Description

Watch Elizabeth Lombardo’s TEDx Talk on your inner critic. When you think about the areas of communication you would like to develop more, explain how your inner narrator gets in the way of your ability to communicate well.

  • Executive Presence (Part I)
    This week, we will delve into the two As and two Cs of Executive Presence and explore the importance of self-knowledge and self-reflection to develop your leadership presence.
  • Authenticity

Attentiveness

  • Credibility

Confidence

This week, you will:

Explore the benefits of a strong Executive Presence

  • Understand the key components of Executive Presence
  • Develop practical awareness of your leadership value
  • Weekly Materials
    NOTE: Some of the videos contained in this course are provided by LinkedIn Learning, formerly Lynda.com. We are fortunate to have free access this wonderful resource for all students currently enrolled at JWMI. To access these videos, follow the steps here. Click for more optionsRequired Readings and Activities
  • Week 1 Lecture Notes View PDF Click for more options | Listen MP3 Click for more options
  • Talk Like Ted, Chapter 1: Unleash the Master Within

Bahadur, “The New Executive Presence Click for more options “

John Ullmen’s leadership tutorial on LinkedIn Learning offers ideas for developing executive presence as a future leader.

Erin Weed’s TEDx Talk explores what it means to be authentic in each of your interactions.

Elizabeth Lombardo’s TEDx Talk discusses how to silence your inner critic. will even more dramatically commodify culture, transforming our every encounter with a cultural work into a financial transaction, slicing up the populace into laser-precise market segments at the whim of industry. To the extent that such technological interventions impact some participants more than others, or normalize certain practices and marginalize others, they are likely to shift the structures of participation in culture and society more generally. They are a revised road map for 12 Chapter 1 the movement of information, tightly regimented to ensure that, first and foremost, cultural goods are always and already commodities, and that being commodities trumps all other considerations. While the debates about copyright law have historically focused on how the law helps or hinders the democratic movement of information, we must recognize that the dynamics of the market can also promote or stifle the production of and access to newsworthy insight, political diatribe, artistic expression, and biting parody. If the trusted system is used to enforce particular market constraints, then the entire arrangement is implicated in this question. The trusted system warrants serious questioning by those interested in the future of digital technology and all the cultural and social interaction that it may or may not host. As Thomas Streeter puts it, “The choices that shape property in media, insofar as they shape what it means to be a speaker and a listener in an electronically mediated environment, and hence subjectivity, may influence the character of social existence. The law of ephemeral property is thus becoming a principal terrain for constructing the contours of contemporary cultures. Ongoing developments in ‘information’ law and policy will draw boundaries that will undergird the development of social life.”23 A clearer understanding of not only the relationship between law and technology but also the political and commercial arrangements beneath, will also contribute to the ongoing investigation into the political economy and sociocultural impact of digital cultural institutions. The emerging alignment between the culture industries, hardware and software manufacturers, policymakers, and the courts will have its own consequences. Recognizing this requires moving beyond the overblown hype of “information revolutions,” as well as the converse tendency to take such changes for granted. It requires an analysis attuned to the quiet arrangements that are building new patterns and alliances in the industries that produce and distribute culture.24 Finally, the implications may extend well beyond the digital circulation of cultural expression. As technology moves from being the object of law to being the means of its implementation, those concerned with the social implications of technologies must prick up their ears. To the extent that we choose to turn to technology to regulate copyright, we are likely to embrace that strategy in other sociopolitical controversies where technology appears to have similarly neutral effects: genetics, nanoscience, public health, education, national security, etc. Be it for the protection of pop music or any other reason, the extent to which lawmakers are willing to regulate and arbitrate over technological design must be made plain, The Technological Fix 13 scrutinized, and judged according to the criteria of political transparency, social equity, and cultural freedom. Chapter by Chapter These questions are at once legal and philosophical, social and cultural, political and economic. As part of its theoretical engagement with these questions, this book aims to move beyond the standard legal critique of copyright by drawing on recent theories of technology, communication, and culture to consider its broader ramifications. Digital copyright is a perfect domain for examining not only the way we structure cultural expression through the mechanisms of law, technology, and the market, but also the way controversies such as these become sites for powerful and consequential debates about the future of culture to be reframed, for participants in that debate to position themselves as powerful agents in that future, and for provocative questions to be closed. With these insights, we can begin to reveal how political efforts, powerful but by no means determining, work to engineer digital culture both through technological design and through the production of laws, institutional arrangements, and cultural discourses to match. At the same time, while we must address these questions on a theoretical level, the most useful insights come from an interrogation of real world arrangements, of the character of the alliances and compromises that have been constructed to make them possible, and of the disputes that have arisen around them. This book bases its analysis in this on-the-ground interpretive approach by considering three of the most prominent efforts by the U.S. content industries (one a failure, one largely a success, one still being debated) to impose complex control arrangements through the design of technology, and to build the legal and political infrastructure they would need in order to work. To understand these controversies, it is important to understand the law of copyright and the forces that have shaped it over three centuries. The law represents the slow accumulation of years of disputes and compromises; cutting it open reveals this legacy just as tree rings reveal seasons of growth and tumult. Chapter 2 introduces the reader to the workings of copyright law and the premises on which it is based. It is written for readers who are largely unfamiliar with copyright law and the recent controversies, but even those well versed in both will find some new approaches for moving beyond the first wave of concerns. Arguments for why copyright exists and how it should be applied are considered in light of its 14 Chapter 1 fundamental contradiction: that it aspires to serve the public good by constructing a property regime premised on private gain. The effort to strike a balance between these often competing interests requires limits and exceptions that are both fundamental to copyright law and, at the same time, revealing of its inherent tensions. The emergence of new technologies tends to disrupt the balances within this legal regime that manage its structural tensions. Like many technologies before it, the Internet made visible ambiguities that copyright law had not had to deal with before, and afforded an opportunity for those most invested in the workings of copyright law to tip the scales to their benefit. In response, traditional content industries