Blurred Lines: Offensive, but Probably Not Copyright Infringement

At least in my circles, it’s pretty much taken for granted that Robin Thicke’s megahit “Blurred Lines” is shamelessly offensive.

I can’t imagine telling a woman “You the hottest bitch in this place!” I definitely can’t get behind the song’s no-means-maybe-means-yes message. The video is practically a parody of itself. (Here’s an actual parody that reverses the genders; much better.)

I also think it’s safe to say that Marvin Gaye gets a good bit more love and respect, even if nobody’s calling him a great feminist thinker. Further, “Blurred Lines” is just the latest example in a loooooong tradition of white artists appropriating musical styles developed by minority artists.

So, as forward-thinking people looking at the ongoing copyright dispute between the artists, it should be a slam dunk all-around agreement that, considering the striking similarity between “Blurred Lines” and the classic Gaye song “Got to Give It Up”, we should all hope that Gaye’s team sues Thicke for all he’s worth — or, at least, much/most/all of the truckloads of cash “Blurred Lines” has hauled in. (And let’s throw in Pharrell Williams, too, for producing and co-writing this bit of musical larceny.) Right?

Not so fast.

Before beginning a (brief) legal analysis, let’s set aside the very valid critiques of the gender politics in Thicke’s song and video (to say nothing of the shameful gender politics and troubling racial messaging of the Thicke/Miley Cyrus VMA performance).

If there’s one thing Larry Flynt got right about free speech law, it’s that we are better off if free speech protections also extend even to scumbags like Larry Flynt.

Under current law, “Blurred Lines” is probably not infringing, assuming no samples were used — that is, assuming that all the sounds were independently re-recorded for the new song, and Thicke and Farrell claim not to have sampled Gaye’s song.

Without sampling, an infringement case here requires proof of “substantial similarity” between the original and the newer work. Here’s a Billboard article where you can listen to both “Blurred Lines” and “Got to Give It Up”, side by side.

The rhythmic similarities are substantial, but according to literally every expert on musical similarity in copyright that I’ve ever read/heard/spoken with, that counts for very little — again, assuming the sounds were independently re-recorded. Here’s a bit from the Music Copyright Infringement Resource, a joint project of the law schools at Columbia and USC, explaining how melody is the key to establishing substantial similarity between two musical compositions:

A work’s melody is what we consider the tune of a piece. Indeed it is most usually the melody of a piece that we hum when trying to recall it; a piece’s melody is typically its most distinctive and memorable feature. As such, melody is the musical element that most easily lends itself to claims of originality. …

Melody is overwhelmingly the single most important feature of a musical work in evaluating the merits of copyright infringement claims. The entire corpus of judicial opinions in the area of music copyright infringement dwells on melody as the single most idiosyncratic element of the works in question, and almost entirely the locus of the economic worth of a song. Accordingly, the more melodically similar two works are, the more likely a court will determine that the later created work infringes upon the earlier.

So, for evaluating the question of musical infringement, the drums and backup instrumentals all take a way-in-the-back backseat to the melody. (We’ll come back to whether this should be the case in a bit.) With all this in mind, go back and re-listen to each song. A brief bit of each will do.

I’m not a trained musician, but I mixed house and drum & bass records for years (at the tail end of when it meant mixing actual vinyl records), so I notice rhythmic similarities much more readily than melodic similarities. In terms of rhythmic elements, the speed and the drum patterns are so similar as to be “I could mix these two songs together in my sleep” close, which most non-DJs would describe as the two songs “feeling” very similar.

The rhythmic similarities are the bedrock of the two songs’ similar feel. They’re well within the same genre, and it’s not at all shocking to hear Thicke say that he was deliberately trying to recreate the groove of Gaye’s song. Yet even in terms of drum patterns — where the similarities are the strongest, even if the impact in a potential infringement suit is smallest — there are real differences.

I can hear (and can even visualize, as would be represented in a step sequencer) a host of differences. Most folks could probably hear the differences, though it may take some patience to listen to each song enough times; it took me a few listens each.

Melodically, the two songs are substantially more different. They are still well within the same genre here as well, but the melody should be transparently different even to the untrained ear. I should know, because I have just such an untrained ear (ask my karaoke victims, er, audiences) and I can hear the differences pretty easily.

In the case law, the closest analog I know of is Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976). The plaintiff, Bright Tunes, held the copyright in the composition of the doo-wop hit “He’s So Fine” — written by Ronnie Mack, who died of cancer as the Chiffons recording of his song was rocketing up the charts in 1963.

When George Harrison wrote and recorded “My Sweet Lord” in 1970, “He’s So Fine” was not at all on his mind, but he wound up creating a melody very similar to the older tune.

The similarities are striking, and importantly for the copyright question, it is the melodies of the two songs that are so similar. Here, somebody has helpfully created a mashup of “He’s So Fine” and “My Sweet Lord”, so you can listen to them simultaneously. They don’t line up perfectly, but it’s pretty clear that the melodies are pretty similar.

Harrison didn’t realize the similarities, but once they were pointed out to him, he says, “I thought, ‘Why didn’t I realize?’ It would have been very easy to change a note here or there and not affect the feeling of the record.” (Again, this isn’t part of the legal analysis, but I actually give Harrison much more credit here than I do Thicke on the “How badly is this white musician exploiting black musical culture” question. Intent matters for ethical and cultural criticism, but how much we like people and think they’re doing the “right” thing is not the same question as whether or not the law is on their side.)

Anyway, Harrison was essentially found to have subconsciously infringed on Mack’s song — to have infringed without having done so deliberately. This even though the two melodies are not identical — just very similar.

In light of all of this case law, for songwriters to have a deliberate intent to borrow is, if anything, helpful for them. Thicke and Pharrell surely know that it’s the melody that gets you in trouble — and they definitely acted accordingly. It doesn’t take much imagination to listen to the Gaye and Thicke songs and hear the latter’s notes as deliberately dissimilar to the former — thus, creating far more daylight between the two melodies than in the Bright Tunes case.

There’s actually an art to this that can pay handsomely if one composes music for TV commercials. If a songwriter wants too much to license a hit song that an advertiser covets, the advertisers can just hire a composer to bang out a not-quite-copy for a fraction of the price. This happens all the time; here are just a few examples.

Anyway, I hope it’s pretty clear by now why “Blurred Lines” really isn’t infringing. Don’t believe me? Three independent industry insiders also hold this view.

I’ll end with a few words about whether the similarity standard we have now really should be the case. (Can you smell the journal article burning? What follows is the “This is a blog post and I need to go to bed” version.)

I don’t want a copyright system where I can’t create a song (or book or movie) that has a similar overall feel to anything that’s been done in the last hundred years. Because, guess what: If that’s the rule and it’s enforced at even a moderate rate (say, 10% or more), then creativity either comes to a screeching halt or goes largely underground. Building on previous cultural milestones is how culture works.

I’m even disturbed by the Bright Tunes standard: If we put two otherwise dissimilar songs next to each other, at just the right points, are most of the notes of some parts of the melody the same? Consider how scary this standard is in light of the musical simplicity of pop melodies. If this is the standard, are there any songs that aren’t infringing left to be written? I’m scared there may not be.

If Bright Tunes-style plaintiffs get just a bit more of a toehold in the case law, what’s to stop copyright trolls from buying up old songs that are just-similar-enough to big hits and demanding exorbitant payments? The ownership of the copyrights in studio recordings is more consolidated (mostly, these copyrights are owned by labels), but the rights to compositions are everywhere and can often be bought for relatively low prices.

