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Why I Gave Money to Lawrence Lessig’s MAYDAY SuperPAC (and probably will again)

The convention these days, after giving money to an online fundraising campaign, is to declare the contribution to your social networks via an automatically generated message that says something like, “I just supported Lawrence Lessig’s MAYDAY Citizens’ SuperPAC and so should you.” People who know me know that I’m a cheapskate and I don’t like giving money away. I also feel ambivalent about the generic tone of those messages and the immodesty of announcing one’s generosity, none of which seems conducive to getting others to donate. So I wrote this instead.

I have not always agreed with Lawrence Lessig. Only a decade ago his all-too-often-repeated assertion that “fair use is the right to hire a lawyer” was actively damaging to the cause of fair use advocacy. His support instead for licensing via Creative Commons, while brilliant and necessary, did nothing for those who wanted to exercise their rights to appropriate, remix and critique commercial media. As much as I respect the middle ground carved by Creative Commons, we should make no mistake: it is the opposite of fair use. While CC licenses offer an alternative, primarily for independent artists who want more nuance in distributing their work, it leaves copyright law and wide swaths of permission culture intact.

It was not until his 2008 book Remix that Lessig attenuated his disdain for fair use in order to position remix as a kind of fundamental democratic right. But the damage had been done; well-funded lobbying campaigns by the MPAA, RIAA and others have left fair use haunted by fears of litigation, even among those who are doing precisely what the doctrine is meant to protect. Lessig’s change of heart on fair use came as a revelation and a validation. He also advocated making a distinction between fair use and “free use,” with the former reserved for commercial uses and the latter to enjoy a litigation-free zone for amateur and non-commercial makers. But that kind of legislative change could only be made by rational lawmakers who are not controlled by moneyed interests. In any case, it was shortly before the Remix book appeared that Lessig announced he would no longer focus on copyright issues in order to turn his attention to political corruption in Congress.

I confess to feeling abandoned by Lessig’s shift of focus at the very moment when fair use seemed at last to be gaining ground. Pat Aufderheide and Peter Jaszi of American University’s Center for Social Media — now the Center for Media & Social Impact — had published their first two game-changing Codes of Best Practices in Fair Use, and I had just launched my own fair use advocacy network, Critical Commons (so named in homage to Lessig’s Creative Commons organization). But the fight was far from over.

Jaszi and Aufderheide convinced me that the *last* thing we wanted was for Congress to reform copyright law. In such an event, moneyed interests (aka “stakeholders”) would descend on Washington in even greater numbers than usual, ensuring that whatever might get etched into law to clarify and quantify fair use would inevitably be worse than the current situation. Ironically, it is precisely the absence of clarity that opponents of fair use most often bemoan, while others (me included) prefer the elasticity of the current system, specifying not numbers or percentages but reasonable limits based on what is needed in order, simply, to make one’s point. At the end of the day, it’s bad enough to have some Federal courts making such determinations, but Congress — as it currently is — would certainly be worse.

Admittedly, I am a single-issue voter on the subject of fair use and Lessig has not always backed the positions I most strongly support. Even his reformist rhetoric has always conceded the “necessity” of an industry-friendly model for copyright (it’s easy now to forget that the original goal of copyright was to *encourage* creativity). Lessig has also consistently opposed the tactics of copyright opponents who have been pushed by the extremes of “anti-piracy” campaigns to engage in what can rightly be termed electronic civil disobedience. While politicized remix artists, hackers and organizations launched frontal assaults against Hollywood’s most aggressive litigants, Lessig remained unequivocal on the subject: Every time the law is broken, and these prosecutions are justified, he argued, “We lose.” His legal reasoning was impeccable, as always, but I wished for greater solidarity with those who were placing themselves on the front lines of they copyright wars. Surely the history of legal reform in this country validates the actions of individuals who engage in civil disobedience and it is incumbent upon those of us who support the cause from the comfort of our academic appointments to watch their backs when the need arises.

