Author: bradevanrosen

ACTA: Globalizing the DMCA – by “Elie C”

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Arrr, YouTube! Where be my videos??

Although the public has been denied access to negotiations (note: RIAA and MPAA don’t count as ‘the public’), drafts of the ACTA’s internet enforcement section leaked online last week, providing a chilling glimpse into the covert negotiations among world leaders and the possible future of global internet policing. Introduced by the US Administration in 2007, the Anti-Counterfeiting Trade Agreement (ACTA) proposes making ISPs liable for content that subscribers transfer using their networks, forcing ISPs to “operate “automatic technical processes” to detect copyright-infringing activities.” While section 512 of the DMCA already establishes third party liability in the US, the ACTA extends the liability of intermediaries beyond notice-and-takedown to possible Deep Packet Inspection (bye bye net neutrality?) to the contentious three-strikes rule (which France passed in 2009, banning three-time accused file-sharers from the internet),  thus exacerbating and spreading shortcomings of the DMCA internationally – namely the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates.

The current digital gatekeeping model established by the DMCA promotes a ‘shoot now, ask questions later’ approach to handling allegations of copyright infringement. While the DMCA imposes the burden of proof on copyright holders and outlines the necessary elements to a notification of copyright infringement, the court found in ALS Scan, Inc. v. Remarq Communities, Inc. that copyright owners do not have to identify all infringing material (“imperfect notice”), thus shifting this responsibility to service providers. Although the complaint of infringement does not prove that infringement took place, the DMCA allows ISPs to takedown content without investigating whether the material was truly infringing before taking it down, thereby shifting the burden of proof onto subscribers.

The only recourse that subscribers have is filing a counter-notice of a “good faith belief that the material was removed or disabled as a result of mistake or misidentification…” Intermediaries risk losing their safe harbor if they do not take down infringing works whereas the consequences of wrongful takedowns amount to little more than disgruntled bloggers. In practice, there is no enforcement of fair use considerations prior to takedowns; section 512 of the DMCA explicitly imposes burden of proof on copyright holders, but third party provisions ultimately shifts the burden to subscribers.

Need to brush up on copyright law? Check out this video before it’s taken down…

As the amount of information online far exceeds copyright holders’ ability to monitor the dissemination of their works, they are becoming increasingly reliant on targeting internet hubs managed by intermediaries. In turn, intermediaries like YouTube are going “well above and beyond our legal responsibilities” by turning to automated technologies to keep up with this inundation of user-generated and uploaded content; its ContentID system enables copyright owners to automatically identify their works in YouTube hosted videos, and subsequently monetize, track or block the content. Technology that automatically screens for the presence of copyrighted material inevitably steamrolls over fair uses in favor of ease for copyright holders and intermediaries. As a standard rather than rule, fair use cannot be identified by an algorithm (real lawyers have enough trouble accomplishing that as it is) and technologies such as ContentID will further contribute to mass takedowns, leaving subscribers guilty until they prove themselves innocent.

Gatekeeping is the new Boston strangler – by “Brian W”

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In the early 1980s when the MPAA was trying to stop Sony from distributing the VCR, Jack Valenti was quoted saying:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

We all know that if anything, the VCR only helped the movie industry rather than destroy it. Today, it wouldn’t be much of a leap to assume that the MPAA—along with the RIAA, Viacom, et al—would again compare a new technology—YouTube—to the Boston strangler.

Similar to the initial reaction of the VCR, Viacom and other media corporations are pushing against new trends in content creation and distribution which seems to be creating a strange distance between their original intentions—to promote and profit from the media they produce. For instance, the band OK Go—the one that basically became famous when they released this video on YouTube—recently released a new album with a couple videos. However, this time around the record label disabled the ability for users to embed and share the video on other websites. Due to the popularity and viral quality of the first video fans were curious as to why the same feature that practically made the band  famous had now been disabled. Eventually, the band wrote an open letter to the fans explaining the situation, here is an excerpt:

See, here’s the deal. The recordings and the videos we make are owned by a record label, EMI. The label fronts the money for us to make recordings – for this album they paid for us to spend a few months with one of the world’s best producers in a converted barn in Amish country wringing our souls and playing tympani and twiddling knobs – and they put up most of the cash that it takes to distribute and promote our albums, including the costs of pressing CDs, advertising, and making videos. We make our videos ourselves, and we keep them dirt cheap, but still, it all adds up, and it adds up to a great deal more than we have in our bank account, which is why we have a record label in the first place.

