[Note: this is an early draft of the first section of a paper I'm working on, presently loosely titled "Mash-up Meets Deep Packet Inspection: Culture, solutions, and the demand for transparency". Other sections will follow as I draft them. I've adopted this format based on positive reactions to my similar drafting process last year on 'Who Gives a Tweet About Privacy?' Comments welcome. I've excluded full bibliographic information, but retained enough that you can find my sources. Text has been copied and pasted from a word processing document; this may result in some links being broken *cough* footnotes links *cough*]
I’m composing the beginning of this article to the sounds of Girl Talk’s ‘Like This’ from his Feed the Animals album. His artistic technique is to take very short samples from a variety of artists – twenty-nine samples are taken in the three minutes and twenty-one seconds of ‘Like This’ – and remix the work to create entirely new songs.[i] He isn’t a DJ but a self-described musician of the digital era, and when his work was presented to Marybeth Peters of the US Registrar of Copyrights she recognized that his music was amazing. She also recognized it was likely illegal, and the fact that his own creativity clearly imbued his creations offered no defense against copyright infringement: “You can’t argue your creativity when it’s based on other people’s stuff.”[ii] This position is mirrored by Barry Slotnick, head of the intellectual property litigation group at Loeb & Loeb, who has stated that “[w]hat you can’t do is substitute someone else’s creativity for your own.”[iii] Girl Talk’s work is recognized as amazing and creative, even by defenders and advocates of the present copyright regime, but is still questionably legal (at best). Feed the Animals is a popular album that pulls together anthems of pop culture, and its artist has been used as a defender of copyright reform movements,[iv] but it is only one item in a rapidly developing and emerging ‘mash-up’ culture that draws together existing cultural artifacts to in the creation of a recombinant digital culture.
Rather than stepping into the technical (il)legalities of mash-ups in any depth in this article I engage with mash-ups at a normative level. I aim to construct a normative argument for the cultural value of mash-ups, recognize some issues concerning expressive and cultural dignity that emerge alongside the ubiquitous surveillance and censorship of mash-up data traffic that may be identified as ‘infringing content’, and offer both a practical and a political solution to alleviate surveillance dangers and secure our emerging digital culture. To this end, I first outline the importance of mash-up culture, and then proceed to sketch a set of dignities that citizens in Canada (and other Western countries) should be able to expect in the digital domains they routinely roam in: citizens should be meaningfully able to possess expectations of contextual privacy and engage in civil expressions in domains of digital hybridity. It is with the shift to previously implausible ubiquitous digital surveillance and control systems, such as deep packet inspection, that Western citizens are again forced to worry about their privacy and expressive capacities in communal, rather than merely individual, senses. Accompanying this surveillance and control system is the threat of chilling speech, limitations of civil expression, and infringements on the possibilities of innovation. The technical structures that wait for copyright infringement should not be permitted to threaten innovation, criminalize otherwise routine communication, or undermine cultural development and experimentation without a full and transparent discussion of the costs such infrastructure could pose to the emergence and development of Western cultures, states, and citizenries.
To this end, I argue that there is a need to moderate the legal considerations of copyright, perhaps by adopting a hardware tariff model or developing distinctions in what constitutes infringing use. This will alleviate the demand to use technologies such as deep packet inspection for copyright enforcement, but is insufficient to genuinely alleviate the more general threat to civil dignities posed by these ubiquitous digital surveillance instruments. To better secure civil actors from the threats posed by these instruments there must be increased transparency surrounding digital networks, insofar as both vendors and Internet service providers must be required to disclose to the public, and its civil advocates, the technologies under development/in use, motivations driving development and usage, and modifications that are made to already deployed systems.