and self-appointed Internet enthusiasts made very different claims for how the distribution of culture would work in a digital age, and how copyright should change to accommodate it. This largely theoretical dispute became all too real with the arrival and astounding popularity of Napster and peer-to-peer file-trading. This chapter offers a quick and dirty history of the music industry’s legal attempts to shut down the deluge of unauthorized music sharing, and introduces the technical solutions being proposed: digital rights management (DRM), a means of encrypting digital content in order to limit access to it; and the “trusted system,” a scheme whereby hardware and software authorized to access encrypted content will police what can be done with that content. The chapter ends by introducing some of the concerns that have already been raised about this shift to DRM as a copyright solution, particularly around its implications for the fair use doctrine of copyright law. Using encryption technology to govern cultural distribution is only an example of how we regulate human activity through the built environment. Chapter 3 attempts to arm the reader for scholarly inquiry into this phenomenon by exploring recent thinking in the fields of communication, science and technology studies, and information studies.25 Technologies can powerfully shape the social activities in which they intervene, sometimes with significant political consequences; at the same time, technologies are also powerfully shaped by the individuals and institutions that produce them and reshaped in powerful ways by users, suggesting that their impact has a lot to do with the meanings that are negotiated and the cultural contexts in which that negotiation occurs. We can resolve this tension between seeing technology as constructed versus seeing it as consequential by noting that technology is constructed so as to be consequential. In every instance, designing and implementing a technology is an attempt to intervene in social practice. To the extent that designers of The Technological Fix 15 technology can agree about how they would like to choreograph the practices of users, this regulatory role of technology is enhanced; to the extent that designers cannot control what happens to the technology after it leaves their hands and cannot entirely predict its consequences, it is diminished. Understanding the complexity of technology as a political artifact is useful as we begin to consider the implications of deliberately using technologies in place of the law. However, while technologies can have political consequences, and the move to install DRM encryption systems into digital distribution of culture seems to depend only on technology’s ability to do so, an exclusive focus on technology would mask the way it requires much more than mere objects to effectively regulate the movement of culture. To the extent that the actors powerful in this negotiation about the meaning and purpose of a technology are also often powerful in other domains, they can appeal to law, policy, and public discourse to buttress and normalize the authority of the tools they build. Alongside the new technologies come new laws to back them, new institutional and commercial arrangements to produce and align them, and new cultural justifications to convince legislators and users to embrace them. This is not engineering culture through technology, but a more heterogeneous effort to regulate through the alignment of political, technical, legal, economic, and cultural elements that must be held in place for a new paradigm of copyright to take hold. Chapter 4 analyzes the construction of the cultural justifications necessary for the trusted system approach to gain any traction at all with manufacturers, artists, legislators, and users. The regulation of the Internet had, before the copyright wars, been largely hands-off; when it first appeared, Napster was wildly popular not only with music fans but with the press as well. To counter these attitudes and to justify a massive change in the character and enforcement of copyright law required a powerful tale of sin and redemption. This narrative not only reframed the debate, it set the stage for the kind of institutional alignments that content providers needed to establish. In his role as the director of the Motion Picture Association of America (MPAA), the U.S. film industry’s powerful lobbying organization, Jack Valenti was the most powerful and articulate of the storytellers, offering up a narrative arc that went something like this: Movie production is an economic boon to the nation; Internet file-trading is a financial danger to that business; content producers, faced with this threat, will withhold valuable content and the medium in question will suffer; however, with stronger copyright protection and technical measures of self-enforcement, 16 Chapter 1 the culture industry will provide a rich consumer experience. The entire chain of assertions was wrapped in a narrative of good beset by evil, coated with dramatic metaphors and salacious scares, and contrasted against a rosy alternative only possible if copyright law were strengthened. Valenti’s logic is just one version of the situation, and has been contested on a number of fronts. Nevertheless, it is slowly becoming the standard understanding of how copyright does and should work, and how digital culture depends on the fullest imposition of technical copy protection. Technologies for the production and distribution of culture have long been designed so as to guide the activity of users, from early printed folios locked to the lecterns on which they sat, to sophisticated password protection systems on consumer software. In order to orchestrate such a system of control, content producers require the cooperation of technology manufacturers, but this turns out to be difficult to achieve: manufacturers are numerous and commercially competitive, and generally see value in offering users as much choice as possible. One attempt to wrangle these interests into agreement, initiated by the record industry, was the Secure Digital Music Initiative (SDMI). The major record labels gathered consumer electronics manufacturers, information technology providers, and fledgling online distributors to produce copy protection for music and the standards for all hardware to honor these protections. Chapter 5 traces the history of this effort, investigating how the music industry attempted to forge a consensus, and the reasons why it collapsed. SDMI is a reminder that the alignment of technology and content envisioned in such plans cannot be imposed without a matching alignment between the commercial players that produce them, and such an alignment is not so easily achieved. In stark contrast to the failed SDMI project, the encryption that protects Hollywood DVDs from duplication is a revealing case of how such a trusted system can be produced, and how the necessary institutional alignment can be achieved despite the strategic differences between content and hardware manufacturers. Chapter 6 reveals how the Content Scramble System (CSS) encryption used to protect DVDs is merely the technical edge of a complex arrangement of content, machines, licenses, and industry partners that together work to contain the activities of users. In this case, the trusted system also required recourse to the law when that arrangement was breached, as it was when a “crack” called DeCSS was posted online. The industry turned to the Digital Millennium Copyright Act (DMCA), itself a dramatic shift in copyright law produced by the The Technological Fix 17 rethinking of copyright around the Internet and, in particular, the powerful “Valenti logic” offered by the content industries. Prohibiting circumvention of technical protections rather than copying itself, the DMCA embodies this shift toward technical solutions, while also revealing that the technology cannot function without support from the law. Rather than regulating users, the DMCA shores up the arrangements imposed by the content industries on the manufacturers, and forms the fourth side of this heterogeneous square of regulation: technical