Wired Shut

Professors Troy Schneider and Benjamin Bates have posted some really thoughtful reviews of my book, at the Resource Center for Cyberculture Studies, and the site’s host, David Silver, invited me to craft an author’s response. You can find the reviews here and here, and my response is posted here, and is as follows:

It’s with a sigh of relief that I read the thoughtful reviews from Professors Bates and Schneider — its reassuring to find that readers’ reactions are not far from my own, about the book’s merits and its flaws. How unnerving it would be if someone found a glaring error I couldn’t even recognize. I’m grateful that both found some value in the book, and I completely agree with the main concerns, that the book is somewhat dated, and does more to connect existing scholarship that to veer off into its own. Let me speak to each.

One of my goals in writing Wired Shut was to put three bodies of literature into conversation. Much of the legal scholarship on the digital copyright debates and the (at the time) emerging issue of technical content protection was astute and enlightening. But inside of the traditions of legal studies, this work did not feel the need to approach these questions in terms of the social dimensions of technologies or the cultural formations emerging around them. These were legal and economic questions, either of legally-managed efficiencies upset by technological change, or first principle rights constricted by corporate actors. Technology appeared in these arguments either as cause or context, but almost always as a thing apart from history, social contest, or cultural meaning. So it seemed important to introduce it to the sociology of technology being developed in Science & Technology Studies and the sociology of culture conducted by the more historically-oriented members of my own field of Communication. (I have by no means been the only one working to reconcile some of these literatures: the work of Siva Vaidhyanathan, Chris Kelty, Kieran Healy, Kembrew Mcleod, and Ted Striphas have also helped advance this conversation.) This did mean, I suspect, that my intervention was more about playing host a conversation than being a particularly loud voice in it.

I do hope that there’s a contribution made by Wired Shut, in offering a vocabulary for parsing technocultural dilemmas like copyright. I’m glad Professor Schneider agreed. I still find my notion of the “regime of alignment” a useful insight — that the regulation of a cultural practice depends not just on a forceful legal regime, or a guiding business model, or a moral assertion, but all of the above. Those who are invested in the future of copyright have utilized all of these mechanisms to pursue their particular agendas. Further, each piece helps obscure the others, and diffuse responsibility for the quite vigorous changes in the contours of cultural discourse they’re attempting to generate. An industry lobbyist can downplay the new law they’re asking for by assuring legislators that, in the end, the market will decide; in another venue, the same company can debut their new business plan, placating critics that copyright law will remain a vigilant limit on their reach. This jigsaw puzzle regulation obscures itself through its own fluid complexity, making it hard to pull all of its details into focus. These tactics are by no means exclusive to questions of copyright.

The second concern is that the work is dated, an issue that has haunted me as far back as the start of the dissertation that was the precursor to the book. Whether it was my own work pace or the inertia of the academic publication process, it became clear that I could not write the scholarly analysis I wanted to produce and also keep up with the issue itself. So I resigned myself to thinking of this as a (recent) historical analysis, one that of course has been superceded by events, but still hopefully provides insights with enduring value, insights that may even resonate with those events that have followed. I’m convinced that, at least today, the academic publication machine is structurally unable to handle this kind of analysis, and is in dire need of reform. And while I have been using my blog sporadically to make more timely comments, it has not quite suited me as a viable medium for scholarship, yet, even though others more deft with the format have put it to very good use.

The main question brought on by recent events is, is DRM dead? Apple partnered with EMI to sell DRM-free music, then Amazon partnered with all of the major labels to do the same; Radiohead and Nine Inch Nails conducted high-profile experiments to distribute their albums without music labels and without technical copy protection, while thousands of bands, signed and unsigned, are playing with MySpace, music blogs, and their own sites to offer some of their music free for promotional purposes; the DRM encryption system for the Blu-Ray high-def video format was cracked, causing a stir when the Digg recommendation site first took down user posts about the crack, then reinstated them when users swamped the site with re-posts; recently, Random House and Penguin publishers announced a move to mp3 format for their audiobooks, while more television networks are partnering to provide online streams of their shows, free with advertising. Just as some suggested that music was the canary in the coal mine, a portent of what was to come, it may be that we are witnessing a turn, once again led by the music industry, away from DRM.