If a hobbyist composer hopes to make it big but looks at this landscape in my not-unlikely-enough dystopian near-future, shouldn’t s/he be scared and consider maybe not even to bother? After all, even the mighty George Harrison claims never to have made a single dollar on one of his most beloved songs — all because he accidentally made the melody too similar to a very different song. What hope is there for somebody just starting out, who’s not also an expert musicologist walking around with a century of musical knowledge?

The Bright Songs standard is already too easy for plaintiffs. If Gaye’s heirs were to win a decision that “Blurred Lines” is infringing, it would send a pretty discouraging message to today’s would-be musical composers.

I say all of this as somebody who has a bone to pick with the “melody is everything” theory of musical composition that guides our law today. Distinctive rhythms can make or break a song, and the drums can themselves be the most memorable, marketable part of a song. (See: Stubblefield, Clyde.)

There are also unfortunate racial connotations to this paradigm. It’s not too far down the chain in the Apollonian/Dionysian dichotomy, where Apollo represents mind/discourse/melody/whiteness and Dionysus represents body/movement/rhythm/blackness.

Don’t think this still carries water today? Then why does popular discourse still treat blacks so prominently as athletes and dancers, generally discarding what they have to say? And why is it really important to hear what white people have to say, even when the very basis for their fame is a physical gift? (See: Tebow, Tim) Why is music from non-white parts of the world called World Beat and African music generally sold as AfroBeat?

The racial critique of this emphasis on melody is valid and important, but I still don’t want a copyright system where “Blurred Lines” is infringing, even though I just spent a whole paragraph arguing that the part where it’s most like “Got to Give It Up” shouldn’t be treated as so relatively unimportant by the law. While some have tried to reconcile this melody/rhythm inequity by pushing copyright in the direction of broader protection for rhythmic elements, I think the better solution is to put less emphasis on melody as separated from the whole composition and instead to put the whole composition in context.

Looked at as an entire composition, “My Sweet Lord” is pretty different from “He’s So Fine”. The lyrics are 100% different. The instrumentation is pretty different. The sound and feel are remarkably different. It’s only the focus on melody that led the court into what I think was a mistake.

On the other side, “Blurred Lines” and “Got to Give It Up” are more similar on most counts except lyrics and melody. They sound and feel very similar, though even the drum pattern is clearly not identical. Looked at holistically they’re still pretty different songs, built in large part on the very different lyrics and melody.

I don’t think we should set up a copyright system where “very rhythmically similar” is, by itself, grounds for a finding of infringement. The change I’m advocating is that we should also apply that standard to melodic similarity.

Just as inventors really want to keep the lawyers out of the lab, I really want to keep them out of the music studio. If the price of being able to compose without an attorney on retainer is that, sometimes, crass capitalists push the line of exploiting the feel of successful works, it’s a price I think we as a society should pay.

If we swing the other way, to the point that something like “Blurred Lines” equals legal hot water, that means pretty much all popular music puts you in legal hot water. Which would mean that only those who can afford attorneys — in advance — will have any business making music. And that’s a far higher price for we as a society to pay.

P.S. Speaking of prices paid, I hope we forward-thinking folks can all agree not to pay for “Blurred Lines.” If you like that song’s groove, allow me to suggest a Marvin Gaye tune I know. It’s not exactly the same; it’s better.

Crime, News Coverage, and Institutional Racism

If there’s anything that pretty much everyone should agree on in light of the George Zimmerman/Trayvon Martin story, it’s that the story shows how deeply divided we remain as a country.

At least as reflected by posts on Facebook, 100% of my liberal intelligentsia friends are outraged that Martin is dead and Zimmerman is free, and the debates between us (to the extent that there have been any) have been about which people in the criminal justice system get which share of the blame.

Along with outrage, ethnic minorities and African Americans in particular also express a collective hurt and fear that I will never truly understand.

Yet others (here is where I’m grateful that not all of my friends and family are in the liberal intelligentsia) are miffed at the race-focused attention by the media and the political push to make the case into a symbol of broader issues. While I needn’t say it, let’s be explicit about the fact that nearly 100% of these folks are white. (I’m not Facebook friends with Clarence Thomas, and even if I were, I wonder if he posts more than once every seven years.)

While not all of these white, “Why the fuss?” crowd would admit it if probed, I think a good bit of this discomfort with the attention paid to the Zimmerman/Martin case comes from the implicit finger being pointed at them. If blacks are held down in schools, the job market, and the criminal justice system, surely somebody’s doing the holding. If minorities have unfair disadvantages, then the surplus unfair advantage is going to white people. If the system is racist, and you believe in the system, doesn’t that make you racist?

The good news is that the failure to be outraged over Trayvon’s death doesn’t make one a bigot, but the bad news is that this is because the answer is way more complicated than that. I hope to reassure my white, politically centrist or right-of-center friends that I’m not calling them racist or bigoted. Yet there are little things that we all do — you and me, blacks and whites, powerful and disempowered — that play into an incredibly intricate system of racial inequality.

I give you institutional racism.

The bigotry need not be in (y)our hearts; it can be in the mortgage you grant or don’t, the education policies you adopt, or the policing tactics you support. Mayor Bloomberg is obviously comfortable around racial minorities and would surely never dream of not hiring somebody due to their race, but he remains tone deaf to the incredibly not-race-neutral (and, frankly, not constitutional) nature of his policing strategies.

Which brings us back to Martin and Zimmerman. The justice system, as a whole, is heavily biased against minorities. Blacks are very over-represented in the criminal justice system; less than 1% of white men are imprisoned, while for black men, it’s 1 in 15, or almost 7%.

This happens at every step of the criminal justice system, from police investigation through trial. As the Times notes:

A 2005 study by the Justice Department found that while Hispanic, black and white drivers were stopped by the police about as often, Hispanic drivers or their vehicles were searched 11.4 percent of the time and blacks 10.2 percent of the time, compared with 3.5 percent for white drivers. Data collected from state courts by the Justice Department also shows that a higher percentage of black felons than white felons receive prison sentences for nearly all offenses, and also that blacks receive longer maximum sentences for most offenses.

Even in murder trials where defendants claim self defense, race is a major factor. See this graphic.

Versus the baseline of white-on-white violence, black defendants are far less likely to be found to have acted in self-defense, and it’s many times again less likely when the victim is white. In contrast, white defendants are many times more likely to be found to have acted in self-defense when the victim is black.

That’s institutional racism.

Yet it goes farther. Many of the white “Why the fuss?” crowd might even acknowledge the racial bias in the courts (though too few are familiar with the staggering specifics), but they object to all the political outrage over Trayvon and wonder where the sympathy and coverage are for white crime victims, especially when the accused perpetrators are black.

It turns out, though, that the news media are also afflicted with institutional racism. This goes well beyond the genuine hacks like Bill O’Reilly. Rather, it’s the whole system — the one largely staffed by left-of-center reporters and editors.

An analysis of scholarly studies of the representation of race in crime coverage is telling. As summarized here, “75 percent of the studies found that minorities were overrepresented as perpertrators, [and] over 80 percent of the studies found that more attention was paid to white victims than to minority victims.”

A somewhat newer study, which includes a representative national sample of television newscasts, finds similarly striking results, cutting in the same direction.

Even the portrayal of black female victims is far too rare — this even though female victims are more likely to be seen on the news than male victims overall.