Why Mash-Up Matters
The public domain operates as the basis “for our art, our science, and out self-understanding. It is the raw material from which we make new inventions and create new cultural works.”[v] The public domain is from where the majority of our culture emerges from, and in the face of an ever-extending capture of the public domain by the advocates of strong copyright reform mash-up artists and citizens have taken to the ‘net to (re)generate their cultural heritage. Mash-up matters because it’s the beachhead upon which (dominantly) youth are mounting their critiques about the current legal conditions of their cultural existence. Mash-up matters because if the dogs-of-law do not release this mode of cultural formation from their jaws, then the equivalent of the future’s jazz and rock-and-roll will be criminalized, and the electronic culture of the future put in jeopardy. Mash-up matters because it can be read as the exemplar of the praxis of digitality itself.
Digital technology facilitates the engagement with culture in a massive way. Whereas folk and jazz music alike historically saw relatively small groups coming together to ‘remix’, or modify, add, and subtract, pieces of the music, the Internet has given today’s equivalent of folk and jazz musicians a global audience. There is, however, a clear difference between those musicians that used non-digital instruments and those using laptops, Garageband, and electronic keyboards; the former were limited in the acquisition and distribution of cultural artifacts, whereas the globe is the limit for the former. Lawrence Lessig, Paul Virilio, and Matt Mason recognize that there has been a shift in the speed and virtuality of informatic-creation, movement, and communication. In his recent book Remix, Lessig argues that there is a kind of ‘Read-Only’ culture – one where citizens could only purchase and enjoy culture in relatively static ways – and ‘Read-Write’ culture – a cultural situation where citizens modify and freely exchange new cultural creations.[vi] In the former, culture retains its agency by refusing to let the audience engage with the work itself to unlock its creative possibilities. Expensive equipment or highly specialized training was required to take up film, music, and similar ‘technical’ arts to creatively engage with the material itself in a way that directly copied and implicated the content itself in the development of new cultural artifacts. In the latter situation, culture’s agency becomes shared between the artifacts and those engaging with it: culture becomes ‘active’, as it was in the heydays of folk and jazz music.
In his discussion of the globalization of communications networks and the heightening velocities of contemporary technologies, Virilio ominously writes that we understand nothing of the information revolution, nothing of digitality itself, unless we recognize that it “ushers in, in purely cybernetic fashion, the revolution of generalized snooping.”[vii] With the shift toward ever-increasing standardization of the digital ecosystem – manifest in Internet’s technical architecture in the TCP/IP protocol suite, standardized ‘content containers’ such as JPEG, MP3, AVI, and uniform modes of measurement and signature analysis – comes the capacity to monitor, control, and mediate the objects enclosed in such standardized containers. Simultaneously, there is a division of object, a mass multiplication and exponential enumeration of such objects given that “data objects are nothing but the arbitrary drawing of boundaries that appear at the threshold of two articulated protocols.”[viii] Protocol, the medium binding and delivering cultural artifacts, functions as an instrumental or technical addition, as a necessary element of control that rests upon and frames the playful capacities inherent with digital cultural expression. The protocol that facilitates the playful engagements of youth with their culture simultaneously establishes the mesh within which their cultural artifacts can be scanned, probed, analyzed, and censored.
The search for control over intellectual creations maps onto the logic of perfect control annunciated by James Boyle: there is an argument, routinely touted by copyright holders, that the strength of intellectual property rights must vary inversely with the cost of copying to ensure a vibrant for-profit cultural environment. He calls this ‘the Internet Threat’, the stance that “without an increase in private property rights, cheaper copying will eat the heart out of our creative and cultural industries.”[ix] It is (partly) in reaction to the Internet Threat that Mason examines the effects of the rapid development of the digital ecosystem, and digitality’s potential to enable citizens to engage with cultural artifacts new and novel ways. As we will revisit, shortly, it is the Internet Threat that leads deep packet inspection equipment to be purposed to secure intellectual property.
