and the analog past
Talk about the law being blind and dumb.Not until late 2003 did it become legal for blind people to listen to certain e-books without a copyright owner’s permission. For whatever overprotec-tive reasons, it wasn’t unusual for publishers to disable the “read aloud” voice synthesis function on the computers that stored
e-books. Software companies were too scared to pick this digital lock—no matter how easy it was, or how much common sense it
made—because it was a violation of the Digital Millennium Copyright Act. Among other things, they were chilled by the 2001 arrest of Dmitry Sklyarov, the Russian computer programmer mentioned in the last chapter who was jailed on DMCA charges. His employer developed software that broke a publisher’s restrictive rules, such as the following ones that appeared on the copyright page of Adobe’s e-book edition of Alice in Wonderland:
COPY No text selections can be copied from the book to the
clipboard.
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PRINT No printing is permitted of this book.
LEND This book cannot be lent or given to someone else.
GIVE This book cannot be given to someone else.
READ ALOUD This book cannot be read aloud.
Only after intense lobbying from the American Foundation for
the Blind did the Librarian of Congress grant a DMCA exemption that legalized the unsavory crime of reading e-books aloud. Copyright was originally conceived as a way of dispersing knowledge and culture. But for nearly five years the DMCA was pretty much responsible for keeping blind people from accessing e-books such as Alice in Wonderland. Even though Alice and many other e-books are in the public domain, by converting them into digital form, companies can recapture works whose copyrights have lapsed. In doing so, they create newer, more innovative ways of eroding our cultural commons that go beyond the mere extension of copyright-
protection terms. Also, they can create protections that are virtually infinite, rather than respecting the balanced bargain that has been at the core of copyright for over two centuries. It’s a sign of the times when overzealous copyright bozos move to make everything a billable event, tightly controlling all access to their property.
In the old days, for instance, we could purchase a book and take it home, read it, mark it up, store it for years on our bookshelves, photocopy a chapter, loan it to a friend, or whatever. Such uses are protected by what lawyers call the “first sale doctrine,” which essentially states that when you purchase a copyrighted good, you can re-sell it, give it to a friend, or make personal copies, among other things. Unfortunately, this doctrine is quickly evaporating in the digital world. Under the DMCA, content providers can now regulate who can see its product, how long it can be viewed, whether or not it can be copied, and what can be done with it. This signifi-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 272
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cantly rewrites rules that had been in place for years and struck a balance between copyright holders and the public.
EMBRACING A RENTED FUTURE
(WHILE FORGETTING THE PAST)
Soon after Apple introduced its iTunes store—which legally sells digital music files with “locks” that prevent free copying—a
Web developer stirred up a digital hornet’s nest with his online performance-art piece. George Hotelling placed a song he purchased from the iTunes store on the Web auction site eBay, promising to donate any surplus proceeds to the Electronic Frontier Foundation. “I’d just like to know that if I buy something, whether it’s physical or intellectual property, that I’ll have my right of ‘First Sale,’ ” stated Hotelling. “It underscores the fact,” added Fred von Lohmann, a senior staff attorney at the EFF, “that when you purchase digital music online today, you may be getting quite a bit less for your money than when you purchase a CD in a store.”1 Eventually eBay yanked Hotelling’s song for violating a ban on goods purchased and distributed electronically. Because Apple never had a chance to weigh in on the debate, the status of the first-sale doctrine for legally downloaded music remained murky.
Justifying their actions, copyright owners argue that without strong protections against digital leaks, they’ll no longer be able to make money. They constantly remind us that the Internet and digital distribution are different from that which came before. Although this is partially true, they are still dehistoricizing the current situation. Virtually every time a new technology has been introduced, copyright industries have hysterically and hyperbolically responded the same way. After all, even the phonograph was supposed to destroy the music industry at the beginning of the twentieth century. Of course, there was a reorganization of the music industry, McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 273
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but music itself didn’t suffer—instead, the industry got much, much bigger.
“What we find, historically, is that the folks who do best are those who embrace the new technologies,” says Brian Zisk, cofounder of the Future of Music Coalition. “The King Olivers and those folks who are early and got their stuff on records built this following.” But the early twentieth-century musicians who wouldn’t let their music be recorded have been forgotten. “They may have thought they had a legitimate reason to say, ‘We don’t want people to copy our licks,’ ” Zisk continues, “but it’s really about how to get as many people to hear your music as possible.” Then radio was supposed to ruin the newly emerging recording industry because, well, if people don’t have to pay for the music they hear, why would they go out and purchase records? The answer soon became obvious: The more people heard certain songs for free, the more likely they would buy a familiar record. Radio turned out to be a fantastic promotional tool.