Perhaps. In some ways, the reasoning for these apparent about-faces is pointed to in my book. The music labels are not leaving DRM behind because they believe it to be cultural or politically wrong, or even because it never proved to be particularly effective in curbing peer-to-peer downloading. They’ve begun to leave it behind because its costly — not just financially, which it is, but politically. DRM has elevated the hardware makers to a new position of control over price and distribution. Apple, in part because of a technical system foisted upon them, is now the biggest music retailer in the world, and the keeper of the most popular music device in the world. DRM, along with some savvy marketing and quality design, put Apple in this position.

And while the music industry may be willing to swim without the DRM life vest, I suspect that the movie industry shows no such inclination, and is likely not to have to discard it. As I note in the book, Hollywood always been savvier than the music industry in this regard: leasing you access to a film rather than selling it outright, cascading releases across technical environment and price point, and instituting restrictions before their customers get comfortable with freedoms they’re not willing to allow. So DRM has a life in the years to come. Moreover, in many ways we’ve already embraced both the underlying logic DRM depends on — technologies we use that are not our own, content we lease rather than buy, interfaces that closely manage our commercial and experiential engagement with information — and we’re building computer platforms designed for them. There will always be those who hope to manage the circulation of information, whether for politics or profit; we have now encountered, and largely accepted, a new road map for that kind of information choreography, and the political, institutional, and discursive terrain has been reconfigured in ways that will allow, and promote, these kinds of restrictions.

Many thanks, again, for the thoughtful reviews. in the spirit of being timely and engaged, I’ve posted this on my blog, and welcome your thoughts.

BBC Radio World Service just posted the third part in their series on piracy — parts one and two dealt with the nautical version, and the third moves the discussion to the concerns about intellectual property. Check it out — mostly because its well done, tapping people from FACT and from Pirate Bay, but also because they used substantial parts of their interview with me. I even get the last word, despite taking turns not only with interviewer Nick Rankin but with Thom Yorke.

This week a review of my book appeared in Law and Politics Book Review, part of the “Law and Courts” seciton of the American Political Science Association (APSA). It’s an honor that the review is written by law scholar Debora Halbert, author of Intellectual Property in the Information Age (1999) and Resisting Intellectual Property (2005). I agree with her comment that the book is stingy about addressing the forces working against stricter copyright enforcement — in that way, her new book is a particularly good companion piece to mine. [I wish Routledge would put the reasonably priced paperback version back in print...] You can read the review here.

There was also a thoughtful commentary written by Bob Weber on his blog Managing Rights; you can read it, along with my comments, here.

I’ll be offering an audio conference called Using Copyrighted Works: Digital Rights Management in Education through Progressive Business Audio Conferences, September 4th at 1pm. The seminar requires registration ahead of time. They keep pushing it to be a how-to presentation, but I don’t really do that, so it’ll be more about getting people to think about the implications of DRM for educational institutions like libraries, based on some of the arguments in Wired Shut. We’ll see what happens.

UPDATE: It went well, though the questions that came in were seeking more procedural answers, mostly about fair use. I don’t feel so bad, then, because what a lot of the questions wanted were clear guidelines for what they could call fair use, and I’m not the only one without answers to those questions; there really aren’t any, at least not any that have the certainty of law.

I believe you can order a CD of the conference at the PBAC site, if you so desire.

MIT Press just posted their first podcast in their authors series — me — on iTunes. You can either try this direct link (thanks Daithí), which should open iTunes for you, or search under “MIT Press Podcast” in the iTunes Store, and it should come up. Chris Gondek did the interview, it’s about 13 minutes long, and ranges over fair use, Jack Valenti, film industry tactics, and the pressures of commerce.