Fifteen years ago, when the terms of contracts like ours were dreamt up, a major label could record two cats fighting in a bag and three months later they’d have a hit. No more. People of the world, there has been a revolution. You no longer give a shit what major labels want you to listen to (good job, world!), and you no longer spend money actually buying the music you listen to (perhaps not so good job, world). So the money that used to flow through the music business has slowed to a trickle, and every label, large or small, is scrambling to catch every last drop. You can’t blame them; they need new shoes, just like everybody else. And musicians need them to survive so we can use them as banks. Even bands like us who do most of our own promotion still need them to write checks every once in a while.

http://okgo.forumsunlimited.com/index.php?showtopic=4169

It seems odd to me that this would be the label’s solution to the problem. You would think based on the effectiveness of the original video and how widely it was shared the label would embrace this aspect of distribution rather than lock it up. OK Go argues that the reason they do this is because they need to make money via ads which doesn’t happen when the video is embeddable on other websites. However, I would argue that more often than not users watching embedded videos on other websites tend to end up on YouTube at some point within that session anyhow. Furthermore, allowing a video to be embeddable creates an opportunity for exposure via blogs, forums, and other social media. After all, their video for Here it goes again—which was embeddable—had “50 zillion” hits on YouTube so obviously users aren’t abandoning the original source when watching these embedded videos. Ironically, the letter ends with the source code to embed the video through Vimeo which doesn’t make a whole lot of sense to me. Anyone?

In the Viacom v YouTube complaint the main argument is that YouTube was intentionally making it increasingly more difficult for copyright holders to find uploads that infringe on their works because YouTube profits off of the popularity of these works via web advertisements. This claim ultimately led to the implementation of YouTube’s automated ContentID system.

It seems that this system goes completely against Judge Jeremy Fogel ruling that fair use must be considered before take down notices are sent in order to counterbalance misuse. Browsing YouTomb and reviewing Chilling Effects letters from the RIAA shows that these corporations are abusing their power structure to scare users out of what might otherwise be rightfully theirs. Furthermore, I’m curious as to how this algorithm works and how precise it is. What happens when an artist samples a portion of another artist’s song verbatim, legally? Is it possible that this technology would wrongfully take down the artist’s works? This all comes back to the basic principle that these situations are based standards and not rules. Only human beings can assess context and other factors that are less quantitative. Automated processes simply do not work and seem counterproductive to the artists—the group that these laws allegedly protect.

Can the Government Really Save You From Yourself? – by “Thad D”

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Court Photo
The Plaintiffs Appear in Court, Represented by the ACLU

On January 15th, 2010, the case of Miller v. Skumanick continued in the Third Circuit Court of Appeals.  For those of you unfamiliar with the case, in Pennsylvania, Tunkhannock School District officials discovered cell phone photos of high school girls posing “provocatively” in late October 2008.  The two photos discussed in Miller’s suit involve one depicting a teenager with a towel wrapped around her waist and her breasts exposed (like she just took a shower), and another depicting two girls in training bras making “peace signs” for the camera.  School officials handed the cell phones over to the office of the District Attorney, George Skumanick, who decided to meet with all students involved and offer them a deal: either they would take an education course or face prosecution on charges of distributing child pornography.  Parents would have to pay the course enrollment fee and the course itself would discuss, among other things, “what it meant to be a girl in today’s society” and an essay each student would have to write describing why what they did was wrong.

[Notice that, in last month’s proceedings, the defense refers to the admission of guilt as having to write an essay about why it was “unwise to send those photographs” – the word ‘wrong’ being intentionally omitted].

At any rate, the plaintiffs, feeling that their constitutional rights were being infringed upon, filed an injunction to prevent District Attorney Skumanick from taking prosecutorial action.

Although this case touches on a host of today’s hot issues, what is interesting to note is the concept consistently raised by the defense that Skumanick’s office was “protecting the children from themselves”.  This post is a mixture between a response to and an analysis of an article from Reason.com (aptly titled “Ruining Kids in Order to Save Them”).

