Siva Vaidhyanathan's work on intellectual property cuts a wide swath through culture, from blues and hip-hop to digital copyright law, Napster and mp3 downloading to the FCC's upcoming vote on media deregulation and the heroism of librarians in John Ashcroft's America. While the topics he ponders as the author of the forthcoming book The Anarchist in the Library
and assistant professor of Culture and Communications at NYU can be pretty complicated, he always keeps the discussion interesting, down-to-earth, and--above all--human. Because in a culture transformed by advanced technology, that's what's often missing. During my April 8 interview with Vaidhyanathan, the conversation kept revolving around a simple, broad theme--reclaiming cultural democracy.Paul Schmelzer: The background for your work on copyright: huge corporations are gradually but firm-fistedly getting more control over information that at some point should become the property of the culture at large--the kind of information that the framers of the Constitution thought vital to advances in creative culture: literature, music, scientific research, ideas. Why is this happening? And why is it important for the average citizen to take notice?
Siva Vaidhyanathan: Both democracy and creative culture share this notion that they work best when the raw materials are cheap and easy and easily distributed. You can look at any cultural development that’s made a difference in the world—reggae, blues, crocheting—you can look at any of these and say, y’know, it’s really about communities sharing. It’s about communities moving ideas between and among people, revision, theme and variation, and ultimately a sort of consensus about what is good and what should stay around. We recognize that’s how culture grows… In the last 25 to 30 years, the United States government made a very overt choice. The United States government decided that the commercial interests of a handful of companies--we can name them as the News Corporation, Disney, AOL-Time Warner, Vivendi--these sorts of corporations were selling products that could gain some sort of trade advantage for Americans.
You can look at any cultural development that’s made a difference in the world--reggae, blues, crocheting--and say, y’know, it’s really about communities sharing.
Therefore all policy has shifted in their favor. That means policy about who gets to own and run networks, who gets to own and run radio stations, how long copyright protection will last, what forms copyright protections will take. We’ve put ourselves in a really ugly situation though, because we’ve forgotten that a regulatory system like copyright was designed to encourage creativity, to encourage the dissemination of knowledge. These days, copyright is so strong and lasts so long that it’s counterproductive to those efforts.
PS: So how has copyright changed with the advent of digital technology?
SV: It didn’t have to change. In 1976, Congress made it very clear that any work that’s fixed in any tangible medium is covered by copyright. So we already had copyright in digital materials. Every time you wrote an e-mail it was protected by copyright. The problem is that the companies that invest so many millions of dollars in these high-end commercial products--the sort of products the US Government decided represented culture--stopped believing in copyright. They stopped believing that you could regulate culture softly and reasonably, because they were afraid that digital technology would encourage us to undermine the market for those legitimate goods. There was this untested assumption that markets for music, for instance, would disappear if digital technology allowed people to share music files.
The Digital Millennium Copyright Act took the regulation of culture away from human beings, courts, and Congress and shifted it into the machines, made it a matter of technology rather than humanity.
Well, in order to head off this problem, Congress at the behest of the media industries actually just passed a bill that the media industries wrote for them. It’s called the Digital Millennium Copyright Act. The [DMCA] was a radical shift in how we regulate culture. It took the regulation of culture away from human beings, courts, and Congress and shifted it into the machines, made it a matter of technology rather than humanity. The [DMCA] also made technology sacrosanct. In other words, if there’s a technological form that wraps a particular piece of culture--like a song, if there’s a digital file of a song and it’s covered by encryption--the [DMCA] makes it illegal to evade that encryption without permission, even if the song in question is in the public domain, in other words it’s not covered by copyright; in other words you own it. You can’t even get past those sorts of barriers to get to material that you and all of us own.
So this created a much higher level, a really absurd level, of protection. These digital locks, they last forever, theoretically. Although with technological breakdown, they could last forever and be inaccessible. They have absolutely no way of feeling through the complexities of the ways we use culture in our lives. And, there's been a huge chilling effect on librarians and scientists who do work in areas surrounding encryption and digital distribution and digital information management. So we've created this really ugly situation through the foolish deployment of technology to intervene in what are complex human, social and cultural problems.
PS: How is this different from when we were kids and would Xerox chapters of books or copy a record onto a cassette tape and trade them with friends?
VS: All of those behaviors--those behaviors of sharing culture--are older than even cassette tapes. The behaviors of sharing culture are what build culture. So this is a long-standing human habit. What is different is that these behaviors have been amplified and extended by the powers of digital technology and networking. We can't deny that quantitatively we're in a new situation, although qualitatively we are not. We're actually behaving the way we always have.
Culture is worthless if you keep it in your house.
Culture is worthless if you keep it in your house. So, yes, in that sense, this proliferation of shared culture--this proliferation of ostensibly free material--is simply the electronic simulation of what we've been doing in towns and villages and neighborhoods and garages and high schools all around the world for centuries.
