Unexpected Allies: Decibel Magazine’s Feminist Take on the DC Reboot

In the December 2011 issue of Decibel magazine (“America’s only extreme music magazine”), I read the interesting, but expected Dave-Mustaine-this-time-he-is-totes-over-his-feuds-he-means-it-even-if-he-is-called-SuperDave-and-Junior-isn’t-called-Junior story; lots of short articles with bands filled with fourth-degree clones of Zakk Wylde; and the usual review of extreme albums that I won’t be listening to.

But unexpectedly, especially for a magazine dedicated to metal and other extreme music, there is an actual for-real feminist take on the DC reboot that says that treating women as soulless objects is not entertainment. For an audience that reads a magazine featuring bands with album covers that will give children nightmares.

Unfortunately not online, Joe Gross’ one-page column dissects the reason why the reboot doesn’t make economic sense, by turning away girls and women (and men and boys) that aren’t interested in a “cruel, violent vibe and crueler sexual politics”, asking the question “Who the fuck is this crap for?”

He says that between the reboot “and a noticeable decline in women creators at DC, it would be tough for the company to have constructed a bigger “Fuck you, we don’t want your money” to potential female readers”. And that is a potentially huge loss for an industry that could use new readers — or at least not lose older newly disgusted fans. Perhaps it is just those that I know, but a large percentage of the comics fans I know *are* people of difference (such as women/girls, people of color, gay/queer, some other other, or a combination) — not the stereotype of Comic Book Guy.

One of the benefits of having this article written for this particular audience is demonstrated by the pull-quote on the page:

I’ve seen hardcore, [gnzo p!@#] that treated women with more dignity that DC is treating those two gals [, Catwoman and Starfire]

THAT knowledge is not likely to be found by writers from traditional feminist sources, even third-wave ones.

Gross also references “the terrific essay” by Laura Hudson on Comics Alliance, The Big Sexy Problem with Superheroines and Their “Liberated Sexuality”.

Thank you, Decibel. And to Shortpacked (who created the economics of comics comic above). And to all of the disappointed seven-year old American comics fans, may I suggest mahou shoujo (and manhwa)? It isn’t without issues, but that’s where I’m sending the comics-loving kids in my life.

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I Read A Book: Robert Levine’s Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back

Creative Commons licensed photo of a parasite

The best thing about this book is the title. Seriously, who wouldn’t want to learn about how to stop parasites? Especially when they are digital! But the book offers little more than the simplistic model of payment is good for copyrighted materials – and pirating is bad.

One of the ways that I judge books that talk about culture and copyright is based on how fans and fandom are written about. And this book doesn’t disappoint, by carefully discussing elements of fan culture and their importance to the continued economic success of multiple media properties. I joke. There is no mention of fandom at all, beyond a page-long dismissive mention of the concept of 1,000 true fans, no mention of consumer buy-in, nothing beyond “you parasite.” In a book about digital culture, this is an EPIC fail.

I also judge books in this oeuvre by their description of Nine Inch Nails’ effort to release music via Creative Commons and other more open means, including the Creative Commons-licensed albums The Slip and Ghosts I-IV, and the label-delayed therefore placed online for the free remix album, Y34RZ3R0R3M1X3D (AKA Year Zero Remixed). And lest we forget, Trent Reznor decried his labels at every opportunity, including praising fans for … wait for it, engaging in illegal downloading, Levine’s “parasitic” behavior, extorting them to “steal and steal and steal some more and give it to all your friends and keep on stealing.”

But Levine’s description of T. Rez is:

“the acts that have most successfully used free music to promote major tours –Radiohead and Nine Inch Nails—have benefited from millions of dollars’ worth of marketing from their respective major labels.”

What ho, Jeeves.

If you think I’m playing the detail game, Levine calls out William Patry, one of the pre-eminent copyright scholars for getting the sales of Grand Theft Auto wrong, and then intimates that he would not have the viewpoints he does, but for being Google’s attack dog. Correlation does not imply causation – and Patry held the same views before starting his present job. Levine’s anti-scholar bent is not just directed at Patry. One of the most detrimental aspects of this book is the implication throughout that academics (and academic institutions, like Harvard and Stanford; and non-profits, like the Electronic Frontier Foundation and Creative Commons) that are not copyright extremists are activists and in the pocket of big companies (read: Google and its ilk). He directly calls Pamela Samuelson an “activist [,] who wanted to weaken copyright in other ways” (26), calls Jessica Litman someone who ignores the law (46), but saves the majority of his directed fury towards academia towards Lawrence Lessig.

