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October 11, 2010

Great class today folks.

For next week see the updated schedule under the syllabus tab for reading assignments for the Hosrt and Miller book.

I have Alli and Mary going next week (10/18) for their 15 minute presentations of the projects. Eric is scheduled for the following week (10/25) if you aren’t signed up let me know which week you would prefer.

For the Horst and Miller book let’s focus on some specifics and engage in both comparative questions given what we have read so far and specifics about the use/deployment and meainings of cell phone “culture.”

Email me if you have questions or need help with your project proposals.

Heritage: Complexities within Indigenous Societies (A response to Chapters 5 & 6 in Brown’s Book)

October 11, 2010

This word heritage is one which people think they know the definition. A word that seems simple to define, but it turns out to be more complex than a road map of any major city. Yes, heritage has something to do with culture, but it also turns out that one’s definition of culture determines how the construction, and subsequent definition, of heritage begins to take shape. Starting to see its complexity? Chapter 5 and 6 are not so much about the theoretical concepts surrounding Indigenous issues rather giving examples of how Indigenous societies have challenged the dominant forces to at least make some “progress”. Because this section covers two examples of domination, I would like to pose quotes which will be followed by a question or two which we may or may not decide to cover in class.

Chapter 5

  • “What Native Americans do at the Medicine Wheel (in Sheridan, Wyoming) is not well documented. Given their recent turn to secrecy in matters of religion, detailed information is unlikely to emerge anytime soon” (pg. 146)
    • What can this “secrecy” be attributed to?
    • Is this due to oppression/stealing of pervious knowledge?
    • What is an unintended consequence? (I was thinking “offerings” of condoms or tampons at the Wheel)
  • “Rumors began to circulate in the 1950’s that the federal government wanted to move the stones to a more accessible place” (pg. 146-147).
    • Accessible for who?
    • How can this determination of accessibility be applied to a “digital space”?
      • What are the issues that arise with this?
  • (pg. 148-150) What issues arise from government’s “multiple use” policies?
  • With the examples of Devil’s Tower (pg. 150-156) and The Medicine Wheel …
    • Who owns Native Culture?
    • Taking it further, who really owns our ideas/creations even as “individuals”?
  • Is the “wise-use” method of multi-use land policies a better alternative? (Native spirituality/religion vs. Christianity for example … pg. 158)
  • Keeping in mind what the Friends of Devil’s Tower (pg. 159) & Francis Brown (pg. 160) said, what is the real issue of Devil’s Tower … and subsequently “Owning Native Culture”?


Chapter 6

  • This section covered some of the same issues as in Chapter 5, but this time involved more than just the simple one-2-one binary of Native vs. State. This case also surrounded the rising population of “hybrid” aboriginals in Australia.
  • The main similarity between these 2 chapters is this … as Ken Gelder and Jane Jacobs state (as quoted by Brown) “Public debate about an allegedly sacred site, ‘transforms that place into nothing less than a ‘site of significance,’ with such immense reach and such powers of affect that even the skeptics succumb to it.’ Which is a roundabout way of saying that intense public conflict may imbue places with a sacredness that they never before possessed” (pg. 204).
    • Thus …
    • What is heritage?
    •  For such complex words as “heritage”, “culture”, or “nature”, Raymond Williams says that the first thing people want to do is to define the word, but “while it may be possible to do this, more or less satisfactorily, with certain simple names of things and effects, it is not only impossible but irrelevant.” To Williams, what does matter is not the meaning but, “the history and complexity of the meanings” (pg. 67, Culture and Materialism, as paraphrased from 9/14/10 paper for AMST 590).

Brown, indigenous IP systems, and “balance”…

October 11, 2010

As usual, great posts!! You all have really gotten to the heart of Brown’s book and we have a lot to work with in class today.It is true that Brown advocates a sort of middle ground when it comes to IPR and indigenous knowledge/culture. It is also true that often times indigenous peoples feel that the law is their only and/or last resort, especially in a context in which much of their cultural heritage is in museums/archives/libraries and assumed to be in the “public domain”–don’t forget Lessig’s arguments here–how do we grapple with his call for “free culture” in the case of indigenous materials that have dubious histories of collection through colonialist practices? Is there a “balance” to be found?

I wanted to post up a link to a website I produced with the folks at USC for the Vectors journal in 2006. The site is called “Digital Dynamics Across Cultures,” it aims to give an understanding of the Warumungu Aboriginal communities view of information and material circulation — or what could be labeled intellectual property systems– that is, a system that provides both limits and access to knowledge and material culture through a set of restrictions. If you have a chance before class take a look.