PS: In your first book
Copyrights and Copywrongs, you discussed blues music as arising from something akin to "the circle" in African cultures, where ideas are introduced, gestate and grow within community. Is such a circle still alive now, and what's the prognosis for its health?
VS: This sort of creative circle--the drum circle or the blues-singing circle--is simply the most vivid image we have of these sort of creative communities. These creative communities are all over the place. Anyplace artists gather, any place musicians just jam for the fun of it… I think that this is a powerful form and a powerful habit. It's also an important part of being human. It's the essence of being cultural.
We're not missing those communities; we're just not investing in them and celebrating them like we should. Because the form of cultural production that this country and therefore the world has decided to celebrate, protect and promote is the industrial form. It's the form that says: it's gonna start with a piece of paper by a scriptwriter, it's going to go through a series of meetings, it's going to be produced step by step with the contribution of hundreds or thousands of people with hundreds of thousands to millions of dollars and then be distributed to millions of people, perhaps billions of people, in a form that the institution that produced it dictates.
The form of cultural production that this country and therefore the world has decided to celebrate, protect and promote is the industrial form.
Now, all of that in some ways makes our life better. These mass-produced movies are things that human beings value, share, talk about. They become parts of our cultural commerce. They become parts of our cultural life. We quote Star Wars all the time in daily life. We quote Casablanca. And I don't think we want to imagine a world in which there's no incentive to produce Star Wars or Casablanca--although we might imagine a world without Jar-Jar Binks--and we might imagine a world in which someone could write a sequel to Casablanca and not be laughed at (although perhaps that's hard to imagine). Nonetheless, it's this notion of working from the common cultural phenomena that we share to build new and special things. That's what we have to focus on. That's why we need a low barrier of entry to creative processes. That's why we need free and cheap access to cultural materials. Free and cheap access can come a number of ways: through electronic networks, through networks of friends sharing material, through public libraries, through universities, through schools, through churches. These are all institutions built for sharing. One of the things I'm concerned about is this ideology of the industrial production and dissemination of cultural products is infecting some of those institutions as well.
PS: The title of your forthcoming book is
The Anarchist in the Library. I like where you're talking about the anarchy of cassette tape culture--leaderless, vibrant, creative networks. Tell me about that: where do you find hope in the face of this corporate onslaught?
SV: When I look at how cultures build themselves and proliferate, they pretty much do what anarchists have been describing as the ideal political state. I'm not willing to go far enough to say this I think this is the ideal political state, but I do think the anarchists are onto something descriptively, if not prescriptively. Culture is anarchistic. Culture builds itself without leaders. Culture proliferates itself through consensus and revision. Culture works best when there is minimal authority and guidance. Now if we accept that culture is anarchy, then we have to look at these systems in which oligarchy is imposing itself and creating all sorts of horror stories about anarchy. The horror stories might be legitimate, they might have some serious ramifications. I think the best example is: the information systems that we've built that are inherently anarchistic help child pornographers. I don't think anyone can support the notion that child pornography is so easily available, so widely distributed. Those of us that celebrate the freedom of these new information systems, tend to want to ignore those problems. Tend to want to ignore the fact that some very bad things can go on through these systems. There's some measure of irresponsibility.
Culture is anarchistic. Culture builds itself without leaders. Culture proliferates itself through consensus and revision. Culture works best when there is minimal authority and guidance.
The real question is: what methods do we use to attack those bad things. Do we want to interpret these bad things--child pornography for one, white supremacy being another, terrorism in general being a third--these are real problems. How do we attack them? Do we attack them by building new machines that stop up these flows of information? Is that good in the long term, and, just as importantly, is that harmful to those of us who want to use those systems for good. This is my big problem with it: I think that these real problems are complex, are deep-seeded, have deep historical roots and are gonna take decades or centuries to confront, if we're going to confront them honestly. Instead, we're trying to confront them technologically and shallowly, and I think this is a big mistake. The negative externalities of this, the spillover effects of this sort of harsh technological policy is that legitimate movements for freedom and democracy and creative culture are undermined, along with the bad stuff. The big problem is, these moves don't actually do enough to stop the bad stuff.
PS: We've got John Ashcroft in power, and we've got a legitimate need to deal with terrorism and intercept e-mails, for example, to prevent terrorist acts, but to Ashcroft, just about everything is "bad stuff."
VS: One of the things the United States government has been pushing since September 11, 2001 is a new information policy, a new information system. There are suggestions coming out of Washington DC to radically redesign the internet, or at least the last mile of the Internet--the mile through which the users interact with the internet service providers--to have more oversight, less privacy, to tether our internet presence to a particular place, a particular city, state or country. There are also efforts to monitor all of our electronic transactions, whether that’s through credit cards or long-distance phonecalls or cellphones, and have a huge database--run through the Pentagon--trace all our moves.