There are actual well-reasoned critiques of Lessig’s work – but this isn’t one of them.  And to publish a book in 2011, critiquing Lessig with nary a mention of Remix: Making Art and Commerce Thrive in the Hybrid Economy, where in 2008 Lessig spends a whole book discussing the ways that remix culture can work with traditional media so everyone makes money, is just intellectually lazy. Or deliberate.

Because I am *that* sort of reader, I checked the acknowledgements, which include mentions of Fred von Lohman, Jane Ginsburg, and Marybeth Peters – all huge figures in the area of digital culture and copyright. Highly surprisingly, there are no quotes in the book from them –  except for a brief snippet of Peters’ congressional testimony in her role as the Register of Copyrights, but nothing from the interviews Levine conducted.

In an odd way, I actually prefer Mark Helprin’s “alone in my room, I reign supreme” copyright-should-last-forever-because-I-am-a-brilliant-author diatribe because he was straightforward about what he wanted. And if you want to read about the dangers of Google, read Siva Vaidhyanathan’s The Googlization of Everything. If you want to read about how the music industry took things in the wrong direction, read Greg Kot’s Ripped: How the Wired Generation Revolutionized Music.

Summary: Not recommended. Save the entertainment and publishing industry through paywalls! Google bad!

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My AALS Presentation: Cutting the Gordian Knot: Possible Solutions to the Conflict between the Gift, Work-for-Hire, and Market Models for Academic Work

This is the abstract and a short conclusion from my recent AALS presentation; the article will be published in IDEA: The Intellectual Property Law Review. Also, for a longer version, read Rebecca Tushnet’s writeup of my presentation of an earlier draft at the 2009 IP Works in Progress conference.

Academics are involved in an unique circular relationship to intellectual property. They build their work “on the shoulder of giants” – building on the expression of ideas by others, often being paid for work relating to their production of copyrighted materials, yet the custom is for them to retain copyright.

Academics then gift, sell, or license their works to publishers, who then sell or license these works back to the institutions that were the underlying support for their creation. This leads to several unfortunate situations: institutions paying for work twice, academics holding the inaccurate viewpoint that they can use copyrighted materials as long as they are for educational purposes, and academics technically being unable to reuse or revise works once their copyright has been transferred.

Further complicating the situation is language in the licenses for many of the databases that academics use – explicitly rejecting use for non-educational purposes or commercial purposes.

My forthcoming article discusses the development of the teacher exception to copyright through both common practice and case law, but will focus primarily on the potential solutions:

  • contract: explicitly changing the contract terms of employment;
  • statutory interpretation: by interpreting fair use broadly to more explicitly include educational use by the institution that pays for the work’s creation;
  • statute: creating an exception to copyright similar to public access to government funded research by the National Institutes of Health (42 USC § 282c (2009)); and
  • license: creating an open access / institutional repository to create an access point for faculty research, similar to the new policy followed by the Faculty of Arts and Sciences of Harvard University.

My Solution

A Multifaceted Institutional Repository to suit the needs of institutions and faculty:

  • To include all published academic works produced through institutional funding
  • Allows for portability for faculty from institution to institution
  • Will have buy-in from all levels – prefer mandate approved by faculty
  • Will allow for other faculty at the funding institution to use without needing to be concerned about permissions
  • Use present open source searching and later searching improvements
  • Allow for additions to the repository to be made by
    • Author, publisher, or institution (such as through the library)
    • Would allow for a delay (as with NIH mandate of placement in repository within 12 months)

Want more? Including why law review publishing is an ideal place to start creating an effective cross-? Then you’ll need to wait for the article!

One Nation Under a Groove: Intellectual Property and Hip Hop

When is something a quotation or a reference and when is it a sample that needs to be licensed? According to a recent Sixth Circuit decision regarding Atomic Dog, Bridgeport Music v. BMG Recordings, No. 07-5596, November 4, 2009 (no official citation yet), a copyright violation can be found when no licensing fee is paid for

use of the phrase “Bow wow wow, yippie yo, yippie yea” (the “Bow Wow refrain”), as well as use repetition of the word “dog” in a low tone of voice at regular intervals and the sound of rhythmic panting

One of the many interesting aspects about this case is that George Clinton, the performer and co-author of the song, has no dog in this fight, despite the fact that he is so closely tied to the song. As described in the excellent documentary, Parliament Funkadelic: One Nation Under a Groove, P-funk and George Clinton lost the rights to their own music. (On a tangent: I highly recommend this documentary (shown usually during Black History Month on PBS) — and not just because Shock G appears to be interviewed while completely off his gourd).

