Songs as Shared Things

charlie sporting a hat bearing the name of his boat, a name inspired by some songs

No doubt most readers of this blog are aware that my father-in-law, Charlie Nesson (aka eon), is also very much IN LAW. And he’s been making the news a lot recently, mainly for defending (pro bono) Joel Tenenbaum against the RIAA who are suing him for mucho dinero for alleged copyright infringement in the DLing/sharing of 7 songs via a peer-to-peer filesharing network. The case is newsworthy in its own right, especially given that just last month Jammie Thomas, a Native American single mother of four, was ordered to pay the RIAA nearly 2 million dollars for 24 songs. The case has also become remarkable, however, because of what are widely viewed as Charlie’s unorthodox tactics.

Most of the commentary, in fact — whether by journalists or blawggers (get it?) — can’t resist throwing words like “crazy” and “reckless” around. They focus on Charlie & team’s procedural no-nos and, in the case of lawyer-blawggers (whether on the copyright or copyfight side), they all advise the pursuit of a fairly narrow legal strategy based on their interpretation of the crucial facts of the case (i.e., whether or not there is actual, admissible evidence as to whether or not the allegedly infringing distribution occurred).

I concede that it’s not all that crazy to wonder about Charlie’s strategy and tactics alike (though I do think that worrying for Joel seems disingenuous — the kid’s gonna be ok, whatever happens). There’s something unnerving to many that Charlie appears to approach Joel’s case as a rhetorical focal point — as well as a pedagogical opportunity — to stage a public conversation about copyright and closedness, or about openness and fairness and the re-empowerment of p2p justice, in the Internet age (and, especially, with concern to “digital natives“). Then again, while all this crazytalk continues to percolate, I just want to remind people that Larry Lessig’s cyberlaw classic, Code, bears the following dedication: “FOR CHARLIE NESSON, WHOSE EVERY IDEA SEEMS CRAZY FOR ABOUT A YEAR”

Now, even if that holds true, it doesn’t mean that Charlie doesn’t receive the strongest criticisms from those near and dear to him. Much as the case has been fascinating to me (and much as I cheer him on, for various reasons), there’ve also been plenty of times when I found his approach to the case rather oblique. But, and I suppose Larry had some of these moments while at the Berkman Center way back when, I’ve also found myself coming around to Charlie’s ideas, especially when one takes in the big picture — when one minds the forest rather than the trees. So when Charlie asked me (for a second time) whether I’d be willing to be offered up for expert testimony in the case, I agreed — but only after getting a clear enough sense of how he thought my ethnomusicological perspective might be directly relevant to the trial.

Last week I sent my expert report to Charlie, and Team Tenenbaum submitted a motion (a little late?) to have my report and testimony admitted to the proceedings (or something like that — legalese is not a slang I sling). You can download a pdf here, but I want to cut’n’paste the substance of the report into this post as I think it may be of interest to you, good reader — and moreover, according to Ray Beckerman, potentially useful in some RIAA trials (if not, in Ray’s opinion, Joel’s). As much as I find legal notions of “truth” to be weird, the following passages do resonate as true for me, increasingly so in fact (as I’ll explain below, after the text).

Songs as Shared Things

Songs have always been shareable and shared. People, young and old, share songs with each other – by singing or playing them – in a variety of ways and settings, through a variety of technologies and media or other manner of accompaniment (as well as a capella). Songs as recordings are not fundamentally different in this respect. Since the advent of recorded media, people have shared songs in this form as well: played for each other in private and public settings, on personally distributed mixes (mixed tapes / CDs), and, in the age of mp3s, as files sent via email, IM (instant message), torrent, third-party hosting site, or any manner of online sites and services.

Ironically, today songs are most often shared via a video site, YouTube, which has become a de facto public audio repository. This development and the explosion of music-centered blogs and forums offer evidence, in the form of pervasive and popular practice, of how musical recordings are treated as public culture, things which people send to friends, family, and colleagues, point to and comment on, and remix in the course of their everyday lives.