As we learned from the tragic death of Aaron Swartz — which began with a quintessential gesture of electronic civil disobedience — life is too short and the opposition too ruthless not to act when we have the opportunity. Now it is Lessig who is placing himself on the front lines of a daunting struggle against big money in politics. He deserves our respect and support as a public intellectual, a man of action, and a person of integrity — which is not the same as saying we should always agree with him. He is also one of only a handful of people who I can imagine undertaking — to say nothing of winning — a frontal assault on political funding that favors corporations and the super-rich. It is not without irony that he proposes playing by their rules in order to change them — a SuperPAC to end (literally) all SuperPACs.

If we believe, as I do, that the transformation of copyright is a struggle that must be waged on multiple fronts — cultural, technological, legal — then it is not okay to concede the realm of lawmaking to those who can afford to buy influence among legislators. The position I once held — that copyright reform in Congress would inevitably be disastrous — represents an unacceptable concession to the very corruption the MAYDAY PAC aims to address. Lessig’s strategy — playing the game of money in politics in order to *change* the game of money in politics — I now understand to be another way of watching the backs of those who are moving the struggle forward in other arenas.

I just supported Lawrence Lessig’s MAYDAY Citizen’s SuperPAC and so should you. <Make a pledge>

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Public intellectuals and open data

Last week, Tara McPherson and I presented a Scalar workshop in Henry Jenkins’ Public Intellectuals class at USC Annenberg, mapping our own traversals of the academic and non-academic realms going back to the launch of Vectors in 2005. We each agreed to show one Vectors project as a precursor to the hands-on demo of Scalar, which Henry asked his students to use to create their own prototype scholar-activist projects. I chose Trevor Paglen’s Unmarked Planes and Hidden Geographies, an easily overlooked project from 2006 designed by Raegan Kelly and programmed by Craig Dietrich. Paglen’s project was created while he was still a graduate student in Geography at UC Berkeley, devoted to mapping the contours of the military-industrial complex. An offshoot of his dissertation research that would become the books Blank Spots on the Map – The Dark Geography of the Pentagon’s Secret World and Torture Taxi – On the Trail of the CIA’s Rendition Flights, Paglen’s project used a combination of reverse surveillance tactics including long-range telephotography and a prescient form of data mining that allowed him to identify the flight paths and schedules of the planes used for black-ops and extraordinary rendition. Even so-called “torture flights” have to be charted by the FAA in order to control air traffic and Paglen’s project cleverly scraped the publicly available FAA flight data, using the absence of standard plane identifiers (tail numbers) as a means to reveal those flights that are supposed to be hidden from public scrutiny. Paglen’s insight in 2006 eerily prefigures current revelations about the utility of metadata as a means of tracking behavior and suggests the need for more instances of reverse surveillance if our democracy is going to survive.

For me, though, the real moment of revelation came as I was pontificating about my own project’s “innovative” commitment to “researching in public.” Tara commented blithely that I was basically doing a Humanities version of the kind of open data research that is increasingly standard practice in the Sciences. The sharing of data sets, now mandated for many publicly funded research projects in the Sciences, indeed closely mirrors my own hopes for the Technologies of Cinema archive – that the collection of media (currently 400+ media clips) that I have been amassing in Critical Commons will be found and used by others to perform parallel or, indeed, divergent projects using this public “data set.” As with their comparatively welcoming attitude toward collaboration and commitment to accelerated publication timelines, it turns out that we in the Humanities can once again learn from our colleagues in the Sciences.

Tara went on to offer a deliberately provocative metaphor for traditional archival research that does not aspire to openness, describing it as “vampiric.” Part of the goal of the ANVC’s development of archive partnerships around Scalar is to transform the relationship between scholars and archives, enabling a more bidirectional mode of interaction. Instead of scholars who make “their” discovery in some dusty corner of the archive, extracting what they need and hoping that no one else finds the same materials before they publish, a long-term goal of Scalar is to allow for two-way linkages between the contents of electronic archives and their treatment in scholarly publications. Instead of sucking archives dry, such a circuit of knowledge production and (re)distribution stands to benefit both archives and researchers of the future. Another way to think about this is the transformation of scholarly work from being its own “content” to serving as “metadata” attached to original sources in the archive. While the Scalar team continues to develop the technical and human infrastructure needed for this transformation, the conceptual architecture of open data and public intellectualism offers an equally important foundation for its recognition within the academy.

