Bearing Witness, or Not – Part 3

As many of you may have heard, the trial concluded on Friday with the absurd award of $675k in statutory damages to the RIAA — in other words, Joel Tenenbaum, a 25 year old physics grad student, was found liable, at the whopping cost of $22,500 each, for the willful infringement of the copyrights to 30 songs he downloaded and shared on p2p networks during college.

That’s a pretty odd figure, $22,500, the result of some weird math, for sure. It appears the jurors were divided and so “compromised” on a number that lands between the statutory minimum of $750-per (which would make for a total of $22.5k) and the maximum of $150k-per (for a total of $4.5M). So maybe the jury did something like this: let’s take the minimum total and apply that to EVERY act of infringement instead of all of them together. Or maybe they just hit X30 on the calculator twice. Or filled out the form incorrectly. I dunno. But I still find it hard to believe that a jury would find $675k a “just” amount to fine an individual being sued by a group of corporations. That just seems ridiculously unfair and outsize. But so it goes. To put it bluntly, Rasta, the shitstem muddup.

Although, as I mentioned, I didn’t get to testify as an expert witness, I did eventually take the stand as a “fact” witness. The facts that I demonstrated were rather simple: that one could buy an mp3 of any of Joel’s 30 songs via Amazon as well as find them streaming on YouTube. Had he his druthers, Charlie’d have wanted me to be able to demonstrate more than that, I’m sure, and to talk more about the cultural context of filesharing, but that was not to be. The plaintiffs’ lawyers objected strenuously to any questions that strayed from this simple demonstration, including the seemingly innocuous “What is an ethnomusicologist?”

Given that Charlie had been ruffling the plaintiffs’ and judge’s feathers for months — including during the trial itself — I actually had to take the stand twice: once without the jury present, to make sure that Charlie “behaved himself” and didn’t introduce any “prejudicial” / “immaterial” / non-“fact”-astic testimony, and a second time with the jury back in the room. I don’t know how unusual that is, but a couple of funny things emerged from the process.

First, a little background on why Charlie might want to call me as a fact witness to demonstrate something so straightforward. I’m sure he had plenty of reasons, actually, including putting my sympathetic face and voice on the stand (I kid you not). Mainly, though, Charlie wanted to show how easy it is, today (as opposed to when Joel was first filesharing), to legally purchase any of the mp3s in question, DRM-free to boot. (We used Nirvana’s “Come As You Are” as the example.) He also wanted to show how easy it remains to acquire an mp3 for free.

not the official, unembedable instantiation obv

The funniest moment came during an attempted demo of the latter (during the voir dire portion of the proceeedings, i.e., before the jury joined us). After showing the judge, plaintiffs, and observers how easy it is to find “Come As You Are” on Amazon and purchase an mp3 (with just 1-Click®!), Charlie asked me to find the song on YouTube. Notably, the top return for “Come As You Are” is the official instantiation of the (non-embeddable) video c/o universalmusicgroup. Further making his point about the current state of the legal mp3 biz, right away an ad popped up at the bottom of the video offering links to Amazon or iTunes to purchase the song as an mp3.

Charlie asked me, however, to go a step further and show how one might extract the video or audio from the YouTube page. So I quickly navigated to and pasted the URL into the input field. At this point, lead plaintiff lawyer for the RIAA, Matt Oppenheim practically leaped out of his seat. He would not allow his client’s copyright to be infringed right there and then! Charlie said that this was a clear case of fair use, as we were in a courtroom of the US government, but that wasn’t good enough for the judge or Oppenheim, so he relented. But, really, the utter silliness of the seriousness! These guys are jokers and don’t even know it.

The second funny thing was that I was actually asked to log-in to my Amazon account in order to click-thru the purchase of the “Come As You Are” mp3. In a rare moment of levity, Oppenheim said he was more than happy to let his clients benefit from my $0.99 purchase. I registered a slight objection at this, noting that I had bought Nevermind on CD back in the 90s and shouldn’t really have to buy this song twice. But it turns out, I eventually had to buy the song thrice, for I was asked to click through again with the jury present! Don’t ask me what I’m going to do with two mp3 copies of “Come As You Are.” Actually, feel free to suggest possibilities! I was thinking about some sort of absurd duplicate-file art-project. A redundant mashup perhaps? Would that be a fair use? Even if an inaudible transformation? (Certainly as parody and critique, no?)

Given that the chips were strongly stacked against them — that, among other things, they couldn’t argue fair use or encourage jury nullification — I give Charlie and Joel credit for going all-in anyway. Their only real defense, after Joel admitted “liability,” was that they had no defense but that Joel did nothing wrong and that the truly un-fair dimension of this lawsuit is the application of corporate pressure and commercial law to Joel’s life and the arbitrary choice to bankrupt him as a lesson to his millions of peers. All things considered, I thought Charlie’s closing argument was really quite eloquent; he danced around the issue of nullification gracefully as he attempted to tell the jury that it was fully in their power — and instructions — to reach a “just” verdict. I’m sorry that you can’t hear & see it for yourself, but that’s another issue.

I have yet further thoughts about witnessing in this case, and others like it. But I’m going to have to save those for a separate post (part 4?). I’d like to round these thoughts out, however, with a brief reflection on the question of musical value in our day & age.

