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.