artifact, commercial agreement, cultural justification, legal authority. And it does so in a way that allows these industries to impose new controls on users that were not available under copyright law before this moment. The trusted system, then, is built on a fundamental mistrust—a mistrust of the technology manufacturers, who must be licensed into submission, and a mistrust of users, who are seen as immoral pirates until they can be technologically compelled to be good consumers. The record industry tried to organize a voluntary agreement with technology manufacturers, and failed; the movie industry got one by holding their content ransom and forcing technology manufacturers to sign away their interests, but found they were still vulnerable to upstart manufacturers who would not agree to their terms. The next step is to seek the authority of the state to make such systems mandatory. Calling on the state promises to more powerfully bind this trusted system together and impose it on users, but it also brings new forces into play. As chapter 7 describes, the movie studios hoped to impose similar technical controls onto digital television, and called upon the FCC to give their system legitimacy and assure its imposition. An industry coalition proposed the “broadcast flag,” a technical means to mark digital TV content as deserving protection, and to set rules for manufacturers for how to treat that content so as to prevent redistribution over the Internet. Ideological gaps between these industries, and between these industries and the regulators who have jurisdiction over them, have always been narrow; nevertheless, they have been important in preventing an industry view of copyright law from completely dominating other public interests. Now these gaps are closing around technical copyright protection, thanks in part to the efforts of these industries, the increasing sense of the inevitability of this project (and thus the desire of manufacturers to be on the winning side of its commercial consequences), and the persuasive power of the piracy narrative. This suggests that, whether or not such trusted systems are ever installed and ever succeed, the changes in industry alignment being pursued in order to produce them may themselves 18 Chapter 1 have consequences for culture and technology. This may extend to the increasingly close ideological partnership of the content industries and legislators. However, as the broadcast flag case reveals, the FCC did make significant adjustments to the plans proposed by the movie industry and its consumer electronics partners. Furthermore, the courts subsequently decided that the FCC did not have the authority to install such a technical control regime, revealing further cracks in the political alignments necessary for a comprehensive trusted system to work. The attempts thus far to impose technical solutions onto the promiscuity of the Internet have all faced intrepid users who refuse these constraints: from the casual users of peer-to-peer networks to the amateur DJs creating innovative forms of digitally reworked music; from the widespread use of “black market” circumvention technologies to the hackers that take on every new system; from academic critics who challenge these strategies to the campus activists who mobilize against them. This kind of agency with culture and with technology has been the biggest hurdle for content owners’ attempt to realign digital culture in more commercially viable terms. In some ways, it is this agency that must be curtailed if the broad and heterogeneous strategy of technolegal control is to succeed. Chapter 8 turns its attention to the robustness requirements that accompany most DRM systems, which require manufacturers of hardware and software not only to limit what users can and cannot do but also to design their tools to fend off the attacks of hackers, the prying eyes of hardware enthusiasts, the curiosity of tinkerers. Just as digital rights management threatens the agency we have with the culture we encounter, these robustness rules threaten our sense of agency with the technology itself. Critics of the CSS encryption and the broadcast flag made this point by noting that both systems exclude the possibility of open source innovations in the distribution and consumption of film and television. To prevent users from seeing how content is protected and potentially circumvented, robustness rules require technology designers to “weld the hood shut”—something very much at odds not only with open source design, but with the traditions of user appropriation and innovation. What is clear is that these solutions are not just strategic, they are paradigmatic, embodying and imposing a persistent worldview on what is otherwise a much richer set of options for how we interact with culture and technology. Chapter 9 attempts to step back from these cases in order to consider the cultural implications of the technology at the heart of these protec- The Technological Fix 19 tion schemes. Once a mechanism for ensuring secret communication between confidantes, encryption is being employed here for a very different purpose: extending control over otherwise public materials. In terms of the distribution of culture over the Internet, encryption is the digital means to assure a subtle, complex, and context-sensitive system of regulation. By encoding a film, the owner of the copyright can dictate to an unprecedented degree what can and cannot be done with it. Most importantly from a philosophical perspective, encryption intervenes before an infringement occurs rather than after. Such a preemptive measure not only treats all users as would-be criminals, it makes the imposition of copyright less open to exceptions like fair use, renders unavailable the ability to challenge a law through civil disobedience, and undercuts the individual’s sense of moral agency in a way that can undermine the legitimacy of the rule itself. While this new application of encryption and licensing is justified in terms of a threat to copyright, the system can accomplish much more. The license that DVD manufacturers must sign requires them not only to honor the restrictions on copying demanded by the movie industry, but also to honor a system called “regional coding.” Regional coding stipulates that each disc is numbered according to the continent in which it was produced; DVD players must only play discs from their own region. This is in no way a means of protecting copyright; instead, it gives the movie studios a way to slice up the global market, engage in price discrimination, stagger releases, and even ignore markets they do not see as lucrative. If and when the distribution of culture moves entirely to the Internet, this strategy could be extended in any number of ways, not to protect copyright but to maximize profit. As copyright was traditionally conceived of as a way to regulate the commercial practices of those who don’t own a work (so as to protect the interests of those who do), it has rarely had to consider the way the commercial practices of the owners themselves can have the kind of antidemocratic implications copyright was designed to avoid. Such practices, built directly into the technology and using the threat of piracy as rhetorical cover, are now having those problematic consequences, most powerfully by reifying a clean distinction between producer and consumer in a world where communication is always a recursive and productive process. This precludes the use of new communication technologies in ways that could powerfully shift the roles of such cultural production in a more egalitarian direction. 