February 2007

(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?

Jonathan Lethem’s essay “The Ecstacy of Influence” was published in Harper’s Magazine back in late January, which makes it ancient in the compressed timeline of blog chatter. And it has been fully chattered over, mostly because it is brilliant, so I won’t say much. I’m just posting it as a reminder to myself, and for anyone who didn’t manage to see it. It is an articulate and ingenious manifesto about the way borrowing from others’ work is not just common to writing, music, art, etc, its fundamental, unavoidable, and of great value. This makes the copyright obsession with distinguishing new work from borrowed untenable at its core.

Plus there’s a twist at the end worthy of The Sixth Sense and Fight Club.

Here is Henry Jenkins’ lucid discussion of the piece.

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.

I’m pilfering a phrase from Siva Vaidhyanathan, who wrote an excellent article called “Copyright as Cudgel,” noting how producers often use copyright infringement charges as a political weapon. here’s a variation on the theme: the Republican Study Group, a subcommittee of House Republicans, had to apologize yesterday for suggesting that Speaker Nancy Pelosi had violated copyright. Her office had posted clips to YouTube of C-SPAN footage of the debate about Bush’s Iraq “surge” plan, then embedded them into her website, “The Gavel“. As it turns out, the footage shown on C-SPAN is shot by Congressional cameras, and C-SPAN enjoys no copyright over it; as government information it is in the public domain. The GOP claimed they had received conflicting information from C-SPAN, but I suspect they saw what they thought was an opportunity to hit the new Democratic Speaker of the House in the ribs.

This is a bit different than the kind of use, or misuse, of copyright that Siva was talking about; copyright is also a cudgel when a copyright owner sends out cease-and-desist letters that threaten DMCA lawsuits, even if the use being made is arguably within the user’s rights, and depend on the user not daring to get in an expensive court battle with a major corporation. This is the “chilling effect” that comes with such doctrines. But here we have a curious use of copyright, the desire to embarass someone for having potentially infringed. I must say, its a risky move: even if C-SPAN did have copyright over the footage, Pelosi’s office could have gotten their authorization to use it, or have made a reasonable fair use claim. It strikes me as being a product of the copyright paradigm we’re in at the moment, where (a) television footage available on YouTube must obviously be illegally posted there, (b) video with a channel’s logo on it is obviously theirs, (c) use of copyrighted work is obviously infringement, and (d) the accusation of copyright infringement will turn people against the infringer. All four of these assumptions are flawed, but the certainty with which they are commonly held is palpable.

In a discussion with students yesterday, with a powerful snowstorm raging outside, the (now quite old) question of real vs virtual came up. This is what happens when you read Julian Dibbell, even if you’re reading him to think about how democratic structures do or do not emerge inside of nascent communities. Do people in online spaces get so immersed that they disconnect from the real world. The question posed was a more interesting one that the typical, because it was focused on political blogging, which is not your classic “virtual” worry, like MUDs or Second Life or, way back when, Dungeons and Dragons in shuttered university corridors. The question was, do people get involved in political blogging, not for the connection to the real political landscape (support this issue, criticize this candidate, sway this election) but for the gamesmanship, the sheer process, the insular back-and-forth: here’s today’s Post editorial, let’s dissect it.

It’s an interesting question, but it also got me thinking back to that old concern about people getting lost in the virtual. And it struck me that a better way to think about it, a way to get past what really was a fear of an unfamiliar technology, is to think about the range of coordinated, social activities we engage in as on a spectrum: from interventionist to escapist. This is not about what the activity is so much as it is about how the pleasure of participating is presented. So participating in that political blog discussion is pitched as vitally connected to the real political landscape; Second Life is offered up as something separate from… an alternative to… a second life. So this is not just the offer of “virtual reality”, it is also the offer made by “murder mystery weekends” and costume parties and even the theater.

This is not to say that people must therefore experience it that way; there may be some who just enjoy the gamesmanship of political blogging, and clearly there are plenty who have turned to Second Life and found not an escape form their mundane experience, but a way to link the two. (I was at the Consumer Electronics Show in Las Vegas this past January with some fellow scholars, and one reported talking to an IBM rep, who described how they often host their bi-coastal meetings in Second Life. And, that there is a naked gnome who takes great pleasure in regularly streaking through their meetings.) Nor are we somehow duped by the illusion, as some fret. But the promise of these activities, along the spectrum of being interventionist or escapist, is a powerful one, especially to those who are trying to comment on it.

Maybe we could add another dimension, similar and often parallel but not the same: instrumental vs immersive. So it is no surprise that the 3D, highly visual environment of Second Life, or of video games, supports this promise of escapism. It is more difficult, though I suspect not impossible, to enjoy such escapist activity when the medium is sparse, when the aesthetics are mundane, when the activity is too reminiscent of the ones we engage in every day.

Which leaves me with a final thought, just to finally put the nail in the coffin to that old, but weirdly persistent worry that those who get too involved in these “virtual” spaces risk losing track of the ‘real” world: the best example I can think of for a escapist, immersive activity, is professional football. Not atching the gamr, but actually playing in it. It offers an alternative reality, where a bizarre set of rules of engament apply and every consents to obey them, it happens inside of a space entirely designed to make visible and confirm that world, to take you out of your real life, it offers no promise that engaging in the activity has any impact on the real world, only on the constructed world of professional football itself (the season, the rankings, the playoffs, etc.) They even wear costumes. Yet we do not worry that football players will “lose” themself in the game. In fact its seen as a legitimate thing to do, something we urge our high school kids to join in. I suspect that play in virtual environments will eventually shed these connontations and concerns — they’re already diminshing, especially around online environments and video gaming — and settle in as fanciful, escapist, but not psychologically seductive, activities.

