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Product Details
| ISBN-13: | 9780819570505 |
|---|---|
| Publisher: | Wesleyan University Press |
| Publication date: | 01/01/2012 |
| Series: | Music / Culture |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 200 |
| File size: | 2 MB |
| Age Range: | 18 Years |
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CHAPTER 1
Saving a Place for Music
The intrusion of technocratic controls into the activities of collecting and enjoying music with friends and family reflects a colonization of the life-world. Copyright law has helped to "uncouple" (Habermas 1987, 365) the music lifeworld from other social subsystems to the point that the law is no longer called upon to justify itself with reference to its interventions into the music lifeworld. Rather, the law, together with power, money, and communication networks, works as a "steering medium": it works independently of the lifeworld, colonizes it, and converts its cultural communications into formal, instrumentalist, market-based transactions (Habermas 1987, 365). While the legitimacy and moral authority of intellectual-property (IP) law is lost on both legal subjects and critical-legal scholars alike (Demers 2006), and its de facto holding power is weakened, its de jure regulation of new places of music online is almost perfect.
Illustrating disillusionment over the predicaments of music fans, music studies has taken an activist bent that can be seen in work by Demers (2006), McLeod (2005), and others who explore the "variable and often contradictory relationship between music appropriation and IP law" (Demers 2006, 144). Persistent abuses of the rights of music makers and their fans by a culture industry operating under the protection of IP law are at least partly visible to popular music fans as well. Evidence of collective action calling attention to legalistic (or juridical) colonization appears in the example of the February 24, 2004, "Grey Tuesday," an online "happening" in which protesters posted copies of DJ Danger Mouse's Grey Album to the Web, at the risk of prosecution. Grey Tuesday created a precedent for "distributing, as a social protest, a work that potentially violated copyright. ... The aesthetic integrity of DJ Danger Mouse's artwork alerted the general public to inconsistencies in the copyright regime. ... The Grey Album will probably be seen as a highly visible first step in a public backlash against IP extremism" (Demers 2006, 141). Grey Tuesday illustrated social resistance to practices of commercial music making, music distributing, and music playing that have accompanied the compounding financial crises in the popular-music industry, the disruptive technological innovations that challenge the industry as a middleman, and increasingly unruly audiences. Something of a populist revolt has broken out against the music industry, symbolized by collective action like Grey Tuesday, and the taken-for-grantedness of digital "piracy" by music fans (Strangelove 2005, 234 n. 17 and 240). Another collective action was the Internet Webcasting "day of silence" on June 26, 2007, that protested retroactive royalty-rate increases that small and noncommercial Webcasters feared would shut down their streams (Bangeman 2007). And, of course, the file-sharing rebellion has not ceased since the recording industry fought pitched battles with peer-to-peer (P2P) sites and the so-called Darknet, notably Napster and Grokster.
Rather than meeting the challenges of P2P with innovative new business models, the industry chose to hobble itself with a digital distribution strategy laboring under new "crippleware" (copy protection by digital rights management [DRM] that disables the copy, edit, and save functions of music players). The industry selected crippleware as part of a broad, aggressive, and punitive approach to IP-rights enforcement beginning about 1998. Music and cyberliberties activists who are leading the revolt against crippleware may be shaping the new politics of the "technoculture" (Robins and Webster 1999) by altering the political economy of the music business: cracking its DRM, bypassing its expensive and exclusive distribution channels, and avoiding its regulations. The political economy of music production, distribution, and consumption springs from a variety of factors: imbalanced IP-rights laws, unfair wage relationships in the music industry, marginalized and colonized music fans, and distorted power relationships between owners of commercial services and fans, relationships inscribed within the technologies supporting digital distribution. Some of these factors also contribute a basis for a collective identity organized in opposition to them.