In the aftermath of a major story about a black victim, killed by a white shooter, we’re hearing a good bit of “Why the fuss?” and “Where’s the attention to white victims and/or black perpetrators?” With no disrespect to any victim, whites have nothing to worry about when it comes to folks who look like them being shown on the news as victims of serious crimes. No news outlet can cover every story, but over time, white victims and black perpetrators have been and certainly will continue to be overrepresented.

On this count, Martin and Zimmerman are symbols for the broader problem of institutional racism in this country. Nobody needs to be energetically or even consciously racist for the major racial disparities we see to continue. Continuing racial inequity doesn’t need the next George Wallace; Michael Bloomberg will do just fine.

If you’re on the happy side of these inequalities, I think you should at least be honest with yourself and the world about the thousands of little ways in which your life is that much easier because of it. This isn’t to diminish the countless things you’ve undoubtedly done right, the hard work you’ve done, the substantial degree to which you’ve earned your place.

As white Americans, though, let’s at least all agree to be honest with ourselves and each other that we get at least a small leg up in pretty much every institution in society with which we deal.

That every right decision is likely to get us just a bit farther along than it would for an African American.

That we have at least a bit more room to make mistakes before being fired, evicted, jailed — or killed. 

That the few places where we don’t have every advantage clearly pointed in our direction (college admissions and scholarships come to mind) are the exception and, regardless of what one thinks of them as policies, will never outweigh the much larger forces that cut the other direction.

That, yes, there are a few rich blacks and many poor whites, and class inequality is also a major issue that needs to be addressed — but that this doesn’t disprove any of the above.

Then, please join me in a quest to fight those disparities, one institution at a time. Not by making life harder for whites, of course, but by extending the same understanding, opportunities, and benefit of the doubt to all.

Dear Government Snoops: Just Come Get Me Now

For a number of (really good) reasons, I’ve not been able to spend much time following the endless, ever-forthcoming details about the US government’s decision to vacuum up as much of our communication data as possible.

Even from such a less-than-ideal base of knowledge, and even though it will take months or years for everything to come out (if ever), I already believe the following:

What Edward Snowden did is one of the most heroic, medal-worthy acts by an American so far this century. I say this even though I’m also horrified that somebody with his scant qualifications was in such a position.

No mountain of prestigious journalistic prizes can repay the debt owed to the Guardian and Glenn Greenwald by the citizens of this country.

President Obama should immediately grant Snowden a full presidential pardon — and, further, give Snowden his own (prematurely given and, as is now clear, unearned) Nobel Peace Prize as a token of his gratitude.

Concerns about the steady erosion of civil liberties and all-too-quick slide into a surveillance state are finally starting to get a sliver of the traction they should have gotten since roughly the end of 2001.

The erosion of civil liberties via state surveillance has been accompanied by an ever-shrinking capacity for citizens to monitor the state. This ranges from the mundane (e.g., police officers routinely harassing, arresting, injuring, and/or falsely charging people for photographing or recording them in public) to the profound (e.g., charging journalists as “co-conspirators” for soliciting restricted information).

There is perhaps no better test of whether technology activists will be able to mobilize the public en masse on behalf of a desired change — rather than, as in the SOPA blackout, against an unpopular proposed change.

Whether or not an anti-surveillance movement can effect major changes in policy is not a fair measure of whether and how well such a movement performs as a movement; better measures include people mobilized to action, mainstream coverage, and policymakers and allies recruited.

Regardless of whether it is fair to measure an anti-surveillance movement based on policy outcomes, such policy outcomes may be a fair way to measure the viability of our democracy. If we can’t get people on the left, right, and center to join together to take back the Fourth Amendment, the promises of our Constitution are pretty hollow indeed. (Satire or not, this hits close to home.)

If I were in the position of Snowden, Greenwald, or the Guardian, I hope and believe that I would make pretty much the same decisions.

I say all of this publicly, even though I no longer have faith that I can do so without fear of retribution (yes, I use that term deliberately) by the state.

So, to the snoops that are undoubtedly listening — even though it’s unlikely that any human will ever actually read this tiny speck in an ocean of data — come and get me.

If what Snowden did lands him in prison, being there next to him would be an honor. If blowing the lid off a giant, proto-police-state phone and internet surveillance operation is wrong, I don’t want to be right. If leaking state secrets in the public interest puts one in danger of torture, indefinite detention, exile, or being disappeared, we’re all in danger — and for most people, this will be because too few will be brave enough to take such a risk to protect the citizenry from the state.

So consider me part of the conspiracy, Mr./Ms. Snoop. Tell your supervisors that we have a dissident who needs closer scrutiny and maybe a visit from an agent.

I’d rather go to prison, right now, for the rest of my life than to live in complicity as we slide ever-closer toward becoming a bona fide police state.

And just to increase the odds that a real human does see this: bombs Al Qaeda assassinate infidels fertilizer kill death murder planes airports President Obama Capitol White House 9/11 TNT flying with liquids in containers larger than 100 ml (3 oz. for you SAE holdouts) and not taking off my accursed shoes. So there.

P.S. If there’s one consequence I do fear as a result of this post specifically, it’s being put on the no-fly list — itself a particularly apt illustration of the intersection of terrorism paranoia, unchecked executive branch power, and rank bureaucratic incompetence.

Game of Gender Relations

Over on PolicyMic, Julia Rhodes writes, ‘Game Of Thrones’ and ‘Mad Men’ Make Women Characters Out to Be Mothers, Whores, and Little Else.

I’m not a frequent Mad Men watcher, but I’m really into Game of Thrones. I’ve been thinking about the gender relations throughout — where Martin and the TV show make commendable moves, and where they fail — and I think this article gives the series too little credit. Ironically, Rhodes paints the series with too broad a brush.

It’s hardly a feminist watershed, of course, but both the novels and the TV series contain a range of reasonably thoughtful — if not particularly insightful — takes on gender. In addition to Arya and Brianna (masculinized), characters Rhodes critiques as obviously masculinized, consider some of the characters she fails to identify — like Daenerys Targaryan, Asha/Yara Greyjoy, and Ygritte the Wildling. Each is both feminine and a powerful warrior; none of them “must either de-feminize or prostitute themselves in order to gain power,” as Rhodes contends. Ygritte and Asha are both trusted warriors, neither without giving up her womanhood. Once Dany’s husband dies, she keeps a small clan together with sheer charisma and force of will. Yes, their lust-worthiness is also an important part of each character (esp. as shot for TV, in Daenerys’ case), but not one of these characters serves primarily as a mother or a whore. They’re warriors — and, in Dany’s case, a contender for the throne.

Yes, the books and show are primarily led by men, told from a male perspective, and well short of a natural 51/49 gender ratio, even in non-speaking roles. (If anything, that ratio should be more female-heavy in a world where so many men are dying in battle…) Still, this is decidedly less so than much of the other literature in the genre (paging Mr. Tolkien…), and women serve many roles other than mothering and whoring.

Yes, it’s filled with tired stereotypes (Cersei, Sansa, and Julia Roberts — er, I mean Shae — come to mind). Yes, the attempts at female perspective and dialog are, um, not strong suits. And yes, more than a token conversation here and there between women (let alone one that is not about men, children, and/or menstruation) would be nice.

Still, this is an over-wrought criticism that doesn’t show a real understanding of the series. In addition to the characters named above, consider Brianna, whom Rhodes does mention. She loves Renly more than life itself — literally — and falls apart as her Romeo dies in her arms. Granted, cutting-edge feminism it’s not (not-particularly-attractive woman hopelessly follows gay man on his adventures; yawn), but it’s another example of where this article leaves me wondering, “Did you pay much attention?” With such a thin understanding of the series, the author can’t get into the somewhat more subtle ways in which Game of Thrones still doesn’t fulfill the wishes a feminist (e.g., me) might have for more accurate and nuanced gender portrayals.

