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The Chronicle of Higher Education: Information Technology
From the issue dated November 19, 2004 http://chronicle.com/weekly/v51/i13/13a02901.htm

In the Copyright Wars, This Scholar Sides With the Anarchists
NYU's Siva Vaidhyanathan wants to keep the stuff of culture out of the hands of the information oligarchs

By SCOTT CARLSON

New York

Siva Vaidhyanathan, one of academe's best-known scholars of intellectual property and its role in contemporary culture, sits under a portrait of Elvis Presley painted on black velvet and talks about file sharing on campuses, the Digital Millennium Copyright Act, pressures on libraries from the USA Patriot Act, and the ground that arts and culture are losing to corporations and governments in the digital age.

The file-sharing controversy, he says, offers a perfect opportunity to discuss how easily swapping songs, files, and ideas can benefit and strengthen society.

"I resent a legal system that makes it too difficult and too expensive for creators to play around with the culture," says Mr. Vaidhyanathan, an assistant professor of culture and communication at New York University. "I resent the fact that copyrights last so long that things that should be free and convenient to use are locked down and lost forever."

Mr. Vaidhyanathan, 38, first gained attention three years ago with the release of his book Copyrights and Copywrongs, a popular history of copyright law. It argues, in part, that although digital technology has allowed artists, librarians, and academics to advance and analyze culture in new ways, copyright law is hampering those innovations. He has been a vocal opponent of the recording industry's attempts to stifle file sharing and a proponent of the Creative Commons alternative-copyright project, co-founded by Lawrence Lessig, a law professor at Stanford University.

Mr. Vaidhyanathan's new book, The Anarchist in the Library, released in May, picks up similar themes, describing the digital revolution as a battle between those who would free culture and those who would use technology to lock it down.

"To participate in culture is to share," he says, "and now, all of a sudden, our laws are telling us that we may not be cultural."

Pop-Culture Junkie

His arguments are tied both to personal convictions and to a love of popular culture and the arts, especially music and sports. He grew up in Buffalo, N.Y., but enrolled as an undergraduate at the University of Texas in part to be near Austin's vibrant music scene, and his grades suffered for all the time he spent at clubs and Longhorn football games.

In his cluttered office at NYU, he has some 4,000 music files in his Apple computer, by artists as different as Bruce Springsteen and the rapper 50 Cent. A baseball with Presley's signature printed on it sits next to the computer on his desk. A letter rejecting his offer to become the commissioner of Major League Baseball hangs on the wall.

In the past, Mr. Vaidhyanathan has held down jobs as a journalist and as a volunteer on local and national political campaigns. He often works outside of the ivory tower, making the subjects of intellectual property and digital technology digestible for the masses. His byline has appeared in The New York Times Magazine, The Nation, and the online magazines Salon, Slate, and openDemocracy. He is frequently in front of microphones, cameras, and crowds – he has recently been on National Public Radio and ABC-TV's Nightline, and at conferences on copyright law at major universities.

Mr. Vaidhyanathan counts as friends both Mr. Lessig and Eric Alterman, a prominent media critic and professor of English at Brooklyn College of the City University of New York. Like them, he runs a politically charged blog, although it tends to highlight developments in intellectual-property issues (when it's not trashing the Bush administration or bemoaning irregularities in the 2004 election).

His work draws mixed reviews. "What makes Siva special is that he is not a lawyer," says Gigi B. Sohn, president of Public Knowledge, an organization that pushes for copyright reform. "He comes at this from an artist's perspective and a librarian's perspective, and not a legal perspective. That really helps when you are trying to build a broad audience for copyright reform."

Joseph Turow, a professor of communication at the University of Pennsylvania, says one of Mr. Vaidhyanathan's strengths is his ability to mix legal scholarship and humanistic research. "It takes strong beliefs and confidence to do that when you know that law professors will be looking over your shoulder," Mr. Turow says.

But Adam Mossoff, an assistant professor at Michigan State University's law school, says Mr. Vaidhyanathan's vehemence compromises his scholarship: "Siva has an agenda he is pushing. He wants to see substantive changes in how copyright is perceived and defined today."

Defending Hip-Hop

Mr. Vaidhyanathan came to his academic career in copyright not through an interest in law but as a fan of hip-hop music. In college he loved how rappers used samples of recorded music to form the backbones of their songs, which brought new meaning to both the rap lyrics and the sampled, looped tune.

