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April 23, 2013

World Copyright Day

Posted by: Dave Ryman

Today is World Copyright Day. Hector Postigo, author of  The Digital Rights Movement, weighs in with a Q & A.

What sparked your interest in the "digital rights movement," and how did you come up with that name to describe the movement?

It began in 1999. At that time Napster had just been released and made me think that while there were too many instances of copyright violation it was possible that Napster represented the architecture of a differently imagined web. I started to realize that something had categorically shifted in the way we understood copyright. More specifically I thought that whatever we thought copyright was, was under a type of existential crisis. Despite the fact that copyright was crafted in the United States as part of the intellectual property clause in the Constitution, research into its historical groundings in the British statute of Anne made me realize that it was a deeply technological law. That the statute of Anne was essentially a legal framework to give the sovereign control over printing technology, so that sovereign permission to produce content also regulated what exactly was said. In the United States and other countries, in tandem with the rise of capitalism and the global marketplace for inventions and ideas, intellectual property regulation and copyright specifically became a way of incentivizing creation while at the same time protecting and controlling markets in a goods that were inexhaustible: the expression of an idea, or the expression of beauty in the form of literature or music.   The historical reality that western copyright had at some level started as a means of controlling technology so that a sovereign could control expression and that it then had been turned into a means of controlling markets and that it was dependent on technology made me, as a science and technology studies scholar, really interested.

In science and technology studies a long-standing theoretical and empirical position is the technological systems don’t simply serve as tools or means to ends, but are themselves instantiations of a way of life or a worldview. As I started researching ways in which people were trying to circumvent copyright through technological means, I came across Larry Lessig’s book Code, a lucidly written book to be sure but Lessig was doing the same work that STS scholars like Langdon Winner, Lewis Mumford, Jaque  Ellul, Andrew Feenberg, etc. had done for decades. The research and historical work this group and others rooted in the philosophy of technology had done pointed out how technological systems have the capacity to regulate not only legally but culturally.   Because technology is ultimately an instantiation of a cultural form there is no effective separation between technology and society. We always hear media outlets ask how this or that new technology might be impacting society. That’s a good question but maybe a better question is how is a particular technology a representation of a particular view within a society that is composed of a universe of worldviews.  By asking that question we might come to understand that power, democracy, legitimacy of authority, etc. lie not only in political philosophy or in social process but also in the artifacts produced through social processes and meaning making endeavors; the machinations of cultural practice.

I don’t want to take anything away from the originality of Lessig’s application of determinism and social construction to technology and law. If anything it felt like STS scholars should have been doing this explicitly not just implicitly long ago. STS scholars were not the only ones thinking along these lines. Marshall McLuhan was doing “the medium is the message” thing a long time ago and Michel Foucault was thinking about structures of power in philosophy, history and cultural studies.  Right around the same time that Napster was beginning to run into legal trouble, the EFF and other organizations that had been for some time worrying over how consumer rights would be impacted by the emergence of information communication technologies were coordinating not only to defend user practices and expectations but to articulate an alternative worldview. When Apple opened the iTunes Music Store in response to the clear demand for digital music delivered via the web and tied that system of business to digital rights management (DRM), the activity of hackers and organizations to counteract the structuring power of the DMCA and the technologies it protected started to look to me, someone versed in social movement theory, as a social movement itself. I thought it would be nice to call this emerging movement by the same acronyms held by the technologies that embodied  stringent formulations of copyright, limited fair use and first sale in copy and access protection technologies: Digital Right Management. This was particularly appropriate because the hacks that came out of the digital rights movement embodied entirely different understandings of those rights and consumer privileges.  Seldom does someone get to write about a moment of social contention while it’s happening and that has qualities never empirically studied before. I’m not alone in thinking this way, Jennifer Earl who recently published an excellent book from MIT Press applying STS principles to social movement theory and social movement organizational use of digital media also was taking note.   So I became interested because while not, demographically speaking, a digital native I was engaged in thinking about the technology and practices that were being made illegal by the DMCA but that may be should have been given a little more consideration during the policy making processes.

Throughout the book, you make reference to the fact the digital rights movement is part of a growing cultural awareness. In what ways is this a cultural movement?

