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Category Archives: new media

My presentation on the Industry Studies and/as Audience Studies panel #k19 at the 2014 Society for Cinema and Media Studies conference.

One set of intellectual-property scholars defends sampling in music, calling for expanding fair use to encompass all acts of sampling and arguing that we should do away with licenses and payments for such samples (Schumacher 1995, Vaidhyanathan 2003). This position tends to support sampling as a form of creativity in hip hop that’s grounded in African-origin practices and notions of creativity that should be seen as valid rather than marginalized by the currently hegemonic Western notion of the Romantic author who produces a unique creation out of his individual genius.

Another approach to musical reuse points to the history of white appropriation of both the African American blues tradition (Hesmondhalgh 2006, Vaidhyanathan 2003) and indigenous music (Feld 1988, Seeger 1992). These authors tend to argue for more protection against reuse rather than less, including the need to get permission and provide payment.

At least in my reading so far—and I freely acknowledge I’m early in this project—generally these two arguments happen in parallel (even with Vaidhyanathan who makes both). However, as is my wont, I think the answer to this either/or framework is “Yes.”

Reuse of existing musical material in new work is BOTH a valid way to produce new creative works that should be allowed and protected AND a new instantiation of old practices of cultural theft. This is because the same practice means something different depending on who does it (and so maybe isn’t “the same” after all).

That is, we have to think about and take seriously the social structures that condition the action of reuse and position the people who do it. In other words, I don’t think it’s a coincidence that 2 Live Crew provides foundational court cases for both Critical Race Theory and copyright scholarship. Nor is it just happenstance that in the 1991 case Grand Upright Music, Ltd. v. Warner Bros. Records Inc., the judge admonished Biz Markie “Thou shalt not steal” (Brennan Center for Justice 2005, Tushnet 2004)

2 Live Crew’s obscenity case (written about by Kimberlé Crenshaw in “Beyond Racism and Misogyny: Black Feminism and 2 Live Crew,” to which I can’t find a web link) and their copyright case Campbell v. Acuff-Rose Music, Inc., and the Biz Markie case all take place against a cultural baseline that tends to assume African-American criminality. While probably this was not conscious in any of the cases, it’s never absent.

When black people reuse snippets of someone else’s work, it’s “theft.” When white folks like the Rolling Stones or Eric Clapton copy blues sounds or Moby samples blues recordings, it’s “homage.”  This of course reminds me of post-Katrina “looting vs. finding,” but also local arguments here at the U of I about the Chief Illiniwek mascot “honoring” Native Americans: “Let me honor you! Let me tell you what honors you!”

There’s something very important here about using cultural aspects of people who do or don’t otherwise get to speak for themselves. This could be literal, as in the case of people who are dead, who don’t speak English, or who—like Seeger’s example of the Suyá who aren’t legally considered adults or persons by the Brazilian government—don’t have recognized standing and therefore don’t tend to be asked.

More often it’s a figurative inability to speak for oneself–the yawning gulf between people with and without the cultural, economic, and legal wherewithal to assert and defend ownership over their creative products. It raises the question, as Hesmondhalgh’s piece frames it: Who gets to be an “artist” being “copied” and who’s just raw material?

Part of this also goes back to the kinds of things I was talking about in Fandom, public, commons about individual authors being both easier in general and built into Western notions of Romantic authorship in particular.

But I also think we have to think these two things at the same time, to ask: When is it one and when is it the other? The project I’m starting now seeks to look at specific cases and the power dynamics of reuser and reused that they embody. I want to examine the role the reused piece plays in the new object—does it invoke the original’s Benjaminian aura, does it comment on the original, does it simply trade on familiarity? Those are all really different, and they need to be teased out case-by-case.

Thus, as I did with the cultural meaning of fandom in my dissertation, I want to get at the big picture of what it means to reuse musical works in the contemporary moment by building a mosaic of close readings of specific reuses. The vitally important foundations provided by both the “more reuse freedom” argument and the “more reuse control” argument give the sense of general trends as “X structure produces Y.”

This opens up the possibility I want to use, to ask: What about this reuse? Or this one? How are these two musical artists positioned in relation to each other? When we look at the trends across all those individual reuses, what do we learn about intellectual property law, economics, creativity, identity, and social inequality in the contemporary moment?

And speaking of my dissertation defense, here’s the Prezi for that for those who were unable to attend, since I wasn’t able to have it streamed or live-tweeted.

Nothing useful rhymes with arms; I checked.

This week’s post is of course about the revelation of the United States National Security Agency’s PRISM program. But more particularly, it was inspired by two things.


