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Working for the Clampdown: A (Sort-of) Brief Rejoinder

Monday, November 3, 2008

A lengthier-than-I-thought-it-would-be reply/addendum to Mike’s thought-provoking post about what he calls “The BoingBoing Effect.” The kerfluffle started when he guest-posted on Idolator about a post written by frequent punching bag Scott Thill, a blogger for Wired.com’s music site, tenuously linking both to the aforementioned effect. I felt when I read it that Mike’s post came out of a residual distaste for something much broader and that he was using the story and the venue for convenience’s sake (Thill’s post had nothing to do with giving away music for free, for starters), a suspicion confirmed by his lengthier, more explanatory, and as usual, well-crafted post at his own blog. Thus, my thoughts on the matter, as brief as I can make them (read: not that brief).

The “copyfighters” that Mike writes about, first and foremost, especially those who write for BB, are participating in a discursive legal terrain much, much larger and with much higher stakes than simple music distribution. Cory Doctorow and his ilk, and I’d assume many of BB’s readers as well, are genuinely concerned with the manner in which the right to privacy is being impinged by specific collusions of technology and law—that’s what Little Brother is about, after all—and it so happens that the only thing to talk about with respect to music nowadays, especially for the tech-set, is the extramusical (legal and technological) stuff that’s undergoing drastic, precarious changes.

I’ve only been a regular reader of BB for a couple years now, but I think his idea that their music coverage is mostly supporting the giving-away-for-free model is quite off. It’s understandable that he’d elide mention of DRM to support his argument, but BB’s consistent monitoring of the ever-fluctuating permutations of Digital Rights Management is something for which I’m grateful. To be sure, I think a 20:1 DRM:Free Music ratio in terms of number of BB posts devoted to each, respectively, is a conservative estimate.

Both Mike and myself have read the DMCA (pdf), so I thought I’d take a minute to give a primer for those not familiar with the history of copyright and one particular way in which DMCA goes against the spirit, and at times the letter, of copyright by enabling DRM. Tacitly, this should also serve as my endorsement of BB’s work in this regard.

First, copyright. There have been a few notable extensions of copyright’s lifespan over the past 200+ years, not coincidentally paralleling significant changes in societal organization and technological advancements. The original Copyright Act of 1790, when the country was firmly within an agrarian age, set the copyright term at a paltry 14 years, with the renewal period the same length. In 1831, on the eve of our nation’s move toward full-force industrialization, it grew to 28/14, and in 1909, twenty years before the Depression and smack dab in the throes of industrial society, it was slightly updated to 28/28. In 1976, in the midst of late capitalism, the term was vastly expanded to the life of the author, plus a whopping 70 years. Finally, in 1998, Sonny Bono’s Copyright Extension Act extended it to, according to Wikipedia, “the life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier” (here’s a nice graph, also courtesy of Wikipedia). This last extension was signed into law one day before the DMCA, and is largely understood as the result of significant lobbying on the behalf of Disney to protect Mickey Mouse from entering the public domain, like, ever, and also reflects more generaly the increased stranglehold over the circulation of cultural ideas of increasingly consolidated corporations in the 22 years after the 76 increase.

Now, the DMCA, which was developed by Clinton and Gore to accommodate corporate interests within the nascent mid-Nineties digital age, and which celebrated an unhappy Tin Cup anniversary recently. Many have stated, quite logically, that the DMCA represents the most significant alteration to copyright law in American history. That’s partially correct. While the DMCA has had profound effects on copyright, it’s not a copyright law per se, but “a law of access and commerce masquerading as a copyright law”, as Tarleton Gillespie writes in his wonderful book Wired Shut. The cultural industries were understandably concerned that digital technology messed their rights to protect against unlicensed copying of their products. The act went way past just copying, though, setting in motion their right to technologically restrict access, through things like DRM.

In other words, copyright was designed to ensure that the market alone wasn’t responsible for renumerating artists for copies made of their work, and gave the government a role in the matter. What happened when industry lobbyists got Clinton and Gore’s attention in the mid-Nineties was a fundamental redefinition of copyright, one which makes it illegal to simply listen to a song in a particular way. It’s called prior restraint: the DMCA enabled manufacturers to, more or less, allow DRM technology to enforce the law like a bouncer patrolling a nightclub, assuming that whatever consumers are doing is inherently illegal.

Mike’s opinion that health-care and the economy are more pressing matters than overturning the DMCA seems, if I’m reading it right, to indicate that the American public and its elected officials can only concern themselves with a couple things at the same time. While I certainly agree that there are more crucial matters at hand, I also think that sites like BoingBoing fill a particular function for a particular readership, like any niche publication with a dedicated (and let’s not forget educated) audience. I wouldn’t expect Pitchfork to expose impending crises in sub-prime mortgages or ArsTechnica to hire investigative reporters to look into HMO fraud ,either. I expect and get specific content from BB, and they provide their service well.

I don’t always agree with everything I read on BoingBoing, of course, and I could go the rest of my life without seeing another steampunk version of anything, but I also don’t think they’re having the thoroughly detrimental effect on music culture that Mike assumes. The underlying problem that he briefly mentions in his essay is alternately called “piracy” and “sharing” by the most vividly represented discursive combatants in this highly public struggle, one that he rightly notes is polarized beyond reason. The practice of giving away digital music for free and expecting a return on original investment from other revenue streams that undergirds his argument has come about as a way of mediating this battle through the market, though of course it’s not proven a tenable model for any artist save the biggest. But even if BoingBoing were to devote as many posts to artists giving away their music successfully as they do to their rhetorical fight against DRM, they’re still a tech blog with a niche audience, and any effect they might have is microscopic compared to the federal government, the technology industries, and the RIAA when it comes to altering public perception or policy shifts regarding the future of music production and distribution. If anything, they’re a voice of dissent consistently reined in and drowned out by powers much stronger. Which is, of course, not a good thing. But it’s sadly true.

I agree with Mike that tons of great music has been released on major labels, but I think he’d also agree that there are specific political and economic reasons why this is so. Furthermore, I think it’s hard to argue a causal connection between the creation of great art and corporate financing, as if the former works are inherently created by the latter structure. It’s absolutely true that making musical art takes money, but that’s not to say that the major label system is the be-all and end-all of possibilities. The same, of course, goes for the Radiohead/NIN model. But most importantly, what I see happening right now on all spots of the spectrum, including BB et al, is posturing and wild experimentation within a particular conjecture exponentially more complicated than the one that led to the evil DMCA a decade ago. And if a site like BoingBoing can somehow manage to explain to Ol’ Joe 128kbps that the DMCA is in spirit the same sort of privacy violation (with lesser stakes) as the Patriot Act, and that we’re at a point where lobbying interests could figure out another, less nasty-seeming but similarly detrimental way to limit our basic interactions with music, then more power to them. They’ll need it.

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