Chapter 7 & 8: Who Owns Native Culture?

October 10, 2010

Chapter 7 & 8: Who Owns Native Culture

Chapter seven’s focus is on the debate over whether or not to include, and if so, to what degree, the integration of TEK (a.k.a. traditional ecological knowledge).  These debates inquire the able-ness, or capability of a bureaucratic system, such as the U.S. , to sufficiently incorporate ways of knowing that inherently contradict and conflict with the dominant model.  In attempting to do so, a barrage of issues is raised.  For example, critics question the protection of Indigenous peoples ways of knowing, and worry that an all too familiar trend will repeat itself whereby their ways of knowing will become co-opted, comodified , stolen, and/or misrepresented.  At the same time, these groups have “insider” knowledge and information as to how to create more sustainable practices that could solve some serious issues.  However, Brown argues that the process of bureaucracy would make these access points inaccessible since the laws and policies do not recognize alternative discourses and languages.  This reminded me of an article I read a couple of years ago about incorporating traditional Inuit ways of knowing into formal education’s curriculum.  The argument was that children in that particular region were losing their culture due to mandatory enrollment in the dominant school system and that incorporating more “local” or traditional Inuit principles would benefit the children greatly.  However, at the same time, the way the implementation process was designed, it still left out vast chunks of Inuit ways of knowing, while only privileging the principles the author felt would be complimentary and do-able within the dominant system.  I remember reading this article thinking to myself, it’s not the Inuit’s deficiency, it’s the dominant culture, just as I tend to see this former example as doing just the same.  In both cases the epistemology of “rationalization” serves to disable multiple cultures to co-exist.  Brown discusses, Weber’s, “Iron-cage,” which is the inescapable dehumanization of our minds and bodies.  More on the “Iron Cage” metaphor is that the institution becomes seen as the deity to which we all are to worship and submit to. People who work for the institution are granted ‘x’ amount of power based on their title relegated by the institution.  Communities are lost, alternative or previous ways of knowing are also either lost or dismissed as irrelevant and unworthy. 

Back to chapter seven, Brown discusses the ways in which policies fragment indigenous ways of knowing.  Since dominant culture compartmentalizes and categorizes everything, which are generally seen as mutually exclusive domains, policies are at best a weak attempt to protect Indigenous rights and cultures since Indigenous cultures see elements that the dominant culture separates as inseparable, and at worst shattering Indigenous ways of knowing. If anything can be gleaned from his words it is that policy should not be the one to mediate and decide how to protect Indigenous knowledge.

Question: We live in a broken system where hierarchy is fundamental, categories are fundamental, dichotomies are fundamental… Knowing this, what do we do to recognize and engender alternative ways of knowing as both important and fundamental sources of learning and knowing, especially with the understanding that there are no tools equipped in our dominant model that currently exist?

                In answering this question, Brown evokes the ‘Total Protection Heritage’ solution, which is a response to dominant systems inability to protect Indigenous rights. TPH is “a benign form of quarantine that safeguards all elements of cultural life” (p. 209). He continues, “Entire cultures would thus be defined as off-limits to scrutiny and exploitation” (p.209).  He cites the Daes Report as being one of the foremost prominent reports that support TPH.   At first, this looks like, what he says, is a “practical” solution; however, when examining its assumptions more closely, Brown sees the Daes Report, in addition to TPH, problematic, and rife with potential problems that could cause even more harm.   Furthermore, he cites Foucault’s notion of “regime,” whereby any inclusion of something into the dominant system, automatically sets the relationship of power off-kilter in favor of the system.  Instead of “freeing” or “protecting” a culture, these incorporations become sites of control where surveillance, regulation, and policing take precedence.  This reminds me of a lot of literature I’ve ready about the 3rd space, and the concept of Naming something.  Once something has been named its identity has been fixed, attributes been attached, and ownership claimed.  I want to think and talk about this more in class.  He uses the “Silver Hand” stamp as an example.  The ‘Silver Hand’ stamp is named and therefore deemed as authentic; that it’s really what it says it is, which is ‘“authentic native handicraft from Alaska.. and a pledge that products to which the tags are affixed are made entirely by the applicant, in Alaska, and using materials defined as “natural”’ (p. 216).  To summarize Brown’s thoughts, TPH is not a good idea and needs to be thought out more.  He states, “In the interest of promoting diversity, Total Heritage Protection imposes procedural norms that have the paradoxical effect of flattening cultural difference” (p. 217-218). Thoughts?