Just as damnably, the article also doesn’t give credit where due. This series is primarily targeted at men, and if there’s one dominant theme about gender relations (at least, to anyone who’s looking at anything beyond all the eye candy), it’s how rough it is to be a woman in a patriarchal society. To me, at least, that message comes through loud and clear. A key theme within that broader message is that rape is bad, rapists are bad, and rape often has and should always have dire consequences for the perpetrator.

Which brings us back to Arya. She did not proactively seek to pretend to be a boy; she did so (at the very strong urging of, yes, a grizzled-but-caring adult man) in order not to be identified and/or raped during her clandestine journey. That’s kind of an important detail that complicates the analysis.

It’s a series whose characters are painted with very broad brushstrokes. (See: Baratheon, Joffrey.) The books, written for men, are by a nerdy manchild who doesn’t have a particularly rich understanding of how women think, speak, and behave. The TV show is on a channel known for catering to the male gaze.

Those don’t add up to Toni Morrison. Duh.

Still, Rhodes goes overboard here. The series makes an obvious, honest effort to identify the constructedness of gender roles and the unique struggles of women in a patriarchal society. It also screams to its male audience, “RAPE IS BAD!”, a lesson that (quite sadly) still needs to be taught.

TV and broader society are still places where victim-blaming, slut-shaming, and “Back in the kitchen with you!” are not only common, but even proffered as insightful commentary on the day’s affairs. Especially against that (oh-me-how-far-we-have-to-go) backdrop, Game of Thrones is okay by me. And that’s not just my inner 13-year-old talking.

Neglect and Uncle Sam, not the Internet, Killed the Middle Class

In an interview with Salon and his newest book, “digital visionary” (Salon’s words) Jaron Lanier claims that the internet has destroyed the middle class. Kodak employed 140,000 people, while at the point of its sale to Facebook, Instagram employed just 13, and (without much exaggeration) thus, the internet killed the middle class. QED.

What a crock.

Lanier is apparently incapable of stepping back from technological determinism and looking at the actual causes of our ballooning economic inequality — which, to cut to the chase, is primarily a result of our policy choices. Yet the role of government in determining the overall shape of the economy is too often understated or outright ignored by those who wring their hands about growing economic inequality.

With some noted exceptions, those who criticize Lanier still mostly point at the old standby twin bogeymen of automation and outsourcing. The HuffPost chat in which all of the guests are willing to challenge Lanier’s conclusions is typical on this count but hardly alone. To his credit, Buffalo State College economist Bruce Fisher starts heading in the right direction with his concerns about fostering and preserving the political and social engagement of those who are being left out, but he fails to take it the next step and discuss the major policy changes and political neglect that have brought us to this point.

The best explanation that I’ve seen of America’s growing wealth inequality is Winner-Take-All Politics, in which Jacob Hacker and Paul Pierson start with a simple look at other industrialized countries to show that inequality isn’t an inexorable outcome trade and automation. The Germans and Swedes certainly have similar chances to outsource their manufacturing and use technology to reduce labor forces.

Not only does the rest of the industrial world have the internet, too, better telecom policy means they generally have faster connections and cheaper prices. Yet as measured by the Gini Coefficient, a measure of economic inequality, their economies have far more equal distributions of income in take-home pay and wealth.

The wealth distribution in particular is just shocking — the US has a wealth Gini of .801 (where 1.000 is “one person owns everything”), the fifth highest among all included countries and almost exactly the same as the distribution of wealth across the entire planet (.803). Think about that for a second; we have the same radically unequal distribution of capital within the US as among the entire population of the world across all countries — from Hong Kong and Switzerland to Nigeria and Haiti.

With our paper-thin social safety net and highly unequal distribution of income and wealth, we’re left with an economy where tens of millions struggle to get by while wealthy Manhattanites are hiring handicapped “relatives” for $1,000 per day to be able to skip the lines at Disney World.

Across countless major policy areas —health care, education, financial regulation, taxation, support for the unemployed, and many more — the rest of the industrialized world generally does far more to make their societies fairer for all. Our shrinking protections for workers may be the greatest single cause of the shrinking middle class. Of course, this can be done badly — I would certainly not want to swing as far as Italy and Spain, where it’s nearly impossible to fire somebody once they’re a regular, fulltime employee. Yet we should not allow employers to fire union organizers with near impunity. We should not force organizers to wait for months between card check and votes to unionize so that employers can “educate” their captive audience workforce with the most pernicious disinformation and intimidation. We should not sit idly while nearly half of states fail to meet even “minimum workplace-safety inspection goals, due to state budget cuts and reduced staffing.”

It’s true that the middle class is being gutted in the US, but this is primarily due to how our political system turns the act of surviving and thriving into a high-wire act for an ever-larger slice of the population. Laid-off baby boomers, even those with desirable skills, are having a devil of a time finding work in a country where age discrimination is only nominally illegal. Meanwhile, our children attend public schools with an unconscionably unequal distribution of funding, so moving or being born into a more affordable neighborhood may cost kids their futures, too.

Teens and laid off workers alike are told that college is the route to a better future, but the cost of education is skyrocketing as states and the feds slash public investment in higher education. Many families — even many families with health insurance — are one major medical problem away from unemployment and bankruptcy. Since it’s totally legal to use credit reports and current employment status in making hiring decisions, being laid off or losing one’s job after a medical problem can quickly become a death spiral. None of this is due to outsourcing or automation, but is instead the result of a noxious combination of deliberate policy changes (the privileged seeking to strengthen their own hand) and policy drift (the rest of us sitting idly by or being ignored when we do speak up).

Frankly, I’m glad that Lanier has released this book, sloppy though it may be. (The people raving about this book as a carefully wrought masterpiece are deluding themselves — and not, as Lanier accuses others of doing, “diluting themselves”.) This is not primarily because he has some insights here and there, but because we need to talk about the gutting of the middle class as loudly and as frequently as possible. We must do so, however, in a way that examines how our collective decisions have gotten us to this point. That includes making international comparisons with other “laboratories of democracy” to see how we can do better.

After even a cursory glance abroad, we will see that we should stop returning to the too-easy explanations based on globalization and technology. These forces are at play across the world, and the other wealthy industrialized countries have generally not had the same dismal results. The more likely culprit is in the halls of government.

Dear Commissioner Copps: Thank You for Your Public Service

On Monday evening, the Hunter College Roosevelt House is hosting an event on media policy and reform, featuring former FCC Commissioner Michael Copps. Sadly, it’s in the middle of my Monday class, so I will be unable to attend — and it’s oversubscribed, so I can’t urge you to attend either.

Still, I’m really excited for my colleague Andrew Lund, who is leading the conversation with Mr. Copps, as well as the many Hunter students and faculty who will be able to attend. Thus, I wanted to share a bit about what I’d like them (and the world) to know about this great public servant.

To fully appreciate how exceptional Copps was as an FCC Commissioner, a role he fulfilled from 2001 to 2011, you need to know how thoroughly the Commission has traditionally been a “captured” agency — that is, generally doing the bidding of the industries that it was constructed, in principle, to regulate.

You should also know how the “revolving door” of government works: After working in government in a position of any real importance, many former public servants often take plum jobs in the private sector where they can leverage their regulatory knowledge and even their interpersonal connections to the advantage of their new employers.