20 Chapter 1 Wired Shut ends there, with a concern well beyond copyright per se, the Internet and its regulation, and the juncture between industry and politics. It reveals a crossroads faced by a society embracing technologies that can both facilitate digital culture and be made to regulate it. The choices we make now will help decide whether we will be active participants in our culture and creative users of our technology, or passive recipients content to quietly embrace what is sold to us and fulfill the roles prescribed for us. 2 The Copyright Balance and the Weight of DRM Developing technical solutions to the problem of enforcing copyright is no easy task. Copyright itself is a terrifically complex legal doctrine, built over many years by many hands, full of exceptions and caveats that even legal scholars find “complex, internally inconsistent, wordy, and arcane.”1 Moreover, its central aim may be unattainable, and is at the very least founded on a fundamental contradiction. In offering authors legal property rights over their work so they may enjoy a profit from its circulation, copyright is supposed to ensure the sustenance of art, knowledge, and culture. This precarious balance between public good and private gain, while logical in an ideal sense, may suffer from “the impossibility of serving one of the described objectives without disserving the other.”2 And, in a society in which culture is predominantly delivered through the market, copyright (along with the laws regarding freedom of speech and the regulations attached to broadcast licensing) is one of the central rules that structure culture. As such, its interpretation and implementation have tremendous significance for art, journalism, scholarship, and the health of democracy. On one level, shifting the locus of control from law to technology means mapping legal doctrines onto technical prohibitions, and risks losing something in the translation. Critics of digital copyright strategies have already pointed out a number of the legal details of copyright that don’t fit neatly with what can be built into software. But more than that, the move to a technical copy protection creates an opportunity for practitioners, legislators, and users to subtly reinterpret and redefine the law itself; questions once settled can be reopened, while persistent tensions can be downplayed as if resolved. An existing balance can be undone, using digital technology as the urgent reason for why an old compromise no longer works, while new opportunities afforded by the Internet can be brushed aside as being simply incompatible with the traditions of 22 Chapter 2 copyright law. More is at stake than just how pop music will be distributed online; everything about the rights associated with information is once again up for grabs, and the decisions made in this moment will set the terms for how we understand copyright and what it is supposed to accomplish for years to come. It is important, then, to look back at where copyright law came from, how it has been implemented differently over time and toward what ends, and how new challenges posed by digital computing and communication networks are both challenging copyright’s balance and serving as a rationale for a new legal and technical framework. The Aims of Copyright The language of the U.S. Constitution authorizing Congress to create copyright laws also announces its priorities: “Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”3 The book, song, film, painting, or software you create belongs to you by law; you have exclusive rights to duplicate, distribute, or perform that work, and legal recourse against those who attempt to do any of these things without your permission. Important to notice, first and foremost, is that at its foundation, U.S. intellectual property law is a means to an end, not an end in itself. William Fisher has noted that there are several countervailing philosophical justifications for the law of copyright, and these are regularly invoked by jurists and lawmakers, as well as by scholars, often unaware of their potential contradiction.4 However, while these all play a role in justifying copyright and structuring the complex debates about its application, the philosophical core of U.S. copyright law is that the individual’s right of ownership is lashed to a societal aspiration.5 Rather than justifying this privilege as a “natural” right of authors to enjoy the fruits of their own labor, or as a reward for expending the creative effort itself, copyright is framed in terms of spurring cultural and intellectual progress. As Matt Jackson reminds us, “One cannot overemphasize that the constitutional purpose of copyright is to stimulate content creation for the public’s benefit, not to create a private property right based on a moral notion of ownership.”6 There is an important presumption about the nature of authorship and culture hidden in this constitutional mandate, that authors require financial incentives to motivate them to produce—or at least that ensuring such financial incentives will encourage more authors to produce more work more of the time. Or as Ronald Bettig notes, “The underlying assumption The Copyright Balance and the Weight of DRM 23 here is that human beings require economic reward to be intellectually or artistically creative. The philosophy of intellectual property reifies economic rationalism as a natural human trait.”7 This may feel like mere common sense: While the idea that art is made “for art’s sake” may remain a powerful mythology among painters and punk bands, self-proclaimed realists tend to scoff at the idea that culture can ever be separated from commerce—or should be. The logic of a market economy suggests that authors need an assurance that they’ll be able to sell their work; the profits due to them must not be diverted by flagrant piracy. Copyright law attempts to assure this fair and productive arrangement, ensuring authors the ability to seek their just reward in the marketplace. Financial reward provides incentive, which provokes cultural production, which benefits society, QED. Of course, to justify copyright in this way may be circular logic: It is only with copyright law in place that we have been able to design a cultural sphere premised on the assumption that work will circulate through the market and enjoy financial rewards, and that, by law, authors are owners. As such, we build industries around this “truth,” conventionally see culture in these terms, cultivate this expectation in budding creators, and downplay the myriad of other reasons why people create—for creative satisfaction, for the promise of impact, for reputational gain, for ancillary rewards, etc. One need only look at the World Wide Web or at sites like YouTube, MySpace, Wikipedia, or SourceForge to see that financial compensation is not the only, or perhaps even the most compelling, incentive to produce. In fact, it is possible that the development of real alternatives to this strictly commercial arrangement for cultural production is actually inhibited by the self-fulfilling prophecy of copyright law, the stable social and institutional structures that depend on it, and the ideological assumptions on which it depends and thereby reaffirms.8 Because our culture generally holds authors in high regard, it is easy to presume that copyright is in some way designed to reward authors because they deserve reward. This seems so obvious to some that it is a difficult proposition to even investigate. The widespread sense is that authors provide a valuable service, that their work is their own, and therefore that they have the right to sell it and reap the financial reward. In this view, authors enjoy legal protection because they create something worth paying for; piracy is taking something that doesn’t belong to you. Even as we labor within a corporate industrial system where workers have no rights over the things they help produce, we continue to believe in the principle that we own what we make and we deserve to be paid for what we create.9 It is 24 Chapter 2 important to remember that this is not the case. Rewarding authors has never been the purpose of copyright—it is merely its preferred strategy. The law in fact has grander aspirations. Eager to help their young nation grow but deeply skeptical of the power of monopolies (be they royal or commercial), those who crafted the U.S. Constitution justified copyright in terms of the social and the intellectual—in the name of “progress in science and the useful arts.” For them, “progress” may have meant a number of things.10 As a young nation, the United States hoped to gain its footing as quickly as possible; this required a spirit of cooperation in almost every