So, what do the defendants mean in describing their prosecutorial discretion as ‘saving the kids from themselves’?  In this, the defense is very clear: “Children are immature, children are vulnerable.  The entire basis of the juvenile code is to protect children from themselves…When kids disseminate pictures of themselves through the Internet they are putting themselves and other children at risk.” (Miller – Oral Arguments, pp. 15-16).

The defense is adamant and clear in its stance.  What is more important though is to ask whether or not this line of thinking applicable.  What are we really trying to accomplish in doing this?  Certainly, children who are abused and exploited become victims the moment the action takes place.  Disseminating images of this child pornography does create a huge problem in our society, and provokes and encourages this socially unacceptable behavior.

But what if a teenager posted a picture to Facebook of herself posing in a bikini, or himself not wearing a shirt on the beach, or some other scenario where the youth was, simply put, not dressed in accordance with Sharia law.  We may laugh at the ridiculousness of calling such a photo pornography, but I should remind you that two of the girls facing prosecution had opaque training bras on, and no genitalia or breasts exposed, in the “pornographic” photo.

From the reaction of the girls in this case, it’s clear to see that they felt no more victimized by these photos than if their parents had taken pictures of them on the beach in two piece bathing suits.  In fact, District Attorney, in his meeting with the children, had commented that he could prosecute teenagers who appeared in pictures wearing bikinis, based on his enforcement of the Pennsylvania statute on child pornography.

Given what I’ve said, it’s easy to dismiss Mr. Skumanick as a reactionary zealot, and these photos as incredibly innocent and, more importantly, victimless.  But, perhaps the plaintiffs are truly too immature, and unable to understand whether or not they are being victimized.  Whether one buys the argument that until one is older than 18 years old they are not mature enough to make serious decisions is an entirely different issue, one too lengthy to delve into here.

However, if these children are indeed too immature, are their parents wrong in deciding that the photos of their children are not obscene?  Do public officials have the right to enforce their judgment over the head of parents? And if so, where do we draw the line on what issues those officials have the right to meddle in?

In this case, at the very least, it would seem that the prosecution is making a mountain out of a molehill.  And honestly, since Skumanick pursued prosecution against the teenagers at the beginning of an election year, it’s pretty transparent to see what he was trying to accomplish (Hint: it rhymes with “me-election”).  However, in noting all the shortcomings of our legal system, and the loopholes that a few avaricious public officials will claw their way through to assume the national spotlight, we should reflect on the importance of the laws that occasionally harm our citizens.

Stockholm syndrome, a serious psychological effect, occurs when a hostage falls in love with the person who has captured them.  Related, but slightly different, is when a victim falls in love with their tormenter.   Hypothetically, if a child had had photos taken of them by a parent or guardian where they appeared fully clothed, but in provocative poses, and had willingly disseminated those photos at the request of the parent or guardian (because they still loved and obeyed him or her), the state would have no recourse against said parent.  Although contrived, the case still applies; as in the scenario no physical abuse would take place, but inappropriate photos of a juvenile would be distributed, and the crime would not be “victimless”.

The issue of government intervention in parenting has always been contentious.  But as kids get access to newer, more powerful technological tools at earlier and earlier stages of life, the issue of morality, parenting, and technology will more often rear its ugly head.

Google and its endless list of privacy issues – by “Aditya K”

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(There should be a video below. For some reason, embedding it isn’t working. Hopefully it’ll be fixed soon. In the meantime, click here to watch it!)

“At Google, we make privacy a priority in everything we do.” Except when it comes to rushing to launch a new product.

Not too long ago, Google launched a new product called Buzz, as I’m sure you all know. If Twitter and Flickr and WordPress and maybe even Facebook had a lovechild that was raised by Google (custody issues…), you’d have Buzz. As of now, Buzz is kind of a mess. People have the typical knee-jerk “I’m-going-to-hate-this-because-it’s-new” reaction. Most people who use it are simply having their Twitter posts feed directly into it. People are using it as kind of a public-pseudo-Facebook wall, amassing people who don’t know each other into conversations that are not related to the original post (or the original poster). Eh hem. Case in point. (There are potential privacy issues in that too, although many are brought upon oneself—exposing email addresses, sensitive information in a public setting, etc.)

When Google unveiled this new feature (on everybody at once), they overlooked a pressing privacy issue. Essentially, the service made you automatically follow your most frequent contacts, and vice versa. People had access to your feed and information without your consent. This leads to instances like this one (via Techcrunch):

I use my private Gmail account to email my boyfriend and my mother.