UPDATE: Apparently, when it is officially released as a full episode, I’ll be paired with an interview with Sherry Turkle, about her edited collection, Evocative Objects:

In Evocative Objects, Turkle collects writings by scientists, humanists, artists, and designers that trace the power of everyday things…

Whether it’s a student’s beloved 1964 Ford Falcon (left behind for a station wagon and motherhood), or a cello that inspires a meditation on fatherhood, the intimate objects in this collection are used to reflect on larger themes–the role of objects in design and play, discipline and desire, history and exchange, mourning and memory, transition and passage, meditation and new vision.

In the interest of enriching these connections, Turkle pairs each autobiographical essay with a text from philosophy, history, literature, or theory, creating juxtapositions at once playful and profound.

Among the essays are pieces by Henry Jenkins (death-defying superheroes) and my friend and colleague Trevor Pinch (synthesizer). Very cool.

According to Machinist and CNet News, Google has promised the court that it will launch a technology for YouTube designed to automatically locate and take down material that infringes copyright. Google is being sued by Viacom and by a consortium of European sports teams for not sufficiently patrolling the video site for instances of their content being posted by users. The law requires Google to respond to take-down notices submitted by copyright owners; the case, if it doesn’t get settled before going to court, will deal with what counts as a reasonable response.

The plan to automatically filter YouTube for infringing content should take us right back to the Napster case. As I predicted in the book, we’re already collectively forgetting that the court did not shut down Napster. It merely required Napster to filter its network, blocking users from accessing copyrighted material on other users’ computers by removing it from its search results. There was a lot of back and forth about how effective the filter that Napster installed was, and how diligent the RIAA was about providing Napster with the information it needed to filter out its member companies’ content, but it didn’t matter because, with so much music unavailable, the network dried up and users went elsewhere.

So, what’s different here? First, in the intervening time, the technology for filtering has certainly improved. Google has not gone into detail about how their YouTube filter will work, but it will certainly benefit from six years of innovation in such tools. Moreover, all the content is stored at YouTube. Napster had to recognize in real time that a logged-in user was offering something they shouldn’t, whereas Google has the entire database just sitting there, ready to be scanned and filtered. And, in terms of long-term consequences, the value of YouTube is not overwhelmingly its provision of copyrighted content, they way Napster’s was — an effective filter is not likely to kill off the site.

On the other hand, part of the problem is that YouTube is a massive and constantly fluctuating corpus — precisely the problem Google is being sued for in the first place. Despite being diligent about removing content, they can’t seem to keep up with all the users uploading clips from TV shows and movies, and all the take down notices coming from the studios and broadcasters. Presumably, an automatic filter is intended to improve on whatever they’re currently doing. But, it will also presumably suffer from the same problems Napster’s filter did. First, users will game the system, trying to beat the filter. Napster users started renaming files with obvious spelling errors, to avoid the early filter that looked for artist names, even going so far as converting them to pig latin, i.e. “itneybray earsspay,” or reversing the name, i.e. “yentirb sraeps”. More importantly, the filter will likely identify false positives, removing content that shouldn’t in fact be removed. And there’s great incentive for Google/YouTube to over filter (to appease the court and avoid a lawsuit) and little incentive for them to protect those users who get caught up in that net, or to reinstate their videos.

My particular concern is that the filter will depend on some form of visual recognition and pattern matching — i.e., it will look for what is likely to be Stephen Colbert’s face, and assume it has liekly located an unauthorized clip from The Colbert Report. Napster upgraded its filter, from one that blocked according to filenames to a system of audio recognition that compared the music itself to known songs. The risk, as usual, is for fair use. Would a news documentary or a video parody that included a few seconds of Colbert get caught in the filter plans to impose?

In the short time that Apple has become the third largest music retailer — not digital music, mind you, music altogether (recently passing Amazon, behind only Walmart and Best Buy) — its easy to forget that the major music labels have only ever had short contracts with Apple to sell their music. Despite the confidence with which Steve Jobs has commandeered the market for online music, he has always been a hair’s breath away from finding himself without major chunks of his library.

