August 4th, 2009

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?


  • 1. 100dBs  |  August 4th, 2009 at 11:50 am

    i can’t remember the last time i read such an on-point and succinct summary of the crucial issues behind this maelstrom. great work.

  • 2. kariann  |  August 4th, 2009 at 12:05 pm

    Nice analysis, Wayne. Personally, I’m getting pretty sick of people like Joel being punished for all of us. (Two times in the last year I have *almost* been caught by DMCA law enforcers on the torrents, and both times it was for items that I would have been happy to purchase if they were readily available. I escaped on a mere technicality and now I am uber-cautious about my actions w/r/t copyright.) I can’t wait until the RIAA grows up a bit and accepts that they may have won the battle for now, but they have already lost the war…

  • 3. JoeRuckus  |  August 4th, 2009 at 1:07 pm

    Yes Wayne! On point. I’ve been coming round to thinking along these other-value-lines since all the post-scarcity-consumer long-tail threads started circulating a year ago.

    It’s an ongoing story (with some pretty dubious numbers, e.g. the article here) about how much sharing is supposed to be costing someone-or-other, and it’s pretty obvious that the majority of the stuff that’s worth hearing has been made by someone who’s only secondarily interested in the dollar value. I’d hazard the opinion that people who would put down their guitars / autotunes / MPCs and walk away unless they were guaranteed remuneration are the kind of artists who have their motivations in the wrong places – their overriding reason for doing what they do is about the bottom line, and so it’s pretty likely that they’re gonna make lowest-common-denominator music [economically speaking]… (Non-sequitur, I know – you could be overwhelming driven by money and still make original music; it’s just not clear why you’d bother if you could make better money more quickly and easily working from a reheated-hits template).

    But there are several buried issues there; here’s a pertinent one. It’s that y’man who’s driven by the creative urge alone still needs bread’n’water – sure, he’d pluck his KAOSS III even if he was starving, perhaps for respite or for nourishment, but that doesn’t mean that we should just let him get hungry… A new money model is still needed, even if culture is free (in the non-monetary sense).

  • 4. rachel  |  August 4th, 2009 at 2:41 pm

    I didn’t even realize how much I cared about it until the sentence came down, it really makes my blood boil, seems like terrorism. The # is just so absurd.

    Why’d they only pick 30 songs? Should have gone for all of them, lay out the whole absurd math. Like, my own hard drive trove x 22.5k = half a billion $!! I’m already in absurd debt from college, so if the older generation really wants to wipe us out /screw us a little more im a pretty good target cuz the war’s not gonna get me tho the economy/lack of healthcare might /ranttttt

  • 5. wayneandwax  |  August 4th, 2009 at 3:02 pm

    Thanks for the affirmation & further thoughts.

    @joe, i just want to be clear that the last thing i’m arguing is that musicians shouldn’t be able to live (/eat) off their art. i don’t really think that the RIAA has been providing much of a service to the vast majority of musicians on that count, tho. and if someone thinks that they’re gonna be able to “eat” purely off the copyright-controlled revenue from musical commodities, they’ve got to wake up and smell the internet. the biz is changing, and there are more opportunities than ever to get your stuff out there, heard & embraced, spread around & valued, and, if one’s lucky, one just might be able to build a viable career around this peer-based industry. lots of different models being experimented with right now, which is exciting. a lot remains to be seen…and heard.

  • 6. Nina  |  August 4th, 2009 at 3:14 pm

    Maybe you can FTP the extra file back to Amazon?

  • 7. Canyon Cody  |  August 5th, 2009 at 3:13 am

    I heard about your blogpost on Google Reader today and my first thought was, “finally journalism worth paying for”. As soon as I got home I logged onto JStor and didn’t find your article there. After more searching I found that you were letting people download it for free! It’s too good not to pay for. At least a donation? Am I able to donate something for this? Honestly, writing this good needs to be paid for!

    and I hope you know that I mean this innocuously, but what is an ethnomusicologist?


  • 8. taliesin  |  August 5th, 2009 at 3:27 pm

    i want to cry.

  • 9. dave quam  |  August 5th, 2009 at 8:30 pm

    A few things:

    1) any idea what kind of p2p sharing programs people are getting caught with the most?