endeavor: political, commercial, intellectual, artistic. In each of these fields, there was (and continues to be) benefit in the unhindered circulation of information, knowledge, and culture.11 Democracy demands that every citizen be well informed, literate about the pressing issues, and capable of making informed decisions. The “marketplace of ideas”12 should expose citizens to lively, adversarial debate: Multiple and conflicting voices should all be heard; consensus will arise from citizens rationally considering alternative viewpoints. Commerce also depends on its constituents being well informed. The flow of goods and the setting of prices can only attain a fair equilibrium if consumers have “perfect information” about the products they desire, and if sellers know their potential buyers. In academic research, scholars should “stand on the shoulders of giants,” learning what the field has accomplished thus far, then contributing to it at its emergent edges. The scientific principle itself depends on past work being available for study and current work being available for scrutiny.13 Artists similarly learn their craft by being surrounded by the work of others; they emulate great masters and eviscerate mediocre contemporaries; they lift ideas and techniques from the work they encounter.14 The challenge, then, was how to build the rules of culture such that individual creators are given rights and responsibilities in a way that will encourage them to make their work available to the public at large. Like the British doctrine it came from, U.S. copyright law turned to the metaphor of property, applying the legal structure of ownership of tangible goods to the more intangible goods of “writings and discoveries.” This substitution is so commonplace that it’s hard to even recognize it as a choice, or to see that there is any alternative. To facilitate culture, we give every contribution to it the means to be traded on the open market and tie its sale back to its author/owner such that the financial reward returns to them. This is an effort to both encourage and control cultural discourse, to be both its distribution venue and its system of reward. The The Copyright Balance and the Weight of DRM 25 commodity stands in for the work; allowing the commodity to circulate in the marketplace presumably allows the ideas within to circulate along with it, resulting in a real marketplace built to support the marketplace of ideas. Far from this being a free market strategy, as some copyright owners proclaim, this is very much an artificial regulation of the market—in the business of information, the most logical strategy in purely economic terms is in fact piracy, except for the fact that copyright law makes it illegal. The Problem with “Property” To call the story or the song or the image one’s “property,” while it may now seem intuitive, is an awkward and potentially problematic use of the term. In many ways, intellectual property does not work the way material property does, primarily because of its economic properties as a “public good”.15 First, cultural expression is nonrivalrous: Use does not deplete it. When you finish reading your copy of this book for the first time, it will in no way be diminished for a second reading. You can return to the book for years, reading it again and again, to your children and grandchildren. The same cannot be said for a candy bar, a firecracker, or laundry detergent. Of course, this is not a simple dichotomy. Sequential use might be seen as a spectrum, with different kinds of things having different halflives—a tank of gas is consumed in one trip, but the car is driven many times before it is finally rendered unusable. You may turn the pages of this book so many times that the binding glue softens and the pages fall out, or you may smear the print with your thumbs to the point of illegibility. However, if you memorize the argument, you can continue to “use” it even after the pages are destroyed. A book may be exhaustible, but the “work” itself is not. Culture cannot be consumed. Second, cultural expression is nonexcludable, in that once it is sold to one consumer it is difficult to prevent it from being enjoyed by others. We might think of this as having two dimensions: collective use of the same object, and duplication of one object into many. As noted before, cultural works are particularly susceptible to simultaneous and sequential use by many consumers—the hockey team rents a DVD to watch together in a dorm lounge, or the same magazine is read by every person who comes through the doctor’s office waiting room. It was (until recently) difficult to extract any payment from those additional consumers. In addition, intellectual property can be easily duplicated in a way that, say, a sandwich cannot. The fact that it is difficult to exclude those who did not purchase the work from using it, because of both sharing and copying, makes 26 Chapter 2 it even more difficult to extract compensation from those additional users—or to impose rules on them. As Lessig notes, this does not mean that the work cannot be guarded in any way; it can depend on the manner of distribution. Before I publish this book, I can exclude people from it by keeping it locked in my office; if I distribute a film via national theaters, I can keep people out who do not buy a ticket; but if I sell a CD, I have much more difficulty keeping people from making copies for their friends. The fact that cultural expression is (more or less) nonrivalrous and nonexcludable tends to undercut the ability to maximize its value in the market. If the sale of the work to one consumer can lead to it being used endlessly by many, profit will not return as effectively to its producers, no matter how clearly defined their rights are. One sale represents many uses, meaning substantially less compensation returns to the producer. The price of pirate copies can be low, since the original producer bears all the costs of production, whereas the pirate need only cover the miniscule costs of copying. The market by itself, then, is clearly insufficient for ensuring that suitable compensation returns to authors of cultural expression. The promise of the market, that through competition worthy authors will be paid for their efforts by consumers, is undercut by a competing logic, that producers will find the cheapest way to provide what their customers want—that is, piracy.16 What is further required is a legal standard that legitimizes the part of the market that compensates authors, and outlaws the part of the market that undercuts them. Copyright does this by making the author the owner of the work and granting exclusive rights of reproduction and distribution to that author/owner. Copyright secures an alliance of legal and commercial mechanisms—the market will serve the interests of the law, and the law will ensure that the market functions such that it can do so. It is worth noting that these differences also matter for the demands they make on the economics of cultural production and distribution. All production incurs startup costs—hiring employees, building or renting spaces for manufacturing and management, gathering raw materials, designing prototypes. Plenty of money had to be spent before Nike ever sold their first sneaker. However, the cost of producing each additional sneaker also incurs significant costs: more materials, more manufacturing, more labor, more packaging, more display. When a pair of sneakers enters the market, its price must primarily cover the cost of producing that actual pair; the startup costs are spread across all Nike sales, and in the long run end up being a fraction of the price of each individual commodity. There cannot The Copyright Balance and the Weight of DRM 27 be piracy of sneakers, since a pirate producer incurs the same costs of making each shoe as the original manufacturer, making it much more difficult to undercut their prices and lure away customers. There are no sneaker pirates, only competitors and knock-offs.17 The production of creative work, on the other hand, tends to function on an economy of scale: the overwhelming majority of the costs of production are incurred