to do with the way personal information has been reframed as a commodity, as a passkey to rewards, even as a necessary ticket to entry into social life. The economic bargain offered is not new: sign up for the frequent flyer program or the reward card at the grocery store, and get discounts; the fact that your purchase habits are tracked and recorded is easily overlooked. The value of posting a detailed, revealing profile in Facebook or MySpace is something more. This act of self-presentation is seen as a communicative gesture to a circle of friends — more than a “public” proclamation, as is painfully clear when high schoolers are shocked to find their parents can read their diary-like confessions, college graduates are shocked to find that potential employers have seen their photos of drunken parties at school — and is a small price for entry into the social networks that follow. The more honest detail you offer, the more you are automatically placed into circles of common interest, the richer the interactions with people there can be. Turow’s essay situates this impulse in an commercial paradigm shift that makes this invitation an increasngly valuable, and seemingly necessary commercial strategy.

Turow’s essay also helps advance our understanding of the discourse that surrounds new technology. I find that an attention to discourse is a vital element of the study of new media: the shifting paradigms that situate who users are, what technologies are for, how things are changing, help reveal why technological and economic “imperatives’ fail to explain the particular paths these phenomena take. But, it is easy to look only at the general talk about new technology, and let the high-gloss claims in places like Wired spin you back into the superficial, utopian musings that have surround these new technologies from the start. What Turow does is consider discourse around new media in a particular context, and how the frames adopted by (in this case) marketers, spurred by technological change but inflected by their own particular economic and ideological outlook, leads them to behave in particular ways — ways that shape the very media we’re trying to understand.

In 1993, studio producer and ex-punk rocker Steve Albini wrote a now infamous essay called “The Problem with Music,” in which he laid out in stinging detail the real economics of the typical recording contract. When he revealed that a band that signs with a major label, receives a quarter million dollar advance and sells a quarter million copies of their album, ends up earning just over $12,000 dollars for their efforts, while the label takes in $710,000 for helping them do it, the critique was particularly potent because it came from inside the industry itself.

Steve Jobs’ “Thoughts on Music,” posted to the Apple website on February 6th, is offered up a bit more delicately, but the statement is just as significant for the clout of its author. The Apple CEO suggests that it is time for the major music labels to give up on imposing copy protection on their digital music. This is copy protection, mind you, that Jobs has helped enforce and make commonplace via the Apple iTunes store — though if we are to believe Jobs, that was entirely an obligation imposed by the labels as part of the privilege of selling their music. He notes that copy protection, or “digital rights management” (DRM), has failed to slow the peer-to-peer file-trading of music, has irritated customers by slowing the move to digital services, is and always will be vulnerable to hackers, and is meaningless when most popular music is still purchased on CD, which (generally) includes no copy protections. Instead, the labels should give in, allow Apple and others to sell music in unprotected formats like the mp3, and look to profit from the flood of distribution opportunities that would emerge.

Jobs is by no means the first to say this. Even the major labels are slowly beginning to admit that the DRM strategy – at least as a solution to piracy – is not all its cracked up to be. Nevertheless, it is remarkable that Jobs is saying it, as it has thus far been very much in Apple’s best interest to support the labels’ copy protection fetish, at least to a degree; the phenomenal popularity of the iPod is testimonial to that. Jobs is known, of course, for not exactly walking the company line. But Apple find itself in a tricky position, and this is the clear subtext of Jobs’ “Thoughts”: courts and legislatures around Europe are beginning to challenge the iTunes’ copy protection not as a copyright strategy, but a means of restraining trade. The copy protection scheme forced on Apple by the big bad labels also helps them sell iPods, and helps keep iTunes in a position of market dominance over Napster 2, Microsoft, and Walmart, whose downloads won’t port to the popular device. Now that they may be legally compelled to license their FairPlay copy protection to their competitors, it’s suddenly in Apple’s interest to call for no DRM at all, and bet the ranch instead on the iPod’s appealing design, devoted fan base, and on the market position it has already managed to secure. This, the ability to parse and channel and govern commercial transactions, to tie content to a platform so users will buy both from the same vendor, to track use in order to render advertising to match, to put a price on every interaction with the content imaginable, is precisely why DRM has survived and flourished despite little evidence that it curbs piracy — and may very well persist despite Jobs’ manifesto.

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