Chapter eight focused largely on the concept, “value pluralism” (p.231) which I interpreted as a conceptual approach that valued diverse perspectives that seeks compromise.  In my understanding of this idea, everybody cannot be satisfied.  Times change, contexts change, and perspectives are bound to clash; however, this doesn’t mean that anything goes but that there are a few ground rules and the rest is up for negotiation.  Is this accurate? He uses the NAGPRA (Native American Graves Protection and Repatriation Act) as his site of analysis.  Multiple perspectives are voiced and a possibly (and most likely) long and laborious negotiations process begins.  Brown suggests this way of handling the situation may be take more time and may be more laborious, but it allows for groups and members within groups who have conflicting perspectives to settle their contentions and work through them rather than if the federal government or a policy came in, puts its foot down and made the decision, which might not make anyone happy.   Brown also discusses the important of delineating between economic justice and the broader goal of protecting “cultural integrity” (p. 234) stating that what the debate is about, whether it’s over economic rights could be handled differently than if it were over cultural integrity.  Actually, I want to make sure that I’m following correctly… Am I?

Also, I’m not sure about his markets-based framework that he discusses on p. 235. What is he proffering exactly, and how would that work?  

The next section of the chapter outlines a foreign (to me) domain of copyright, patent, policy, and licensing agreements that I had a hard time following.  What I gathered from this overall section is his advocation for LCP (limited common property), which “is neither completely public nor completely private” (p. 239). From my understanding it is more community-based, where the folks with the most power are the insiders, or, community members.  Since it’s more community based, there is less abuse because 1) the system is much smaller, and, 2) it’s much more likely that everybody knows what everybody’s doing making it difficult more people to hide.

He continues by proposing a civil society model over TPH, which he thinks is a better model and would better address the concerns over Indigenous rights and cultural integrities. Civil societies are less PC, more public-based, and have less restrictions.  It aligns with the LCP model in that the community is responsible for their internal workings.  He uses the example of the public dance at Hopi, which was a performance and mimicry of all groups including its own.  Brown states the advantages of what I understood, a group’s way of getting “stuff off their chest,” which prevents escalation and an outlet of expressing thoughts, beliefs, etc. 

I found this chapter to be challenging and interesting.  I don’t know much about intellectual-property rights and the process of that other than the mainstream version, which is the government and corp. own access to everything…  I have lots of questions, but I’m not sure which ones to ask.

Questions: I guess I would start with the question of whether or not Brown’s view of civil society’s responsibility of handling internal problems is as utopic as I interpreted his words to be, and what, if any, disadvantages could occur, and would the disadvantages, if there are any, still be the lesser of the two, maybe three or more, evils?  The same goes with this concept of “value pluralism” over TPH.  I am more familiar with TPH rhetoric than I am with “value pluralism”…. What do all of you think?  I have no idea what to think at this point. All a lot to digest and think about.

Brown, M. F. (2004). Who Owns Native Culture? Harvard University Press. Chapters 3 & 4

October 9, 2010

Who Owns Native Culture? is about a lot of issues – cultural ownership, identity, negotiation, cultural economics, (cultural) property rights, Native cultures, power struggles, and the appropriation of minority cultures by dominant groups, just to name a few. I found Brown’s discussion to be engaging for the most part, although I thought his examples were rather haphazard and too many to keep track of.

Here’s a brief outline of my section of the book (Chapters 3 and 4):

Chapter 3: Sign Wars

This chapter focused on the controversy around the unauthorized and often derogatory use of tribal insignia on products and commercials. Brown argues that most of the debate on this matter has centered around three key issues:

  1. How is tribal insignia defined?
  2. Should the protection for tribal insignia and names be retroactive, and if so, what about companies that had already built brand value and goodwill worth millions based on tribal insignia/names?
  3. The relationship between US trademark policies and global business practices

The debate is about whether Indian words of significant social, cultural, and religious meaning should be excluded from commercial use. The matter is more complicated than one would think because there is no consensus even among Native tribes as to what constitutes a religious word/symbol and what would be deemed as commercial use! It has recently also been suggested that US trademark and copyright laws be altered so that they protect even indigenous art styles against unauthorized borrowing, and not just tribal words and symbols that have cultural significance.

The problem, as per Brown, is not corporate greed when it comes to the use of tribal words, signs, and, images, but the fact that technology now allows for unrestricted use and reproduction of these signs – an ability that undermines “traditional authority and the authority of tradition itself.” The solution, according to Brown, is “the implementation of public policies that honor indigenous sensibilities without violating basic freedoms.”