“Radio was also supposed to end live music because people were going to stay home,” says Steve Albini, someone who knows more than a thing or two about the music industry. Over the past quarter century, Albini has produced or engineered over one thousand albums for more than one thousand artists—ranging from relatively obscure critical darlings (Nina Nastasia, Man or Astro-man?, Low), midlevel acts (the Pixies, P. J. Harvey, Weezer), and multiplatinum stars (Nirvana, Bush, Cheap Trick). “What actually happens is that every single one of these [innovations] increased the general public’s participation in music,” the recording engineer tells me. Albini said this before literally suiting up—in a specially designed jump-suit all his engineers wear—and getting to work in his Electrical Audio studios in Chicago. They look like a team of über-cool crime fighters.
“This stuff came about because of these technological advances,”
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he says, “not in spite of them. The radio made people excited about hearing live bands because they’d hear live bands in a ballroom with this excitement going on, and the ballrooms exploded in popularity after radio.” With hindsight, it’s perhaps too easy to sit back and make fun of the shortsightedness of those who believed that radio would spell the end of the music business. But one can imagine why people thought that; this was a new technology, after all, a wireless medium of communication that would supposedly reor-ganize society—sort of like what we’ve heard about the Internet.
Stanford law professor Lawrence Lessig argues that controversies over cable television foreshadowed the first Napster controversy. As a newly adopted commercial technology, cable television raised the hackles of the three television networks because cable companies were “stealing” their content. (Cable companies were pulling broadcasts from the airwaves and copying it onto their wires.) Under pressure, the Federal Communications Commission (FCC) halted
cable’s expansion in the 1960s, yet another example of how copyright conflicts can slow the development of significant new media technologies. When the FCC began reversing itself in the early 1970s, television program–copyright owners took the cable companies to court twice.
Judges sided with cable and left it up to Congress to strike a compromise, which legislated a compulsory “blanket license,” similar to what radio and live-music venues purchase from royalty-collection agencies such as ASCAP. This license allows radio and television to broadcast copyrighted materials by paying a statutory fee set by Congress, not by copyright owners. It limits the monopoly rights of copyright owners by ensuring that they can’t stifle competition by setting artificially high prices. Under the compulsory blanket-licensing system, copyright owners don’t have the right to arbitrarily refuse permission to rebroadcast their programs McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 275
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or to favor one company in its pricing schemes. This way, the cable industry was allowed to thrive, consumers had new entertainment options, and copyright owners were fairly compensated.
These blanket licenses are curious constructs. In chapter four I wrote about the legal fiction of the “corporate individual,” and the way this plays out in broadcast and cable television raises important questions. First of all, who is the “author” of a television show or a movie? The multiple writers, the director, the actors, the producers who put up the money, the editors, other technicians necessary in such a production, or the channel that broadcasts it?
Practically speaking, it’s a puzzling problem, one that displays the cracks in the smooth veneer of the culture industry’s conception of
“the author.” In his essay, “What Is an Author?,” Michel Foucault argued that “we should reexamine the empty space left by the author’s disappearance; we should attentively observe, along its gaps and fault lines, its new demarcations.”2
In Hollywood, the death of the author leaves behind a chalky police outline of a homicide victim, a merely cartoonlike representation of a person. It’s an imitation author, a corporate individual.
The television or movie studio that funds and produces entertainment becomes a virtual author, which takes ownership of property created by a multitude of people. When a show is broadcast on cable television, cable companies pay statutory fees to an independent collection agency that then redistributes payments to individual copyright owners. Under the compulsory blanket-licensing system, the product has been turned into a simulation of property; a statistical formula based in part on Nielsen ratings is used to dole out slices of the royalty pie. As media scholar Thomas Streeter points out, with the blanket licenses there is no actual exchange of copyrighted products for money—it’s more like paying and collecting taxes.