before the very first product is made; the cost of making each additional commodity is tiny by comparison. The cost of making a film is practically the same whether you only produce the master reel or you distribute millions of copies on DVD. With discursive goods, it is the additional cost of each copy that is negligible. Markets that exhibit an economy of scale tend to privilege large and wellestablished corporations. They are more likely to have the financial heft to commit significant capital up front and can afford to wait for the returns. Digital technologies of production and distribution may be changing this, as the barriers of entry are in some instances lowered, but this affects different kinds of content differently, and can never completely undo this dynamic. The problem is at its most extreme when the cultural work is most costly—that is, the summer blockbuster, the celebrity biography, the pop phenomenon, the sprawling documentary, the comprehensive database. This means it is those producers best positioned to produce expensive cultural work who will have the most vested interest in protecting and enforcing copyright. That cultural expression doesn’t work like other tangible goods, even in its most tangible forms, is a problem only because we have chosen to embrace the legal metaphor of possession. With the “intellectual property” frame in place, other qualities of cultural expression are systematically ignored. There is no natural reason why we must conceive of it in such terms, but in the Western regulation of discourse, the property metaphor has long been the overwhelming and (for the most part) binding approach. Striking the Balance To assume that imposing this metaphor of property and regulating the market for culture will facilitate “progress in the science and useful arts” requires another very particular leap in faith. The fundamental risk with copyright law as it is currently designed is that, for each cultural work, it produces a legally enforced monopoly—I am the only one authorized to sell this book, or by contract the MIT Press is, which means there is no legitimate competition for buyers. Like all monopolies, this arrangement 28 Chapter 2 is prone to commercial exploitation. But because the commodity in question is information, abuse of this monopoly position would not merely inflate prices or make a worthwhile product hard to acquire; it might deplete public debate, disable democracy, or starve art and culture. As Julie Cohen notes, “A model that attempts to relate ‘property’ to ‘progress’ must consider the public-good nature of creative and informational works, and cannot assume equivalency between private wealth and social gain.”18 The risk of a legally enforced monopoly over information is that publishers may be able to restrict the circulation of expression, which may in turn restrict the circulation of important ideas. In an attempt to avoid this, U.S. lawmakers and courts have built several limitations into copyright law, aiming to restrain the power it gives to authors/owners and pass some of that power back to the public at large. Perhaps the most important of these conditions is the “limited times” referenced in the constitutional clause. These two words are perhaps the most powerful evidence that, despite relying on the property metaphor, copyright law does not intend to treat cultural expression exactly like property. Over the years, the duration of copyright protection has been dramatically lengthened,19 but the principle remains that authors may only enjoy their rights over publication and reproduction for a certain number of years. Once this time has elapsed, the work enters the “public domain”20 and can be freely reproduced by anyone. Unlike material property, this kind of property reverts to public ownership after a certain period of time—we might say it is returned to the original owners, if we think of copyright as a right temporarily granted to authors by the public they serve. Copyright also protects only an author’s particular expression, and not the underlying ideas it conveys. In other words, although I am granted ownership and control over this book about copyright and the Internet, it does not mean that I can prevent others from also writing about copyright and the Internet; I can only prevent their use of my specific words. If copyright privileges extended too broadly around a work, any work that addressed similar topics might be deemed infringement.21 Without this distinction, copyright could easily become a mechanism for controlling information, depleting the public domain, and chilling free speech. Ideas are free to circulate, and can never be constrained; copyright, as long as it honors this distinction, will then never run afoul of the First Amendment’s assurance that no law can prevent me from saying what I please.22 All that I must avoid is actually using the phrasing or design of existing work. As James Boyle puts it, “The idea/expression division resolves (or at least The Copyright Balance and the Weight of DRM 29 conceals) the tension between public and private . . . By disaggregating the book into ‘idea’ and ‘expression,’ we can give the idea (and the facts on which it is based) to the public world and the expression to the writer, thus apparently mediating the contradiction between public good and private need (or greed).”23 The problem, of course, is that the distinction between idea and expression is really only a theoretical one; the two always coexist in practice, and the task of distinguishing infringement from works that simply explore similar ideas is left to jurists. The most important of these limits, especially in light of recent controversies, is the “fair use” doctrine. The greatest risk of an unlimited copyright is that copyright owners might be able to enforce their rights in ways that inhibit the production of new work, squelch the expression of particular opinions, or undermine the health of public discourse. Quoting someone’s book requires copying and distributing some of their work; so does making copies of an article for use in a classroom. Both would require asking permission of the owner and, in most cases, compensating them financially. But if quoting someone’s work means having to ask permission to do so, the author is in a position to simply say no if they don’t like how their work will be used. If teachers cannot afford to pay for the use of works vital to their courses, they might not use them despite their value to the students. This is particularly problematic when either the use is critical of the original (a damning news report or a negative book review, for example) or the sheer cost of seeking permission of the owners and paying for the right to use their work would be prohibitive (amateur documentary filmmaking, for example). Some of these reuses are common to the most important democratic mechanisms of our society: education, scholarship, journalism, and criticism. In cases like these, fair use allows some breathing room for the reuser by limiting the conditions under which they can be prosecuted for infringement. The fair use exception grants special protection to uses that would otherwise be infringement, that would be unlikely to receive authorization from the copyright holder, and that without fair use would be a violation of the law. The law delineates four factors24 that courts weigh when determining if an infringing use should be protected: What kind of work is being copied, how much is taken, what financial impact the copying might have on it, and to what use it is put. Fair use originally focused exclusively on what William Patry calls “productive uses”: uses that create a new work by a new author.25 But in the last half century fair use has been expanded, hesitantly, to include certain “passive uses”: uses that duplicate some or all of the copyrighted work 30 Chapter 2 without any obvious intellectual contributions, but do so in order to facilitate access to it.26 The 1976 Copyright Act created a special dispensation for photocopying copyrighted materials under specific circumstances: single copies, for educational purposes, by libraries and public archives.27 Multiple copies