Once he started his term at the FCC, Commissioner Copps knew that, after his time in government, he could easily walk into a plum job in the private sector. After all, this had been the route taken by many of his predecessors — as well as many of his colleagues who stepped down in the interim.

Unfortunately, when looking at the decisions that many of these FCC folks who turned that experience into very-well-paid private sector jobs, one could be forgiven for wondering whether many of them truly had the public interest at heart. Some of their decisions suggest that they were, at least in part, also thinking about their long-term earning potential. I won’t name names, but all of us who follow communication law reasonably closely know the most obvious examples.

When looking at Commissioner Copps’ decisions, however, nobody could possibly doubt that his true allegiance really was with the public for the full decade of his service. Media reform groups like Free Press and Public Knowledge finally had an unabashed, reliable ally with his hand on the levers of power, on issues from broadcasting to telecommunications to pluralism and diversity.

Want a sense of where Copps stands on the issues? Go listen to this interview with Democracy Now. Or this one. Read this collection of speeches or this collection of op-eds. Over and over again, you see him supporting the importance of using the power of the state to shape a more democratic, fair, and representative media system.

Copps is probably best known for his opposition to consolidation in ownership between media companies. He “was the one vote against approving Comcast’s takeover of AT&T’s cable systems in 2002” (p. 261), but this was just a warm-up.

The real sea change on ownership came in late 2002 and 2003, as then-Chair Michael Powell proposed a substantial roll-back in the rules against media consolidation. Copps and fellow Commissioner Jonathan Adelstein pushed to have substantial public discussion around the proposal, including multiple, well-publicized hearings. Powell said no — allowing just one hearing — so Copps and Adelstein went on tour, holding 13 unofficial hearings.

Through this and other efforts, working alongside public interest-minded NGOs, Copps helped bring major public attention to Powell’s proposal, ultimately bringing it to a halt. This slowed (though certainly did not stop) the process of media consolidation, through which ever fewer companies control ever more of our media landscape.

Copps has continued to be known for his opposition to media consolidation — though unfortunately, when Adelstein stepped down in 2009, Copps lost an important ally in the fight. Echoing the 2002 vote, Copps was the only Commissioner to vote against allowing Comcast to purchase NBC-Universal in 2011.

I would love to say a great deal more about Copps’ time at the FCC, but I’ll say just a few more words on one more issue: broadband regulation. He came in just in time to dissent from the FCC’s decisions to give away the keys to the kingdom on broadband interconnection, in the decision that led to the Brand X ruling by the Supreme Court.

The FCC ruled that broadband infrastructure companies — the folks who’ve used imminent domain and massive public subsidies as key tools as they’ve laid the cable, phone, or fiber lines over which broadband is transmitted — are not obligated to share their “last mile” systems with competitors. (This requirement for “interconnection” was already in place for landline local and long-distance telephone service, which led to an explosion of competition and plummeting prices.)

The Supremes held that the FCC was within their rights to make the decision, not that it had to come out that way; if Copps had won the day, we wouldn’t be dogging it in the horse latitudes of poor service, high prices, and slow broadband speeds as the world runs past us on all three counts. In the years after, Copps made the best of a bad regulatory position, serving as the most reliable vote for for mandatory network neutrality.

Again, though ownership and broadband policy are among his best-known issues, Copps was a tireless voice for the public interest on virtually every issue imaginable that came before the Commission. Even though he stepped down from the Commission over a year ago, he continues the work today.

Even as a former Commissioner who spent a decade being the thorniest thorn in the sides of those seeking to make a quick buck at the public’s expense, Mr. Copps could still quickly make a quick buck himself working for industry. There are a large number of companies, industry trade groups, and swanky D.C. law firms that would be quite happy to give him a huge salary, cushy office, and first class travel budget to speak on their behalf.

Instead, Copps has moved on to work for Common Cause, one of our nation’s strongest voices fighting for the best interests of ordinary people. This is just the latest in a long line of decisions in which he has chosen to fight for the public interest, even though it’s easier and more lucrative to fight for those who already have disproportionate money and influence.

For public interest advocates, Michael Copps was, at a minimum, the greatest FCC Commissioner since Nicholas Johnson retired nearly 40 years ago — and perhaps the greatest ever. His work at the Commission will be missed, but I look forward to seeing him continue to have a major role in pushing for a fairer, more just media system for many years to come.

One more point, for anybody who’s read this far: As of now, Copps’ Wikipedia page is a mere stump — the Wikipedia term for an article that is too short and needs to be expanded. In this case, a great deal more needs to be said in order to do its subject justice. I call on you to help me do this in the coming weeks. Mr. Copps was and remains a tireless and effective servant of the public, and this is but a small favor we can do in return.

Pushing for better gun laws: What’s the best rhetorical strategy?

Several very, very smart media studies scholars, who know tons about political communication — who may or may not want their names publicly identified in this context — have started wondering about how to turn this moment into an opportunity to persuade the political center to adopt stronger gun regulation.

With nearly half of households in the US owning at least one gun, how do we reach these folks (excluding the “From my cold dead hands!” set, of course) in a way that acknowledges and respects the perfectly sensible motivations for owning a gun? Well, here are my thoughts on an overall strategy.

This Acela corridor liberal has shot guns and even (gasp!) killed animals. Being from Colorado (I graduated from Bear Creek High School, which is just down the road from Columbine), I know a great many people who can say the same. Yet even among this set, I think a majority either already believe or could be talked into something like Brady Bill 2.0 and similar measures.

One way not to get there, though, is to demonize gun owners or gun ownership. The push for gun reform will get a lot more traction if it proceeds from a place of understanding and sympathizing with sport shooters, farmers, antiques collectors, and others who own guns for defensible reasons. Owning one or more guns doesn’t make you a “gun nut,” nor does enjoying shooting, or knowing about the different types of guns, or appreciating guns’ amazing capabilities.

Also of importance, we would do well to deal carefully with the misconception that owning a gun makes the gun owner safer. Empirically, this belief is simply mistaken — statistically speaking, owning a gun makes one and one’s family substantially less safe — but this is true for reasons that make the case very difficult to make.

To borrow a term from media effects research, the thought processes that make gun ownership seem likely to make one safer are a fantastic example of a third person effect. Nobody envisions him/herself as potentially committing suicide, for instance, even though suicide is the main cause of gun death in this country every year. (US gun deaths in 2007: over 17,000 via suicide, under 13,000 via homicide.)

Besides suicide, other terrible outcomes of gun ownership include:

  • Use of guns to intimidate or injure friends and loved ones
  • Accidental shooting of loved ones, mistaken for criminals (On this point specifically, I’m super glad my mom didn’t have a bedside shotgun with which to shoot me when I broke back into our house after sneaking out, then getting locked out, at age 16. The cops who answered her 911 call thankfully had enough training to assess me as a non-threat before pumping me full of lead.)
  • Accidental gun use by children
  • Accidental shootings of compatriots during sport shooting (see Cheney, Dick)
  • Shooting bystanders and/or catching them with bullet ricochets during a shootout (see, e.g., the shootout near the Empire State Building in January; thankfully none of the bystanders died, but stray bullets by NYPD officers, and only NYPD officers, sent NINE of them to the hospital)
  • Angry confrontations between armed people, each viewing themselves as in the right, using their guns “defensively”

All of these are great reasons for not owning a gun, but each reason depends on at least a bit of humility in recognizing that we, too, are imperfect humans. It’s humbling to accept even the remote possibility that one might commit suicide, or wield a gun in anger, or leave a gun somewhere that a child could find it, or not recognize one’s own family member until after shooting them. It’s disempowering to accept the fact that, if trained professionals can’t hit a suspect without hitting bystanders, we have almost no chance of doing so.