Despite poor grades, he slipped into graduate school – also at Austin – and took a course on American music. At the time, hip-hop was getting "bum rushed," he recalls. Established songwriters were threatening rappers with copyright lawsuits, effectively stripping a whole creative element out of the music.

"I decided I had to read everything I could on copyright," says Mr. Vaidhyanathan. "I went looking for a clearly written book for laypeople to read, and I found that there wasn't one. I thought I should probably write one."

The history of copyright, it turned out, was a little-studied topic, which became a gold mine for a pop-culture junkie like Mr. Vaidhyanathan. He found that Mark Twain, a favorite author of his, was an early advocate of strengthening U.S. copyright law, and that important copyright skirmishes and battles had been waged over television, film, and even video games. As he was completing Copyrights and Copywrongs, record companies and music lovers were clashing over Napster, the original music-file-trading service. Mr. Vaidhyanathan included an early examination of file sharing in the book.

His argument is that while copyright was designed to give artists and other creators incentives to produce work and profit from it, the protection has limitations. The book shows how copyright was expanded as it moved toward the digital era, becoming what Mr. Vaidhyanathan says is a tool for monopoly, censorship, and – in the case of rap artists versus white songwriters – racial oppression.

A Book on 'Core Values'

Tracy B. Mitrano, who directs Cornell University's Computer Policy and Law Program, says Copyrights and Copywrongs is assigned reading in many of her courses.

"Much of American society may have never known, and our legislators don't seem to want to remember, that copyright was a policy balancing innovation between incentive and public domain," she says. "Copyright, in its American origins, was tied to a robust democratic republic. Now it seems to be locked in a debate about property in the way that we think about physical property. This book is important because in outlining its history, we are reminded of how important copyright is to the core values of our society."

In The Anarchist in the Library, a sharply written digital-age manifesto, Mr. Vaidhyanathan focuses on what he sees as a technological battle between anarchy and oligarchy, pitting the forces of freedom and liberty against those of ownership and control in realms as diverse as file sharing, digital television, terrorism, libraries, and academe. Those who want a free culture stand against those who want to profit from culture.

This battle between anarchy and oligarchy was contentious even when culture was distributed through word of mouth, paper, or vinyl. In the digital age, he writes, when an artifact of culture can be an easily duplicated file moving at light speed, the battle is frenetic and the stakes are high – creating a technological arms race.

The "oligarchs," Mr. Vaidhyanathan says, favor setting up instruments of control, like encryption programs, copy-control technology, or even a whole new Internet that is subject to more surveillance. The "anarchists" are fighting back by hacking those controls.

Take, for example, the popularity of file sharing and music swapping at colleges. Entertainment companies have tried to stop sharing by encrypting the information on CD's and DVD's, but those encryptions are soon broken by hackers and computer-savvy students. Some colleges block parts of their networks to stop file sharing, but students are almost always able to find ways around those blocks.

That struggle between anarchists and oligarchs is spreading to libraries, which are "under increasing pressure to conform to a pay-per-view model," Mr. Vaidhyanathan writes. The model of database companies like Reed Elsevier and Thomson is oligarchic, he says: They maintain control of and access to information. If a library gives up a subscription to an electronic database of journals, it loses access even to issues published when the subscription was in effect. But libraries – "leaks in the information economy," Mr. Vaidhyanathan calls them – tend to follow the anarchist's model by making information cheap or free. They are, in a sense, hacking the established system as they talk about setting up their own publishing models, like online, open-access journals.

In the race to bottle up information and culture, Mr. Vaidhyanathan says, government and content holders are trying to use technology to solve problems that are essentially social. He says people tend to be afraid of the free flow of information and rush to create laws and write code to stop that flow. The Digital Millennium Copyright Act, which makes breaking digital protections on files illegal, is an example, he says.

"Those are the sorts of moves that we make, either in policy or technology, that are destined to fail," he says, "because we think that we can invent a machine to fix the problem that the last machine caused."

While many in academe sympathize with Mr. Vaidhyanathan's perspective on property and technology, his books have drawn plenty of criticism. Edward Rothstein, a cultural critic for The New York Times, wrote that Mr. Vaidhyanathan's approach to freeing and sharing culture in The Anarchist in the Library was too optimistic – part of a rosy "countercultural romance" that unrealistically "yearns for a preindustrial world in which an unbounded terrain of entertainment and folk art is somehow made freely available."

