The Copyright Wars of 2017
How cut-and-paste culture turns kids into the enemy
BY John Sobol
Illustration by Joshua Leipciger
You’re 17. You’re busy with your computer, your pager, your cell phone. Doing what comes naturally. You play games. You share information. You explore, imagine and invent. You use the tools at hand. You cut, you paste, you copy, you surf, you talk, you link, you download, you upload, you remix, you mash-up, you code. It’s your culture. You’re having fun. You’re learning. You’re working. You’re creating your world.
Then your dad, your teacher, your boss arrives and suddenly the script gets flipped. He watches and sputters as he sees you steal, conspire, loot, ruin and attack. Nothing’s changed. You’re still doing what comes naturally, but suddenly the handcuffs are out, the lawyers are at the door, the judge is weighing the evidence. Are you a kid or a criminal? Or a kid and a criminal?
Now inflate this picture by a factor of a million, or a 100 million or more. Because the size of connected culture is staggering. We send 100 billion email messages every day! Ask yourself: What happens to the American economy if copyright is obliterated by cut-and-paste culture? Sounds to me like a good excuse for a Bush-style war. But who, exactly, would be the enemy? Who are the copyright terrorists, who are the pirates? That’s right, the kids.
Welcome to the early 21st century digital divide—and to a generation gap widening at the speed of fibreoptic light. But as hyper-connected kids threaten—mostly by accident—to destabilize global capitalism, they are meeting ever-stiffer institutional resistance. And the conflict may get worse before it gets better. How bad might it get? Well, this is my modest proposal to prevent the Copyright Wars of 2017.
File-sharing—a crime or a right? The rhetoric surrounding file-sharing can cloud our ability to understand a basic truth: File-sharing is the end and purpose of all digital networks. File-sharing is what networks are for; the near-infinite reproduction and transmission of data. On the most basic level, networks do almost nothing else.
By using digital networks to do the very thing they were designed to do—i.e. share files—kids who are raised in an interactive culture are destined to learn that what is normal is sharing and what is abnormal is not sharing.
A couple of years ago I spent an hour addressing 50 university students in a Toronto classroom. We were talking about digital culture. I asked how many in the class downloaded music. All but four raised a hand. I asked each of those four why they didn’t download mp3s.
“My computer’s broken,” said the first.
“I get all the music I want from my friends,” said the second.
“Money’s not an issue for me,” said a third guy from the back of the class, “I’m rich.”
The fourth was exasperated: “I stopped at 10,000 songs. I couldn’t take it anymore.”
I told the class I was surprised that no one had mentioned that there might be an ethical reason not to download music. To my amazement this instantly cracked the class up. They were howling and hooting as if I had just said the dorkiest thing ever. It was an eye-opener for me. The very idea of copyright was a joke to these kids. Values were changing even faster than I had anticipated.
But who’s that on the horizon, mouthing obscenities and carrying a big club? That’s right, the recording industry, desperately trying to fend off the inevitable. In the past couple of years the RIAA (Recording Industry Association of America) has launched over 10,000—10,000!—lawsuits against individuals in the United States for illegally downloading music. The RIAA very often targets teenage downloaders, many of whom have only a few hundred songs on their hard drives, knowing full well that their parents will force them to settle. Question: How many of those 10,000 lawsuits have gone to trial? Answer: None. It’s all about intimidation.
Here in Canada we are the most active music downloaders in the world on a per capita basis. This is largely because we’re rich; i.e. we have lots of time, lots of fast computers and lots of high-speed internet connections. Graham Henderson, president of the Canadian Recording Industry Association, called the popularity of downloading music in Canada “shameful” in an article in the Calgary Herald titled, “We’re No.1 … when it comes to stealing music.” Except that it is legal in Canada to download music from the internet. (Though strangely, it is illegal to upload it.)
