Scrutiny

I just put together a “Listmania” at Amazon for the best books on copyright, technology, and digital culture. The image below is a composite of he nineteen covers; click it to see the entire list.

Any suggestions for that twentieth slot?

Jonathan Sterne pointed out this article in Canada’s Globe and Mail, about a visit from Justice Antonin Scalia to a panel discussion hosted in Ottawa. Things got surreal when a Candian judge made the mistake of saying, “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’”. Apparently, Scalia jumped to defend the fictional hero of 24:

The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. “Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives,” Judge Scalia said. Then, recalling Season 2, where the agent’s rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.

“Are you going to convict Jack Bauer?” Judge Scalia challenged his fellow judges. “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so.

“So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

Jonathan reminds us that, when scholars of media and communication fret about the effects of media, they too often are thinking of particular kinds of audiences: children, the poor, the uneducated, immigrants. We don’t often think about whether media shapes the worldviews of highly educated, white, Supreme Court justices, or even military school undergraduates.

This would be funny, a Quayle-esque Murphy Brown moment, except in light of recent concerns raised by teachers at West Point, who appealed to the producer of 24 to stop presenting torture as a reasonable and effective way of getting information. In the West Point classrooms they were finding that students had an increasingly blasé attitude about torture, borrowing the outlook of the show that “whatever it takes” is acceptable in the name of national security. I’m still inclined to see this as more of an indicator of how powerfully the public debate in this country is still gripped by a security-or-catastrophe paradigm, that makes it possible for the hyper-muscular ideology of 24 to strike the chord it does. But it does concern me that someone like Scalia, despite his conservative inclinations, should know better than to legitimize that kind of blurriness between political concerns and narrative ones.

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.

Here’s the introduction I gave to “Download Debate III,” a panel discussion I moderated, hosted by the University Computer Policy and Law program at Cornell University, back in April 2006. It introduces copyright and its history, the political importance of the current debates about the law, and the various ways in which universities are, and should be, involved.

You can stream the entire event here.

As an aside, this is my first video uploaded to YouTube. I very much felt both the value and the constraint built into their service: it was incredibly easy to post the video, but I spent a lot of time cutting what was a twelve minute talk down to the requisite ten minutes — a limit that is primarily a way to discourage copyright infringement, posting TV shows and movies and such.

There’s a very good video demonstrating the recently unveiled Microsoft Surface computing interface, put together by Popular Mechanics, that’s worth watching, if you’re into such things:

Tony Price has just posted a very interesting article at openDemocracy. Two years ago, openDemocracy was convinced to publish their material under a Creative Commons license, which means that anyone can republish their material, so long as it is not being commercially distributed, it is not modified, and its source is attributed. (Creative Commons offers a series of licenses that allow you to pick and choose which kinds of re-use you will allow or not; but the primary innovation is that use is being authorized up front — copyright law generally expects authors to reserve rights until they’re asked.) In 2005, Siva Vaidhyanathan made the case in openDemocracy’s pages that Creative Commons was not only a sensible and just way to handle copyright, but that it was particularly suited to the democratic mission of the publication:

The articles on openDemocracy deserve to be circulated and used in more than one context. They can be rich resources and raw materials for further scholarship, criticism, and journalism. Their authors often inspire new ways of doing politics. By joining openDemocracy in the Creative Commons, they inspire new ways of sharing and developing knowledge too. Democracy, like culture itself, must be a collaborative project.

Price, in his article, expresses some skepticism about the decision. After finding some of their articles reproduced on a site with higher Google pageranks, he wonders whether it is in fact a good thing that their articles show up elsewhere, and that their license explicitly authorizes this. His point, provocative though I think incomplete, is that the Creative Commons idea is very good at circulating content in a context of abundance rather than scarcity, but not as good at helping to establish and strengthen the kind of community that forms around content. If openDemocracy’s content immediately migrates to other sites, to any site, do they lose the sense of specialness as a resource, as a destination, and the sense of community that then comes with it?

The Digital Commons points to the fundamental difference between information and atoms: information can be almost costlessly reproduced, and the more reproduced the better. Limits to the reproduction of information are a hangover from non-digital economics.

But this is an orthodoxy I refuse: one of our articles is part of a publication; that publication makes a community; and every moment of attention that the community loses is one that might have contributed something of value to the greater whole that we are trying to build at openDemocracy. In this respect, our creative-commons licenses, by dispersing the energy of the community we are building, are destroying value. Indeed, it is almost built into our current licensing technology that the pieces most likely to build our community will find themselves aggregated elsewhere, because they are the most likely to be reused by other communities.