Marshall Leaffer, a professor of law at Indiana University at Bloomington, says Mr. Vaidhyanathan is part of a group of scholars who subscribe to a "politically correct" and "libertarian" view of intellectual property that is in vogue in academe now.

"In their zeal to provide a libertarian notion of copyright, they sometimes overlook the real challenges of the digital age," Mr. Leaffer says. He does not sympathize with the "passionate hatred" that Mr. Vaidhyanathan and others have for the Digital Millennium Copyright Act, which the Indiana professor says still needs to be vetted by the courts but in the meantime provides needed protections for copyright holders.

"And I have never understood the romantic appreciation of Napster that was manifested in his book," Mr. Leaffer says. "You can take the [recording industry's views] with a grain of salt, but if you look at what file sharing has done, it has undermined the incentives to distribute records."

"He presents an extreme view, and his extreme view might in the long view might be merited," Mr. Leaffer says. "But it's too early to tell."

A Jeremiad

The Anarchist in the Library started out as a sequel to Copyrights and Copywrongs. It was intended as a jeremiad against the recording industry, modeled on an article on file sharing that Mr. Vaidhyanathan wrote for The Nation in 2000 called "MP3: It's Only Rock & Roll and the Kids Are Alright." In that article he called the file-sharing trend a "rational revolt of passionate fans" against expensive CD's.

He was an assistant professor in the library-science school at the University of Wisconsin at Madison and had finished two-thirds of the book when the September 11 terrorist attacks hit. After that he had trouble writing, as his whole perspective had changed. He no longer cared if the rock band Metallica was going to get money from a company that facilitated the illegal sharing of its songs, and he became embarrassed by the shallow "triumphalism" of his Nation article.

He leans back heavily in the chair behind his desk, which is practically buried in books about culture and politics, like Benjamin R. Barber's Jihad vs. McWorld and Neil Postman's Amusing Ourselves to Death. "The things I used to get worked up about I could no longer care about," he says.

But in the months after September 11, he started to find a new theme. "There were all these panicky stories about terrorists using libraries," he says. He saw policy makers clamping down on technology with the USA Patriot Act and the proposed Total Information Awareness program, a huge database that would have tracked Americans' electronic lives. While working in a library, he says, "I started thinking about the role of libraries and the value of openness."

Mr. Vaidhyanathan says he is ready to give up his stake in intellectual-property scholarship and move on. But he plans to continue engaging the themes of politics, culture, and control well into the future – his next book will be "a technocultural history of voting," to be published in time for the 2008 election. The book will very likely address voting in developing countries, the 2000 Florida recount, and the Diebold controversy, in which a voting-machine manufacturer tried to shut down Web sites that posted its memorandums about machines' security lapses.

"Voting technology fails all the time, but you never know it because most elections aren't close," he says, adding that his book will examine how Americans put faith in technology to mediate the country's most important decisions.

"I get frustrated sometimes with the fact that I spend way too much of my time worrying about the music industry, which I don't think has that much influence on the world," Mr. Vaidhyanathan says. "I see the ballot book as a nice meeting place of a variety of my interests – democracy, technology, information control, software, all coming together in a way that has the greatest possible influence on the real world."

'CULTURE IS ANARCHISTIC IF IT IS ALIVE AT ALL'

Siva Vaidhyanathan, in his own words, from The Anarchist in the Library (Basic Books, 2004):

"The hacker ethic rests on openness, peer review, individual autonomy, and communal responsibility. Anarchism built the Internet. But the threat of anarchy has launched a decade-long effort to rule it and rein it in. The outcome of this battle is far from clear, but the battle itself has damaged the progressive potential of this powerful communicative network of networks."

"If books became streams of data rather than objects for sale, they could be metered, rendering libraries superfluous or relegating them to vendor status. There would be nothing 'public' about them. ... A patron would enter a credit card or debit card to access databases of text, music, video, or facts. The computer would charge the card by the minute or the megabyte. ... The emerging pay-per-view regime could signal the death of the liberal Enlightenment project and thus the public library itself."

"Culture is anarchistic if it is alive at all. ... Anarchists believe that culture should flow with minimal impediments. Oligarchs, even if they are politically liberal, favor a top-down approach to culture with massive intervention from powerful institutions such as the state, corporations, universities, or museums. These institutions may be used to construct and preserve free flows of culture and information, but all too often they are harnessed to the oligarchic cause, making winners into bigger winners and thus rigging the cultural market."

http://chronicle.com
Section: Information Technology
Volume 51, Issue 13, Page A29

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