There’s a BIG drop-off between them and my other “most frequent” contacts.

You know who my third most frequent contact is?

My abusive ex-husband.

Which is why it’s SO EXCITING, Google, that you AUTOMATICALLY allowed all my most frequent contacts access to my Reader, including all the comments I’ve made on Reader items, usually shared with my boyfriend, who I had NO REASON to hide my current location or workplace from, and never did.

This privacy breach led to folks being able to determine who their friends, employees, spouses, and more were contacting frequently. As Nicholas Carson of Business Insider discovered, Buzz could expose marital infidelity, anonymous sources, private emails in the workplace, and more. The defaults guessed at who you wanted to expose your information to; Google assumed it knew your friend circle. It was even difficult/impossible to opt out.

Even though Google has fixed most of these issues, it was still a case of awful foresight on their part. Computers are getting smarter and are perhaps decent at choosing who your friends are or who you’re most interested in, but even if this technology is flawless, making these lists public and available to those around you is just stupid. Gmail, which Buzz is loosely connected to, is often what people use for private communication. By tacking on this very public feature, without allowing people to opt in, Google crossed some lines that should not have been crossed.

And now for a loose but related connection:

James Grimmelmann, professor at New York Law School and all-out smart guy, posted an awesome recap/analysis of the Google Books Settlement fairness hearing today, where a bunch of parties presented their cases to the judge either supporting or opposing the settlement. Many of the arguments raised against the settlement (from the EFF and EPIC and other digital rights groups) dealt with privacy. Google Books would in essence have access to a large corpus of data—”It can track not just what books you read, but which pages, and what you scribble in the margins”—that would perhaps allow them to tailor ads or sales to an unheard of degree. This would also bring up questions of law enforcement and how this data would be handled by a single entity.

Privacy issues will always be a concern, especially when it comes to Google, but there is perhaps good reason why it should be a top concern. Hadrian Katz, who spoke for the Internet Archive against the settlement, ended his argument with this: Google claims to have taken privacy into account, but perhaps the recent Buzz fiasco is a good example of how seriously Google actually takes the issue.

Update: Technology Review has a cool article on how Google Buzz has changed since its release. Check out the multimedia timeline too!

Public Domain Hell – by “Heather R”

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Lou Lumenick, the cheif film critic for the New York Post, recently blogged about a Zane Grey film called “To the Last Man”.  The majority of the article is analysis and praise of this obscure 1930’s Paramount film, but he also discusses the “Public Domain Hell”.  His discussion of the Public Domain is brief, but it is raises interesting questions about the nature of a (hypothetical) healthy Pulic Domain.

In the second paragraph of his post, Lumenick laments that “a significant number of titles that have fallen into that gray area many film buffs call Public Domain Hell.”  He doesn’t elaborate on that statement, perhaps because most of his readership fall into the “film buff” demographic.  Later in the post, however, Lumenick elaborates.  He explains that when a film enters the Public Domain it usually doesn’t get restored.  The film can be legally copied, so there are a lot of poor qualities floating around.  The studios can’t justify the cost of restoration, because once they restored the film it could be legally copied and distributed.  Lumenick’s interest is apparently in having high quality prints of obscure movies available, not having those films open to remix and reinterpretation.  Films that enter the Public Domain don’t get restored, so Lumenick would apparently prefer that they don’t enter the Public Domain.  Lumenick praises Paramount’s ability to reclaim the copyright to “It’s A Wonderful Life” and offer exclusive access to NBC, which justified the “considerable cost of restoration”.  Lumenick’s doesn’t analyze the merit of the Public Domain, he simply laments the fact that films in the Public Domain rarely get restored.  His post made me wonder how a healthy Public Domain would function.  If works were routinely entering the Public Domain, which ones would we value enough to restore?  Would we restore any of them?

It seems that the Public Domain would preserve those films that the public values.  If the public has access to them, and values them, then they can be catalogued and organized and protected from abandonment.  That may apply to the relatively easy process of scanning books, but it may not apply to films.  Scanning books is relatively cheap and yields a high quality copy.  The process of restoring a 35mm print is tedious and expensive, which makes it difficult to crowd source the way book scanning can be.  Perhaps the films would enter the Public Domain, only to be lost due to lack of preservation.