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Although cable television was similar to Napster in important ways, some say that the decentralized nature of the Internet could make it harder for a similar licensing system to work. Comparatively, there are a much smaller number of cable companies than individual peer-to-peer network users, which makes it easier to regulate the cable broadcasters. In dealing with a rogue company, copyright owners can literally follow the hardwired cables back to the source and demand payment. The same isn’t true of the Internet, where physical addresses are harder to track down—but it’s not impossible, for there are technologies that can monitor file-sharing activities. After the dust settles on all the RIAA lawsuits, and after much legislative wrangling, the most likely and reasonable compromise on the file-sharing issue will be a relatively small fee tacked on to the Internet-service bills of individual consumers. The money could then be redistributed in a manner similar to what has worked for decades with broadcasters, something I’ll return to later.
Also predictive of the Napster controversy was the introduction of the VCR. Hollywood viewed the VCR as nothing less than a mass murderer that would pick off movie studios like frightened teens in a slasher film such as Halloween. I’m not exaggerating in the least.
Jack Valenti, CEO of the Motion Picture Association of America for years, tactfully told Congress the following in 1982: “I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” In the introduction, I quoted Valenti arguing that the VCR would lead to a
“lessened supply of high quality, expensive high budget material where its investment recoupment is now in serious doubt.”
Earlier, in the 1970s, RCA was developing a version of the VCR, but when they approached Hollywood studios, they were rebuked.
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version of today’s digital rights management technologies. The scheme: When a videotape played all the way through, it would lock up and could only be unlocked when the consumer returned it to the video store and paid a fee. But this was still troubling. “How could they know,” asked a disturbed Disney executive, “how many people are going to be sitting there watching? . . . What’s to stop someone else coming in and watching for free?”3
The idea that audiences could freely record and watch entertainment was a novel one, just as the Internet just recently felt wholly new, and it’s understandable why executives felt threatened. But Hollywood was nevertheless very shortsighted and completely off base. The movie studios were forced to relent after they lost the Betamax Supreme Court case in 1984. The high court thankfully decided that the public had a right to record and watch movies as many times as they want—with as many people in the living room as they’d like—to the chagrin of Disney execs. Little did Disney know that letting millions of kids watch its movies over and over and over would boost the sales of its T-shirts, toys, and other related products.
As the market penetration of VCRs exploded, box-office receipts steadily increased, and VHS and DVD revenue became a major
moneymaker for previously unnerved entertainment companies.
Box-office numbers have continued to rise since the 1980s, and, in 2002, home-video revenue totaled $11.9 billion, surpassing the $4.2
billion in theater ticket sales. Also in 2002, Jack Valenti said about movie downloads, “It’s getting clear—alarmingly clear, I might add—that we are in the midst of the possibility of Armageddon.”4
He wasn’t talking about the Ben Affleck film, but he was beginning to sound more and more like Chicken Little freaking out about the sky falling.
At the beginning of the 1990s the RIAA lined up digital audio-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 278
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tape (DAT) recorders in front of the firing squad. Using lawsuits, legislation and, regulatory tactics, the RIAA severely stalled the introduction of DATs into the U.S. market and eventually killed potential mass market demand for this new technology. At the end of the decade, it sued to keep portable MP3 players from being sold in the United States (the RIAA lost this time). After that, Hollywood attacked personal video recorders (PVRs). PVRs such as Tivo allow people to digitally record television programming by using key-words and menus, something TV networks and studios have tried to ban. Although MGM’s 2002 lawsuit targeted SonicBlue, which produces the most sophisticated batch of PVRs, it was also aimed at all PVR companies. MGM lawyers argued that their searchable key-word functions would “cause substantial harm to the market for prerecorded DVD, videocassette, and other copies of those episodes and films.”5
I don’t doubt that many entertainment executives are genuinely scared. Artists have worried no less than corporations that the new recording, reproduction, and distribution technologies would strip them of their livelihoods as their work becomes infinitely reproducible for free. This fear has proven to be unfounded so far—and is likely to be so in the future. In fact, these recent changes have the potential to disseminate a more diverse and democratic array of art than what was allowed to bubble up through the culture industries of old. It’s for this reason that we shouldn’t kill the creative potential of these new technologies before they have a chance to positively enhance the ways we produce, distribute, and consume
culture.