Price is tapping an interesting tension here. The old version of this concern used to be: people trade music on peer-to-peer networks with no concern for paying the artist; that works now, since all this music has already been released — but what happens when artists stop producing music altogether because it is being redistributed, and fans are left with nothing to trade? Or, political blogging claims to be an improvement over mainstream media, avoiding lots of the problems that commercial and institutional imperatives force on the old form — but blogging rarely includes investigative inquiry or breaking news, its really about recirculation, commentary, critical analysis, so what happens if the mainstream news collapses, what will bloggers comment on? These concerns are, I believe, unwarranted because they are too stark: there are lots of reasons why musicians will continue to make music and journalists will continue to investigate, even in a context in which users now eagerly take, recirculate, and comment on their work. But Price’s concern is a sharper one: does the value of community, the way people gather around a site like openDemocracy, fuel the continued production of its content, and its sense of significance? (This has echoes of Benjamin’s worry about the loss of “aura” when cultural works can be easily reproduced.) If those materials can be found outside of its designed context, whether its on another site or through aggregators like Google News or RSS readers, will those communities wither? As Price puts it,

The commons have always been sustained by communities, and the digital commons, embodied in the iCommons movement, will be the same. Communities both pay for and give life to endeavours in the public space. They supply both sense and cents.

What Price underestimates is the “attribution” aspect of the Creative Commons license, and of this context of abundance more generally. Communities can’t just hunker down and survive, they need to grow and remain vital. They do this by expanding their reach, finding new members while also serving the old, connecting to other conversations and deepening them. The fact that openDemocracy’s articles get picked up and re-posted on other sites, or made available out of context through Google News, not only gets them to more people, it directs some of those readers back to the site, where some of them may become members themselves. The link back to openDemocracy, through attribution and through a literal hyperlink, is a kind of advertising, a kind of invitation, a kind of enticement. It’s actually better than an ad, because rather than being told “you really should check out our site, it’s good, I swear” a reader finds value in an article, and has reason to seek out more. Just as some musicians will continue to make music, even if there is no profit for them, and just as some journalists will seek out information even if there is no financial reward coming to them, communities will continue to form around shared value and meaning. The porous boundaries of these communities is always valuable and risky, and every community struggles with how porous to be. But allowing the content itself to circulate strikes me as the most powerful way to make a community open, strong, viable, and lively.

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

I was talking with my student Dima today, and we were going over the recent controversy about Google’s “Street View” map feature and its potential privacy implications. And it occurred to me that Google has adopted a very powerful strategy for how it introduces new features, one that changes the game for how public consideration of its implications goes. Rather than announcing that it is about to begin to take photographs of every point on every street of major U.S. cities and posting them online, so you can see faces and license plates and questionable behavior and right into front windows, and then face the potential debater or outrage, they simply do it. They do it without fanfare, without even any public knowledge (a pretty amazing accomplishment for a project of this scope — but they seem to do it all the time).

So they still face the public debate, whether it sways in their favor or not. But the debate happens in the context of an existing feature — and, as is typical of Google, a beautifully designed and intuitive one — which can argue for its own value. If we were having this privacy debate about a feature yet to be designed, I think it would be much easier to see it only in the light of privacy risks, and the debate might even be intense enough to discourage Google from doing it. But now, its harder to argue when the tangible value of the feature is so palpably obvious.

This doesn’t always work — the uproar about the Facebook “News Feed” feature, which simply appeared rather than being announced, may have been actually more intense because it was already up and running, already revealing people’s every action on the network to all of their contacts. But it does let Google win a lot of support from those who might say, “sure, its got some privacy implications, but look how handy it is!” And, as Dima pointed out, it’s free. Which got us thinking about the cultural implications of free. Chris Anderson, author The Long Tail, is apparently working on a book called Free for 2008, discussing the cultural implications of goods that are priced at zero. Here’s one. There is an illusion of benevolence that seems to come with Google’s offerings: hey, here’s the greatest search engine you’ll ever find! Hey, do you want intuitively designed maps of the entire continent? Here you go. Need a better email client? Why not take ours.” Its not as if these are actually acts of benevolence. Google is a for-profit company, and quite a profitable one. But because there’s no visible price tag, no subscription fee, these services feel like gifts. When you pay for that music subscription service, or buy that expensive software, you are faced with the undeniable fact that the provider wants your money, and even in our consumer culture that comes with skepticism — am I being hoodwinked into a lousy product? Does this company have my best interests at heart, or just their own? I wonder if Google, and other providers of “free” stuff, subsequently get a bit of a pass from their consumers because of this seeming generosity.

I finally got to see the final episode of The Sopranos, just a day late. I’m not going to join in on the debate about the narrative choices David Chase made (ok, I think it was startling and brilliant). I;m not even going to reveal them: I’m sensitive to those who haven’t watched yet but intend to, as I did (it was a tricky 24 hours, avoiding articles, skipping emails from friends that might reveal details). But there’s an interesting dimension to how the show ended that keeps coming up in articles I’m now reading. Without revealing the details of the ending, I will say two things: first, the episode ends abruptly, cutting to a silent black screen and holding for a few seconds before rolling the credits. Second, based on the way the show ended, many have commented that David Chase was, among other things, poking an elbow in viewers ribs a bit, perhaps for the endless speculation about how the saga would close.