Chapter 4: Ethnobotany Blues

First, what on earth is ethnobotany and what does an ethnobotanist do? I did not know the answer to either question, but Brown (thankfully) defines the terms for us! Ethnobotany deals with the study of indigenous medicinal plants and the way in which these plants are used by native groups for the promotion of health, wellbeing, and longevity. Ethnobotanists study indigenous people and their medicinal practices in order to preserve valuable native knowledge about diseases and remedies.

Unfortunately, technological changes and the fiercely competitive Big Pharma race to come up with path breaking cures diseases like for cancer, diabetes, and HIV/AIDS have led to the unfair commercialization of Native groups’ botanical assets. In other words, pharmaceutical companies are reaping HUGE profits by exploiting the traditional medicinal expertise of indigenous groups, which do not benefit in any way from these endeavors. All the while, Big Pharma CEOs are earning hundreds of millions of dollars a year in salaries and bonuses for engaging in such “biopiracy” and forceful “botanical borrowing”.

Brown argues (in what seems to be an agreement with Lessig’s contention) that while patents and copyrights were instituted to encourage innovation, they’re actually having quite the reverse effect because original research is being possessively guarded in the hopes of revenues worth billions. So, no more free exchange of ideas!

Brown offers dozens of examples to establish the incredibly complex web of bioprospecting, procedural bureaucracy, logistical challenges, ethical dilemmas, cutthroat competition in pharmaceutical research, and shareholder profits. He then says that it is equally challenging to determine what “fair compensation” for indigenous peoples should be, if one of their medicinal plants helps cure a deadly disease. Who should be compensated? The whole tribe? Parts of the tribe? A few individuals? Along what geographical lines? So what happens when a researcher finds that a plant native to an indigenous group in India (but later naturalized all over Asia) has properties that can help cure HIV/AIDS? Who gets compensated, and how? Clearly, there is no ‘right’ answer when it comes to this. 😦

My Thoughts

What I particularly appreciated about Brown’s exposition is that he doesn’t simply essentialize the problems pertaining to cultural appropriation, but he also offers recommendations for how matters of such complexity and dilemma can be negotiated. Brown offers several middle-path solutions and argues that rigid rules about cultural ownership are not only unrealistic but also harmful – for both, the indigenous as well as the dominant groups.

Instead, Brown believes in politically negotiated solutions and argues that when any group or culture reserves exclusive rights to their artifacts (abstract or concrete), they ignore the ethos of sharing, exchange, assimilation, and symbiosis upon which human civilization is based. The middle-path solutions and guidelines for dealing with cultural ownership that Brown outlines are well-meaning and even reasonable. The question is, reasonable for whom? I for one, am rather distrustful of ‘consensus’ solutions – not only because I think ‘true’ consensus is utopian, but also because most consensus solutions tend to sustain the same power imbalances that  necessitated a consensus solution in the first place! So when Brown talks about “politically negotiated solutions”, some groups will invariably be better served by these solutions than others, and usually it is the weaker, non-mainstream group that ends up getting the short end of the stick. By means of an example, let’s consider the Devils Tower controversy. Historically disadvantaged indigenous groups are extremely sensitive (and rightfully so) about the commercial exploitation of their culture. They also take offense (again, legitimately so) when their cultural totems are treated disrespectfully. In the case of Devils Tower, when Lakota, Cheyenne, and Shoshone tribes objected that mountain climbers were desecrating a monument that had deep spiritual significance for them, authorities tried to achieve a middle path by instructing tourists to be respectful, limiting the use of climbing hardware, enforcing seasonal closures, and proposing a voluntary moratorium – so that Native American ritual practices were not disrupted by climbers. These solutions were proposed in the Final Climbing Management Plan (FCMP) but I wonder if local tribes were represented in the committee that proposed and implemented these solutions. If they were, why would one Indian ask Park Service representatives: “Why must the mountain be defined by your rules?