But the issues about copyright explored by the Sixth Circuit don’t touch on the songs larger cultural significance, instead viewing the importance of the song through an economic lens:

“Atomic Dog” “is an anthem of the funk era, one of the most famous pieces from that whole era . . . one of the most famous songs of the whole repertoire of funk and R&B.” In addition to the song’s continuing popularity on its own, “Atomic Dog” and other works by Clinton and Parliament-Funkadelic are said to have influenced many contemporary rap and hip hop artists, with the most notable being the style of rap popularized by West Coast rappers such as Dr. Dre, Ice Cube, Snoop Doggy Dogg, and Coolio. [note: The court couldn’t have left it at three. Really!?!] …

Testimony at trial confirmed that “Atomic Dog” and other works by Clinton are among the most popular works sampled by rap and hip hop artists. According to an expert musicologist, the Bow Wow refrain “is one of the most memorable parts of the song” and is often licensed by itself.

UMG failed to introduce any evidence that would have explained why the songwriter chose to include elements of “Atomic Dog” to honor George Clinton, nor was the purported tribute acknowledged in the credits or liner notes to the album.

Two recent books explore the interaction between intellectual property (mostly copyright) and hip hop culture — Adam Haupt’s Stealing Empire: P2P, Intellectual Property and Hip-Hop Subversion and Richard Schur’s Parodies of ownership : hip-hop aesthetics and intellectual property law. Both books explore and apply Henry Louis Gates’ idea of the importance of signifyin’ — a metaphor for textual revision — located in African-American culture and globalized via hip-hop.

Stealing Empire is valuable for its analysis of the impact IP regimes on South African culture. And it is therefore useful for a reader with a literary / cultural / media studies perspective; the legal analysis is less useful because it does not distinguish between differing jurisdictions.

Parodies of ownership : hip-hop aesthetics and intellectual property law
is a excellent edition to both the fields of critical race theory and cultural studies, and adds greatly to the ongoing discussions of power and control regarding intellectual property. This book is yet another book published this year that is highly recommended.

One of the most intriguing aspects of this book is Schur’s suggestions for erasing the invisibility aspect of intellectual property law:

[Judge Richard] Posner [and others] conceive of originality, fair use, and transformative use as transcultural and color-blind strategies to regulate the circulation of texts, including raced texts. [They] do not connect texts to specific genres, to cultural traditions, or to how popular culture’s taste [] derive, in part, from interactions with America’s racial history. (144)

He suggests specific challenges/suggestions to intellectual property law (especially in the U.S.), including mentioning fan culture(s):

African American culture has engaged in a rigorous discussion about the right to copy (i.e., sampling versus biting) …. [but law has] adopted color-blind rhetoric [so] such cultural distinctions have not been judicially sanctioned even if they structure how audiences understand hip hip texts.

Attempting to remedy the inefficiencies or absurdities of intellectual property law without referencing its complicity in the de facto and probally de jure transfer of wealth from African Americans to white Americans is unlikely to prove successful. Resolving other cultural/economic conflicts, whether they involve fan fiction or unauthorized music trading, probably requires engaging with histories of discrimination and power inequalities, not simply a slight tweaking of abstract legal formulas. (179)

But both books are sans any pictures (let alone an audio or video accompaniment) leaving the analysis missing the “quotation” that is so needed here to provide a complete picture of the richness of the music at issue. I’m not sure that the Pokémon vid above is the best illustration, but if you didn’t know Atomic Dog, wouldn’t it better help you understand what is at issue?

And that brings us back to where we started with George Clinton and Atomic Dog — when is something a quotation or a reference and when is it a sample that needs to be licensed? Or as Richard Schur states in Parodies of Ownership,

the question of who owns the imaginary domain out of which African Americans form cultural identity remains unanswered (23)

I Read a Book: Greg Kot’s Ripped: How the Wired Generation Revolutionized Music

Greg Kot’s Ripped: How the Wired Generation Revolutionized Music is a must-read for those interested in how economics combined with listener actions have led the traditional music industry to its present morass. And therefore, the subtitle should be: How the music industry decided short-term profits were more important than life-long fans.