There are two questions here: would such a system be effective against the real problems? And would the harm that comes from that sort of intervention outweigh the benefits? The second question is really hard to ask, so let me ask it a different way. If this technological intervention is effective--and that’s a big if--is there a less intrusive way to achieve the same result, and if so, I think we should look for the less intrusive way.
The USA Patriot Act is a blank check to a government institution that is notorious for overstepping its bounds, notorious for being ineffective, incompetent and on the verge of corrupt. It’s probably the biggest example of legislative malpractice in the last 50 years.
So if surveillance of everybody might stop a handful of terrorist acts--and hopefully that’s all we’re facing--is there a way to imagine more targeted surveillance? Surveillance based on hard work, surveillance based on real investigations. Surveillance based on the trust the government establishes with its citizens, such that its citizens feel invested I the public good? What I mean by that is: the best way to stop any illegal act, terrorist or otherwise, is to make sure that those terrorists do not have support structures in society in general. In order to eliminate those support structures, you have to make sure life is good and secure and that the people around those ne’er-do-wells have some sort of investment or loyalty in the larger community. Now this sounds sort of snitchy, and that’s really what I’m talking about. There are really complicated, hard, messy ways to attack terrorism, and they’re expensive, and they’re imperfect. But I think that they are ultimately, down the road, more effective and more likely to engender trust in the nation at large.
PS: The USA Patriot Act is pretty scary. Do we have any evidence how they’re utilizing it and that rights are being stripped?
VS: Part of the problem with The Patriot Act is that it is self-denying. If you’re being investigated under the powers of the Patriot Act, you’re not allowed to tell anybody that you’re being investigated. If you run an institution like a library or a bookstore and the FBI comes and says “Look we want to look at all the records of this particular patron,” you’re not allowed to complain about that, protest that, inform the person who’s being investigated. You’re sworn to secrecy. In other words, you’re enlisted in the world of security and law enforcement, whether you want to be or not.
We don’t know what the effects of the Patriot Act are. And Congress doesn’t know. Congress doesn’t know how many times it’s been invoked. Congress doesn’t know how many people are being investigated under this system. Congress doesn’t know and therefore we don’t know how effective it has been and we have absolutely no way of testing it. This is a blank check to a government institution--in this case the Federal Bureau of Investigation--that is notorious for overstepping its bounds, notorious for being ineffective, incompetent and on the verge of corrupt. It’s an institution that we know is and has been blatantly racist in many of its practices. This is not the sort of power we want to give to any particular government agency without very careful oversight. But that’s exactly what we did. Well, Congress did it. And Congress did it without even reading what it was doing. The USA Patriot Act is probably the biggest example of legislative malpractice in the last 50 years.
PS: The title of your book, then, takes on a new tenor when you think about how independent booksellers and librarians are shredding records to protect the privacy of readers and municipalities are voting not to enforce the Patriot Act.
The Anarchist in the Library takes on a whole new cast.
VS: For some reason, libraries have become the site of conflict. Libraries are perceived now as a den of terrorists and pornographers. And this is not only a misdescription of how libraries work in our lives, but I think ultimately also a very dangerous assumption. What we’re doing though is making librarians choose among their values. Librarians believe very strongly in recordkeeping and in maintaining archives. It’s part of the historical record; that’s half of what they do. But the other half of what they do is serve and protect their patrons. The federal government has made librarians choose between retaining records that might be useful, for instance in budgetary discussions not to mention historical research, and protecting their patrons, so their patrons don’t feel intimidated by the books they choose to read or by the potential of oversight of the books they choose to read. There are a lot of librarians around the country right now who are taking a very noble and strong stand against this situation, and I think we need to celebrate them and support them in this effort.
PS: I love the title of the book because you think of librarians as mousy and meek, but now they’re the vanguard…
A library is a temple to the notion that knowledge is not just for the elite and that access should be low cost if not free, that doors should be open.
VS: Libraries are considered to be dangerous places and librarians are our heroes. This is something that we really have to emphasize. The library is also not just functionally important to communities all over the world, but a library itself is the embodiment of enlightenment values in all the best sense of that. A library is a temple to the notion that knowledge is not just for the elite and that access should be low cost if not free, that doors should be open. Investing in libraries monetarily, spritually, intellectually, legally is one of the best things we can do for our immediate state and for the life we hope we can build for the rest of the century.
PS: Since we’re in the library, I first saw you on "Now with Bill Moyers" and someone on there was raising the specter of “pay-per-use” models for culture and how the “lending library” will change.