Arguably, music file sharing, online civil disobedience over access to music, software hacks on copy protections, and other forms of resistance could have been avoided by the Big Four with some innovations in business models, and through more fan-friendly behaviors. Instead, the Big Four set up fan-unfriendly digital distribution sites such as MusicNet, while Apple cultivated online communities and flexible sharing policies on iTunes. The Big Four postponed direct involvement with digital distribution, and embarked on a protracted phase of damage control from falling CD sales and antitrust investigations. The Recording Industry Association of America (RIAA) and its members finally lost control of digital distribution to Apple as they focused their attentions on cost-cutting, defensive legal measures, and encumbering the CD format with copy protection. Apple's iTunes music store and interoperability with the MP3 format drew many file sharers into in its own proprietary DRM format (advanced audio coding, or AAC). They also helped pull in users of Apple's operating systems, music software applications, and hardware players, including the iPod. By 2004, about a year after the opening of the iTunes store, Apple's vertically integrated music-acquisition-and- playback system concentrated the company's market power in digital music distribution, and weakened the ability of the majors to dominate end to end digital distribution. The Big Four have also made strategically poor decisions about digital music formats, favoring those encumbered with strict (rather than flexible or nonexistent) DRM.
The clash between the youthful digital-music culture and the music industry was epitomized when the industry pushed to criminalize any sharing and hoarding activities that circumvented copy protections. Consequently, and despite the cultivation of sharing and hoarding during the "Rip-Mix-Burn" era of iPod marketing, it is becoming more and more difficult for music collectors either to share or to hoard music, even by collecting copy-protected music files, which are frequently "locked" to one music player or to one burned CD copy.
DRM fuses legal realist and positivist IP law with technological control that transforms cyberspace from a social space characterized by freedom, to a zone of controls imposed by social subsystems with few other connections to the music lifeworld. DRM is object-oriented software code, in which the user, the music, and the media player are all objects manipulated by the code. A music fan with a standard CD collection and a standard CD player experiences music as mediated only by the CD and the CD player. There are no extra steps requiring authentication, nor any other transactions requiring a user interface. Introduce a computer, and the instruments for acquiring recorded music become peripherals, subject to new social uses, and abuses. (See the discussion about the Sony-BMG rootkit fiasco in the next chapter)
In cyberspace, music fans have experienced the overriding behavioral controls imposed by their media players, and have seen access to music put at the mercy of hardware and software vendors. As a basic example, if a media player fails to initialize properly, it will be impossible for it to find the music file names necessary to generate a song queue, or playlist. (A record player's tone arm, on the other hand, can usually find the edge of the record, unless there is user error.) Graphical user interfaces (GUIs) can restrict user controls over music files, especially in comparison to the more direct, hands-on access to music through a CD player, cassette player, or record player. A fan playing music from a collection of MP3 or AAC or Windows Media Audio (WMA) files is subject to compliance with antisharing and anti-hoarding policies dictated by the new formats and their software players. The restrictions are tightened in online portals. Besides sidestepping restrictions, music and cyberliberties activists have systematically targeted DRM and its supporting legal infrastructure in the Digital Millennium Copyright Act (DMCA) and other intellectual property legislation (CPSR 2002; EFF n.d.).
On Suing Your Best Customers for Life
Because hubris and privilege informed their response to the first movers of music on the Internet, the Big Four record companies now face the prospect of a protracted battle with a hostile fan base that is engaging the music industry in more and more regular spates of ritual conflict. As one of the oldest of the mass-media industries, the music business is accustomed to conflict, particularly of the legal sort, but not usually with its customers. The recording industry was consolidated through threats, cajoling, and negotiations over patents for technology innovations early in the twentieth century. It perfected the art of hard bargaining in dealings with its stable of best-selling musicians and recording artists through the golden years of its profitability. Yet it began the twenty-first century by devoting increasingly scarce revenues to propaganda, spin, and litigation in a sustained effort to browbeat and threaten young people — still its best customers — into compliance with new copyright laws that favor the industry. Like the Motion Picture Association of America (MPAA), the RIAA makes bogus "labor-related appeals" (Gates 2006, 58) to scrupulous fans, authors, and creators, encouraging them to challenge not only file-sharing practices, but also underlying technologies, like P2P, that have substantive, noninfringing uses: "Unfortunately, the invocations of authors' rights that we come across today are misleading, if not insincere. The true beneficiaries of recent IP law changes are neither authors nor consumers, but rather corporate content providers" (Demers 2006, 12).