FILE-SHARING AND CD BURNING ARE KILLING HOME TAPING
In the early 1980s, when the music industry slumped after its disco-and-cocaine-fueled high—during a recession, by the way—record McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 279
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companies blamed tape recorders, and the people who used them, for lackluster sales. They even came up with a bumper sticker–ready slogan, “Home Taping Is Killing Music.” Record-company execs
feared that the convenience of cassette tapes would raise an entire generation of people who believed they didn’t have to pay for music. “Never before”—a phrase that pops up frequently in these debates—did so many music fans have the ability to copy music
themselves. So, at the urging of the RIAA, Congress initiated a study of home taping, but the Office of Technology Assessment (OTA) issued a report that contradicted many of the industry’s claims. The OTA report stated that, among other things, home tapers bought more records than nontapers and, conversely, the majority of nontapers didn’t listen to or purchase prerecorded music.6
The only study of home taping initiated by a record company,
Warner Brothers Records, also concluded that there is a direct cor-relation between how much you tape and how much you buy.
“These findings imply that, although related, taping may best be seen as independent ways of expressing a more general, underlying commitment to music,” the Warner report stated. “In fact, the data clearly indicate that the stronger this commitment, the more likely one is to both tape and buy prerecorded music and engage in a variety of behaviors that also express this commitment to and interest in music.”7 Congress’s report also found that home taping has a
“stimulative” effect that fuels record sales, though it claimed that record companies need to find ways to get consumers to spend all their money on records, and none on blank cassettes.
Trading music is very much a social act. The sharing of songs with like-minded people exposes them to new music, increasing the chances of someone buying a new record. This is corroborated by my own experiences, the experiences of others, and the reports issued by Congress and Warner. I’ve been notorious for making lots of music compilations for friends, which I know has generated al-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 280
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bum sales. For instance, I gave my friend Megan Levad a mix-CD
that included a song, “Iowa City,” about our little college town.
Eleni Mandell sings this pretty ditty as a country waltz with a chorus that goes, “Iowa, Iowa, skies are blue / Not so Chicago, Never New York . . .” Upon hearing it, Megan bought Mandell’s CD for someone who had recently moved away from our beloved Midwestern town as a kind of musical postcard. When Mandell stopped in “the I.C.” during a 2004 tour, I nervously told her this story, not knowing if she’d be offended by my piracy. The Los Angeles–based musician responded simply: “Cool.”
Iowa City’s best-known musical export is folkster Greg Brown, who is one of the crusty crown jewels of the town’s roots rock scene. Another in the upper echelon of the local music hierarchy is David Zollo, a thirty-five-year-old piano player, singer, bandleader, record-label owner and, more recently, father of baby boy, Rocco (yes, his name is Rocco Zollo). A few weeks after the birth of his son, I dropped by Dave’s house to talk about life, kids, music, and, as the conversation wore on, copyright law. I admitted to him that I obviously have no problem making mix-CDs of other people’s music, but when it came to Dave’s records, I’ve felt uncomfortable doing so. He laughed, and said he appreciated my sensitivity. But, Dave said, “I’ve always made mix-tapes. It’s the idea that you actually become involved with the art and become an artist, in a way.
And any time someone is actually involved, it makes them a part of the experience.” One of the ways he courted his wife, Beth, was to make her tapes. Putting together music mixes has been a key part of mating rituals since music-possessed geeks learned how to press the record button on the cassette recorder.
“The act of making a mix-tape is an act of creative engagement,”
Dave Zollo insists. “I might listen to a Chuck Berry record and then write a song, so I am engaged in this music that has influenced me.
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I’ve reinterpreted the music, released a record, and someone takes that song that I made and puts it on a mix-tape. And someone will tell me about it.” Dave doesn’t really make a hard distinction between the creative acts that music fans engage in and the music-making that he does—in part, because he’s doing both. “Once my music has been put on someone’s mix-tape, the work lives. It’s been placed in another context, and been given importance because of what it’s alongside. Like, first Tom Waits, then David Zollo. Holy shit, how did I get there? Then all of a sudden, that validates the work.”
Sonic Youth guitarist Lee Ranaldo told me about how he and his wife, Leah, started a tradition of making mix-CDs of “classic oldies”
for their kids’ summer birthdays. “All the kids who come to the parties get one, and (hopefully) get turned on to all this music that is outside the realm of ‘kids’ music,’ ” he said in an e-mail. “Last year it was themed about colors, so yellow submarine, white wedding, 99
red balloons, good-bye yellow brick road, Michael Jackson’s black or white, purple rain, green river, etc.” These musical juxtaposi-tions, however, will be harder to create if the recording industry fully embraces protected, proprietary digital files, either online or on CDs. If they get their way, we’ll no longer own the music in the same way people did when they bought records and tapes—when
they stored them in their homes and built libraries of music.