Those all seem like things that can only happen to other people. Until it happens to you, at which point it’s too late.

All of this suggests a rhetorical strategy that focuses on keeping guns out of other people’s hands. Now more than ever, it’s pretty obvious that some people can’t be trusted with guns, and even though we won’t be able to keep all of these people from buying them, we sure could try a lot harder.

Now more than ever, it’s increasingly clear that guns owned for legitimate purposes like recreation don’t need the kind of raw killing power that makes it easy to kill indiscriminately — and that at least a few people will use guns that have that kind of power specifically for the purpose of indiscriminate killing.

In short, our rhetoric should focus on the goal of reducing the number of criminal/mentally unstable “others” who have guns, and on reducing the firepower of those who have/get guns should they fall through the cracks of the background checks and get a gun anyway.

Convincing you that, ironically, YOU are less safe if YOU own a gun is hard work. Convincing you that YOU are less safe if OTHER PEOPLE own guns, however, is easier. Convincing you that OTHER PEOPLE can’t be trusted with an AR-15, or with high-capacity magazines, or to have the good sense to install a trigger lock (so their curious 4-year-old doesn’t blow their leg off) if we don’t make them? That’s a much, much easier proposition.

Convincing you that at least a few OTHER PEOPLE who are criminals or mentally unsound will be kept out of the gun ownership club if we have universal, meaningful background checks, and that this will prevent a few (but not all) of these OTHER PEOPLE from killing innocent people? And that this outcome makes it worth a bit more bureaucracy standing in the way of “good people” owning guns? Again, I think that’s a winning strategy.

Guns can be fun for and used sanely by sane people. The more the pro-regulation case starts from here, the more appealing our case will be.

Computer Advice for College Students

One of Tina’s cousins is starting college this fall and wrote to ask me for advice on which MacBook Pro to buy and what else to buy to go with it. Thought I’d share my answer with a (slightly) larger audience.

The same basic advice would go for buy a PC laptop, too—especially the advice to buy a book, teach yourself MS Office—but I have less good information about which brand to buy. But a fairly cheap, well-reviewed 15″ model with 4 GB of RAM would be plenty for most users. Try NewEgg, TigerDirect, and PCMall for reviews, but believe it or not, Staples and BestBuy also usually have great prices. Just don’t buy the warranties from them.

1. If you’re going to buy anything from Apple, make sure you buy through the Education Store, where prices are lower. Follow this link:

http://store.apple.com/us-hed/findyourschool?aid=AOS-US-Edu-NavLink

After you tell them your school, you’ll still have to click on the Education Store link every time you come back to the site, but it should remember your school.

2. Buy the following:

A. The cheapest MacBook Pro. 13″ screen. 4 GB of RAM is plenty. You can upgrade to 8 GB later if you want—if you decide you want to become a video editor, great, but otherwise, you really won’t need it. Price: $1099.

B. An AppleCare Protection Plan. For $183, they take care of you if the computer breaks down at all—usually doing so even if “wink, wink” it was your fault that something broke.

C. MS Office. Buy it from Academic Superstore, though, not the Apple store. See:

http://www.academicsuperstore.com/products/Microsoft/Office+for+Macintosh

Note that it costs $90 rather than $150. You’ll have to send them proof that you’re a college student, but that’s worth $60 in savings. Unless your whole family is switching to Mac, in which case the $150 version (which is a license for 3 installations) is actually a better deal.

D. A giant book to learn how to actually use MS Office. Office 2011 for Mac for Dummies looks promising. The Missing Manual series is OK, too, though I’ve been a bit disappointed with previous versions of the series in their coverage of Office for Mac. Teaching yourself how to make serious use of Word, Excel, and Powerpoint—this is a GREAT use of your time over the next couple months.

I cannot stress strongly enough how totally helpful it will be to have very solid, working knowledge of these three programs when you go on the job market. Sadly, colleges are generally not requiring classes in these subjects, and most students just fake their way through figuring out the bare minimum for each program. So teach it to yourself, and use your classwork as practice. When you’re in a job interview and can talk about your use of styles and templates (Word), formulas and pivot tables (Excel), and presenter notes, handouts, and master slides (PowerPoint), you’ll look pretty sharp.

E. Whatever antivirus software your college gives you, for free. Because they ALL do that in the desperate hopes that most students, faculty, and staff will install it.

F. Optional: Add an external monitor, keyboard (and don’t overpay for Apple’s keyboards; MacAlly makes good ones), and mouse (a simple $15 ergonomic 3-button mouse is fine; no need for a Mac-specific keyboard). Put a couple big books next to your monitor as your laptop “stand” so it’s roughly the same height as your monitor.

If you work at your desk with any frequency, this is totally worth it. It’s easy to set up for dual-screen display, which means you can have your laptop monitor for browser/spreadsheet/PDF viewing and your external display for your word processor/spreadsheet/presentation work. It’s also way better ergonomically than hunching over your laptop.

Learn enough about your computer that you’re a “power user” by the time you graduate. If you do, it’ll be worth every minute and every dollar you spend now.

Dear David Lowery: Thanks for the Slander and Bad Metaphors

Going around on Facebook now is a post by musician David Lowery (of the bands Camper Van Beethoven and Cracker) in which he politely but condescendingly assails young people for copyright infringement. It’s in response to this post by NPR intern Emily White, in which she discusses how she has a hard drive full of music for which she has not paid.

There has been a good bit written about this post already, but I would like to make two additional points.

First, foremost, and “How dare you, sir!” on the list is this: David Lowery is guilty of slandering the free culture movement.

As is often the case of copyright maximalists, Lowery is relatively vague about who counts as defining the free culture movement. So before we even get to his accusations, let’s start with my rough-sketch, top-of-the-head list of some of the illustrative people and groups. Lowery cites Creative Commons specifically, but I would also add:

  • NGOs like EFF and Public Knowledge
  • Research centers like Harvard’s Berkman Center, Stanford’s Copyright and Fair Use Center, Duke’s Center for the Public Domain, and American University’s Center for Social Media
  • Virtually all of the technology press, from the generally-supportive pubs like Wired magazine to the super partisan sites like TechDirt (On that note, Mike Masnick’s coverage of SOPA was legitimately Pulitzer-worthy.)
  • A very long list of public intellectuals in fields such as law (Lessig, Jaszi, Litman, Boyle, Samuelson, …), communication (Vaidhyanathan, McLeod, Gillespie, Aufderheide), Library Science (Gasaway, Crews), and computer science (Felten).

That’s a long list. It’s not even the beginning of a complete list, either. So keep in mind that, when Lowery (or anybody else) attacks the free culture movement (or any of the derisive names they love to hurl at us—and yes, I include myself, though I’m increasingly more of an observer than a partisan), he’s attacking a LOT of institutions and people.

Now, on to some of the things Lowery says about us. Here are a few choice quotes:

“I just think that you have been presented with some false choices by what sounds a lot like what we hear from the ‘Free Culture’ adherents.”