The concentrations of young music fans at universities and colleges have put the institutions in defensive legal postures. To avoid future threats or coercive bargaining, some universities have preemptively complied with RIAA requests to personally identify purported file sharers behaving badly and to implement new network-filtering policies. The RIAA patronizes college students in public relations campaigns, presenting town forums and public-service–like programs on the perils of piracy. The music and film industry propaganda is sometimes spun as sponsored messages from gracious corporate citizens for the benefit of at-risk children. These pitches are "systematically distorted communications" in the clearest sense, while representing concerted efforts by the culture industries to socialize fans into the new norms dictated by the DMCA. The refiguring of legal and cultural codes has spread conflicts involving fans and the culture industries at a time when music cultures are changing and technology practices are being transformed. The RIAA and MPAA presumptively assume guilt, treating all music fans as potential criminals, and portray young file-sharing music fans as criminals on par with street-gang members. Below the surface of the public relations is a social conflict between the property interests of concentrated media and telecom firms, on the one hand, and musicians, fans, and a broad swath of social groups organized around music, on the other.
The increased rate at which new technologies have been introduced into musical cultures and industries has intensified direct conflicts with the recording industry and pushed them into broader social, cultural, and technological contexts. A broader participation of musicians and fans in music production and distribution underlies changes within some traditional power relationships. Greene (2005) illustrates this trend on digital platforms:
Music technology has tended to bring about a blurring (in the sense of a loss of distinction) of the spheres of music production and consumption. Almost as soon as new musical technologies become available and affordable, they are put to service in the local musical cultures. And as quickly as new sounds are engineered in local cultures, they are copied and loaded into the next generation of synthesizers or tone banks to be produced and distributed by music technology factories. In the process, musicians have become not only producers of music but also significant consumers of technology. As musical products become so thoroughly and rapidly recycled, the distinction between production and consumption begins to blur. (6–7)
Music operates as a mode of social and cultural reproduction even before the consumption and production roles blur (or de-differentiate) in the institutions of the technoculture. This dedifferentiation is accelerated in the context of lossless and practically free online distribution of music. Blurring also occurs elsewhere in the music industry value chain, including in between the packaging and distribution stages.
Despite the blurring of production, consumption, and distribution promoted by "Mix-Rip-Burn" marketing, the new music practices are purposefully hampered by new limits. Digital copyright, DRM, proprietary software and business models, and other legal monopolies on access to communication and culture are the expressions of the capital-accumulation logic of the system, but also reflect basic failures of the social system to adapt to the changing technoculture. Music fans and artists, if they are cognizant of the blurred "spheres," may tend to recognize the value of blurring in popular music, and find cultural enrichment in the fusion of horizons that the new technologies offer. They respond to the music lifeworld's freedom. The distributors represented by industry "suits" tend to see only missed opportunities to introduce new bottlenecks and points of control. These choke points represent the primary linkages between the market system and the symbolic lifeworld. The suits respond to the system's imperatives and political economy.
The disruptions in music distribution channels caused by broadband Internet diffusion and P2P networking have been documented (Burkart and McCourt 2006; Benkler 2006; Gillespie 2007b). Regressive responses to the disruption have created the social problems. The imposition of scarcity into digital distribution channels where none should exist has created the juridical conversion of music fans and consumers into music "users," who lack property rights to their recordings, and even rights to ordinary consumer protections. The consequences of these changes are both harmful and socially significant for the history of the music lifeworld. The remainder of this chapter addresses the snowballing of bad faith and ill will that overcame the recording industry and mobilized active resistance to the digital distribution strategies of the Big Four. It also identifies some democratic norms of cyberlibertarian literature, and explains how these norms do not at present find much support in formal law.