The introduction into the marketplace of CDs that can’t be
copied is one example of how intellectual-property owners are willing to protect their products at all costs, even if it means alienating consumers. One of those companies is EMI, part of the major label system that controls the distribution of 80 percent of the music sold in the world (it’s down to only four companies now). EMI’s response to Holger Turck—a consumer who in 2002 wrote a letter of complaint after he bought a CD with copy protection that was not McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 282
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clearly labeled as such—demonstrates the arrogance (mixed with fear) of a corporation that feels threatened.
Even without formal study in economics, it should be clear to anyone reading this that the music industry cannot continue to exist if the trend holds. The widespread copying of prerecorded audio material via the burning of CD-Rs can only be countered one way: namely, copy protection. We fear, however, that all these facts will not interest you in the slightest, as these measures will herald the end of free music, which surely won’t please you at all. . . . In the event that you plan to protest future releases of copy-protected CDs, we can assure you that it is only a matter of months until more or less every CD released worldwide will include copy protection. To that end, we will do everything in our power, whether you like it or not.
Sincerely,
Your EMI Team
True to EMI’s condescending threat, which ignored the fact that this customer bought the album, in 2003 major labels began releasing copy-protected CDs into the marketplace. Although a few hundred million of these CDs had already been released in Europe, it was the first time the technology was deployed in the United States, though on a limited scale. By 2004, the number of CDs embedded with copy protections (the industry term is “digital rights management”) had significantly increased in America—making it difficult or impossible to, for instance, place certain CDs on our iPods.
Companies such as EMI are increasingly treating their own customers like criminals. In 2003 the RIAA hired the former director of the Bureau of Alcohol, Tobacco and Firearms to head up its anti-piracy efforts. The next year, the RIAA won the FBI’s approval to McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 283
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begin using the law-enforcement agency’s logo in its packaging.
This has ruffled the feathers of quite a few artists on major labels, who have no choice but to deal with the fact that an “FBI Anti-Piracy Warning” dominates the lower fifth of their CD art. “Yeah, the FBI thing totally creeps me out,” Lee Ranaldo says. “It’s stupid in the extreme.” Sonic Youth’s 2004 record Sonic Nurse sported the mandatory layout the first week it was rolled out. “We happened to have our release right on the schedule for this new design invasion,”
Thurston Moore tells me. “Everyone was PISSED—I can see why—
but, in a way, it was so absurd I kinda liked it.”
As I’ve argued throughout this book, copyright was conceived of as a bargain, one that is supposed to balance the interests of both the creator and the public. Copy-protection technologies, however, only respect one side of this balance. “Hollywood and the recording industry,” writes Robin Gross, an intellectual-property lawyer at the Electronic Frontier Foundation, “take all the privileges from the government-created monopoly but none of the responsibilities like ensuring fair use and contributing to the public domain.”8 When the RIAA and MPAA argue that theft is on the rise, and that it has steadily increased since the introduction of copying technologies, they are conceiving of copyright in relatively new terms.
Up until the 1970s, most legal briefs, judicial decisions, law articles, and books understood copyright as something that strikes a balance between the public and the creator. It didn’t hand over complete control to the author, for the law was designed to provide a more porous kind of protection—not an airtight barrier.9 Today, however, any activity that goes beyond adhering to the rules set by a copyright owner is considered theft, a quite significant change in the way we understand the role of intellectual property.
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SHARING MUSIC AND SELLING MUSIC
“When I was young,” musician and record producer Thom Mona-
han tells me, “the way that I got into bands was by people making me tapes. You know, file-sharing, just in a different way. I had tons of tapes, and I bought records of bands because people gave me a song.” Much like Dave Zollo, he has spent most of his adult life as a working musician, and he’s played more shows than he has gray hairs. We first got to know each other while coproducing, along with Jeremy Smith, the Media Education Foundation documentary Money for Nothing, and have stayed in touch since. As a member of the Pernice Brothers (and formerly the bassist in another indie-rock band, the Lilys), Thom has toured the United States and Europe several times. Whenever his band comes through town, we’ll grab a post–sound check drink and fill each other in on what’s worth reading, watching, and listening to—chitchat common among music-loving nerds.
The last time I saw him, the subject turned to the current state of the music industry, and how bands such as the Pernice Brothers are doing in these uncertain times. I wasn’t surprised to find that, when i