Implications of Brown’s arguments and class discussion topics:

  1. The protection of cultural heritage is necessary but also hazardous and challenging.
  2. There is a significant amount of risk involved in appropriating the music, rituals, art, and botanical resources/knowledge of cultural traditions, but protecting native heritage is a grey area with no perfect ‘solution’ because of the moral predicaments involved.
  3. Cultural heritage is not something that can be patented or copyrighted. But at the same time, can it be considered the personal property of the cultural group in question?
  4. If indigenous people are given group ownership rights over their cultural artifacts, what does that mean for the public domain?
  5. Brown seems to arguing for plea for social justice, civil flexibility, and good ol’ common sense ala Lessig. He suggests the way we think of culture today has drastically changed – it’s no longer something that’s completely abstract, because culture has been crystallized into tangible things (physical objects as well as cultural elements such as folk tales, native art, music, traditional medicine, native plant crops, religious rituals and so on) that have been borrowed (and subsequently appropriated) by dominant mainstream cultures. The solution lies in being respectful, courteous, and sensitive when using these cultural artifacts in our day-to-day activities. But how does one ensure this? Can it be ensured at all?


October 7, 2010

Who Owns Native Culture is a book about the complex relationship between indigenous tribal societies and the nations in which they find themselves citizens. In the opening chapter, author Michael Brown centers his discussion on the concept of a group’s right to ‘cultural privacy’ versus public demand, using the Hopi Indians as his prime example. Back in the late 1800s, Reverend Heinrich R. Voth, a Mennonite missionary, settled in a Hopi village with the intentions of gaining an in-depth understanding of the Hopi religion to help in his own evangelistic attempts in spreading Christianity. However, this intense interest in the Hopi religion eventually became his principal means of financial support when he began receiving money by reproducing major displays of Hopi culture for museums and tourist attractions. It didn’t take long for the Hopi community to begin harboring feelings of resentment towards Voth and the publishing of their sacred religious rituals for the world to see.

Voth claims to have been welcomed with open arms by the priests and Hopi community, who eagerly shared their religious history with him. In contrast, Hopi citizens claim that he would force his way into religious ceremonies, and when the natives would try to force him out, he would kick them with the solid heels of his shoes (Brown 13). The Hopi have made it clear that they wanted no involvement with Voth’s attempts to share their religious traditions with the world.

The main argument between Voth and the Hopis (which Brown goes on to reveal is a worldwide concern of many cultural groups) is about the right of public knowledge and participation in culture:

“Hopi anxiety about use of their traditional images in the world beyond their isolated mesas is a local  expression of global concern about the disposition of cultural heritage. This uneasiness is by no                means limited to the indigenous communities; people in the cultural majority worry about it too.” (Brown 15)

Protecting ones’ culture boils down to the rights of privacy. Privacy is, by definition, a personal right; nevertheless, there are situations where privacy extends to groups (ex:attorney-client, priest-parishioner confidentiality agreements). “The right to associate with others in confidence, the right to privacy in one’s associations- assures the success and integrity of the group purpose.” (29) When young men and women participate in secret rites of passage, they return from seclusion in a new light – they see themselves differently, and the community sees them differently. Secrecy generates social hierarchy distinctions between those who know and those who don’t. Within societies (like Native American cultures) that lack significant economic stratification, those social rankings fostered by ritual secrecy may determine patterns of leadership. Revealing that secrecy threatens patterns of political and religious life (30).

The main point Brown is trying to convey to the reader regarding ‘cultural privacy’ is to help them understand that using native symbols, imitating rituals, taking works without permission, etc. all directly interferes with the daily culture and function of these indigenous communities, and can sometimes have damaging effects on them. Brown believes in giving these indigenous groups within the larger society their own space in which they can maintain their sense of community and continue to reproduce and live life as they know it. It might even be worthwhile to consider recognizing legal rights for native communities, such as the legal rights to privacy that exist for government organizations or in doctor-patient relationships. However, this creates the risk of other groups, not considered ‘normal’ parts of society, to claim their own entitlement to privacy.

Some argue, however, that keeping ‘cultural’ information private is unrealistic.  Private information is bound to circulate in the form of gossip or, more prevalently, on-line.

“The web…raises questions about whether cultural privacy can be comprehensively enforced even if it were to be universally recognized.” (Brown 36)

With the introduction of the internet, its anything really ‘private’ any more?


What would a code of cultural privacy look like, and how would it be implemented?

In modern society, is it rational to believe we can establish feasible “rights to cultural privacy”?

Chapter two of Brown’s book dives into issues of intellectual property and copyrights in relation to the protection of native images, stories and symbols from use by ‘non-natives’. Brown uses a 1976 lawsuit between an Australian aboriginal artist (Johny Bulun Bulun) and a Brisbane textile company to dive into this intricate topic and highlight the differences between indigenous views and the western legal system. The case boiled down to whether or not Bulan Bulan’s tribe had any sort of fiduciary rights in his art. Bulan Bulan argued that his community (who had no contribution in the actual painting of the art itself) had rights to the artwork because religious authorities of the tribe had licensed Bulan Bulan to produce these religious images.  The judge eventually ruled that only the artist was the copyright holder and could make claims for copyright infringement. However, the judge did consent that if an artist did not make claims themselves against copyright infringment, the tribe could go on to pursue justice for the artist, due to the fact that abuse of their religious imagery could have negative effects on the tribe.