Music industry lobbyists like Henderson claim that they are defending artists’ interests. But really, what’s shameful is the tiny percentage of the purchase price paid for any store-bought CD that actually makes it from the consumer to the artist. When I had a record label (Word of Mouth, we put out nine CDs in the 1990s) we gave artists the standard industry royalty: 15 percent of the wholesale price. We sold our CDs to our distributor for seven bucks each, so the artists got approximately one of those seven bucks. Our distributor sold it for twice that to the stores, which then added their 75 percent markup. So that our CD ended up on sale at HMV for $25.99, of which only a single lousy loonie went to the artist.
And that, children, is considered a good deal in the music industry.
A lot of kids who download music today intuitively understand this exploitative reality. I mean, how could the clunky and overbearing superstructure that is the music industry be the right way to manage music? Not when we’ve got iTunes, podcasts, BitTorrent broadband, 4GHz of CPU and 500 songs stored in cell phones!
Networked kids also understand that the point of digital tools is to connect—with music, with each other, with knowledge and mystery, with status, with stories. A zillion years ago, back when Napster squashed the status quo like a bug, musical savant Thomas Dolby said, “Just try to find me one musician who is unhappy that a million people have downloaded his song.”
The legal landmines that safeguard copyright are there to protect commercial interests from intellectual thieves, pirates, vandals and spies. (“Hi Mom, it’s me, the intellectual thief, pirate, vandal and spy, what’s for dinner?”) But file-sharing is just one slice of the sphere. Those interests—and those landmines—can and will be triggered by other networked acts, accidental and otherwise.
Five Million Emails One day last year a teenager in England (The Unknown Minor) was fired from his or her lousy job. He or she got pissed and fired off five million emails to his or her former boss. Boom! went the mail servers and out came the bailiffs with the cuffs. He or she was hauled up on the grave charge of launching a Denial of Service (DoS) attack. It was the first and only time such a charge has been laid in England. The crime was taken very seriously.
But is sending someone five million emails a criminal act? Or a prank? A clever protest? Bad manners? What do you think? The judge acquitted The Unknown Minor because his or her actions did not fulfill the conditions of the legal definition of a DoS attack. In other words, the kid got off on a technicality. Had the wording been a little different, the outcome might have been as well.
Likely the teen and his or her friends thought that sending those emails was a cool thing to do. A more mature advisor might have suggested otherwise. But whereas a generation ago someone who was unfairly sacked might have filed a grievance or carried a picket, this kid sends five million emails. And why not? It’s what his/her favourite tools are for.
Plagiarism & Remix Culture Outright plagiarism is wrong. Let’s start with that. The slick dude who scalped his entire class presentation from stuff written on the web was definitely out of line presenting it as his own work. Hell, he should at least have looked further than the first page of Google listings. You read all the same stuff he said word for word on some website a half hour before class. Pitiful.
Yes, but. Is everything called plagiarism really cheating? At a certain point, as you go about endlessly cutting and pasting, can you tell whose information is whose anymore? Does it even matter where data came from? Because if I don’t have it then you do and if you don’t then someone else does and she can send it over in a second. Data is everywhere, lying around in vast piles. It’s there for the taking. Facts. Ideas. Idioms. All the information in the world accessible all the time, anywhere you can jack in. Do you ask who owns the water if you’re a fish? No, you just swim.
Nonetheless, there have recently been major plagiarizing and digital cheating scandals in South Korean schools involving hundreds of college students sharing information (or was it knowledge?) in a busy illicit network. Students may now be frisked for PDAs in Seoul the same way they are frisked for weapons in the US. But if you can get the answer to your exam question by consulting Google via your mobile phone, does it make sense to be punished for cheating when your real skill is the ability to access needed information rapidly?
How you answer this question will largely depend on how you define “knowledge.” The academic definition—based on rationalist premises that emphasize stability and certainty—is not the only one available. Oral cultures, for example, define knowledge in situational terms. For the talkers of the world, reality is always re-negotiated in the moment, as there is no external archive to reference.