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Smart/Dumb Binaries and the Facebook Copyright Meme

By now, anyone who might have been tempted to add an assertion of copyright ownership requiring “written consent” to reuse the content of their Facebook posts has hopefully been disabused of its efficacy and/or legal standing, thanks to multiple disavowals in commercial and social media, as well as innumerable comments within Facebook itself. Bogus memes like this one circulate and are debunked quickly, which means on one hand that the internet is doing its job; on the other hand, I’ve been disappointed by the lack of reflection on the cultural circumstances giving rise to this particular meme and the conservative ideology reflected in its denunciations by individuals, social media and commercial outlets alike.

From ABC news to, debunkers have authoritatively declared the impossibility of overriding Facebook’s basic user agreement, citing the company’s own refutation, which reasserts that users retain ownership of their intellectual property for content posted to the site. “You’ll be happy to know,” says today’s Time magazine tech site, “the company’s making it clear that you — not Facebook — own your content, period.” Facebook’s official response to the “meme” strikes a similarly reassuring tone:

There is a rumor circulating that Facebook is making a change related to ownership of users’ information or the content they post to the site. This is false. Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been.

In this brief (i.e., easily circulated) “fact check,” Facebook does not bother to highlight the fact that rather than asserting “ownership” of content posted to the social network, their stated terms instead grant them a transferable license to *use* anything posted by its hundreds of millions of users any way they want, royalty-free, worldwide until it is deleted by you *and* everyone you shared it with.

So what’s the difference between this type of blanket, essentially irrevocable, licensing agreement and what we still laughably refer to as “ownership”? Reassuring users that Facebook does not assert “ownership” is an absurd prevarication that only has currency on an ideological level. Yes, you still “own” the “copyright” to your “IP” but if there is money to be made off of something posted to Facebook, you have already given them the right to do so without paying you a cent (remember “royalty-free”?). In the unlikely event something you posted turns out to have commercial value, Facebook can also sell the right to use it to a third-party to exploit it in a worldwide market (remember “transferable” and “worldwide” from your users’ agreement?), again without owing you a cent.

But I’m not actually interested in any of that. What interests me is our willingness to engage in conversations about — and adhere to systems that serve the interests of — a lottery-like system of extreme individual reward at the expense of a shared cultural good. I am talking, of course, about the difference between open and closed models of cultural production, and the fact that the dominant ideology of American culture continues to favor the latter, even when delivered over a technological infrastructure that uniquely facilitates the former.

In other words, the overwhelming discourse surrounding the “Facebook copyright meme” is mendaciously predicated on the possibility that someone is sooner or later going to get fabulously wealthy by exploiting our *individual* images, words, sounds or ideas. Focusing on the terms under which such a billion-to-one occurrence will get monetized deflects awareness away from the obvious fact that the value of Facebook lies in its efficient mobilization of a vast, collective network, not any one contribution to it. More importantly, every single day we consent to the rules and expectations imposed by corporate and legal institutions such as this one. If the dominant ideology of such a system revolves around repeated assertions and refinements of terms of ownership, monetization and control, then users will continue to act accordingly, protecting their “intellectual property,” sharing only when they are assured of not getting ripped off by other community members or their imputed corporate overlords.

So what really happens when a meme like this rises to prominence? A few people get to look smart by making others look dumb for buying into the hoax and misunderstanding both the nature of copyright law and their agreement with Facebook. Facebook gets to look generous and fair by disavowing the rumor that it is evil and trying to take away “ownership” of its users’ “content.” The smart people mimic what they have read about copyright law and we all, once again, function as obedient drones of the copyright industries’ public relations machine.