Lumenick argues that Paramount won’t restore films that are in the Public Domain because once they released the DVD of the remastered “To the Last Man”, it could be copied endlessly.  However, if Paramount, or anyone else, instead restored the film and made additional 35mm prints, they could still sell the physical prints to film buffs and museums.  This apparently is not enough incentive to restore an obscure film like “To the Last Man”, but what if the film in question was a Paramount classic like Hitchcock’s “Rear Window”? (interstingly, ownership of most of Hitchcock’s films, with the exception of Psycho, reverted back to him) If “Rear Window” had entered the Public Domain, and no high quality copies were available, would someone have restored it?  If Paramount hadn’t “rescued ‘It’s a Wonderful Life’ from PD Hell”, would it ever have been restored?  If works entered the PD on a regular basis, who would preserve them?  Would it be econcomical to preserve them?  Would we gain access to thier intellectual property only to lose them to physical degregation?

Public Domain in a World Without Public Domain – by “Yingqi G”

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Michael Jackson: a metaphor for public domain?

Public domain is like a zombie. It’s clearly not dead, but it’s also not exactly doing well either. As far as the law is concerned, only published materials created during the early 1900s and before might be in the public domain, and unpublished materials since 1976 are all protected. But that hasn’t stopped us from rampantly incorporating copyrighted works into popular culture. Fortunately for us, public domain persists as a sort of cultural commons that sits in modern copyright’s blind spot.

To understand what public domain is, we have to dig into the purpose of copyright. Legally, public domain encompasses content no longer guaranteed exclusively to their creators. Copyright and public domain serve two important purposes: to incentivize creators to create more culturally significant works and to ensure that society eventually repossesses the work after the creator has had a chance to benefit from its production. After all, very few copyrightable works are truly original, especially in modern American society where every quip could be copyrighted. It only makes sense that works derived from society’s culture are eventually returned to it.

Obviously, that doesn’t happen. One needs only to look at the current state of the music industry for a perfect example. Under the guise that “artists deserve to be paid for their work,” we have artists chasing down completely innocuous videos of babies dancing to copyrighted music and the recording industry trying to institute internet taxes to compensate themselves. It’s also illegal to play music under copyright protection publicly, even though many venues clearly play unlicensed music regardless. Likewise, all of these measures have yet to stop Americans from working around copyright restrictions through sharing disks offline and sharing files online. We know the law, but that hasn’t stopped us.

There’s a rule of thumb that one cites image sources. While these images are clearly copyrighted somehow, image appropriation is so rampant that many people just settle for simply citing the website where they got the image. Others seem not to bother. Case in point, here’s a longcat. I got it from a parody article on scrapetv.com. But more importantly, who even knows or cares where longcat came from?

Longcat longs for public domain status.

We appropriate significantly more content than copyright law actually permits. Even though almost everything is by default not in the public domain, many copyrighted works have clearly been appropriated and treated as if they were in the public domain, and we’ve just ignored or worked around the copyright problems. Despite public domain’s meager existence, we’ve somehow managed to keep a healthy cultural discourse based on waving our hands and treating copyrighted works like public domain works. Is this a good thing? It depends on who you ask. Personally, I’m glad we’ve worked around the copyright extensions and kept public domain around in the cultural sense, and I wish we’d fix the law to reflect this attitude.

He’s never gonna give you up, copyright be damned.

Is Mickey’s interests repressing or fueling? – by “Zak K”

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“Sollozzo: I need a man who has powerful friends. I need a million dollars in cash. I need, Don Corleone, all of those politicians that you carry around in your pocket, like so many nickels and dimes.
Don Corleone: What is the interest for my family?”

Later on in the story the Don decides drugs are too dangerous a business. He wouldn’t jeopardize his power over the politicians, and therefore lose the superstructure he created for himself. Of course, one wants to relate everything to The Godfather, but the interesting thing for me is the parallels between political influence—in say—the criminal underworld and corporate America. Disney’s handling with the Mickey Mouse act, to me, leads to the question of the role the public plays in intellectual property.

As mentioned in the New York Times article about copyright perpetuity: has Mickey taught us (the public) something? Have we been pushed aside in the interest of corporate motives? The interesting thing about CTEA is the precedence it sets for the future of the term public, being a creativity term, an inventive term, and as a term of civil expansion.

