Wednesday, March 23, 2011


This article was originally published in the 3.24.11 issue of Metroland

For as long as this column has been here the point has been made that the one thing that makes enforcement of online infringements so scary is that it inevitably involves some serious invasions of privacy. In order to determine that you’re downloading something maybe you shouldn’t, someone needs to snoop on pretty much everything you’re doing online. And where I come from, if it’s a matter of personal privacy versus the intellectual property rights of a record company, a movie studio, or even an individual creator, personal privacy rights win out every time. It’s this point, brought on by the simple fact that digital media obliterates any natural scarcity in most copyrighted works, that calls into question the efficacy of copyright law as we’ve gotten to accept it over the last couple hundred years.

We’ve been watching the Obama administration doing a little dance around this issue, and there have been troubling signals galore—the inexplicable involvement of the Department of Homeland Security in domestic infringement cases, the creation of an Intellectual Property Czarina, who’s made a bunch of broad general statements that parrot the worst delusional and vapid industry rhetoric about infringement, and Veep Joe Biden running around comparing “illegal downloads” to a smash-and-grabs at Tiffany’s. Recently the Feds have been securing court orders and shutting down domains of websites it thinks are involved in counterfeiting and online infringements, a tactic that many legal analysts believe is totally lacking in any kind of due process and will get shot down as soon as a court gets to hear more than one side of the story.

Now it’s getting even more scary. Last week IP Czarina Victoria Espinel announced a bunch of specific measures that the Obama administration would like to see enacted. Along with a bunch of things that are laudable (step up measures to combat counterfeit medicine? Well, duh?) are few things that are downright awful. Like changing the criminal law to make streaming of copyrighted works a felony, which would allow cops to wiretap people “suspected” of infringing streaming.

C’mon now. Your ISP or phone company sees that you’re using a bunch of bandwidth, so they tell the Feds, the Feds go to a judge, and suddenly, you’ve got company online in the form of a cyber G-man keeping track of everything you’re looking at. A spokesman for an internet industry group called it “the Patriot Act for Hollywood” and that’s not far off. And you really think there will never be a quid pro quo for unnecessary government protection of the entertainment industries and the entertainment industries’ complicity in quelling political dissent? AT&T didn’t have a problem with it, do you really think Warner Brothers will? As Poly Styrene observed in 1978, “Oh Bondage, Up Yours!”

We’ll see how interested in “personal liberty” and “freedom” these pasty white Tea Party idiots really are when this comes up in Congress.

Moving on! A couple years ago Microsoft introduced the Zune, an undistinguished MP3 player that the press went all nuts over—“could this be the iPod killer?” No, it couldn’t be. It’s freakin’ Microsoft. It was basically DOA upon release, and it finally died for good last week, with a whimper. Told ya.

On the legal front, uber-appropriation artist (and local guy) Richard Prince got slammed in a New York federal court when a judge declared his collages based on photographs of Rastas taken out of a book by photographer Patrick Cariou were not fair use. Among other things the judge ruled was that Prince’s works were not “transformative” because they didn’t fundamentally change the message or purpose or comment on the original works. As the likely damages look to be astronomical (Prince’s works sell for millions, and there may well be attorneys fees on top of that), an appeal is expected. This case really looks at the limits of appropriation art and fair use---the space between Jeff Koons’ paintings and Marcel Duchamp’s urinal; I don’t think that fair use arises by sticking a feather in your cap and calling it macaroni, and many of Prince’s works approach that. So where is the line? Can there even be a line? Meantime, this decision is sending a chill across the fertile world of appropriation art, where legal uncertainty can translate into artistic timidity. Stay tuned.

Another unfortunate court decision dropped this week, a New York federal judge struck down the Google Books settlement that was reached among the various parties to the lawsuit last year. I haven’t had time to read the decision yet, but from what I read one thing the judge really didn’t like the fact that Google would have the opportunity to profit from selling books for which a copyright holder couldn’t be identified or located, and that provisions of the settlement would discourage competition in the scanned-book archive space. Both of these holdings strike me as ludicrous, but I’ll look into it and have more on this (hopefully) next time.