I think recognizing that the digital rights movement is really a name for a much wider movement and therefore much wider cultural awareness goes back to STS yet again. The reason this is the case is that significant changes in the nature of the technology for consuming copyrighted content both expanded and constricted the menu of possibilities available to users over legally owned content. What I mean by that is that given the emergence of ICTs, digital media and computers as ubiquitous means for consuming the products of the culture industries it follows that the functions those technologies afford can then be applied to the content passing through them. Copying, pasting, editing, distributing, etc. all became categorically easier. In many ways these affordances invited what Henry Jenkins has called participatory culture. While he studied it in fan fiction it came to have a much more wider acceptance among those adopting digital technologies as their primary means for consuming culture industry products. It felt odd to download a song from iTunes legally and then not be a able to make as many copies of it as you needed given the fact that the technologies that delivered the content had that as a central functional characteristic. If we know one thing it’s that the creative urge is fueled by consumption: musicians listen to a lot of music, writers read a lot, movie directors watch a lot of film. Not only is creativity fostered by consumption of the full panoply of cultural goods but it is also fueled by imitation, play and experimentation. Digital technologies afford this. It’s a cultural movement because those consumers that came to adopt digital media already had expectations about functionality. It didn’t take users, especially the young, too long to see that the web, digital content, and personal computers afforded new possibilities for consumption. Those affordances materialized in an avenue for creativity and the role of users was not only to consume but maybe to contribute to the vast discourse that was cultural production.   By way of example, think of making a film mashup.   It may have been technologically cumbersome in the days of the VCR, but in the days of personal computers shipped with entry-level video editing software, consumers might end up asking themselves why they couldn’t make a mashup from their legally owned DVDs. Or why they couldn’t use music that they had legally purchased on iTunes, excerpting some parts of a song and using it as a soundtrack for the mashup.  We have a host of laws that regulate the means and practice of culture industry consumption (public performance rights, transmission regulation, the DMCA, etc.) and those laws make a lot of what was made possible by technology illegal. If you get a crop of consumers who are not only consumers anymore but also possible producers who come to see some agency in cultural production, you’re going to get a certain number of people who resist the law and its technological enforcement by deploying their own technology to go hand-in-hand with their protest, legal battles, and lobbying.  As the movement grew it became an international network of organizations, individuals, hackers, and technologies all in action to achieve a certain social change. Increased consumer rights over using the products of the cultural industries as building blocks for their digital literacies.

How have arguments over free speech and fair use entered the conversation on digital copyright?

One thing that I’ve enjoyed considering is the symbiosis between fair use and free speech.  If consumers are to be more than consumers and be individuals who possess a digital literacy then they better have more or less unfettered access to media content they legally purchased. What I mean by digital literacy here is the ability to speak polyvalently by cobbling together a host of media formats.  So to me the idea of digital literacy is actually the idea of digital speech. Do people have the freedom to cobble together content from a DVD, content from iTunes, content from TV, so they can make a statement about something political? All you have to do is look at YouTube and you realize that people have been doing that now for some time in the context of a business model, YouTube is owned by Google, but it’s still an expression of digital literacy and digital speech. Something not possible had fair use remained constrained by the DMCA.  Luckily we got hacks that cracked iTunes DRM years ago or hacks that cracked the content scrambling system on DVDs, capture cards to digitize TV content, and other technologies that allow users to experiment and speak in a number of formats. If these practices, which are increasingly common, can avoid copyright violation “takedown notices,” they become quite empowering to the people that engage in them.This is a moment where copyright, in its most stringent application, runs aground of free speech. This is an argument that actually has not yet been effectively fleshed out in courts. In cases important to the digital rights movement it was fleshed out as, for example, both sides of the debate had to revisit the idea that code is speech, specially when that code is needed to learn something about encryption, for example.

In what ways does the digital rights movement remain a struggle concerning how to grapple with the unrestricted access individuals have to large amounts of information on the Internet?

I’ve had the good fortune of speaking to a lot of people about this recently as I try to explain what the real folly of copyright stringently applied to digital content is.  Ultimately it’s about old media fears over piracy.  Those fears create a blind spot to business potential. Some might disagree but I would argue that large amounts of information on the internet, specifically products of the cultural industries, give consumers a pallet from which to draw, reconfigure and redistribute their own cultural products. If old media welcomed this process then you would have platforms that could distribute the gains of UGC production and consumption among the platform owners, the copyright owners, and the users. YouTube does this in some regard with user-generated content.  The movement continues to struggle with enduring, legally grounded practices that continue to fence in elements of UGC that some copyright owners might consider infringing. It’s not necessarily that information wants to be free though, but rather that it wants to be used and then shared.  You think of all that information and content flowing through digital technologies and ICTs like water in a river, all you need really is a mill somewhere to extract the value of its kinetic energy.   If you look at it that way, the movement isn’t really a struggle about making things free but rather about letting many have access to that river and contribute a little themselves even as they draw water from it.

Has the proliferation of social media changed or intensified these debates in any way?

Yes it has.  Julie Cohen recently wrote a great book, Configuring the Networked Self.  In that book she explores how individuals themselves are becoming part of the data that is owned by things like social networks. And as that data happens to be personal data, sometimes privacy is implicated.  This means that debates about copyright over the ownership of creativity might start getting wrapped up with control over polyvalent narratives about yourself on platforms like Facebook or Twitter. Consumers do have some control and ownership over the personal information that is willingly contributed, but that  information is also the product that platform owners mine for marketing reasons, crowd knowledge and novel entertainment content. Julie Cohen points out that sooner or later, terms of use and privacy policies not withstanding, some one (the users and the platform owners) will have to sort out the copyright claims over all that data. Yes, users own their personal data but how it’s algorithmically packaged for search and sale is the platform’s product.

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