First, a tweet (which I got via @kouredios):

Second, I got a petition from feminist organization UltraViolet via the clicktivism platform entitled “Hacker Who Helped Expose Steubenville Could Get More Prison Time Than The 2 Convicted Rapists.”

Put alongside the petition  in support of PRISM leaker Edward Snowden, who is apparently “in hiding on the other side of the world because he rightfully fears for his safety — and he says he never expects to see home again,” this all got me thinking.

Both Steubenville hacker Deric Lostutter and Snowden took action to expose wrongdoing, and they are being criminalized for doing so.

The idea that exposing malfeasance is a crime has gotten a great deal of traction in the national security conversation since at least the Bradley Manning/Wikileaks moment. Both The Atlantic and The Guardian characterize the Obama Administration’s crackdown on whistleblowers as unprecedented.

The statement from Director of National Intelligence James Clapper that “The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans” certainly participates in this logic of whistleblowing as crime.

A second petition for Lostutter from Credo Action notes that he “was recently targeted by an aggressive FBI raid for his participation in bringing that evidence to light. A dozen agents with weapons confiscated computers belonging to Lostutter, his girlfriend, and his brother, while putting him in handcuffs outside his home,” and certainly the disproportionate and public response looks like a warning to other potential well-intentioned hackers as much as anything.

However, despite this stance on the part of the administration—and members of Congress (Speaker of the House John Boehner called Snowden a traitor, according to RootsAction)—there are important reasons not to see whistleblowing as a crime but more in line with McDonald’s framing above as a vital way to keep the government in line. Certainly one mitigating factor against calling the release of classified information criminal or treacherous is that “the government has been systematically over-classifying information since 9/11” (Rebecca Rosen in The Atlantic)

It’s clear that this is in fact “a secrecy binge,” as Bruce Schneier framed it in The Atlantic, rather than a legitimate act of national security from the fact that “we learn, again and again, that our government regularly classifies things not because they need to be secret, but because their release would be embarrassing.” It seems obvious that exposing things that shouldn’t have been secret shouldn’t be a crime.

However, even if the secrecy serves a purpose other than humiliation-avoidance, there may still be a case to be made for releasing it under the right to know inherent to a democracy. Schneier again: “democracy requires an informed citizenry in order to function properly, and transparency and accountability are essential parts of that.”

Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, wrote a blog post that called for 

public hearings on this scandal so that the American people can find out exactly what our government is doing. Congress should convene something like the Church Commission, which investigated illegal surveillance of civil rights and anti-war groups, to learn how the government conducts secret surveillance and what it does, if anything, to protect the privacy of American citizens.

This is particularly vital in light of what appear to be efforts precisely to avoid oversight. People would, Daniel Solove argues in the Washington Post, “be fine giving up some privacy as long as appropriate controls, limitations, oversight and accountability mechanisms were in place.”

However, “we know that the NSA has many domestic-surveillance and data-mining programs with codenames like Trailblazer, Stellar Wind, and Ragtime — deliberately using different codenames for similar programs to stymie oversight and conceal what’s really going on” (Schneier).

It may well be “entirely legal,” as Clapper says, but we don’t really have any way of knowing that with the information available to us. And even if it is legal, I don’t think that this is what people thought they were signing up for in the post-9/11 surveillance-approval frenzy. As Mike Masnick put it at Techdirt, “those in power keeping screaming “terrorists!” to get Congress to pass these laws, and then everyone’s shocked (shocked!) when the government goes and does what Congress and the courts have specifically allowed.”

However, Masnick goes on, “the ‘good news’ in all of this (if there is any good news) is that if it’s true that everything that was done didn’t actually violate the law, then we just need to fix the laws” if we think this isn’t legitimate. But we cannot do that without knowing how the laws are being interpreted currently.

It is this right to know, vital to democracy, that leads to McDonald’s desire in the above-quoted tweet to frame leaking in terms of the more well-known American ideology about how democracy is preserved, the second amendment. This is actually a very interesting parallel given that both anti-surveillance and pro-gun partisans deploy the Benjamin Franklin quote “they who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

The difference between the two positions is in believing in government process. If knowledge is enough, public opinion can rein in government excess or oversteppers can be voted out of office. The pro-gun position seems to foresee the full dystopian scenario requiring force of arms. Even in their distrust, lefties trust the government more.

The absurdity of fighting the world’s most powerful military with civilian-grade weapons, even assault rifles, notwithstanding, I don’t think we’re likely to replace gun rights with leaking rights—cold, dead hands and all that.

But I think the right to leak—which Schneier framed as a duty to leak—is an excellent twenty-first century supplement to push back on government overreach.

Next week, because apparently two-parters are a thing I do now, ends vs. means in PRISM and leaking.