for use in the classroom are also included in the fair use exemption, although subsequent case law has designed very specific restrictions on that activity. The Sony v. Universal decision made room for copying television broadcasts onto videotape, again under specific circumstances: for the purposes of limited educational use or “time-shifted” personal use, with restrictions on how long copies can be kept. There are a number of justifications for such an exception. Fair use serves as a further safety valve between copyright law and the First Amendment. If copyright law permitted authors to restrict how others could speak when using their work to do so, it could limit free expression; fair use offers the second speaker some breathing room, setting limits on how they can be held liable for infringement, and bounding the reach of copyright owners when the use of the work does not directly damage its market value.28 Fair use also helps mitigate the transaction costs involved; if each and every use required a license, the cost and difficulty of locating the proper copyright holder and negotiating each license might inhibit some uses.29 Finally, fair use has allowed for some flexibility for technological innovation. New technologies often allow users to do things with information that can look like copyright infringement on first glance (for example, taping television programs using a VCR); fair use allows the courts to first consider, and sometimes indemnify, a new technological practice that could otherwise have been squelched as copyright infringement by existing economic forces.30 If ideas both do and do not act like property, then the law of copyright alone cannot fully ensure their circulation. The installation of a property law entails orchestrating a massively complex alliance between law and market, lashing together stubborn and sometimes conflicting cultural rhetorics to justify it. Copyright is imagined to be the best means of circulating ideas and nourishing those aspects of society that rely on them, but even its designers fretted about its consequences and vulnerabilities. Most clearly in the doctrine of fair use, the law itself acknowledges that the commercial exchange of intellectual property is far from an ideal mechanism for the circulation of discourse. Some argue that copyright is sufficient, the best compromise for achieving important cultural goals. Others fear that the premise itself is flawed, and that a mountain of caveats couldn’t undo the damage copyright law does. The Copyright Balance and the Weight of DRM 31 Accommodating New Technologies Thanks to a series of technological innovations, copying and distributing cultural works has grown easier over the last century. With the Internet, it has reached unprecedented simplicity. And whereas the casual redistribution of intellectual property was always a problem for the culture industries, the new scope of that distribution is unheralded. With each information technology, be it the jukebox,31 radio broadcasting, television,32 Xerox machines, the VCR, or cable, has come a reappraisal of the copyright balance. Of course, it isn’t just technology that stirs up old copyright questions: The logistical compromises of the past can be unraveled by an innovative business model, a new alliance between producers and manufacturers, or a shift in the way culture is consumed. The current debates about copyright have as much to do with the cultural dominance of media content, the increasing concentration of the industries that produce it, and the political climate of market deregulation as they do with the computer and the Internet. The embrace of the global information economy and the shift toward what David Harvey calls “flexible accumulation”33 models of post-industrial production have not only fueled the development of digital information networks and put personal computers on every desk; they have also encouraged a “digital culture” in which users expect information to be instantly accessible and easily portable, increasingly see themselves as producers and collectors of information as much as consumers of it, and accept the commingling of leisure- and work-related communication activities. All of these changes put pressure on copyright and the traditional forms of information distribution. But typically it is the technologies that come to herald and stand for the cultural and economic shifts that helped produce them, and as such they become the flashpoints for the legal dispute that follows. The technologies represent both the potential of shifting the balance of copyright to account for new dynamics in the circulation of culture, and the justification for why an older balance must be preserved or regained. Of greater consequence than the new technologies themselves are the decisions—legal, economic, political, cultural—that we make around them. With the emergence of the Internet as a technological and a sociocultural phenomenon, the already unsteady balance of copyright seemed, quite visibly, to explode. The proclamations were dramatic. Some believed that the law needed to be fortified and expanded to counter the Internet’s effects. Some thought copyright could shift from a law of property to a kind of contract law for managing relationships between content providers 32 Chapter 2 and consumers.34 Others believed that copyright could be discarded altogether.35 Long before this vox populi eruption of excitement and concern, the Internet was an obscure engineering project commissioned and overseen by the Advanced Research Projects Agency (ARPA), a subsidiary of the U.S. Department of Defense (DoD).36 Drawing on innovations in digital computing and packet-switching communication networks developed in semi-autonomous research centers (including most notably the RAND Corporation, a nonprofit research group devoted to projects with broad military relevance37), researchers at ARPA developed the protocols to allow computers to interface—that is, to exchange digitized information between geographically disparate locations and allow users to access and manipulate remote computers from a distance. Only four computers at first, the ARPANET slowly grew as university computer science departments with military funding established their own nodes fitted with the same shared protocols and logged on to what would eventually become the Internet.38 The network’s early uses were mostly just efforts to test the system; it was too new to be trusted with important tasks, but too exciting to be left alone. Operators of the system tended to encourage any use at all; according to Janet Abbate, “In the early years the ARPANET was underutilized, and ARPA had little reason to discourage users or activities that might make the network more popular. Increased use of the network would also make it easier for ARPA’s computer scientists to evaluate the system’s performance.”39 So it was of little concern that some early users, particularly graduate students at the various university research centers, began to use ARPANET to send messages from site to site. The emergence of these communicative activities ended up broadening the early focus of network research. While the military interest in network technology did include sending messages to remote sites, particularly under adverse conditions of war, researchers had more generally assumed the network would be a way to share computing power over a distance; a user at site A could log onto and run a computer at site B that specialized in crunching data in a way he needed, without having to send that data away to be processed, or having to purchase another costly computer himself. The growing population of users seemed to have a different idea. As Katie Hafner and Matthew Lyon tell it, “In the mind of its inventors, the network was intended for resource-sharing, period. That very little of its capacity was actually ever used for resource-sharing was a fact soon submersed in the tide of electronic mail . . . The ARPANET’s creators didn’t have a grand vision for the invention of an earth-circling message The Copyright Balance and the Weight of DRM 33 handling system. But once the first couple of dozen nodes