While I prefer a more linear style, the book is written in chapters focusing mostly on one artist or group per chapter — which makes sense, considering this is a work of music journalism. I appreciate that Kot, a non-lawyer, explains the law and cases correctly (yet with the dismayed “this is really the law?!?” tone needed). And while not using the terminology of one thousand true fans, he explores what having dedicated fans means for bands now — versus under the old regime.

But there are some seriously odd moments while reading as a fan. I’m not really sure why when describing the backstory of Metallica, Dave is mentioned, but there is literally no mention of Kirk! (Or Cliff. Or Jason.) But I’m digressing…

I expect a certain degree of errors in any work, but please, dude, know your halos! Any NIN fan knows that Broken counts. Especially when writing about T.R.’s dealings with record companies.

Copyright Hall of Janus? : Harvard University’s Two-Faced Approach to Copyright

Harvard University recently has taken two very divergent approaches to copyright. I commend Harvard on the one hand for their open access policy, and on the other hand, I am shocked by a complete disregard for generally socially accepted standards of fair use.

Last year, Harvard University’s Faculty of Arts and Sciences, Law School, and Kennedy School of Government created Open Access policies, including

a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.

Peter Suber of Open Access News lauds this step, saying that

Harvard will be the first university in the US to adopt an OA mandate. … [It is a] permission mandate rather than a deposit mandate. Instead of requiring faculty to deposit their postprints in the IR, it merely requires them to give the university permission (non-exclusive permission) to host the postprints in the [institutional repository].

As long as the university is willing to pay people, usually librarians, to make the actual deposits, it could be a faster and more frictionless way to move the deposit rate toward 100%.

Moving towards an open access approach to scholarship fits within Harvard’s approach to ownership and copyright. The Harvard University Intellectual Property Policy states, in part, that

the policy should encourage the viewpoint that ideas or creative works produced at the University should be used in ways that are meaningful in the public interest. This may be accomplished through widespread dissemination. Thus, dissemination and use of ideas and creativity should be encouraged throughout the Harvard community.

…It is expected that when entering into agreements for the publication and distribution of copyrighted materials, Authors will make arrangements that best serve the public interest.

So…

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Operation Hot News, or Making the News Friends-Only

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

The newspaper industry is having severe problems, but is changing copyright law the way to fix things?

Richard Posner, highly regarded intellectual property scholar and Federal judge, suggested a drastic change recently:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

But while many others have discussed this proposal, a culturally valued way of solving the issue may be available — if the problem in search of a solution is indeed the problem of free riders through aggregation: Citation! and more generally, Attribution!

Presently, in U.S. copyright law, those who reuse copyrighted (and public domain) materials have no responsibility to attribute the works to the author. However, in countries that include moral rights as part of the intellectual property right, attribution is required. And even Creative Commons, which once had attribution as an option, now includes attribution in all of its licenses.

Traditionally, journalists have not always cited back to the original source, so this would require a change in style guides and editorial standards. But if what needs to be curtailed is “free riding” — then ownership over the news isn’t going to solve the issue.

But what about the “hot news” doctrine? Based on this doctrine, AP News recently settled a case with an online news aggregator (for law-talking people, the motion to dismiss decision is found at AP v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D. N.Y. 2009). So should everyone that quotes news be concerned that the news is now locked away? This misappropriation claim is state-specific. For example, in New York, this claim only applies where all five  factors exist:

  • information is generated or gathered at a cost
  • the information is time-sensitive
  • the use of the information by someone else constitutes free-riding on the generator/gatherers’ efforts
  • the user of the already gathered information is in direct competition with a product or service offered by the gatherer
  • the ability of other parties to free-ride on the efforts of the gatherer or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (quoted/paraphrased from NBA v. Motorola, 105 F.3d 841 (Second Circuit, 1997)

Changing the standard towards more citation and attribution will help the public understand where news is coming from.

After all, if everyone needs to cite who broke the story — yet continues to be able to use the information from that story, it would allow for, hmm, news reporting, to continue. The idea that the first-on-the-scene would be able to prevent others from being able to expand, develop, or critique the news would complete the destruction of the Fourth Estate, rather than saving it!