A clear result of the digitization of cultural artifacts has been the near-instantaneous delivery of cultural content to meet the desires of particular individuals. This is most evidently manifest with Napster’s explosion onto the digital scene, which subsequently lead to the branding of filesharers as pirates. Instead of seeing pirates as the doom of culture, Mason asserts that “[p]irates highlight areas where choice doesn’t exist and demand that it does… this mentality transcends media formats, technological changes, and business models.”[x] A component of transitions to digitality, in particular, entail the ability to enjoy and develop culture through ‘remixing’. Remixing “is about taking something that already exists and redefining it in your own personal creative space, reinterpreting someone else’s work your way . . . It’s about shifting your perception of something and taking in other elements and influences . . . your originality should outshine the borrowed elements, or at the very least, present them in a new light. A good remix adds value to something.”[xi] In the language of generating cultural artifacts, this means that with the emergence of a new set of tools (cheap, yet technically sophisticated computer software and accompanying cheap, yet powerful, computer hardware) and new communications mediums that realign ‘personal creative space’ with YouTube, the youth of today have begun ‘editing out’ their own cultural commons. The challenge they face can be put thusly: the public domain and the relative anonymity provided in a world of analogue search-and-lawsuit practices are being dissolved in the face of legally driven protocological conflict. Without access to the public domain, without access to anonymity, youth and other participants in recombinant digital culture are under legally sanctioned siege, a siege that is criminalizing an outrageous percentage of the population.
To summarize, mash-ups matter because they can be seen as the resurgence of the past, of a time where individuals could take up and share the cultural artifacts they were immersed in. Mash-ups, in their massively available form, are presently made possible through the usage of contemporary computer systems; the systems of simulation that can be used to play video games, listen to music, and display YouTube videos are the same systems that encourage cultural generativity and massive instances of self-expression. Code can be, and is, taken from disparate sources, tinkered with, and subsequently emitted to the Web. This is an example of mash-up culture. Various musical albums that span various genres are recombined in fits of creativity to generate new conditions for cultural possibility. This constitutes a mash-up. Citizens draw pieces of video from music videos, news, advertisements, and government announcements to inscribe their own social, political, or banal commentary on the actions of the day. This too, is part of mash-up culture. Each of these three elements (of many more!) of mash-up culture play a role in defining how the digital generation will engage with their world; this generation has moved well beyond the recombination of words in blogging, to the recombination of the audio-visual facets of culture to transmute sterile corporate cultural artifacts into invigorated and vibrate artifacts endowed with cultural meaningfulness and life.[xii]
Next Section: As We Walk Into the Valley of the Shadow of Surveillance…
[i] Mallory O’Donnell, writing for the Stylus Decade, wrote of Girl Talk’s 2006 album that it was “indicative of the position in which we find ourselves in the post-everything world: gleeful, violent, lusty, grinding robots bent on thoroughly devouring both our own souls and those of our creations.” Link: http://www.thestylusdecade.com/albums10081.html
[iii] Steal This Hook? D.J. Skirts Copyright Law by Robert Levine, August 6, 2008. New York Times. Link: http://www.nytimes.com/2008/08/07/arts/music/07girl.html?pagewanted=2&_r=1
[iv] Pennsylvania Congressman Mike Doyle – member of the Subcommittee on Commications, Technology, and the Internet – has spoken highly of Greg Gillis (aka Girl Talk) in Congressional hearings. For more, see: http://www.rollingstone.com/rockdaily/index.php/2007/04/27/why-one-congressman-wants-you-to-borrow-more-music/
[v] Boyle, James. (2008). The Public Domain: Enclosing the Commons of the Mind. P 39.
[vi] Lessig, Lawrence. (2008). Remix: Making Art and Commerce Thrive in the Hybrid Economy.
[vii] Virilio, Paul. (2005). The Information Bomb. P. 62. Emphasis from text.
[viii] Galloway, Alexander. (2004). Protocol: How Control Exists After Decentalization. P 54.
[ix] Boyle, p. 60.
[x] Mason, Matt. (2008). The Pirate’s Dilemma: How Youth Culture is Reinventing Capitalism. P. 46
[xi] Mason, Matt. (2008). The Pirate’s Dilemma: How Youth Culture is Reinventing Capitalism. Pgs. 71, 81, and 83. Emphasis added.
[xii] Something about Adorno and the culture industry