To click on a YouTube link in order to access a song (or to send such a link to a friend) would hardly be considered an illegal action on the part of the millions of people who do so each day, and yet the action is hardly different from the Defendant’s use of a filesharing network to access the seven songs in question just a few years ago. Those songs are [links & YouTube stats added 6/30]:

* Bad Religion – American Jesus [448 results]
* Green Day – Minority [1,870 results]
* Incubus – New Skin [266 results]
* Incubus – Pardon Me [991 results]
* Nirvana – Come As You Are [4,190 results]
* Outkast – Wheelz of Steel [21 results]
* Sublime – Miami [65 results]

If one searches for any of these songs on YouTube today, one finds numerous instances of each, sometimes numbering in the dozens or even hundreds. Notably, beyond merely presenting the songs, the users who upload the videos frequently add their own elements, personalizing the songs in order to share them with peers and other potential viewers: they add new images, both still and video (including found footage and self-produced material); transcribe and caption the lyrics; sometimes, they edit or remix the audio itself, especially in the case of hip-hop songs (e.g., Outkast) – an interactivity consistent with cultural practice in hip-hop more generally.

Only in the relatively recent past – within the last century – have songs, in the “fixed” media form of audio recordings, been so strongly regulated as pieces of property whose use by others might be strictly limited. An examination at the level of cultural practice – that is, how songs as audio recordings have been used by people – demonstrates that even in such “fixed” form, songs have continued to serve as a commonplace site of sharing and creative interaction (also known as remixing). This becomes particularly evident in the use of playback technologies such as turntables as creative instruments in their own right (aiding the emergence of hip-hop and disco in the 1970s), an approach powerfully extended by the tools of the digital age.

Historicizing the Musical Commodity

The notion of the song as commodity is a relatively recent one, enabled by a certain technological confluence (the advent of recordable media and mass production), and it seems to be fading relatively quickly in the face of a new technological confluence (the digital). As musicologist Timothy Taylor writes in an award-winning article on “The Commodification of Music at the Dawn of the Era of ‘Mechanical Music’”: “the music-commodity has to be understood as always in flux, always caught up in historical, cultural, and social forces” (Taylor 2007: 283).

The album as a commodity form is a particularly illustrative example of this socially and culturally situated flux. The age of the album – roughly, the late 60s to the late 90s – was a fleeting moment, again enabled by a particular set of technologies (the advent of the long-player record, or LP, followed by the cassette and CD). While early album-oriented artists approached the LP form as an artistic opportunity, leading to the emergence of the “concept album,” by the late 90s album offerings were far more typically collections of “filler” material, propelled by a hit or two, sold at exorbitant prices (e.g., $18.99) to customers with no alternatives. At this point, the album is, in most cases, an anachronism, either an indulgent and/or exploitative exercise. Notably, internet vendors such as iTunes or eMusic and other distribution methods (including blogs and filesharing networks) have reinstated the primacy of the single track as the prevailing unit of popular music.

Reasonable paid alternatives to free downloading have only become available recently, and even then rather unevenly with regard to what is available and in what form. The defunct torrent tracker, Oink – and its ilk – offer(ed) higher quality files, better documented, uncrippled by DRM software, and of a far greater variety than one can find via any of the legally-permitted online music vendors.

Listening as a Transformative Use

Listening is an active process, a rich domain of interpretation and imagination, manifesting differently – according to personal idiosyncrasies and cultural mores alike – for each person and in each moment. As anthropologist Steven Feld explains in the oft cited “Communication, Music, and Speech about Music” (Feld 1984), the listening process is, when one considers all that is potentially involved, an enormously complex phenomenon very much centered on the particular listener in question. According to Feld, listening as an act of “musical consumption” involves, among other things: the dialectics of the musical object itself (text-performance, mental-material, formal-expressive, etc.), the various interpretive moves applied by the listener (locational, categorical, associational, reflective, evaluative), and the contextual frames available at any moment (expressive ideology, identity, coherence).

All of this activity is inextricably social in character, regardless of the musical object in question. As Feld notes, “We attend to changes, developments, repetitions–form in general–but we always attend to form in terms of familiarity or strangeness, features which are socially constituted through experiences of sounds as structures rooted in our listening histories” (85).

While grounded in communication studies and musical semiotics in Feld’s study, such an interpretation – centering the socially-situated hearing subject rather than the musical object (whether live performance or mp3) – is also consistent with a great deal of literary and media theory from the past thirty years, from Roland Barthes’s infamous 1977 “Death of the Author” to Henry Jenkins’s contemporary theories about spreadability and value.

