signal or noise? IP or BS?

this friday the berkman center is hosting the second iteration of its signal or noise? conference, which seeks to explore the relationship between public conceptions of art and legal conceptions of property as mediated/challenged by the advent of digital media technologies. (read a better description here.) attempting to put the digital-music revolution into a larger socio-cultural context, i'll be giving a brief demonstration of the way that musical ideas/materials--in the form of rhythms and melodies--have been circulating for some time between and within jamaica and the united states. i hope to demonstrate that the relationship between musical practice and ideas of ownership and originality is a complex one, and that these complexities (and common practices) are rarely recognized/understood by legal definitions of art-as-property. (it will be, essentially, a form of my mad mad talk, tailored for this particular forum and audience.)

it promises to be an entertaining and provocative conference. other guests/speakers include john perry barlow, the downhill battle gang, beatallica, siva "copywrongs" vaidhyanathan, and the usual-suspect berkman center all-stars. if you're in the boston area and would like to attend, you can register here.

the conference comes at a good time, as my head has been buzzing from all the recent discussion of copyright, public domain, and "intellectual property" on the SEM-list. as usual, anthony mccann has been raising a lot of good questions and generating a lot of debate and information about global copyright issues.

in particular, i thought that his reply to marc perlman's post did a good job of laying out all that is at stake when we carelessly reproduce the power-relations inherent in the concept of "IP" and fail to challenge the legal status quo:

Perlman (as excerpted by McCann): "The law governs us regardless of our own understandings. ... Insofar as we are subject to the law whether we like it or not, to create a viable and lasting alternative to the existing music-property regime, we need to come up with explicit legal definitions. This is, of course, the philosophy behind the open-source software movement ('copyleft,' GPL, etc.) and the Creative Commons licenses ('Some Rights Reserved')."

McCann: "This position on the one hand sustains what critical legal scholars have called "legal closure", facilitating value-neutral, apolitical, asocial understandings of 'the law'. The 'it's the law, and it's there whether we like it or not' is a very conservative position, politically speaking, serving as a buffer to sustained interrogation of social, political, and historical contexts. "How is it that it happens to be this way and not some other?" that allow things to happen 'in this way and not some other'.

"Another, related, issue I would have with this position is that it ignores particular characters of social change that are associated with legislative expansion and enclosure, thereby leaving us blind to their occurrence, and consequently powerless to do anything appropriate in response. The discourses and practices of Copyright and IP are *expansionary* and *doctrinal*. They often involve systematic persuasion, indoctrination, and, where required, coercion. Giving in to the inevitability of expansion or, ignoring expansion, to the inevitability of an underlying or overarching parsonian legal consensus-of-sorts can be, for me, to chuck hope out the window and efface the agency and efforts of those who would resist, saying 'hold on, this isn't right', 'I don't agree', or 'I don't think like that'.

"As well as the accusation of American-centrism which have been levelled at open-source/EFF and the Creative Commons movements, these developments have done nothing to stem the tides of IP expansion, and have, rather facilitated the enthusiastic uptake of IP thinking even faster than might previously have been possible. In the context of capitalist, and more recently US-military expansionary dynamics in the world these are aspects of intellectual property debates that can be dealt with more carefully. Whose law? What do you mean by law? What's important and to whom? Who gets to say? Where, when, and with what effects? Saying "The law governs us regardless of our own understandings" can have the effect of quashing a lot of that analysis.

"Just remember that there are many of us out there who are very unhappy about the assumptions embedded in copyright and IP law, deeply unhappy about the politics of coercion involved in the maintenance of IP law, and hoping to make a related difference somewhere somehow in the ways that people consider these issues."

in another interesting development, someone posted a response to mccann's assertion about open-source/EFF/creative-commons "facilitating the enthusiastic uptake of IP thinking" from none other than richard stallman:

"I think I agree more or less with whoever wrote those words. So I hope he will forgive me for starting this response by correcting a possible misunderstanding about a side issue. It is incorrect to group together the EFF with open source, since they have nothing to do with each other. The EFF's purpose is to uphold civil liberties in cyberspace. Working at any level against copyright never was its aim. So I think it doesn't really belong in this discussion.

"Getting back to the main issue: it is true that neither Creative Commons nor the open source philosophy strongly opposes the basic ideas of today's overrestrictive copyright system. Both of them have inspired many people to write and share many useful works, but they don't go deeper and call into question the legitimacy of copyright law. They invite authors to choose not to exercise all the power that the system gives them, but they don't say that authors (or publishers) shouldn't have so much power in the first place.

"In the case of open source, this is no accident. Open source was started as a reaction against the ideals of the free software movement. Its specific purpose was to avoid those deeper issues.

"In the free software movement, we say it is wrong for anyone to stop you from sharing and changing software. We say that the people who do so are committing an evil, and our goal is to put an end to the evil. The useful software produced by the free software movement was, in the 1990s, serving to spread our ideals too.

"It is no surprise that some people found these ideals uncomfortable. They started a campaign to disconnect our software from our ideals, by putting another label ("open source") on the software. Their corporate-fueled voice is quite loud, and ours is often drowned out....

"If you don't like the weakness of the open source philosophy, its failure to address the ethical issues, how about helping our voice to be heard? Instead of criticizing open source for declining to make this a fight for justice, do this, you could support the free software movement because we do so.

"Meanwhile, it is useful to recognize and educate others about the bias and confusion spread by the term "intellectual property" itself. That term is the center of the propaganda campaign for harmful and unjust copyright and patent laws. Every time we talk about "intellectual property" (or its abbreviation "IP") we support that propaganda campaign.

"I have decided never use that term, except to explain why it is harmful."

continuing the conversation, mccann then provided a link to an amazing site which collects dozens of essays seeking to counter the WIPO contest soliciting the best essays that support the IP status quo. another source to check out is this site, which revolves around a call for WIPO to adopt a "development agenda" and provides a petition where one can sign in support.

interestingly, the whole SEM debate was touched off, it seems, when someone posted to the list a provocative quotation from the late, great musicologist, charles seeger:

"Perhaps the Russians have done the right thing, after all, in abolishing copyright. It is well known that conscious and unconscious appropriation, borrowing, adapting, plagiarizing, and plain stealing are variously, and always have been, part and parcel of the process of artistic creation. The attempt to make sense out of copyright reaches its limit in folk song. For here is the illustration par excellence of the law of Plagiarism. The folk song is, by definition and, as far as we can tell, by reality, entirely a product of plagiarism." (from "Who Owns Folklore? - A Rejoinder," WESTERN FOLKLORE, vol. 21, # 2, April 1962, pp. 93-101 [quotation on p. 97]; Seeger's article was a rejoinder to an earlier one by G. Legman, "Who Owns Folklore?" WF, vol. 21, # 1, Jan. 1962, pp. 1-12.)

pretty radical stuff. of course, seeger was always provocative and always authoritative in his arguments.

let's hope that friday's conference lives up to some of the excitement and energy clearly surrounding these issues. if it can provoke as much debate as a forty-year-old argument from an eminent musicologist, it will be worth the price of admission.