    2) You can get a million whatwhats from me Wayne, thats pretty awesome of you to stand up in court. I’d love to do something like that but I know I would act a total fool in court. I’m very very bad with authorities and this wouldn’t just me getting caught drinking in public or something, but an actual important issue.

    3) I’m never buying a major label release again, unless its used.

  • 10. wayneandwax  |  August 6th, 2009 at 12:07 pm


    #3 is most important, i think. these arbitrary attacks on individuals should see the RIAA lose any of the good will that people might have had for them. plus, who ever needs to buy major stuff anyway? just turn on corporate radio for that.

    re: #1, joel got caught using several. the company that scours these nets for the RIAA, media sentry, apparently combed a lot of data from kazaa, limewire, etc., back in the day. there are torrent-crawling companies too, though i suspect torrents are a little harder to pin down than centralized sites.

    actually, the biggest hole in their data — and this was admitted at trial, though it had little effect since the damages sought were statutory rather than actual — is that they really can’t prove that anyone else might have copied the files from you. this is likely even trickier with torrents, where people are downloading fragments from several seeders rather than copying entire files — unless they subpoena your computer, i suppose, and look at your client, which they will if they can. by admitting liability, joel allowed the RIAA to bypass the entire question of what actual damages can be proven against him. can you imagine? how much of green day’s profits were actually hurt by the copies of the songs he was sharing? how would one even calculate such a thing. silliness.

  • 11. wayneandwax  |  August 6th, 2009 at 3:10 pm

    Nice interview with Joel by Ben Greenman for the New Yorker. Pull quote —

    JT: I’m not saying file-sharing is wrong. I’m not saying file-sharing is right. I’m saying that file-sharing is. And file-sharing always will be, unless we start instituting an oppressively authoritarian packet filter on the Internet, which would have enormous social harm and squander the power of the free Internet. My solution: do as Trent Reznor of Nine Inch Nails does: accept music as being free and focus on ways to motivate the consumer to want to pay for it, e.g., specialized packaging, concerts, merchandise. Most people want to pay for music when they know the revenue goes straight to the artist—for instance, Radiohead’s “pay what it’s worth” model. When an entire generation has been raised without supervision on music as a post-scarcity resource, it effectively becomes free, and it’s a little late for an incredibly small but immensely powerful minority to impose its will and alter the norms of an entire generation. It won’t work and it’s wrong to try.

  • 12. Joel Tenebaum ordered to &hellip  |  August 6th, 2009 at 10:39 pm

    […] I find someone that doesn’t (download music),” he says. Frere-Jones also points out this written by Wayne Marshall. Marshall was asked to testify as an “expert witness” for […]

  • 13. wayneandwax  |  August 7th, 2009 at 8:27 am

    Readers interested in the legislative background to this case should not miss this crucial bit of historical context, just posted to Charlie’s/eon’s blog, which suggests that the various laws/acts invoked by the RIAA to prosecute individual filesharers were never intended to be applied as such. Indeed, it appears that several senators were quite enamored of p2p tech, and Napster in particular.

    Also, given that I come across above as rather critical of the jury, I want to append a note that Charlie published on his blog today:

    coda: the jury did just what it was told to do. the jury is not to be faulted for the verdict. the fault is in the law. the jury is told what is the law and what is its duty to enforce it. This is the first constitutional hypocrisy. The Jury is the law. You are the law. Paul Neuman in the Verdict had it right.

    [update: here’s a more thorough consideration by charlie of the jury’s nullification in this case]

  • 14. That Hottness | Boston Li&hellip  |  August 7th, 2009 at 8:57 pm

    […] DJ Wayne And Wax got some praise from the New Yorker blog today for his first-hand account of testifying at the trial of Joel Tenenbaum, a 25-year-old BU grad student who was ordered to pay […]

  • 15. Kbestor  |  August 8th, 2009 at 7:19 pm

    I, too, appreciate the thought behind this report. As a freelance composer/performer who hasn’t had a record deal for over 10 years, I find myself vacillating between both camps on the P2P sharing front.