This week, Universal Music Group, which is responsible for roughly one in every three major pop music release, announced it would not renew its two year contract with Apple, opting only for a month-to-month arrangement. [Thanks to Adam Engst of TidBits for pointing out the New York Times article.] This seems to be part of the ongoing scuffle between Apple and the majors about pricing — Jobs has stood firm on a flat fee, whereas the labels want to be able to price songs and albums differently depending on popularity and release date — and the fact that iTunes downloads are formatted to play only on iPods — the labels want some compatibility with other players, whereas Jobs, umm… doesn’t.

I think it’s fascinating to look at this news in light of the recent decision by EMI to allow Apple to sell its music without DRM copy protection. It was easy for many to see the EMI announcement as the leak in the dam that would inevitably lead to the rjection of DRM. Universal’s decision may be related or not to EMI’s move — could they be jockeying for a good negotiating position for price and control as they let go of DRM? or could they be flexing their muscles as a gesture that they need not follow suit? But it’s certainly a stark reminder that Apple is negotiating a precarious balance here. Play the “no DRM!” card too hard, or hold too tight to the iPod exclusivity, and they may find that a very large chunk of their music is suddenly only available at Microsoft? And its a reminder — and this was my point in the book, though I’ve been wishing lately that I had made it even more pointedly — that these questions of ownership and technical protection measures are, at their base, very much economic strategies, though fitted with compelling rhetorical rationales, between companies jostling for control of a precariously fluid market.

Another comment from Reading Information Studies, from Barbara:

I too have found compelling the notion that the “trusted” system mitigates against media fair use. But I also find interesting the various ways that indie or iconoclastic musicians, videographers, etc., are evading these corporate strictures, and as noted in earlier postings, are even receiving support in Supreme Court decisions. I’m wondering if we could spend a little more time considering these differences. It is not just about consuming music and other media by downloading, but also about creating music, art, other digital formats, in ways which evade conformist pressures from established industries — ie., the part of Tarleton’s dissertation that he tell us he has left out of the book.

And my response:

Just a quick thought on Barbara’s comment. I think you’re absolutely right that this discussion has focused most heavily on the consumption of culture. In some ways this is the work of the industry majors, who (a) think largely in terms of consumers and (b) strategically put things in terms of “consumers” and “pirates” because it positions them on the right side of the copyright debate, and makes fair use concerns seem least relevant. It is also the work of Napster, because it was so much the flashpoint around which these issues arose, and was, really, a mechanism for the consumption of music, through a novel model of distribution. But I would argue that it really has to do with the fundamentals of copyright itself. At its base, copyright takes cultural discourse (a continuous flow that depends on a complex variety of creative, distributive, and consumptive practices) and maps it into discrete events (a produced thing is consumed, a made thing is purchased). The law itself, and its neat fit with the logic of consumer capitalism, highlights (exaggerates?) a discrete, producer-consumer relationship, and maps all practices into one or the other category. And, what do you know, the business model of the film and music industry seems to such sense.

I think the struggle is to find language that works against this tendency, that can better articulate and account for the richness of cultural discourse — which needs what looks like creation, what looks like distribution, what looks like innovation, what looks like criticism, what looks like organization, and what looks like consumption. We need language that is more attuned to the way these are not ven discrete categories. We may be seeing some movement here: in the world of the blogosphere, young users seem to take it as their natural right to write commentary on a movie the minute they get home from the theater. Whether this will still seem to be just another element of “consumer” activity and kept ideologically discrete from “production”, or whether it will help us think instead about a spectrum of uses, re-uses, reactions, re-imaginings, compilations, and new productions, is still hard to say. I do suspect that copyright law, as it is, tends to be a conservative force in this regard.

So yes, there are artists and indies and avant garde-ists and garage bands and co-ops that are experimenting with different models — though perhaps there always have been. My question tends to return to how / whether those practices will shift the norms around cultural participation, or continue to dance around the edges of an otherwise stable discursive paradigm. (Hmm, questions of stability and movement, again.)