As I am currently teaching my course on media and society, some of my attention is drawn to issues other than technology and copyright. Those interested in issues of contemporary journalism might want to check out Frontline’s new 4-part special called “News War“. The first part is set to run on your local PBS station on Tuesday, Feb 13 at 9pm. Here’s their description of the program:

In a four-and-a-half-hour special, News War, FRONTLINE examines the political, cultural, legal, and economic forces challenging the news media today and how the press has reacted in turn. Through interviews with key figures in the print and electronic media over the past four decades — and with unequaled, behind-the-scenes access to some of today’s most important news organizations, FRONTLINE traces the recent history of American journalism, from the Nixon administration’s attacks on the media to the post-Watergate popularity of the press, to the new challenges presented by the war on terror and other global forces now changing — and challenging — the role of the press in our society.

Topics included in the discussion will be the press’ relationship to the Bush administration, the question of using anonymous sources, the implications of the Plame investigation, reporting on issues of national security, the implciations of corporate ownership, the challenge posed by cable news and by emerging forms of online journalism, and how international news coverage may shape global opinion about the U.S. These are vital issues, and Frontline has a history of handling questions of media quite well — check out Merchants of Cool and The Persuaders in that regard.

Pirate Bay, one of the most popular sites hosting “torrent” files to copyrighted material available through the BitTorrent network (if that’s confusing, read the italicized comments below) has been getting bolder ever since it announced its plans to purchase either the decommissioned offshore sea fort “Sealand” or some other uninhabited island, which would (maybe) allow it to proclaim “micronation” sovereignty and (sort of) claim to fall outside of any legal jurisdiction for copyright lawsuits. Its latest offering is OscarTorrents, which brings together the torrents you’d need to see (nearly) every single film nominated for an Oscar in any category this year. I have yet to play with the downloads to see how likely it is to actually get the films or what quality they’re in, but the very visibility with which they’re doing this is an interesting shot across the bow in the ongoing copyright wars.

Its probably also worth noting that the major studios spend millions sending out free copies of their movies to Academy voters each year in hopes of getting a nomination, and that these “screeners” have often ended up being the source for illicit copies making it to peer-to-peer networks before the films have even been released on DVD. Not that this somehow justifies Pirate Bay’s move in any legal sense, just an interesting twist in the realities of this particular information flow, and where the lines of legality and illegality are drawn. OscarTorrents is also presenting itself as a site for viewers to then vote in each of the categories, purportedly opening up the Academy process to the masses — “the Oscars as it should be”. Democratization is often something that copyright critics have pointed to in different ways, but its only sometimes a substantial motivation, sometimes just convenient cover. Pirate Bay’s real politics are pretty clear in their statement

To all intellectual property landlords: we are aware that OscarTorrents might annoy you — but contain your righteous indignation for a while, and think: we’re only linking to torrents that already exist. Face it: your membrane has burst, and it wasn’t us who burst it. Your precious bodily fluids are escaping.

Thanks to Boing Boing for the pointer.

I’m going to try in this blog to help explain the phenomena I write about, since the ever-changing debate about technology and culture tends to leap quite quickly to the newest technological oddity, leaving some hopelessly trying to catch up. Peer-to-peer networks are a way for users to link up their computers and share content, sometimes content they do not have permission to share (such as Hollywood movies), by querying individual computers for the file they’re looking for rather than a central server. So instead of getting your song from iTunes, you’re getting it from me, or from her, or from that other guy. This is what the original Napster did, what Kazaa does, what DC++ does. This poses a legal challenge to copyright owners primarily because its harder to locate and prosecute people than it is if someone just puts a bunch of movies on their website. BitTorrent is an innovation in this technology: files get fractured into little bits and scattered among many users’ computers, and your search can locate these bits and draw them together rather than downloading the whole file from one computer. According to one report, use of BitTorrent may represent roughly 35% of all Internet traffic. “Torrent” files, which help keep track of these bits and how they can be found, can be downloaded from “torrent tracker” sites (for example, Pirate Bay), then used to actually draw the necessary file from users who are housing its various pieces, using the BitTorrent client — a separation that adds an extra step but also another layer of distance between the act of copying and the provision of tools for doing so. Oh, and its largely, or relatively clearly, illegal, but relatively hard to stop because it is so distributed. Sites hosting these torrents have drawn legal fire, including Pirate Bay, though they are clearly emboldened by their efforts to secure an extra-national new home.

Here endeth the lesson.

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.

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.

It has long been clear to me that I should at least try blogging, if only because too often my short, one paragraph thoughts from day to day (though they’re certainly not all worth saving) too often get lost in the endless spin of getting things done, getting on with it, getting to the next bit, getting by. Also, considering my particular fascination with technology, new media, copyright law, digital culture, etc etc, the blog space seems to be one of the best places to think with others who care about such issues. However, it took me much longer to get my act together. So here it is. I hope it is of enough interest to me that it continues, and enough interest to some that it isn’t just me muttering into the wind alone. Welcome.