With some exceptions, commenters on Ray Beckerman’s and Ben Sheffner’s blogs, as well as on an Ars Tecnica post about the submission of my report, are generally dismissive of the text above — some of them without even reading it. They regard it as another distraction in a trial that has become, for them, more a media circus than anything. Some of those who engage it on the merits think it’s extremely far-fetched to argue that songs are inherently personal(ized) and social — hence publicly shared things — or that listening might legitimately be understood as a truly transformative process. I wonder whether readers of this blog agree?

Let me say in closing — as something of a supplement to my report — that I have been more and more persuaded in the days since filing that what I wrote is, certainly for the purposes of the court, true. Exhibit A, if you will, is the astounding level of activity centered on YouTube in the wake of Michael Jackson’s death. As I wrote in a post published yesterday,

How do we get a grasp on the actual immensity of the event? What do we know, for example, about MJ’s YouTube views? — & not only on the thousands of instantiations of his songs and videos that fans have uploaded but even on the handful of tracks that sampled his songs and also have become shrines of sorts?

It would not be a terribly controversial contention, I don’t think, to say that YouTube — the #2 search engine, period — was/is the go-to place for listening to and sharing Michael Jackson songs (and their musical kin). And that goes for most songs/recordings. YouTube has become a de facto, if willy-nilly and ephemeral, audio archive for the world of music. I’m pretty convinced that if Joel — or someone like him (someone like you?) — wanted to listen to those 7 songs (or any others) on his computer today, he’d more likely look them up on YouTube (or some similar site) than seek them out on a filesharing network. And that’s something that a jury of his peers might well take into consideration.

But it’s not merely a question of easy access and the (open) social norms & values we see expressed in YouTube / internet practice (and, yes, there are plenty of dubious “values” expressed in these spaces too). What’s even more instructive about the Michael Jackson example — or any song/dance meme, for that matter — is how songs no longer reside in some pure, protectable commodity form, if they ever did. Songs today quite clearly reside on the internet, in that peer-to-peer space connecting me to you. Simply by observing YouTube practice, which this blog(ger) has spent a great deal of time doing, we bear witness to the profound degree to which music (as songs, dances, melodies, drum breaks, and other forms) is always already social, personal(ized), and constantly transformed in the process.

This (social) fact of music industry — i.e., the work that music does, the social and cultural activity it animates — has serious implications, of course, for THE music industry. As I argued on a few occasions last year,

the phenomenon of widely-distributed (or,
in p2p parlance, “shared”) music video represents a crossroads not
just for _the_ music industry, but for music _industry_ itself — that
is, the cultural work that music does.

In this regard, I think Kevin Driscoll could serve as a good expert witness as well; his master’s thesis, especially the history of mixtapes –> YouTube narrative, strikes me as a deeply persuasive account of the technological-social migration of hip-hop practice — and youth culture more generally — into new media.

The big question is, I suppose, whether Joel’s judge and jury will also agree that such testimony is germane to the case. As one of Joel’s peers, dear reader, your opinion is relevant too.

28 thoughts on “Songs as Shared Things

  1. Music unshared or listened to alone is like masturbation. Good but not as good as it could be.

    I’ve spent most of my adult life listening to music WITH other people, I cant imagine not doing so. And I have a huge collection. The lovers of certain niche genres send me tons of music to add to my collection. I periodically will obtain someone else’s entire collection in exchange for pieces of mine. So Im constantly adding to my library and using it to make sure that the good stuff stays out there in the wild, available. Thats why they send it to me, to keep the music alive and available. Its CULTURE.

    Look what happened to Tite Curet Alonso!

    The music is the property of the people and should be free.

  2. My sympathies for the public ribbing, but at least maybe now you’ll finally get that Wikipedia entry/disambiguation.

    It seems like the main criticism in those posts you linked is along the lines of ‘the case is really about fair use’ (blawgers) and ‘the case is really about internets and digital rights’ (ars technica), so I applaud your/Nesson’s efforts to make it about culture.