CTEA has solidified its term of 95 years over pubic access, it affirms the idea of keeping corporate works out of reach. This law seems to be a clear step in the direction of copyright perpetuity, and if so, what has been lost, or better yet, what has been gained?

“In 1928, a hero of mine, Walt Disney, produced Steamboat Willie.” Here he showed a clip from Disney’s first successful sound cartoon, in which Mickey Mouse is a roustabout on a river steamer. “And it was from Steamboat Willie that we then got Mickey Mouse. So in a sense it is from Steamboat Willie we got Mickey Mouse, from Mickey Mouse we got the Disney Corporation.

“Now what you might not know is that in 1928 also there was another creative genius doing creative work. His name was Buster Keaton.” Keaton produced a film that year, before Disney’s cartoon, called Steamboat Bill, Jr. The Disney cartoon was heavily based on the Keaton film. “Steamboat Willie was built on Steamboat Bill. So in a sense it is from Steamboat Bill, Jr., that we got Steamboat Willie. From Steamboat Willie we got Mickey Mouse, from Mickey Mouse we got the Disney Corporation.”

—Lawrence Lessig Link

It seems—from looking at the past at least—that copyright perpetuity is inevitable, unless the public takes up it’s own rights. Current Technology, I believe, has now allowed public opinion to be heard. This action, is the transformative qualities of endless referential material. This material will lead to endless creative works, like in the case of pogo’s Alice song. These works will still be produced, but leaves the door open for corporate strong-arming. Sure, the material may never belong to the public, and yes, I think that this will damage some creative growth, but more importantly I think it encourages disregard.

Why is it that copying music seems relatively safe and inconsequential? Or why sharing software, or movies is accepted, even encouraged with the most stringent of people?  Mickey has taught the public a lesson, and not the one intended. The Mickey Mouse act has proven, possibly, the key to exposing the gap between true creative growth and ”family business”.

Zak K.

Interestingly, if copyright would have been kept to it’s original 14 years, these are some things that would be entering the public domain. Makes me wonder, what would be made with these items if they were given over to the public…

Top Movies of 1996

Top Music of 1996

Why Die Antwoord made me care about American copyright law – by “Vance W”

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Die Antwoord 'Zef Side'
Die Antwoord 'Zef Side'

My current obsession at the moment is with the South African Zef crew Die Antwoord (or, “The Answer”). The group is comprised from a mix of global youth symbols: at a glance one can clearly see homage towards early 90’s rave culture, American hip-hop, the white trash Juggalos movement, and of course, the overt nod to Vanilla Ice. The visual makeup of their debut video “Enter the Ninja” is a hellish mix between the visuals of Roger Ballen and some sort of psychiatric ward version of a Keith Haring mural.

Roger Ballen
Roger Ballen
Keith Haring
Keith Haring
Die Antwoord
Die Antwoord

From Weird Al Yankovic to Chromeo, parody is not a new device in pop music. But what makes Die Antwoord so interesting is their ability to blur the distinctions between what’s real and what’s actually satire. The tension here between aspects novelty and what’s contemporary becomes quite fertile as a mode of production. But what does all of this have to do with copyright?

As a metaphor, Die Antwoord embodies the post-modern attitude by attacking the notion of a static or fixed symbol. Wether in literature, film, art, music, product design, etc, etc, the product in question is never completely original. Instead, it is always built from those cultural forms that preceded it. While this notion was most famously illustrated by Roland Barthes in Death of the Author, it was made truly tangible to my generation by Nicolas Bourriaud in Post Production. In it, he states “with music derived from sampling, the sample no longer represents anything more than a salient point in a shifting cartography. It is caught in a chain, and it’s meaning depends in part on its position in this chain.”

It is within this line of thinking that I advocate for regulation married to James Boyle’s idea of purchasing copyright duration in short durations. Within The Public Domain he states “..if copyright owners had to purchase each additional five years of term separately, the same way we buy warranties on our appliances, the economically rational ones would mainly settle for a fairly short period.” In turn — while still protecting authors from direct plagiarism — cultural symbols so crucial to artistic progress would enter the public domain at accelerated speeds.