Democratizing the Celestial Jukebox
The revolt against the recording industry (and the film industry) has snowballed since 1998 — about the time when the recording industry adopted the Celestial Jukebox business model for distributing music digitally. Borrowing heavily from the innovations of the Darknet (a set of unsecured networks used for file sharing), the recording industry and its technology partners have devised a secure, always-on, on-demand, interactive pay-per model of restricted access to music and other kinds of digitized media and culture. The Darknet, however, continually competes with this Celestial Jukebox for usability, quality of service, price, and fan autonomy in their legal affairs and control of technology. Most important, the recording industry and its partners have taken a punitive approach toward a thriving Internet culture, which was marked by free and open flows of digital text, music, and images. The criminalization and subsequent crackdown on "pirates" and hackers are important aspects of the newly punitive Internet regime, comparable to the "hacker crackdown" of the 1980s and 1990s (Sterling 1994). The history of consumer culture provides little to compare to the treatment of file-sharing music fans by the RIAA, which has tried to change the consumption norm of file sharing through brute-force legal intimidation. The entertainment and packaged-software industries have likewise helped smear the hacker culture that participated in delivering the open technologies and libertarian ideology of the Internet, stigmatizing hackers as "miscreants, vandals, criminals, and even terrorists" (Nissenbaum, quoted in Gates 2006, 59). Because hacker culture is oriented to bypassing bottleneck controls over culture and software, the "content industries" have lobbied for, and won, political and "regulatory efforts to control computer-mediated transactions ... [and provide] an image of the abnormal against which to define good behavior, while also offering justification for ongoing investments in security measures and new deployments of Internet control strategies" (Gates 2006, 59–60). Some of these smear campaigns against music sharing were waged by the major labels at the same time as the FBI and the U.S. Department of Justice were investigating the Big Four record companies for colluding to fix prices for digital downloads (English 2006), and as Warner and Sony-BMG were working out payola scandal settlements (Ross et al. 2006). The record industry's recent PR history also includes sensationalistic media campaigns linking P2P to child pornography; this bizarre charge became the pretext for the Inducing Infringement of Copyrights Act, or the Induce Act, in the U.S. Senate in 2004 (as reported by Declan McCullagh in a series of CNet News articles). These efforts collectively worked to incite a "moral panic" over copyright (Godwin 2008). The legal defeats of Napster and Grokster were watershed events that disenchanted cyberlibertarians: with these decisions, music fans lost much of the legal grounding for perpetuating the music-sharing rituals that are basic to the survival of digital musical cultures (Jones 2002). Fans also saw that innovations such as P2P technology were themselves threatened.
(Continues…)
Excerpted from "Music and Cyberliberties"
by .
Copyright © 2010 Patrick Burkart.
Excerpted by permission of Wesleyan University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
<P>Acknowledgments<BR>List of Abbreviations<BR>Introduction<BR>Saving a Place for Music<BR>Creating the Music Lifeworld Online<BR>Culture Clashes on the Internet<BR>Projects and Prospects<BR>Ethics and Aesthetics<BR> Conclusion<BR>Appendix: The Future of Music Coalition Manifesto<BR>Notes<BR>References<BR>Index</P>What People are Saying About This
"In this smart, readable book Patrick Burkart theorizes the ways that ubiquitous and powerful technologies have penetrated every aspect of our lives and vividly illustrates what is at stake in the battles over digital music. This is essential reading for those who want to learn more about our changing online world."—Kembrew McLeod, author of Freedom of Expression
"This essential book provides a thorough overview of recent transformations in the music industry. But it also relates these changes to fundamental questions concerning freedom and political activism.""—David Hesmondhalgh, professor of media and music industries, University of Leeds
"In this smart, readable book Patrick Burkart theorizes the ways that ubiquitous and powerful technologies have penetrated every aspect of our lives and vividly illustrates what is at stake in the battles over digital music. This is essential reading for those who want to learn more about our changing online world."—Kembrew McLeod, author of Freedom of Expression
"In this smart, readable book Patrick Burkart theorizes the ways that ubiquitous and powerful technologies have penetrated every aspect of our lives and vividly illustrates what is at stake in the battles over digital music. This is essential reading for those who want to learn more about our changing online world."
— Kembrew McLeod, author of Freedom of Expression
“This essential book provides a thorough overview of recent transformations in the music industry. But it also relates these changes to fundamental questions concerning freedom and political activism.”