So what are the characteristics of networked knowledge in the datazoic era? What are the foundations of a digital epistemology? Is the familiar literate definition of knowledge as fixable facts being challenged by an entirely different way of knowing, one based on networked digital tools that are all about flow? That validate the knowledge process not the knowledge product? The knowledge event not the knowledge artifact?
For literates, if something can’t be written down it isn’t knowledge and probably doesn’t exist. Maybe for digitalists, if something can’t be Googled, or cut and pasted, or downloaded, it too doesn’t exist. Anything that refuses to be part of the endless remix is simply left out of the knowledge equation. In the same way that the law rejects hearsay and science discounts dreams. In each case the validation or invalidation of knowledge is an expression of power relations. In each case what is defined as knowledge matters—a lot. It’s the difference between being an owner and a thief, between protecting something and destroying it, between a pass and a fail. Changing the definition of knowledge affects everything.
And the point is not just that with digital tools we can easily mash-up files that contain “facts” that are separate and distinct in the real world (like a picture of George W. Bush and another one of Osama bin Laden), but that in the virtual sphere the status of “facts” changes altogether. They no longer need to reflect a stable outside world since they constantly recreate it anew in their own recombinant image. Something is “known” only when (re)enacted and (re)used, mattering only in the moment for digitalists and oralists alike; just as all recorded sound became raw material for Afrika Bambaata and his buddies, the original Zulu B-boys, working dual decks in the South Bronx, sampling and scratching out the origins of hip-hop—playing records backwards for crissakes!—interweaving P-Funk and Devo to create rocking breakbeats out of apparent sonic incompatibilities.
Of course musical sampling was rapidly and harshly legislated in the 1980s precisely because it was based on the very oral notion that sound is for sharing and not for owning. But 20 years later, the same copyright battles (and same knowledge battles) are still being played out, with mash-ups, i.e. musical collages. Like in 2004, when DJ Danger Mouse released his brilliant The Grey Album, which mashed-up Jay-Z’s The Black Album vocal tracks with The Beatles’ White Album, EMI sued him for infringing the White Album’s copyright. (Jay-Z, in contrast—a hardcore oralist—had uploaded his vocal tracks precisely so people would remix them.) Soon after, an online protest was staged that saw 170 websites host copies of The Grey Album for download, resulting in over one million tracks being downloaded in one day, but still the case drags on.
Unauthorized sampling and mash-ups remain as illegal in the music industry as they are in the classroom. But just as natural. And just as popular. And although in some sense the clampdown on perceived knowledge-theft may be raging in academia, it’s a moving target. Certainly pure fraud will always remain uncool and unethical, but plagiarism as it is currently defined may soon be overwhelmed by cut-and-paste culture, where what really matters is what you do with data, not where you found it.
DVD Jon—Hero or Villain? The question of intellectual property (IP) plagues cut-and-paste culture, which generally regards its intensifying patents, penalties and protections as intrusive, archaic and ineffective forms of regulation. Consider DVD Jon Johansen, the 15-year-old Norwegian boy who cracked a crucial DVD encryption program when he figured out how to play his store-bought DVDs on his Linux computer. Almost immediately he sent a message announcing his successful crack to a message board for Open Source software developers who were themselves trying to design a universal DVD player for Linux computers. Soon DVD Jon enjoyed great respect within the developer community as a lad who had solved a complex computer science problem and advanced a collective project with communitarian goals.
But word of his achievement began to leak out, and, under intense pressure from the USA, he was busted, big time. On January 9, 2000, the Norwegian Economic Crime Unit (ØKOKRIM) charged Jon Johansen for helping to create DeCSS code-cracking software. Interestingly, a few months later Johansen was awarded the prestigious Karoline Prize for a significant achievement by a Norwegian high school student. So 2002 was a big year for DVD Jon.