“What the corporate backed Free Culture movement is asking us to do is analogous to changing our morality and principles to allow the equivalent of looting. Say there is a neighborhood in your local big city. Let’s call it The ‘Net. In this neighborhood there are record stores. Because of some antiquated laws, The ‘Net was never assigned a police force. So in this neighborhood people simply loot all the products from the shelves of the record store. People know it’s wrong, but they do it because they know they will rarely be punished for doing so. What the commercial Free Culture movement (see the “hybrid economy”) is saying is that instead of putting a police force in this neighborhood we should simply change our values and morality to accept this behavior. We should change our morality and ethics to accept looting because it is simply possible to get away with it.  And nothing says freedom like getting away with it, right?”

And what is, in my opinion, the kicker:

“Technological and commercial interests are attempting to change our principles and morality. Rather than using our morality and principles to guide us through technological change, there are those asking us to change our morality and principles to fit the technological change–if a machine can do something, it ought to be done. Although it is the premise of every “machines gone wild” story since Jules Verne or Fritz Lang, this is exactly backwards. Sadly, I see the effects of this thinking with many of my students.

“These technological and commercial interests have largely exerted this pressure through the Free Culture movement, which is funded by a handful of large tech corporations and their foundations in the US, Canada, Europe and other countries.*”

I’ll start with the end of the last quote because it’s the most outrageous of the lot.

Funding for the free culture movement came from individual donations and charitable foundations long and strong before technology companies really stepped up to the plate at all with substantial funding, and corporate donations continue to be a minority of the funding for the free culture movement.

With any research at all, Lowery would see this for himself. In fact, his own research proves my point and disproves his. Follow the link to “their foundations” in his post; it’s a tax document by Creative Commons listing their donors. (As if this were some sort of secret.) It lists the following donors in the following amounts (resorted here from largest to smallest):

  • William and Flora Hewlett Foundation: $4 million
  • Omidyar Network Fund: $2.5 million
  • Google: $1.5 million
  • MacArthur Foundation: $700,000
  • Mozilla Foundation: $500,000
  • Fidelity Nonprofit Management Foundation: $315,162

Google is the ONLY tech company donor on the list, they get credit for maybe 15% of the funding (probably less; I think their individual donor base is substantial), and they were late to the party. Mozilla themselves are nonprofit. Omidyar and Hewlett may have made their money in technology, but their foundations are their own, not their companies’. Their foundations believe in CC’s mission the same way the Gates Foundation believes in fighting Malaria—because they believe it’s a good cause, not because it makes them (still) more money. This is especially true for Creative Commons, since the link between their mission and any of these companies’ (even Google’s) bottom lines is tenuous at best.

Creative Commons was created in 2001 and ran for years without any substantial corporate funding. Their own history says they were founded on generous funding by Duke’s Center for the Public Domain! (Does Lowery refuse to use Google or not look at his opponents’ webpages?) Then it was able to attract money from big foundations. Further, the very mission and purpose of Creative Commons was set long before tech corporations were giving much of anything, and if Google tried to re-arrange things so that they’re really in charge, they’d be shown the door. In short, calling CC one of “their [tech corporations’] foundations” is like calling the Brooklyn Nets “Jay-Z’s team.” In both cases, the investment is really a chance to put down money on something you think is worthwhile and get a front row seat to watch other people play the game—NOT anything like a controlling interest.

The EFF and Public Knowledge have similar-but-different histories and funding mixes, but the basic story is the same in their cases, too. Yes, technology companies are giving to free culture organizations. Yes, those organizations can use the money and will take it. But none of these orgs are Astroturf groups for the tech industry, and to call them such is slander, pure and simple.

The other outrageous accusation is that the free culture movement thinks we should change our morals to accept infringement. (Excuse me if I insist on the correct if technical term vs. “theft” and “looting”; more below.) This is just not true. Go back to the list above. To my knowledge, NONE of the roughly dozen scholars I cite have publicly advocated that we just accept infringement. Ditto the academic research institutes and NGOs. Some tech bloggers may something like that here and there, but I cannot think of any specific examples.

In other words, everybody who can in any serious way be identified as speaking for the free culture movement—as a movement—accepts something like the basic tenets of copyright and some degree of online enforcement. Even isolated examples of “forget copyright, let infringement happen” are exceedingly difficult to find from serious participants in the policy debate—and while I might have missed some examples, few scholars can claim to have spent more time over the last decade studying the debate over copyright, so it would be a rare thing indeed. Sure, EFF Board Member John Perry Barlow said that over a decade ago, but it’s never been EFF’s position. Public Knowledge has had a radically centrist position on copyright for its entire existence—for which they’ve gotten nearly zero credit, by the way. Creative Commons is a way for copyright holders to better effect their wishes! That is why another (smaller) corporate donor to CC is Microsoft, a company that loves copyright almost as much as do the movie and music industries.

The free culture movement believes in copyright and enforcement, but the movement exists to point out that the devil of copyright and its enforcement is in the details. Consider the size of penalties. Free culture advocates don’t think we should end all penalties for infringement. They just think that penalties in the millions for peer-to-peer use are ludicrous and utterly disproportionate. Even if we accept Lowery’s metaphor of stealing physical records (again, I do not; see below), there is no set of circumstances I can imagine that could lead to me being fined millions of dollars for stealing records.

If I were to hijack a truck full of records with a fully automatic machine gun, my fine would still not be a million dollars. Even including the opportunity cost of the time I would spend in prison, we’d be hard pressed to get to a million dollars. Million dollar fines are appropriate for large corporations and people who commit massive securities fraud—not people who create actual harms that are numbered in the hundreds or thousands.

If the RIAA and MPAA got to reshape the law, online civil liberties would be in serious danger. Nobody at the table (especially the congressional hearing witness table) thinks infringement is just fine and dandy. Yet content industry lobbyists and their allies in Congress would be completely happy throwing due process and the First Amendment on the bonfire of every-stronger copyright enforcement—and they regularly bristle at the idea that anybody would stand in their way and accuse the free culture movement of supporting the “pirates”. Like Lowery, they do so in lieu of discussing the complicated trade-offs in a serious way.

Imagine a world where ISPs are legally required to disclose your full contact information to anybody who alleges copyright infringement as having occurred at your IP address. Imagine a giant copyright filter in the middle of the internet. Imagine a world where the mere allegation of infringement is enough for the US government to seize your web domain with no day in court, no explanation, and nobody to hold accountable when your business is seriously derailed. Sadly, this last one is not even imaginary, but actual US policy.

Being horrified by violations of civil liberties is not the same thing as being complicit in copyright infringement. Copyright can be too strong or too weak. We can disagree on which it is without disagreeing about whether copyright should exist or whether it should be enforced at all.

Instead of engaging these subtleties, however, Lowery straw-mans the whole free culture movement, portraying us as urging complicity in widespread infringement. For shame.

My first and main point, again, but more clearly: David Lowery has slandered a lot of good people and groups. He ignores the generous individual and foundation funders, the underpaid professionals (no, really; Cary Sherman’s salary of $3.2m is roughly the size of the annual budget for the whole EFF), and the scholars who get paid the same whether they support more or less copyright. These people are the reason this movement got started in the first place and they make it go. He has accused this very thoughtful group of people of encouraging law breaking, when they cannot repeat often enough or loudly enough that they are doing no such thing. He owes them all a deep and sincere apology.

(I won’t hold my breath, but in Lowery’s case, there’s at least an outside chance that it might happen. Unfortunately, though, such slander and creative pulling-of-“facts”-out-of-behinds is all in a day’s work from the content industry’s professional lobbyists. The chance of one of them apologizing is just slightly more likely than Jay-Z entering the next NBA All Star game—and winning MVP.)