Does the popularity of this meme suggest that there is a problem with Facebook’s royalty-free licensing agreement with users? Maybe. Google had to nuance some of its royalty-free uses of YouTube videos in response to uploaders expressing their feelings of being exploited. Perception, in these cases is as important as reality and clearly there is some sector of Facebook’s users who is ready to believe that people — especially “open capital” corporations — are out to profit from their ideas. Now I get it! We’re talking about piracy — but for once, we get to be the injured innocents instead of the scurvy dogs!

For over a decade, we have all been bombarded by the copyright industries’ discourse of “piracy” (bad) vs. copyright (good) such that this binary has become second nature, a default position that dominates cultural discourse about ideas and ownership so effectively that we rarely even notice it’s happening. We speak this ideology every time we ask a remix artist how they got away with asserting basic fair use rights or stop ourselves from reusing images, sound or video for fear of incurring the wrath of a corporate legal department or its automated takedown trolls.

Facebook, by this logic, is out to “pirate” our content, taking it away from “us” the true owners, and the meme text encourages us to “declare that my copyright is attached to all of my personal details, illustrations, graphics, comics, paintings, photos, and videos, etc.” Copyright law, however imperfectly expressed it might be here, rides in to rescue our ideas! Although it is temporarily reversed, the “piracy” dichotomy is preserved and copyright is elevated as the hero of our personal struggle against profiteering corporations! Freedom, creativity, private ownership, and corporate beneficence all triumph in the name of copyright!

So who loses? Gullible fools (i.e., not me!) and “conspiracy theorists” — those who are either not cool enough to know their memes or not skeptical enough to separate smart conspiracy theories from dumb ones. Regardless, the winner of this meme and its debunkers remains an utterly conventional and individually disempowering model of copyright and intellectual property ownership.

I confess that when I first heard about Facebook users being encouraged to add text to their posts that would override the default copyright agreement, I naively assumed that the goal was to encourage greater sharing and openness, perhaps through the use of Creative Commons (CC) licenses. But after reading repeated denunciations of a user’s ability to override Facebook’s basic Terms of Service with the meme text, it seems clear that the attribution of a CC license would be deemed equally futile. In fact, the “smart people” denouncing the dumb ones in this meme frame their critiques with such condescension as to preclude any subsequent discussion whatsoever.

For example, uses an image of a girl dressed in Harry Potter garb casting a spell to underscore its characterization of the copyright notice as “silly” and a “magic spell” (ironically the image used by Wired was posted on Flickr under a CC license that allows it to be circulated freely online without paying or seeking permission from its originator!). Snopes, likewise refers to the text as a “legal talisman.” A meme, once so aggressively debunked, does not get a second chance; to even continue the conversation risks putting you on the wrong side of the smart/dumb divide.

In either case, the end lesson remains the same and is flatly stated by Wired’s Ryan Tate:

A blunter way of summarizing the situation is to explain that if you want to use Facebook, you must play by Facebook’s rules, even when they change. If you don’t want to play by Facebook’s rules anymore, you must quit Facebook. The idea of remaining on Facebook but playing by your own rules via magic spells is a fantasy. Stay on Facebook or leave Facebook. There is no third option.

Time is only slightly more nuanced:

If you have a problem with Facebook’s privacy policies, you can either stick it out and lobby for Facebook to amend its terms, or you can quit Facebook.

So these are the options offered by the smart people: agree to Facebook’s terms, sign a petition that probably won’t do any good, or register an even more meaningless protest by taking your business elsewhere. This last option should not be entirely discounted, of course, but the historical metaphor of refusing to buy from a retailer where one has been mistreated hardly holds in the case of a billion-user system like Facebook. However you slice it, the prospect of a collective response is deeply muted by the ideology of individual action as the only — and ironically fundamentally hopeless! — course available.

The option that goes unmentioned is, of course, to initiate or participate in a collective action against Facebook. Organizing a boycott or an information campaign to prompt smart, public discussion of the real issues underlying copyright, privacy and ownership remains a viable option — particularly by taking advantage of the deliberate spreadability of social media via sites such as this one — and one that should not be reduced to a simple smart/dumb binary.

(originally posted on Facebook 11.27.12)

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