Let me begin with one of the more notorious and obviously “unexpert” opinions offered by economist Stan Liebowitz (one of the plaintiffs’ witnesses). John Palfrey reported it thusly,

This starts to get us toward some notion of musical value, if — for me and many others — a rather specious and ignorant idea of what constitutes the “good.” In dismissing this bizarre opinion, which really should not have been uttered in that courtroom, we need go no further than this lovely rejoinder I received when I retweeted Palfrey’s quotation —

Can we really place the value of a song at $22.5k? I guess in some abstract sense we might contend that Nirvana’s “Come As You Are” is worth that much; Incubus’s “New Skin,” on the other hand, I’m not so sure about. I jest, of course, kinda. The truth is that these songs can’t really be assigned any sort of rational value, but rather than that making them worth nothing, that actually makes them priceless. As Cory Doctorow observed in a recent review of Chris Anderson’s Free, albeit with regard to so-called “amateur” culture rather than “professional” —

Though Anderson celebrates the best of non-commercial and anti-commercial net-culture, from amateur creativity to Freecycle, he also goes through a series of tortured … exercises to put a dollar value on this activity … But for the sizeable fraction of this material – and it is sizeable – that was created with no expectation of joining the monetary economy, with no expectation of winning some future benefit for its author, that was created for joy, or love, or compulsion, or conversation, it is just wrong to say that the “price” of the material is “free”. The material, is, instead, literally priceless. It represents a large and increasing segment of our public life that is conducted entirely for reasons outside the marketplace. Some of the supporting planks may be market-driven (YouTube’s free hosting), other parts are philanthropic (’s free hosting), or simply so cheap that creators don’t even notice the cost (any one of the many super-cheap hosting sites).

Public culture is free culture — not so much “free” in the monetary sense, though it is often that too, but “free” insofar as we the people have the freedom to access and remix and discuss it. If you put it out there, you’ve got to let it be out there and be prepared to watch it swim through the currents and cross-streams of culture. The academic “jury,” as we’d have it, is still “out” with regard to the impact of freely circulating mp3s on the livelihood of musicians, despite what the Stan Liebowitzes — shudder the thought, but he represents a plurality of sorts to be sure — of the world might assert as “expert” “fact.” See, e.g., this dissenting study.

Or take for example the recent case of a “viral” wedding video propelling sales of a year-old Chris Brown track. This calls our attention, quite clearly, I think, to the fact (if I may) that the value of a musical thing (if you must) does not so much inhere in that thing itself but accrues according to how people make use of it. Media scholar Henry Jenkins calls this spreadability, and his persuasive research is largely the reason I put “viral” in quotes back there. Referring to such phenomena as “memes” and “viruses” removes all the crucial agency involved in making something popular and meaningful and valued (and, I suppose, valuable). It misses out, as Siva said, on “how culture really works.”

If you’re a musician who disagrees with this and demands payment for every use of your “IP”-protected commodities, well, have fun playing your songs over in the corner. And don’t expect, if you’re hustling your wares out here in the open, that you won’t be treated with the disdain that so many salesmen can engender (never mind fatcat middlemen).

Thanks to the unprecedented access to powerful tools of production and connection, truly popular culture is now fully participatory culture. The kids are all right (myself included, if I may). We’re just sick&tired of mainstream monoculture and corporate enclosure. Despite attempts to insert their cultural products into every nook&cranny of social and personal life, the stuff of the RIAA and MPAA is but a narrow slice of global cultural production today. (Among other indicators, and this only at an industrial level, Hollywood recently fell to #3 in production behind Nollywood; it had long been eclipsed by Bombay’s industry.) I couldn’t tell you the last time I went to the movies or bought a CD. But I’m swimming in stuff to watch and listen to and comment on and rework as never before. What is happening is that THE culture industry — a fleeting institution really, if you take a long view — is being replaced by cultural industry writ large: namely, peer-oriented production and interaction. Observing all the activity on YouTube and imeem and MySpace, et al., disregard for copyright hardly seems to be removing “incentive” for making music and video and dance, etc.; on the contrary, we bear witness today to perhaps a greater degree of “amateur” production (i.e., people doing it mainly for the love) than ever before. Even if the amount of activity has remained a constant — though I suspect cultural production took something of a hit with the 20th century’s read-only culture (not that reading isn’t an incredibly rich and productive cultural domain of its own) — we are able to bear witness to it at an unprecedented level thanks to socially networked media, digital tools, and broadband access.

And a lot of this activity — much of which is the focus of this blog and its brethren&sistren blogs — is so unvarnishedly dope (despite what certain uninformed experts might proffer), that hi-fi industrial bling has been revealed to be but one aesthetic among many — not a question of “as good as” at all, just a way of hearing, all shiny-like, how certain sound objects embody a particular economic-ideological-historical mode of production.

Joel is not the best poster boy, by a long shot, for what I’m talking about here. But he found himself riding the wave of digital youth culture during a transitional period (in his life, the life of the net, of popular culture, & of music industry), and he should not have to pay such a price for surfing along.

Can I get a whatwhat?