A second point is that Lowery is also guilty of abusing the metaphor of property—though this is utterly unsurprising, since it’s a staple of what I call the “strong copyright” coalition’s rhetoric. I have a great deal to say about this. In fact, here’s a journal article I wrote, “Breaking and Entering My Own Computer: The Contest of Copyright Metaphors.” (Available for free online; don’t tell Lowery, but not everybody who creates information and culture has an interest in maximizing copyright exclusivity.)

The short version is that the metaphor of tangible property is extremely misleading. If I copy your work, you still have it, while if I steal your car, it’s gone. Thus, copying without permission is not stealing; it is either infringement or permitted for certain reasons, such as criticism, library preservation, or an expired period of protection.

Accusing infringers of theft, looting, or piracy is sloppy, but the poor fit of the metaphor benefits those who want ever-stronger copyright. I have no fair use right to your car, the government will never tell you the fixed rate at which you have to rent me your car, and your ownership right in your car never expires. If I ran the RIAA, I’d want to make it that way for recorded music, too. Thus, invoking the metaphor of physical property is super handy. Forget the fact that copyright exists for different reasons and works very differently; the less different they become, the better I’m doing my job.

Because of this, I propose alternate metaphors that are something of a better fit. One of which I’m particularly fond is: Copyright is the air conditioning in the bazaar of cultural production. We’ll never agree on the perfect temperature, but we need to set it to a middling level to maximize the work that gets done by all of the different people working in the studio. If the AC is rarely on and the room is too hot (copyright is too loose), stuff will melt together, and only those who work well in heat with stuff melting together (scholars, jam rock bands, open source programmers) will get work done. Conversely, if the AC is on constantly (copyright is too strong), everything will be frozen in place, and only those who can use things that are frozen in place (big media companies, authors and musicians who are already successful) can confidently work under these conditions.

This metaphor does a much better job conveying the contested, complicated world of cultural production. Nobody agrees on the temperature because we have different goals, but we have to find a temperature that approaches the best possible mix of production we want to see in total.

Unlike the property metaphors, the AC-in-the-bazaar metaphor does not suggest any easy answers, but that’s a virtue—again, unless you’re trying to score cheap political victories for the content industries. We can even describe Creative Commons and GPL licenses as a “hot room” in the relatively cool arena of the broader cultural economy, where mixing and remixing are easier. Anyway, that’s my second point, that Lowery’s metaphor is hackneyed (though he’s not alone), and we need to think about these things more subtly.

Finally, I don’t have the time or energy to develop this into a third point, but I cannot believe that any musician would pen this exact sentence: “Fairly compensating musicians is not a problem that is up to governments and large corporations to solve.”

Really? Because to this outsider, it sure seems like large corporations in recording and concert promotion have spent decades figuring out how to cash in on fans’ love of musicians while giving as little of that revenue as possible to musicians. I’m on the side of musicians in this fight, and it is a fight against large corporations. The occasional principled stand by Pearl Jam or PR stunt by String Cheese Incident notwithstanding, the only way to stop the concert promoters from pillaging artists’ livelihoods is probably for governments to step in. There are similar stories to tell on licensing revenues and contract language on the recording side.

This is a fight that should unite Lowery and the free culture movement. It would, however, require that musicians organize against the corporations that use those same musicians as mascots whenever it’s time to ask for help from the government on issues such as copyright.

P.S. For the record: Get your music, movies, books, and software legally. There are now very many easy, cost-effective, and convenient ways to do this. But some of them require ethical decisions, such as how much your local public radio or TV station is worth to you—the original “Pay your fair share, damnit!” media cause.

Online Learning: The Future of Higher Education?

In an ongoing discussion on one of my favorite listservs (Dave Farber’s Interesting People list), folks have been sharing thoughts about online learning as a potential substitute for traditional higher education. As is often the case, this was a response to media coverage that confronts the same question (e.g., College Crackup and the Online Future).

If the Harvards and the MITs of the world put their courses online as free advertising—which they are doing—and if even middle-of-the-pack colleges are heading that way, what does this mean? Can we put all the world’s knowledge online for free, then let students study it on their own? Does this leave colleges as mere credentialing institutions? Aren’t colleges failing to challenge students these days anyway?

I think online education is not a good substitute for in-person education, and I shared my reasoning with the list. Thought I’d also share it here:

One problem with this discussion is that it assumes a very undeveloped and incomplete pedagogy—namely, it assumes that education is about pouring knowledge into students’ heads. If that were correct, then yes, the top schools could put their content online, and all that would be required of users would be to open their knowledge spouts to receive this information. If the “knowledge spouts” model of learning were correct—if it were effective for disciplined individuals to use publicly available mediated information to displace classroom teaching—public libraries and book stores would have put colleges out of business long before the internet.

Anybody who has taught in the classroom knows better—or, at least, they really should. Like all good communication, good teaching is bi-directional. Yes, bad college instructors just show lots of words on PowerPoint slides and drone on, regardless of the classroom’s reaction (or lack thereof). And yes, there are bad teachers in college classrooms—from your local community college to Harvard, and everywhere in between. But even middling instructors, let alone the truly good ones, demand student participation and react to classroom feedback. Further, there is no substitute for making students think on their feet and contribute to discussions in small groups or with the whole class.

Other parts of the educational experience include informal interaction with faculty and staff between classes (can’t tell you how many big-deal career and education questions I’ve answered in conversations that started with no goal in mind), building social skills and peer groups with fellow students, and hands-on time in labs and other places of experiential learning.

Even though I was a philosophy major, one of my most memorable moments as an undergrad was in Physics II, when the professor had the whole lecture hall stand in a circle, linking pinkies, and then holding hands, so that we could feel electricity run through the whole loop with less and then more flesh connected to our neighbors. We did the pinkies first, and he asked us to hypothesize whether the holding-whole-hands stage would be a weaker or stronger shock. We’d already studied enough electromagnetism to have some basis for our hypothesis, but I was wrong, and the experience taught me a lot about humility before evidence—the very foundation of the scientific method. (I went through a similar process with the philosophical method in Epistemology, but that’s a much slower and less-exciting story.) This lesson just would not have been the same if it had been mediated through a screen.

If one wants to learn a trade or other specific set of information, and if that content is amenable to learning via media such as the internet (or, heaven forbid, books), an online learning environment may be a fine choice. If one has no real opportunity to attend a physical campus because of physical, time, and/or cost constraints, learning online is certainly a better alternative than not learning! But for most students in most subjects, learning online is a pale imitation of face-to-face instruction.

I’m not worried about college becoming irrelevant in the age of the internet any more than my predecessors were worried about it happening in the age of the VCR. I am, however, worried that politicians, the public, and higher ed administrators will be roped in by the promise of efficiency and cost savings. Especially in an era where collective investment in our future is derided as “socialism,” higher education budgets keep being slashed. (This, of course, is the real reason state school tuitions are skyrocketing. Adjusting for inflation, the total money in is basically flat.) In this environment, the “learn at home!” hype that looks so schlocky when peddled by for-profit colleges is starting to sound like the solution to our education woes—in much the same way that utterly ungrounded education “reform” is the solution to K-12 problems that are mostly just symptoms of economic inequality.

P.S. The one point with which I do strongly agree is that students spend far too little time on their work. I’m young enough that, by the time I was an undergrad, the standards had already gotten pretty low. I had to do relatively little work outside class, and frankly, this kind of horrified me. You know what really taught me a lot, though? Participation on the intercollegiate debate team, which has since been cut for funding reasons…

[Edit 1:30 pm: Minor change in title.]