Many viewers, when confronted with the black screen, thought for a moment that their cable or TiVo had failed them, that perhaps the show had run long and not been recorded, or the signal dropped at that crucial moment. Even watching it on HBO on Demand, I had the same sensation (exacerbated by the fact that the HBO on Demand service had initially failed when my we tried to start the program). Its a gut panic, an existential dread that, cruelly, our technology has failed us at the crucial moment of dramatic denouement, and its a terrible feeling. And a revealing one. My good friend Josh Greenberg has written about the complexity of thinking about media technology, and one of the things he has noted is that we are constantly making a very subtle but seemingly simple distinction between what is the text and what is the technology. The radio blares out a song, that’s the text; it blares out static, that’s the technology. There’s even some artistic room to meddle — a song that starts with the hiss and pop of a turntable, or a character in a television show “knocking on the glass” of our TV.

That final moment in The Sopranos put us in an ambiguous space of technical ambiguity, one where we could not decide for a moment whether the black screen was a purposeful aesthetic decision on the part of the makers of the show, or the sign of a technical failure in the distribution system that brought it to us. I suspect that the choice may even have been Chase poking an elbow in our ribs, as the producer of an epic drama in an age of “snack culture”. I may be making too much of a small point, and certainly the ending deserves discussion on its narrative merits more than on this. But it strikes me as an intriguing moment — as the ways we watch TV multiply (cable, on demand, iTunes, broadcaster websites, DVD, peer-to-peer downloads, subscription streaming), the distinctions we have to make between technology and text, between what is the media and what it is mediating, grow more complex.

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.

The Consumerist asked their readers to vote for the worst company in America, and while we have our fair share of contenders, they chose the RIAA (a trade organization, yes, but there you go). As much as I think they’ve done damage to our information culture, I can think of a bunch who are far worse. Still, in the spirit of the vote, The Consumerist has posted a list of 50 in the House and Senate who took money from the RIAA in the last election cycle, with amounts. Not big numbers, but a nice glimpse into how lobbying works: donations across parties and regional areas; some familiar names, both those who have passed copyright-maximalist legislature in recent years (Hatch, Berman, Bono) and those with national public status and/or presidential aspiration (Clinton, Obama, Emanuel, Lott).

Thanks to Alex at Copyfight.

I should read it more regularly, because Andrew Leonard has an absolutely terrific blog over at Salon called “How the World Works“. It’s startlingly smart about more things than any one person should be smart about.

And this post does not really capture the flavor of what he usually talks about, the politics and economics of globalization, but it came nearest to my own particular fascinations, so I wanted to share it. He’s loosely reviewing the film “Pirates of the Carribbean III: At World’s End” and, after winkingly commending the film for its realism — that is, for having made the East India Trading Company the villain that it in fact was — he makes this comment, about how odd it is that Disney is celebrating lawless pirates triumphing over the first mega-corporation:

In “Pirates” we’re expected to root for the anarchic lawbreakers against the forces of repressive order. That’s why the third film starts with a bunch of pitiful about-to-be-hanged islanders being told they no longer have any constitutional rights. But it’s always been kind of a nifty trick for a supposedly squeaky clean, family-friendly corporation like Disney to market pirates, famous for raping, pillaging and murdering their way across the seven seas, as not only PG-13 entertainment but also as freedom fighters against totalitarian rule. This is an effort laden with gross contradictions, leading to such hysterical high points as the shock expressed by Disney when Keith Richards, who makes a cameo as the keeper of the Pirate Codex in “At World’s End,” claimed to have snorted his own father’s cremated ashes. Whether joking or not, what could possibly have been be more piratical in spirit then that!? But Disney frowns on true piracy — and for understandable reasons. In a global marketplace, there are bound to be some cultures where potential ticket-buyers would look askance at nasal consumption of one’s progenitors.

I love the additional irony, of which Leonard is certainly aware, that Disney has often been the harshest combatant against another group of lawless troublemakers they love to brand as “pirates,” those who rape and pillage their precious copyrights. In legal and policy contexts they love to throw around the metaphor, comparing Internet file-traders to high-seas marauders, yet their summer franchise gives us Johnny Depp as a most appealing, and in the end (I assume, I haven’t seen the most recent sequel), good-hearted rebel.

The bigger irony is of course the way that entertainment corporations have to regularly offer us tales of those who throw off corporate shackles, stick it to the man, move beyond vacant consumer materialism, and find their true voice despite the lure of success. One could argue, and many have, that these stories are hollow triumphs, plastic tokens of revolution and
individualism we enjoy while sitting quietly in a room watching the blustery commercial product we gamely paid for. And I tend to agree, but there’s something else, an awkward beauty to capitalism, where it can’t hold to its own ideology if there’s a buck to be made beyond it.

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.