VS: Yeah. Hollywood has this dream of efficiency. A dream of a perfectly efficient distribution system. Stuff in Hollywood is pretty inefficient. They invest millions of dollars in products up-front that could completely bomb on the market. They have no way to steer these ocean liners deftly as they walk through the production process and the markets. So one of the reasons that business people in Hollywood are so nervous is that they never really know what’s going to win or what’s going to lose. They don’t what their markets and audiences really want; they don’t know how to adjust things in mid-stream. So there’s constant pressure to make their systems more efficient.
The notion of pay-per-view comes right out of that desire for a more efficient distribution system. In a pay-per-view system you’re not paying for thousands of prints of a movie, you’re paying to keep the digital material on a handful of servers. And you know the people who are going to tap into this server are precisely the people who want to watch it. People who, if they’re charged low prices, aren’t going to feel ripped off by this process. But to install this kind of pay-per-view system, much like we have with cable TV, in all forms of culture--to build a global jukebox--they feel like they need to have control over every step of the commercial process, in terms of format and content and so forth. Price. So to build the global jukebox they have done things like pass the [DMCA] and go crazy on enforcement. They’re afraid that we’re going to build that jukebox by ourselves with our own material. And, unfortunately for them, that’s exactly what we’re doing.
Now, what does this mean for libraries? That means that there are incredible pressures on libraries to conform to this pay-per-view model. We’re seeing it first in the world of academic journals, which are coming to libraries in electronic form more and more, less in paper form. So imagine this: an electronic journal gets streamed into a library. A library never has it on its shelf, never owns a paper copy, can’t archive it for posterity. Its patrons can access the material, maybe can print it, maybe not. But if the subscription runs out, if the library loses money and has to cancel that subscription, if the company itself goes out of business, all the material is gone. The library has no trace of what it bought: no record, no archive. It’s lost entirely. This is not a good model for a library. It defeats a lot of the purpose of a library. You might as well be sitting at a computer terminal in Kinko’s at that point. We have to be very careful because librarians are facing this decisions every day. And because we’re not investing enough in acquisitions for libraries, they're having to make these very difficult choices.
PS: There are certainly pragmatic issues--you can’t write in the margins of a non-physical book--but there’s also a moral issue in treating culture like commerce rather than…culture.
VS: There is. I don’t think we can get around the fact that commerce is an engine of culture as well. It certainly doesn’t have to be a problem in culture. We’re not talking about zero-sum. That’s one of the things we have to remember about culture: it’s not either/or, it’s everything. It’s about mixtures, proliferation. It’s about trading and borrowing and adding, rather than subtracting or substituting. It’s a false dichotomy between commerce and culture. What we need to do is build a system, or at least accept a system, where there’s gonna be some free stuff and there’s gonna be some expensive stuff. And that may be OK, as long as users, consumers, citizens, and creators on the ground, we’re not locked out of either system by virtue of our economic status or our aesthetic choices…
PS: Another scary topic: on June 2, the Federal Communications Commission will likely vote to "deregulate" broadcasting ownership rules. How does this fit in?
Shouldn’t our priority be diversity? Shouldn’t we be chopping up our spectrum in such a way as to maximize the number and variety of voices? The FCC and Congress are doing just the opposite.
VS: The FCC is constantly facing choices that speak to this directly. One of the things we need to do is look at these policy choices as a whole. There are people who write and think a lot about copyright, and there are people who write and think a lot about FCC regulations and media ownership and concentration. These are not separate issues.
First of all, the very fact that so many media companies have merged into so few, has increased their political power or the political power of each one of them, that has radically altered all of these regulatory systems and phenomena. Secondly, our goal should be diversity and distribution of culture. Our goal should be cultural democracy. Our goal should obviously be real political democracy. We can’t have either one of those if we have a limited number of voices on our airwaves. We can’t have either of those if there isn’t some sense of the local, some sense of the specific. What we have in America right now is a very standardized set of radio habits. And we have an increasing series of mechanized radio stations where there’s no human interaction at all on the local level. This is a very efficient distribution system. It’s a great business model. The federal government has decided that “we reward great business models”. Well I want to raise the question: if it’s such a great business model, why do you need the federal government to enforce it? If it’s such a great idea, shouldn’t it be able to capitalize on the market itself, instead of taking advantage of state-created scarcity, by that I mean licenses of particular areas of spectrum?
So, we need to ask bigger questions about all of these things. Shouldn’t our priority be diversity? Shouldn’t our priority be some sort of local input on matters of culture and politics? Shouldn’t we allow churches across the United States to set up small radio stations to serve their constituents? Shouldn’t we allow activist groups to do the same? Shouldn’t we allow Native American groups, whether they are on their own nation’s land or not, to operate in the same ways? Shouldn’t we actually be looking for lower levels of regulation? Shouldn’t we be chopping up our spectrum in such a way as to maximize the number and variety of voices? The FCC and Congress are doing just the opposite. This does speak to the same problem. We need to examine all of these issues as cultural policy, and we need to come up with a set of principles about the cultural policy we choose to live under.