    It’s obvious to me, especially in this particular court case, that the “corporate” side of the music business is taking a heavy-handed judicial approach that really helps no one except the legal teams involved. Everything from the award amount to the courtroom histrionics was clearly meant to send another heavy-handed message. However – this message, in my opinion needs to still be sent.

    The usual answer given when the question of why should free P2P sharing should be allowed and even encouraged is usually one of “marketing” and “exposure.” Examples are cited about viral videos and mp3s propelling artists to the top of the charts after which lucrative tours and sponsorships are attained. Matt, in the this blog, even took a headier approach when he equated the word “free” with “freedom.” ” (….’“free” insofar as we the people have the freedom to access and remix and discuss it.’)

    I really take no issue with these deductions, but when marketing, royalties, and product sales are summed together into a price tag of $0 – something is wrong with the equation (especially when I don’t recall agreeing to that record deal!) Insisting that the money stream has to come from touring or other ancillary streams is to take away the choice that some have made to be “studio artists” who make money primarily from product sales.

    Many proponents of free and legal P2P sharing hold up a picture of the big corporate monster aka Sony, Universal, etc. Some of us have never had significant record deals and we abhor the actions of these record companies just as much as you consumers. All we want is to bypass them, offer our products at a cheaper rate and enjoy some modicum of financial and creative success.

    It seems that most of the arguments on either side are “All or nothing” rather than some kind of regulated, but free-market compromise – be it a “pennies-per-click” kind of model, subscription based services, etc. Just because music can more easily be disseminated online doesn’t mean that song ownership goes away (unless the creator agrees to this.)

    This trial was a charade and a chest-beating exercise by the RIAA, but, for me, the point it raises still needs resolution.

  • 16. Kid Kameleon  |  August 10th, 2009 at 11:50 pm

    Whatwhat Wayne! I hadn’t checked in in a while and I had heard that trying rip the video was struct down for being infringing and non-fair. I had no idea that you were the one potentially doing the infringing!

    Thanks for the thoughts and your roll (and of course Charlie’s and everyone else’s) in the case, ya speak truth.

  • 17. ghis  |  August 11th, 2009 at 2:26 am

    Very good post Wayne !

    That trial is such a joke. A really bad one.
    I can already see a play at the theater about it. It will really show to the public how the whole thing /trial /RIAA is so absurd.

    Who wanna write it ?

  • 18. wayneandwax  |  August 11th, 2009 at 8:59 am

    Thanks for chiming in, y’all.

    BTW, a pretty good piece in today’s NYT, offering one of the more even-handed, perhaps even sympathetic, accounts of the defense:

  • 19. Biggs  |  August 15th, 2009 at 2:02 am

    Glad you added that NYT article, I think it has really important details of the case that were missing from the post. Namely:

    “The $675,000 result could have been avoided by paying $4,000, the amount the industry demanded before trial. The 30 songs can be bought for less than $30.”

    So correct me but, the real argument is over $4k – not outragous if you think how many people could have shared those 30 songs at $1 a piece, because if he were to win the case than the industry wouldnt be able to sue others for $4k, Am I wrong?

    Why did he want to contest the law suit knowing this ahead of time? He didn’t think he was guilty or? I mean I had total sympathy with him before I read this article, but now its like he decided to go on the stand and say he was guilty and expect the jury to decide how?

  • 20. the music of sound »&hellip  |  August 15th, 2009 at 7:49 pm

    […] US$675,000!?!) and later on reading observations made by someone actually involved in the case as a technical witness. I linked to the latter on twitter and was asked soon after what my thoughts were by a fellow […]

  • 21. Ben Jones  |  August 16th, 2009 at 9:34 am

    erm, kbestor, you said “Insisting that the money stream has to come from touring or other ancillary streams is to take away the choice that some have made to be “studio artists” who make money primarily from product sales.”

    110 years ago, there was a similar situation. I’ll use your phrasing to explain the situation. “Insisting that the money stream has to come from mechanical knowledge or other ancillary streams is to take away the choice that some have made to be “livery stable owners” who make money primaraly from caring for horses.

    Then as now, technology moves on, old choices die, new ones are made. Would you give up your car or motorbike now, to ride a horse everywhere? no? What about all those poor saddlers and livery stables, and horse-holders, and the entire equine industry that suffered because of technology? I can choose to be a livery stable owner now, I won’t make much. I can still make that choice though. Or I could choose to be a Dunnykindiver. Except with the advent of plumbing, that job is *ahem* ‘not worth sh*t’.