were installed, early users turned the system of linked computers into a personal as well as a professional communications tool. Using the ARPANET as a sophisticated mail system was simply a good hack.”40 As researchers noticed the activities of ARPANET users, the initial focus on distance computing gradually shifted to include this interest in distributed communication.41 Both purposes would persist in the further development of the Internet, but much of the Internet’s design and deployment would revolve around imagining new forms of distribution of cultural expression—by all users. Still, it’s worth noticing that the initial premise of the network, computing at a distance, was based on the principle of transmitting exact copies of digital content so that the computer at the remote site could run that program or crunch those numbers and return the result. Though the copyright implications of this may not have been fully anticipated, the idea of transmitting perfect copies of authored work was by no means the invention of peer-to-peer file-traders, but was crucial to the earliest notions of what the network would be for. With this surge in interest in distributing information across the new network came a particular politics about doing so. Early users were fascinated by the way the network seemed to be almost self-organizing: Data could move without centralized oversight, and users seemed able to share the network without needing a controlling authority to oversee them. Once the shared protocols (the technical language each computer would speak) were established, each user could focus simply on their own contribution to the system. The activity would be patrolled, if at all, by the users themselves; the tool seemed to encourage certain activities without enforcing them as explicit rules. Eventually, when the military began to fret that so many unauthorized users were accessing this system, they chose to split off their own proprietary network that they could control access to, rather than attempt to wrestle this unruly community of ARPANET users into submission. The Netizen Vision So perhaps it is no surprise that, as this technology gained public visibility, the prevailing opinion among its early users was that it should be given free rein, rather than being regulated by government. These (self-described) “Netizens” ardently believed in the liberating potential of the new technology, and of technology in general. Many had cut their teeth on the anti-authority counterculture rhetoric of the 1960s.42 They had been enlisted (ironically, by the military) to design a tool that wouldn’t have or 34 Chapter 2 need a central mechanism of organization and control. Their solution was a decentralized network designed and maintained by an equally decentralized set of user communities working by association rather than under regimented, official oversight. This produced a network distinctly open in both its technical workings and its cultural ethos. Part of this community’s enthusiasm was a faith that changes in technology have the power to transform the world. The early rhetoric is revealing: Now-familiar platitudes like “the Net treats censorship like damage and routes around it”43 and “information wants to be free”44 accord a sense of agency to things and ideas (“the Net treats,” “information wants”) and presume that change is nearly inevitable (the same declarative certainty so common to sociopolitical rhetoric). The assumption may in fact be a disempowering one. As Duguid observes, “Freedom of information, once a citizen’s right to gain access to information, by a sleight of argument becomes the right of information to move freely, free of material impediment.”45 But the appeal of this notion is undeniable. The Internet represented a complex network on a scale never before envisioned, with much of that complexity managed by the interaction of tools rather than by authorized institutions. In the eyes of these user-designers, the Internet seductively offered a ground for potentially perfect freedom, which, to them, meant free speech, human creativity, unfettered innovation, and robust community. Much of the early community discussions focused on authorship and the shifting politics of distribution. The Netizen vision held the new technology up as a solution (sometimes characterized as inevitable, sometimes as the best among many) to a fundamental problem of communication— that the division of labor between the production of information and its distribution often affects what can be said and by whom. The system of distribution Netizens wanted to undo (i.e., corporate broadcasting and mass-market print) exaggerates the distinction between producers and the rest of us; they hoped the Internet would up-end that distinction by allowing everyone to be a user, a participant, a citizen of cyberspace. Instead of the “consumer-as-commodity”46 model common to broadcasting, the Internet would foster a network of users bound by loose social ties; their work would circulate according to a gift economy rather than strictly commercial imperatives.47 By handing the power of distribution to anyone who wanted it, Netizens hoped to create communication that would be more about open interaction than exclusive publication. What happens to copyright, a law that grants authors the power of distribution within a market-structured culture (and generally through The Copyright Balance and the Weight of DRM 35 professionalized media to a mass audience), when a new communication medium reimagines what is distributed, by whom, under what conditions, and to what ends? Some believed that copyright wouldn’t work online because the market transactions it supported wouldn’t survive in a digital, networked environment. John Perry Barlow, for one, speculated that the immateriality of digital information would undermine the traditional distribution of culture. When information is delivered in a material form— book, CD, film, photo—rules about information can depend on its material dynamics. With the Internet, “digital technology is detaching information from the physical plane, where property law of all sorts has always found definition.”48 The material existence of cultural expression gave the law something to hold onto, just as it gave the market something to assign a price to. Once digitized, information might travel from author to reader without taking any more physical form than an electrical impulse. Would we need copyright at all in such a frictionless environment? Nicholas Negroponte focused on the ease of distribution. With a global, digital network, the process of distributing someone else’s work was simpler, and enjoyed a dramatically broader scope. Mass distribution, once the near exclusive domain of institutions, now became available to the individual. Copyright would not need to assure the kind of financial incentives it once did, because the costs of distributing information would so significantly decrease in a digital world as to be negligible. Esther Dyson argued that content providers would do better to forego selling their content and instead recoup costs from ancillary markets or charge for service relationships around the use of the work: maintenance, training, arrangements with businesses that want users to seek them out, and so forth. “Content providers should manage their businesses as if it were free, and then figure out how to set up relationships or develop ancillary products and services that cover the costs of developing content.”49 Copyright, instead of imposing a metaphor of property, could instead oversee the ancillary human interactions such that profit could flow from them. Some went even further. Weaned on the viral communities developing over the Internet, some believed that the social dynamics of those communities and of the Internet itself would sustain the flow of information. In a Netizen utopia, cyberspace would not only be freed from the limitations of the human body and the impositions of government legislation, but also shed the demands of the market. Ideas would run free across a networked “hive mind”50 organized around information

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