    Since the courts will probably agree that people are doing illegal things when they share copyrighted music, I hope the outcome of this case, or a future one, will be that the damages are so low that they don’t justify the RIAA/record companies efforts except in extreme cases. What else would be justice?

  3. I truly appreciate the sympathy, Goldbug — and some disambiguation woulda sweet!

    I suspect/fear you may be right about the outcome, though it IS a crucial question as to how an empowered jury might tweak the outcome. Judge Gertner seemed to leave this possibility very open with part of a ruling today:

    By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant’s constitutional challenge becomes ripe — i.e., should the jury award damages against him.

    Given how much $$$ the RIAA has spent on this case already — against a pro-bono prof & his students — I imagine that finding for paltry damages might feel like a real defeat for them; I don’t think any damages will feel like a win to Charlie, though.

  4. interesting thoughts wayne. the law is is pretty weird when you get to the bottom of it, and it only likes to play by its own rules since there isn’t any other institutional body that could have it do otherwise.

    by way of example: if i recall correctly, when the astronomer’s society decided that based on their definition of what a planet was that pluto did not fit that criteria, the city of flagstaff, az (where pluto was discovered) they passed a law declaring that for the purposes of the city, pluto was still in fact a planet. you could argue until you’re blue in the face that based on the conditions of what a planet actually is and what it does that, but it wouldn’t get you anywhere no matter how much sense you were talking because pluto would still be legally defined as a planet there regardless of reality. lawyers really do seem to mostly enjoy talking to other lawyers.

    (side note: in 1898 some british law textbooks contained sir thomas more’s utopia… would be interesting to know how they were reading it, what sort of textual interpretive strategies were at work there… but just maybe this is a sign of delusions of grandeur from the british empire at the height of its powers when it seemed like their word could in fact shape reality)

    so it goes with property laws, especially intellectual property laws, one of the great absurdities of the modern era. there is probably too much money tied into the issue for anyone of influence to examine the issue soberly. it is crazy though, i’m basically free to do with my property as i see fit, including making copies of it. but as soon as that property suddenly becomes intellectual property suddenly it changes. and as you say, listening is cultural productivity… every serious music fan knows the healthiest music scenes are the ones where music is disseminating the most rapidly in the most unexpected ways producing lightning flashes of juxtapositions that express the stunning depth of this musical vocabulary of ours. yet the courts are getting used to retard vigorous musical expression all because those dynamics are less profitable for a select group of people. madness!

  5. this post has been re-blogged at p2pnet, where Ray Beckerman (who points to it there rather than here, and who declined to publish my comment on his own blog) makes the following yawn-a-riffic comment in response to my conclusion that “The big question is, I suppose, whether Joel’s judge and jury will also agree that such testimony is germane to the case.” —

    No, the “big question” is whether the court rules are complied with. If you don’t file your expert witness report on time, and follow court rules, all the high minded creativity of such “visionaries” isn’t worth 2 cents.

  6. I don’t have anything to back me up besides my membership in the human race, but as an anthropologist and a musician it seems obvious to me that music is meant to be shared. The recorded music industry is a historical accident that arose due to the confluence of technological and cultural changes occurring around WWII which tended to separate performers from audiences and reinforce the artificial idea that there was some fundamental difference between the two classes. What is happening now (in the post-album era as you mention above) is a return to the way music was thousands of years: shared, personalized, and lacking a hard distinction between consumer and performer. IMuHO, of course.

  7. Beckerman’s comment is acutely and and absolutely preposterous.

    I feel the *important* argument is about songs-as-commodities, and if they can/should be controlled. It is not about the terms of the discussion, it is about the discussion. I realize people should play fair, but this type of narrowmindedness does disservice to and dismisses what I think any ordinary person would say is the heart of the issue.

    More generally, tho, I couldn’t agree with you more. Through my experiences as a DJ I feel I’ve become explicitly aware of music as a social thing. This has probably saturated the way I think about music in pretty much every context, but it’s almost painfully obvious to me that music is about at it’s most powerful when it serves as a bridge or connection between people. Technology seems to be able to allow for that now (for instance, see youtubes+the associated comments) in a way that is really empowering for people.