    And don’t forget the liner industry, when air travel came out, railways too for that matter (at least for passengers).

    The right has still there, however technology has moved on. Jobs and businesses become obsolete, that’s life. Adapt and move on. Unless of course you defecate in a bucket, communicate via telegraph, ride your horse everywhere close and use rail and ship for longer distances. The only difference between the copyright industries, and those now vastly depreciated ones, is they never paid off the politicians as much, or maybe the politicians now are just stupider than back then.

  • 22. wayneandwax  |  August 18th, 2009 at 10:31 am

    thx to all for keeping the convo going and adding your comments. adding diverse perspectives to the debate can only help, long as we keep it semi-civil here.

    @Biggs — the whole point of Joel fighting the RIAA rather than settling (although he did attempt to settle early on, but for less than they would accept) is that Joel — and others, Charlie and myself included — thought it was totally unfair and outrageous for the RIAA to be sending these threatening letters, forcing people either to settle for a significant sum (generally 3-5k) or to undergo years of legal torture at the hands of commercial law firms. In this sense, the whole campaign against filesharing by the RIAA seems like an unconstitutional application of legal force against individuals. Why should any one downloader, esp/even one like Joel, have to pay such absurd statutory damages? Why should they have to settle? Why does the RIAA get to randomly bankrupt people in lieu of finding a working biz model?

    The point is that, yes, he was guilty of clicking on some songs and storing them on his hard drive and sharing them with others (potentially; this was not proven). But does that sort of “guilt” really make him liable for this level of punishment?

  • 23. Biggs  |  August 19th, 2009 at 2:41 am


    point well taken, his punishment is nauseating and I have conflicted feelings about the issue. 22k a song + abuse of legal force is ripe for a counter-suit, definitely not defending them on that end. But on weather they should have the right to sue for $3k.. tougher. If he had won the ‘fair use’ case what would have been the outcome as regards to laws or future cases on file sharing?

  • 24. wayneandwax  |  August 19th, 2009 at 9:38 am

    A civil action countersuit may yet be forthcoming. The problem with wondering whether $3k would somehow be fairer is that it’s pretty much a hypothetical exercise: once the jury is instructed to assess statutory damages, we’re taking a minimum of $750/per; of course, the jury DOES have the power to return whatever verdict/numbers they decide to be just, but they don’t generally know that & judges’ instructions often amount to nullifying the jury’s power.

    If the judge had allowed a defense on issues of fair use, it’s interesting to imagine what the consequences would be. If a jury found that non-commercial filesharing by individuals was protected as a fair use of audio recordings, it could essentially bring back legal napsters (or, better, bring torrents more into the open). I’m sure, though, that there would be quite a lot of legal battles around that question. Judge Gertner ruled (at 1:37am on the day the trial began) that a fairness consideration would “swallow the copyright protections that Congress has created” and I suspect a lot of people might agree with her, though I think she’s wrong; the balance should be on the side of fair use. The system is quite backwards on this count, not surprisingly it favors of the proponents of propertizing everything.

  • 25. Guillaume  |  August 24th, 2009 at 11:25 am

    Hey Wayne,

    Just finished to read that post and wanted to thank you for being what we could call in french “agitateur d’idées”, an idea shaker as well as an idea rioter. I’m frustrating and excited right now. Frustrated to not be able to think through these topics as much as I would like to (time issues) and excited because I truly believe that the opposition between IP and public domain in the US could very well be our exit door to corporate culture, if we manage to turn this upside down. I mean, Monsanto’s raid on putting patterns on genes is probably the most terrible and terrifying thing that is happening right now and it’s all about IP laws. The idea that there’s no more Nature outhere as well as no Public Domain is at the basis of what you call Corporate Enclosure. Which ways do we have to engage into a Corporate Declosure?

    thanks again

  • 26. » S&hellip  |  October 5th, 2009 at 7:05 pm

    […] or in my attempt at non-legalese: they’re asking the judge, rather than entering the judgment recommended by the jury (which, interestingly enough, she has yet to do), to fundamentally reconsider the validity, […]