As I mentioned, I’ve been guest blogging at Reading Information Studies, and have been enjoying the chance to think about the argument I made in my book. Here’s a prompt from Greg Downey:

I’m curious about other cases we might investigate using these tools. For example, recently Apple brokered a deal with music publisher EMI to sell DRM-free iTunes tracks (though still in Apple’s less-commonly-used AAC format, and still with consumer identification metadata embedded within the track). The lack of DRM comes at a price — a 30 cent premium over the usual cost of 99 cents per iTunes song — but also brings a higher sampling bitrate for those looking for better sound quality (though I’d bet I can’t tell the difference on my crappy iPod headphones). It seems to me that these two motivations behind the trusted system — discouraging new copies (really, prohibiting all but a very narrow range of uses and exchanges) and capturing new revenue streams — still operate in the Apple/EMI decision. But the balance between the two has momentarily changed. Perhaps these kinds of reversals in policy are to be expected in a competetive environment for digital music (and digital music player) sales … but I wonder if this counter-example to Gillespie’s story demands some further analysis? Or does it already fit within his framework?

And here’s my response:

I think there are two ways to use my argument: as a heuristic for studying technology in a public context, and then as an analysis of the specific case of copyright, DRM, etc. As a heuristic, the idea is that one has to look at the regime of alignment beneath the question of whether a technology has social implications, and this means looking at the efforts of political mobilization and cultural legitimation, and what they’re up against. This says nothing about the particular case, yet, it just reminds people of what they should attend to, what is often overlooked.

So it strikes me that, in terms of the heuristic, the EMI-Apple announcement is a useful reminder that these arrangements are incredibly fluid, like shifting sands. In fact, it makes me think that the harder thing to explain is how some arrangements actually manage to persist. Funny that I’ve reached this point, since most of my work in this field has been driven by a concern to explain power structures that don’t seem to move, that work to hold cultural practices and social formations still. So stories about technology that see only progressive, inevitable liberation are naive and problematic, but maybe so are stories that see only hardening, inflexible hegemony.

It may also urge us to think about how particular actors are in several arrangements simultaneously. So, as Kristin noted, the European legislatures now considering laws that would hold DRM as anti-competitive are suddenly relevant to Apple in a way they were not before, and are not for Apple’s partners.

In terms of the actual case, I think one way to understand the EMI-Apple move is as a sign that the political mobilization around DRM persists, but that the cultural legitimation of DRM has failed substantially. The fact that the DRM-free tunes will use AAC format rather than MP3, and will include metadata that may be useful both for tracking piracy and regulating purchases, continues to help lock the immensely popular iPod to iTunes, and continues to support the incorporation of pricing into the technical format of the music, suggests that the aspirations of Apple and EMI have not changed dramatically, despite Steve Jobs’ recent manifesto. But the fact that dropping DRM can be a viable strategy at all for a major like EMI is certainly a sign that DRM, which was carefully named and articulated by the majors to have positive connotations, is now seen by most people (not just the die hard free culture types, but ordinary consumers) as negative enough that dropping it is actually a selling point. Valenti and others have done a very good job painting file-trading as piracy, but the effort to discursively install DRM as the shining solution has clearly failed. But this doesn’t mean that the logic of linking control and commerce goes away.

In case anyone’s curious, I’m spending a little time guest blogging at Reading Information Studies, a group blog hosted by Kristin Eschenfelder and Greg Downey that represents the online portion of their summer reading group at the Library and Information Studies department at UW Madison. They’re reading Wired Shut this week, and Kristin asked me to join in and respond to questions. Already it’s been fun to think about how the project came together, how to manage knowing enough about law and technology to participate in these debates, what the content industry might think of my take on things, etc.

I’ll be there all week. Try the veal.

If you’re interested, you can watch a colloquium I gave on my book, at Cornell’s Mann Library, back in April. Click me.

Thanks to Josh Greenberg for pointing out this little tool, Tag Crowd, that will visualize your most used words on any text you offer it. Here are the 75 most prominent terms from my book, with “technology” beating out “copyright” 730 to 536:

created at TagCrowd.com

I can’t believe I used the word “particular” 146 times. I’m going to have to keep an eye on that.