As Brown tries to emphasize, the textile manufacturer was unaware of how destructive his (as I’m sure he felt, harmless) reproduction of native art (in a broader sense, culture) would be on the indigenous peoples.  While many non-natives might think they are showing respect to indigenous tribes by using their images, in reality, it could be very hurtful.  In the multicultural society we live in today, many individuals aren’t always as sensitive as Brown believes they should be. By no means is he advocating legalistic forms of cultural heritage protection, but instead, believes that people in general need to become more educated and aware of the cultural implications of their actions.


From Free Culture to Who Owns Native Culture

October 7, 2010

Great discussion and online musings last week with Lessig. I hope you keep Lessig’s main arguments in mind as you move to Brown’s text and we may see some complications with Lessig’s historic and ideological view (check the syllabus for updated assignments for the reading, I had to switch some chapter assignments around this week).

One question to start the week:

In his discussion of the publication and circulation of some Hopi photos (and we could easily extrapolate to see how this could be magnified in the online environment) Brown argues that “Voth’s publication of details of important rituals offended Hopi sensibilities about the proper circulation of knowledge. To outsiders, contemporary Hopis seem almost fanatically committed to secrecy.” (13)

My italics in Brown’s quote highlight two notions that are mobilized in debates about IP rights (that you read last week) and in discussions about online identities and communities (think of Poster here). My question is, how do alternative systems of knowledge management (such as the Hopis) disrupt the standard Western view of information circulation (it should be free flowing, open as Lessig argues) and individualism (we want our own privacy, but group privacy is hard to defend) that inform the larger debates about copyright and privacy online?

Sept 27th Class Discussion Key Points

September 27, 2010

Here are some of the key points we discussed in class:

  • Creative property  versus physical property…the distinction and the consequences
  • “Freedom need not need anarchy”…how we can carry the idea of free culture forward without artists being destroyed
  • Microsoft versus Apple…the Indian iPad…how that is trying to circumvent Apple’s monopoly over their iPad market
  • Groups without access to technology that have been exploited by other, more  powerful groups  (i.e. 3rd world countries) because they don’t the means to protect their ideas.
  • Intellectual property
  • Reworking of the copyright system ..different ideas of how  we could approach copyright law. (Taking the energy market’s approach of capping the profits that can be made off of royalty rights?)
  • The war between piracy and property and because the government is implicit in that, it forces the distinction between what is right and what is wrong.
  • YouTube and what their rules are on uploading copyrighted content onto the web. How come some materials are allowed while others are not (more recent material is more restricted than older copywritten material). Does it make sense that we cannot upload a 30 second clip from  an episode of  Grey’s Anatomy in its original content, but that same clip CAN be uploaded if the audio has been overridden by a random song.
  • “Free versus feudal” debate in the context of intellectual property and copyright laws
  • The future of the Internet and its potential for privatization…current legislation being considered by the government
  • Copyright laws and its complexities…can we perhaps make it simpler without taking away from anyone? (Can we get away with only giving royalty rights for using material from a movie to the director, instead of having to compensate all involved, down to the stuntman?)

 Good discussion today guys! 🙂

Free Culture: Chapter 12 – Conclusion

September 27, 2010

Lessig begins this section by arguing that there is a war between “piracy” and “property”; a war in which the government is now involved!

Is this war justified?

  • Lessig says this war is unjustifiable … “There is no good reason why this time, for the first time, the law should defend the old against the new, just when the power of property called ‘intellectual property’ is at its greatest in our history” (pg. 183).


He says that there will be 3 consequences of this war:

         1.     Constraining Creators:

  • “Capturing and sharing content, of course, is what humans have done since the dawn of man” (pg. 184).
    • It is this digital “capturing and sharing” which has afforded everyone who has access to these technologies the opportunity to produce, reproduce, and consume what we understand (now!) to be “culture”.
      • But those “capturing and sharing” symbols seen as illegal are given harsh (to put it lightly) penalties – i.e. the 4 students threatened by RIAA for a $98 billion lawsuit for “building search engines that permitted songs to be copied,” all the while, “a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering” (pg. 185).