  • 27. wayneandwax  |  October 22nd, 2009 at 3:24 pm

    Just taking some notes here, folks; this passage from Jonathan Sterne’s essay, “The mp3 as cultural artifact,” seems to connect quite well with Cory Doctorow’s ideas, referenced above, about value and pricelessness, so I thought I’d bring them in–

    Use-value, first identifed by John Locke (1692) and elaborated by Karl Marx and others, is a perspective on value which treats commodities in terms of their actual
    utility. Exchange-value, meanwhile, is the market value of a commodity.
    While this would appear to be an arbitrary relationship, Marx argues –
    following Adam Smith – that exchange-value is actually based on the labor
    required to make the commodity, once that labor is exchanged for money
    which in turn can be traded for the commodity (Marx, 1967[1867]; Smith,
    1993[1776]). Thus, we have a bifurcation of value: use-value, which is about
    the work of expenditure; and exchange-value, which is about the work of
    creation. Most interesting for our purposes is the relationship of exchange-
    value to music. In his romantic and polemical book on music, Jacques Attali
    argues that sound recording occasions a shift from use-value to exchange-
    value in music:

    We must not forget that music remains a very unique commodity; to take on
    meaning, it requires an incompressible lapse of time, that of its own duration.
    Thus the gramophone, conceived as a recorder to stockpile time, became
    instead its principle user. Conceived as a word preserver, it became a sound
    diffuser. The major contradiction of repetition is evident here: people must devote
    their time to producing the means to buy recordings of other people’s time, losing in the
    process not only the use of their time, but also the time required to use other
    people’s time. Stockpiling thus becomes a substitute, not a preliminary
    condition, for use. People buy more records than they can listen to. They stockpile
    what they want to find the time to hear. Use-time and exchange-time destroy one
    another. (Attali, 1985: 101; emphasis in original)

    One can see the problem immediately with mp3s in Attali’s formulation:
    usually, people do not buy them. Attali argues that recording substitutes
    exchange-value for use-value because people do not have the time to listen
    to all of the recordings that they may buy. Yet compared to the number of
    mp3s freely given and received through file-sharing, few meet the basic
    definition of exchange-value: they are not paid for and therefore do not
    require as much labor (in exchange for a wage or salary) to procure.
    Further, the exchange itself does not deprive the original owner of the file’s
    use. The peculiar status of the mp3 as a valued cultural object which can
    circulate outside the channels of the value economy is one of the
    fundamental, enabling conditions for the intellectual property debates that
    surround it. Epochal proclamations are tempting when confronted with this
    state of affairs: one could say that if recording shifted music from use-value
    to exchange-value, then digitization in the form of the mp3 liberates
    recorded music from the economics of value by enabling its free, easy and
    large-scale exchange.

    Of course, it’s obvious that the exchange of mp3s as a cultural practice can serve to accrue “value” — a la social capital — for their (cool, cachet-having) circulators, not to mention for the songs/tracks themselves (and their creators). Moreover, as Sterne continues, there are additional layers of value swirling around mp3s:

    In use, mp3s can seem a bit like mollusks without their shells – recorded
    music without the commodity form – since generally they are not
    exchanged for money. One response to this condition would be to consider
    the internet as a gift economy, as Richard Barbrook (1998) has done so
    elegantly and provocatively. But if the mp3s are mollusks free of their shells,
    they still need air and water: listeners must still pay for the descendents of
    the gramophone and the record dealer: computers, speakers, internet
    connections (or membership in institutions such as universities that provide
    access to such things) and possibly other playback devices such as Rios or
    iPods. Further, most of the recordings now available in mp3 form once lived
    in a money economy, paid for by record companies (or less often,
    independent musicians) who in turn put them up for sale in the hope of
    realizing a pro?t. Thus, whatever side we take in the debates over
    intellectual property and digital rights management, the question of value
    persists. If for no other reason, we know this because users continue to
    desire, collect, stockpile – and yes, use – mp3s.


I'm a techno-musicologist, internet annotator, imagined community organizer.

I left my <3 in the digital global, but I reside in Cambridge, MA, where I'm from.

I represent like that.

wayne at wayneandwax dot com

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