My point is this: the idea of a pure work is false. The assertion that I could formulate my ideas centered around copyright and communicate them to you here without reference is of course absurd. The greater the toolset made available to a generation of makers the greater the cultural output. As Umberto Eco wrote in Postscript to the Name of the Rose “I think of the postmodern attitude as that of a man who loves a very cultivated woman and knows he cannot say to her, ‘I love you madly,’ because he knows that she knows (and that she knows that he knows) that these words have already been written by Barbara Cartland. Still, there is a solution. He can say, ‘As Barbara Cartland would put it, I love you madly.'”

Traditional Remix vs Digital Remix: A Transforming Conception of Authorship – by “Paul R”

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In writing Hamlet, Shakespeare borrowed from Saxo Grammaticus. Are digital remixes any different?

(Note: this blog post grew out of a lively conversation on the cpsc184 email discuss list. Credit goes to Jacob Albert for pointing to the original article on the German author and starting the discussion.)

A few days ago, the New York Times reported on young German novelist Helene Hegemann, 17, who had made it to the bestseller list despite criticism over plagiarism, including lifting an entire page from another work without citation. While instances of plagiarism are no means unique, what made this case interesting is that while Hegemann apologized for not citing her sources, she also explained that she was part of a younger generation that freely remixes culture and information. On the discuss list, Elizabeth asked about the ethical questions of not citing and helpfully pointed to a Harper’s article by Jonathan Lethem that situates the act of borrowing from other authors and artists in a long historical tradition, and Brendan suggested that perhaps contemporary remixes should be understood within this artistic tradition.

To respond to this last point, I think there’s an important difference between traditional remixes from the past (i.e. literature, art, and everything else Lethem discusses) and the remix culture on the internet. It’s true that remixing is centuries old and artistically valid, but in the article Hegemann argues that there’s something about this digital generation which is distinct. The relevant question then is to ask is what is different about new technology that changes cultural attitudes about remixes.

I would argue that it is the conception of authorship that has shifted, transformed by the cultural networks created by new technologies. In the recent pre-digital past, the standard was that some defined person or group created a work and was considered the author of the work. Even if an object was cobbled together from many different sources, there was always some identifiable creator recognized as source. For example, even though Shakespeare or Burroughs or the Dadaists borrowed from other work, we still identify them as the authors of the original piece which resulted, and we understand that it is their genius and creativity which made something new out of the old.

Contrast that situation with cultural attitudes about authorship surrounding digital memes. When someone decides to make another lolcat or other kind of meme the user often posts anonymously and there’s no obligation to cite the original source–indeed the original author is usually obscure, unknown (nobody knows who came up with “I can haz cheezburger“) and most importantly irrelevant. What matters is not the sense of individual authorship but rather the self-referentiality of the community as a whole. As Alex Leavitt makes clear in an article on digital memes that Elizabeth sent out, memes only make sense in terms of “subcultural networks,” and identifiable authorship is secondary. Hegemann’s assertion that, “there’s no such thing as originality anyway, just authenticity” can only work in this digital context. In the pre-digital age, it would have been absurd to say that T.S. Elliott created nothing original because he took from other sources, and part the reason is that the concept of authorship was so enshrined.

We can use this distinction of conceptions of authorship to answer some of the ethical questions surrounding plagiarism. In the pre-digital age, it was more necessary to cite your sources, because those authors too were understood as being original and creative. Thus, not sourcing them was to appropriate their originality and therefore plagiarism. But in a digital memetic community, plagiarism doesn’t make any sense as a concept–if there is “no such thing as originality,” then there is no such thing as appropriation from others and further there is no assertion that the work is “your own.” In a memetic community, citation isn’t an ethical question because plagiarism cannot exist.

What is interesting with Hegemann’s situation, however, is that it actually doesn’t fall neatly into either one of these distinct conceptions of authorship–she borrows parts of both. On the one hand, the form she is using, the book, has a long tradition of valuing authorship. In our age, books are understood as the formal expression of a person or group of persons and it is hard to escape that (for example, even if you want to publish anonymously, you still usually would use a pen name). On the other hand, her conception of authorship has been influenced by digital communities (the internet, D.J.’s, Berlin youth culture, etc.) which do not necessarily value authorship and therefore do not place importance on citation. Thus, I’d argue that the reason that this example is so controversial is that it is a site where two conceptions of authorship are coming into direct conflict. Attribution is the locus of this conflict because it marks one’s allegiances–citing sources signals a traditional understanding of authorship, not citing signals a digitally influenced understanding of authorship.

Paul Ramirez