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David's thoughts this week

I’ve opted to discuss the Vaidhyanathan chapter and the Burkart and McCourt book, though I was rather impressed with the DeNora article, and will look forward to discussing that in class. I especially want to know what can happen when we apply those methods to something much more subtle, such as Sterne’s Mall of America. DeNora seems to think it can be done, and my intuition says she’s right, but she doesn’t go there.

I knew something had changed when I started buying songs on iTunes and noticed that I would have to get my little brother to help me get “stolen? copies to back up the songs I thought I had paid to own. I felt no guilt about this, because the copy I had bought was none-functional. The ways in which I could or could not use it came nowhere near anything approaching fair use, and I knew that. But I guess I just didn’t realize that I had never bought a copy! What a fool I was. If I’m not in class tomorrow, it’s no doubt because I turned myself in.

To begin with, what’s being trafficked in is no longer “things,? but extremely limited and temporary “rights? to those things. You do not buy these rights, but you rent them. What is strange is that those rights are not to any number of things you might think they are to (say, the song), but to an extremely low quality sound file, and not any form of media that said sound file may or may not have been derived from, and which you are not to use in any of the ways you would have used a high quality recording that you owned in the past. I thought Vaidhyanathan did a very good job when he or she drew out the concept that there are three different elements to intellectual property: gaining access to it, using it, and copying it. The trouble is that digital media conflates those things. I think we should clarify that is not The Big Five that conflates them (though they sure are glad they have been conflated!), but that it is the very nature of the digital media that does so. You simply can not listen to an online recording without making one or more (temporary or otherwise) copies of it.

The question to be asked, I think, might be somewhere along the lines of, since gaining access and using digital media necessarily creates a copy of it, can someone who previously could have sought protection from your ability to copy it therefore restrict your right to access and use it? This is not a rhetorical question. To put it another way, does Bill Waterson have the right to burn copies of his paintings (if he really does, I suspect this story is apocryphal)? Or maybe it should be put another way, does Michael Jackson have a right to burn The Beatles catalog? These are not rhetorical questions, even if the answers are obvious (and emotional!). Because the problem is, once you answer them you’re forced to start thinking about what it means to “own? the expression of an idea (not the idea itself, which you still can’t own (sort of), but the expression of the idea). Instead of worrying about who’s going to lose money when they lose property, we should just ask the basic question: what can be your property?

That’s the question, what can you own?

But the other problem is that it’s not as if the digital copying of music was attacked by the record industry. No, what they attacked was the means of distribution of those digital copies (those copies were protected by the right of first sale; it was the movement of those copies that was not necessarily protected). But the record industry didn’t use to have the right to control distribution of copies (the right of first sale was well established in East Lansing, where I would regularly visit the used record shops in the days of my youth). How in the world did they get put in charge of that? How do we account for this? Was it only extreme sloppiness on the part of legislators? Or did something else change? What’s missing in this puzzle?

This is why I don’t really like the term “gift? economy. I don’t think we’re talking about gifts that some divine being gives people, and I don’t think we’re talking about gifts that people give other people, where a good must necessarily leave one persons hands and come into another’s. While “gifts? are free, that’s about where the analogy stops here. So what would be a better term for it?