Where’s the “common sense” in this?        

  • The consequence of this legal uncertainty, tied to these extremely high penalties, is that an extraordinary amount of creativity will either never be exercised, or never be exercised in the open. We drive this creative process underground by branding the modern-day Walt Disneys ‘pirates’. We make it impossible for businesses to rely upon a public domain, because the boundaries of the public domain are designed to be unclear. It never pays to do anything except pay for the right to create, and hence only those who can pay are allowed to create. As was the case in the Soviet Union, though for very different reasons, we will begin to see a world of underground art – not because the message is necessarily political, or because the subject is controversial, but because the very act of creating the art is legally fraught. Already, exhibits of ‘illegal art’ tour the United States. In what does their ‘illegality’ consist? In the act of mixing the culture around us with an expression that is critical or reflective” (pg. 185-186).
  • Never in our history has a painter had to worry about whether his painting infringed on someone else’s work; but the modern-day painter, using the tools of Photoshop, sharing content on the Web, must worry all the time. Images are all around, but the only safe images to use in the act of creation are those purchased from Corbis or another image farm. And in purchasing, censoring happens. There is a free market in pencils; we needn’t worry about its effect on creativity. But there is a highly regulated, monopolized market in cultural icons; the right to cultivate and transform them is not similarly free” (pg. 186).


         2.      Constraining Innovators:

                 What happens (pg. 190) –

  • A business is created that changes the way in which something is produced (i.e. and how it gave people access to music and gave them new means to produce musical content).
  • Then, the business is taken to court and found guilty and subsequently fined (in this case, found guilty “of willful infringement” and thus “the judge imposed a fine against of $118 million,” and settled with Vivendi Universal for $54 million)
  • Finally, the business is bought out by the larger/powerful corporation (Vivendi Universal purchased a later) and, in most cases, the same business is offering the same services – under the “mother corporation” – but this time for a price!


         3.     Corrupting Citizens:

 What happens in times of prohibition, in this case digital prohibition?

  • According to the New York Times, 43 million Americans downloaded music in May 2002. According to the RIAA, the behavior of those 43 million Americans is a felony. We thus have a set of rules that transforms 20 percent of America into criminals” (pg. 199)
    • If the U.S. population in 2000 was 281,421,906 (according to the 2000 U.S. Census) and growing by 3 million people per year – that’s roughly 287,421,906 in 2002 – thus about 57.5 million people are “felons” according to RIAA.
  • Both open source and free software compete with big business software (in Lessig’s case Microsoft).
  • In talking about IBM, using OSF software and the company’s vision … “to support ‘open source and free software’ is not to oppose commercial entities. It is instead, to support a mode of software development that is different from Microsoft’s” (pg. 264).
  • More important for our purposes, to support ‘open source and free software’ in not to oppose copyright”(pg. 264).
  • OSF software, under the General Public License (GPL) … “requires that the source code for the software be made available by anyone who modifies and redistributes the software” (pg. 265).
  • Thus … “that requirement is effective only if copyright governs software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does” (pg. 265).
  • The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there are a few powerful companies that control an ever expanding slice of the media. It is that this concentration can pull upon an equally bloated range of rights – property rights of a historically extreme form – that makes their bigness bad” (pg. 269)

Copyrights and Their (un)Intended Consequences

September 25, 2010

Lawrence Lessig’s Free Culture

Chapters 6-8: PROPERTY

Understanding copyrights and their  significance as property is an interesting topic to consider .  A copyright is a kind of property that can be owned and sold, and the law protects against its’ theft (Lessig 83).  We most often think of property in the tangible sense as something that can be seen and touched.  When we use the term copyright to apply it to less tangible properties, namely, ideas, defining the terms of a copyright become much more difficult.

A good example of this dilemma is spelled out in the introduction to the “Property” section of Lawrence Lessig’s book, Free Culture:

“I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don’t have it. But when I take the good idea you had to put a picnic table in the backyard…What is the thing I am taking then?” (Lessig 83)

Ideas released into the world are free. As so, why should anyone have to pay for  ideas?

STOP AND THINK: Most of us would think it would be silly to charge someone for using your idea to put a picnic table in their backyard. Other ideas, however, we find worthy of copyrighting and protecting. What makes the copyright of an idea legitimate or worthwhile?

Lessig uses his section on “Property” to dive into the idea of copyrighted material and its history. He answers: Where did it come from? What are its limits? How does it function in practice? (Lessig 84) Understanding the significance of the copyright and the path it has taken to arrive at its present day use helps the reader to better understand its intended purpose.