In the end, the Oslo District Court unanimously acquitted DVD Jon on charges of “Piracy,” accepting that it had been perfectly reasonable for Jon to want to play his own DVDs on his own computer, and for him to invent a way to do so, despite Sony’s attempt to regulate his usage. It had also been OK to post his invented code to the Open Source community of Linux developers. Still, it had been a close shave.
And as much as this adventure may have legitimately been about Jon Johansen wanting to play his own DVDs on his own computer, it was also very much about the thrill of intellectual competition and exploration, about inventing new worlds, and about the fun of being good at something. Just as it was also about meeting like-minded people, and about fame and science and politics and art for that matter. But what was it not? It was not dishonest. He was not a criminal.
Not—at least—in that court, in that country, at that time, under that judge. But things change. The future is uncertain. France just passed a bill that threatens to jail anyone breaking commercial copyright protection on DVDs. So will the next DVD Jon be labelled an economic saboteur; will he be labelled a terrorist? Isn’t copyright as essential to economic stability and security as oil? Will Open Source become a global political movement? (There’s already a Pirate Party in Sweden.) Where is all this leading?
Who Are You? You will have figured out by now, reading this article, where your own allegiances lie. You will have harrumphed at the narrow-mindedness of the pre-digital establishment or gasped with frustration as its fundamental principles are mocked and trampled. Or you may—like many of us—be conflicted. You may have done both.
My aim is neither to celebrate nor antagonize any camp or community, but rather to make clear to all that a serious disconnect is at hand. As broadband internet access increases, as desktops get more versatile, as mobile phones go multimedia, boomers retire and the ranks of the never-known-a-time-before-the-internet swell, the speed of change will increase. And so will the size of the generation gap.
That DVD Jon and The Unknown Minor were charged with high crimes is a bad sign. That they were acquitted is a good one. But either way, the challenges ahead are very real. Copyright is as necessary and just for one side as it is unnecessary and unjust for the other. These are two solitudes, each ‘knowing’ incompatible things. Looking ahead, the situation appears volatile.
My proposition is mutual aid. I think that each side needs the other. And although my ability to articulate and defend emerging digital values might suggest that I am an unwavering supporter of such values, such is not the case. I do feel, however, that the power, complexity and legitimacy of the emerging knowledge culture must be acknowledged. Only then can those who are not of it determine how best to engage with it constructively.
Kids need their elders’ experience. No matter how much they think they don’t, they do. And kids usually grow up to learn that the world isn’t black and white—that they must draw on the lessons of the past to shape the future. But today the sands of time are pushing kids ever further into a technological Neverland. Like a generation of Peter Pans they risk growing up deracinated, permanently disconnected from their vast literate heritage. (Have you ever tried to read a novel online?) If the past isn’t offered to them on their own terms they will take what they need and forget the rest (R.I.P. history, fixity and finishing anything).
Alternately, we risk watching the IP empire strike back to protect its “inalienable” commercial interests; America’s prison-industrial homeland-security complex refocused to target networked kids and their dangerous knowledge communities; Patent Police protecting the right of corporations to own any imaginable thing, living or dead; and more IP lawyers outlawing more and more sharing. But for whose benefit, and at whose expense?
The Copyright Wars of 2017 can be avoided if we act today. Bridges need to be built and it is up to the richest generation in the history of the world to start building them. They can be as slight as asking, “What are you doing? Why? Can I help?” Or as ambitious as (to name but one possibility) a fully funded national network of community media centres, where Canadians young and old can connect to digital culture—and to each other—in a welcoming and democratic atmosphere.
Such “bridges” may not make the generation gap disappear. But if, in a decade or so, that gap reaches crisis proportions, they may at least provide a common vocabulary and a foundation for dialogue.
In the meantime, what will definitely not help resolve this evolving crisis is the criminalization and demonization of young people for doing what comes naturally, for following their noses, for having fun with their friends, for speaking their minds, and for striving after greatness using the tools at hand.