    The institutions that have been built around distribution and control of music are shook. Their role in defining the way that people engage with and listen to music is dying, fast. How many layers removed is the RIAA from the heart of of what music is for many? And then how many more layers removed are their lawyers? This intense focus on procedure and proper navigation of the legal system screams of insecurity to me. We don’t need major record labels and all their fixins anymore, and deep down, they know it.

  8. Hi Wayne

    During the past 4 1/2 years I have been speaking to people from all over the country about these RIAA cases, and doing a heck of a lot of reading on the subject. As near as I can tell there are many many factual scenarios as to how p2p file sharing software can be used, some of which would clearly qualify for fair use, some of which would not, and some of which would fall into a gray area.

    Unfortunately, due to the economics of these cases, the absence of legal representation in almost all of them, and other factors, the interesting legal questions which could be raised aren’t being raised.

    To me, as a legal matter, it is overly simplistic to wonder whether p2p file sharing is or is not a fair use.

    Going off the legal subject for a moment, your expert witness report was a delightful read.

    As is your blog.

    Best regards


  9. Thanks for your comment, Ray. And for all the effort you’ve been putting into fighting the RIAA’s litigation machine. I understand that there are a great number of legal and technical issues at issue in the various cases underway, so maybe that’s what you mean by “simplistic” with regard to “fair use.” Then again, maybe a simple answer is what’s called for here, pulling the rug out from under the RIAA once and for all.

    I believe Giessel is referring to this comment —

    the “big question” is whether the court rules are complied with. If you don’t file your expert witness report on time, and follow court rules, all the high minded creativity of such “visionaries” isn’t worth 2 cents.

    And though his response may seem a tad hyperbolic, it does reflect the frustration on the part of many of us who share music in many ways and who see this legal circus as preoccupied with entirely the wrong set of questions. As a lawyer involved in cases that rise and fall on legal winds, your perspective is understandable, but perhaps it’s noteworthy that Charlie’s approach has proven so resonant. At any rate, keep up the good work.

  10. This is the only comment I recall making about your expert witness report:

    I would disagree with you that his testimony is irrelevant to any issue in the case, as I can immediately think of several to which it would be relevant. Bear in mind, for example, that the Court has expressly ruled that it will not rule summarily on either fair use or due process, and will decide those only upon a full factual record of a trial of the merits. This material would be relevant to both. There are probably others too to which it might be relevant.

    If the report had been submitted on a timely basis in compliance with the court rules, your testimony might have been permitted to be introduced at trial.

    No good is accomplished by failing to carefully adhere to court rules.

  11. You made the other comment, to which Giessel refers, on this reblog of my post at p2pnet.

    Point taken about court rules, but that point should be taken up with Charlie. He appears to have his reasons for late filings — some to do with general strategy (e.g., getting Gertner to admit consideration of fairness before filing a motion to admit my testimony, which is centrally concerned with fairness, in broad cultural and historical context), some to do with basically doing all the work himself at this point. I understand the disadvantages this poses. On the other hand, ignoring procedure is one thing, abusing it — as the RIAA continues to do — is another. Why should Charlie take all the flack?

  12. My one and only concern is the tens of thousands of other victims of the RIAA litigation campaign, who are not fortunate enough to have an entire pro bono team representing them.

  13. Just seeing these responses now…

    I’ll readily admit and agree that my comment above was hyperbolic, but I’d say Wayne correctly interpreted my meaning. I’ll leave things at that.


  14. thanks heaps for the post wayne, off to read driscoll’s thesis now, was thinking if p2p software had taxable advertising, a nice user interface and good PR the RIAA wouldn’t mind so much

    i recently had a remix of men at work’s land downunder pulled of myspace due to copyright violation and then noticed them in the courts for copyright infringement on the same track…

  15. Came across an interesting and relevant passage today, wrt listening as an inherently transformative process, in Greg Milner’s Perfecting Sound Forever:

    Like all sounds, the blast that Bonham has generated is evidence of work, but Bonham is not the only relevant laborer. Without the work that you have done with your ears, all Bonham has done is make the air vibrate. … In the one second that has elapsed since Bonham began playing, your brain has done as much work as Bonham to make the sound real. (18, 20)

    The broader context for the quotation above is an explanation of the physical and biological processes involved in hearing something. It’s a fascinating perspective for considering such questions as who owns a “piece” of music and whose labor is involved in producing it.

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