Copyright law began in 1710 when the British Parliament adopted the Statue of Anne, which stated that all published works would be given a copyright term of 14 years, renewable once if the author was still alive. Works already published by 1710 were given a single 21 years copyright term.  This Statute gave the author or “proprietor” of a book an exclusive right to print that book.  In addition, the bookseller had the rights to sell that book for the copyrighted term. Once the term expired, the work would be ‘free game’ to be published and sold by anyone.

The restrictions behind the copyright from its initial adoption the 1700s differ very much from what they have evolved into today.  It’s original intent of the copyright was simple to grant an exclusive right to print-no less, but also, no more (Lessig 88). It did not go beyond this protection to include more generally HOW a book could be used. What it did, was allow publishers to keep prices high and grant monopoly power to individual booksellers.

The original copyright law was not popular, especially during the Enlightenment when the importance of education and the spread of knowledge was held in high regard. Many believed the power that booksellers held over their monopoly of books was harming the spread of knowledge, which should be free and available to all.

Over the years, Parliament wrestled with copyright law and its terms.  Without going into the details, the important thing to know is that it was a never ending battle trying to find a solution to copyright law that would make everyone happy. One party, whether it be booksellers, publishers, readers, authors, etc., was always feeling shafted. In 1774, this struggle took a dramatic turn. For the first time in Aglo-American history, the legal control over some creative works expired, making some of the great classics (does Romeo and Juliet sound familiar?) free of legal restraint (Lessig 93). The reaction was again, double sided. “Pirate publishers” celebrated, while publishers with previous copyright ownership felt as though their profession and ability to provide for their families had been stripped from their rightful hands.

For the purposes of our discussion, we need not determine which party was in the right.  What we must recognize is this decision meant that “booksellers could no longer control how culture in England would grow and develop. Culture in England was thereafter free.” (94) (This term ‘free’ meaning free in the sense that the culture and its growth could no longer be controlled by a small group of publishers once a book’s copyright expired).


After laying the foundation of the history behind the copyright, Lessig jumps ahead to give two real-world examples of the copyright as we know it today and how it has evolved from its original context. I found these two stories to be very interesting, and certainly opened my eyes to just how complex (and to me, outrageously overregulated) copyright law has become. A quick briefing of the two examples provided in Chapters 7&8:

  1. To produce CD-ROM with a retrospective showcase of Clint Eastwood’s acting career, it took over one year to clear all of the rights for the films mentioned and used in the piece. Rights had to be cleared from everyone who appeared in the films, from director to stuntman, and from the artist’s whose music was used in the films. Every actor in each film had a claim to royalties for the reuse of that film.

STOP AND THINK: Where could we draw the line to reduce the complexity of copyright and royalty rights? Would it be fair to limit royalties for say, only the director of the film? Does the extra walking down the street in the scene deserve those same rights? Why or why not?

2. John Else, a filmmaker, was producing a documentary about Wagner’s Ring Cycle, with a focus on stagehands at the  San Francisco Opera.  One of the scenes Else shot was of two stagehands playing checkers during one of the opera’s performances. In the background of the shot,  a TV was on in the corner of the room playing an episode of The Simpsons.  The indirect shot of The Simpsons was about four and a half seconds long.  To make a long story short, in an attempt to get permission to use this 4.5 second clip, Else contacted The Simpsons creator, then the company that produces the program, and finally, Fox, the parent company of the producers.  Phone call after phone call lead to one final decision: Else would have to pay $10,000 to use that tiny, indirect clip of The Simpsons on his documentary.

Because it’s a free market, and the owner of a copyright can set whatever price they please.  “This practice shows just how far the law has come from its 18th century roots. The law was born as a shield to protect publisher’s profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not.” (Lessig 99)  What copyright usage has boiled down to is a process of paying lawyers, whether it be to defend your rights to get permission to use others’ rights. “Therefore, for the law-abiding sorts, a wealth of creativity is never made” because of the cost of clearing rights is so high (106).

In today’s culture, the function of copyright law is more complex than ever. “We live in a ‘cut-and-paste culture’ enabled by technology. Technology means we can now do amazing things easily; but we cant do them legally.” (105) Creativity and new forms of art are being stunted by copyright laws.

This argument over copyright protection (and whether it is BENEFICIAL or HARMFUL) is really interesting to me. I am looking forward to Monday’s class so we can talk about this! =)

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

-Thomas Jefferson