Just Thinking …

Today’s Boston Globe put me in a mood to look back over the last couple of weeks, specifically at the Tenenbaum copyright infringment lawsuit that the record companies won. There are two items in today’s paper — first, this submitted op-ed (sorry about the length of the excerpt, but it’s too well written to just chop up): Pirates, diamonds and rust (pdf)

[…] On this summer evening, as I surrendered to “Diamonds and Rust’’ and other songs that sounded richer than I’d ever heard on tape or CD, I went back to the time I discovered Joan Baez, and other music I’ve loved all my life.

It was on a cassette, copied for my brother and me by a friend, from an original cassette that someone else had brought back from a trip to the United States. Back in the ’80s, owning original imported music was a privilege, and much of the Western music in our homes was copied. Friends and family traveling abroad brought back music. They also brought back cellophane-sealed stacks of blank tapes, which were opened and distributed as gifts. We picked the music we wanted to copy, put the two tapes on someone’s tape deck, and the music went around. The blank tapes came with covers on which we wrote the song titles, often in pencil, so that we could erase old favorites and record new ones. We even tried to copy some cover art work from the original. By the time we were done, at least a dozen people had copies from a single original. Then there were copies of copies.

Was it illegal? Was it unethical? We never thought about it. Even if we had, would we have stopped? Music sharing was the only way most of us could get the music.

[…] About the financial damages to recording labels and artists, I am not so sure.

From those first tapes in high school, I carried the music with me when I went on to college and built an ever-growing collection of original tapes. When my husband attended university, he began collecting original CDs, which he got in exchange for tutoring sessions on campus. When he could, he bought at least one every month. More than two decades after those first tapes, my brother is still building out his collection – on his iPod at 99 cents a song. And then there are the tickets that my friends and I have bought for concerts under summer skies like the one last week.

Eventually, it seems, recording labels and artists do collect their dues.

Second, there is this letter to the editor: Downloader’s punishment doesn’t fit crime:

What ever happened to the punishment fitting the crime? Drunk drivers pay significantly less for each infraction, and they endanger everyone. Tenenbaum is a 25-year-old student who will be forced into bankruptcy because he partook in a practice that was, and still is, widely done.

It seems the record companies are hoping to recoup every nickel they’ve lost in the last decade from one person. […] Instead [of a fairer penalty], huge greedy corporations get richer, and one student and music lover is bankrupted, and the justice system looks bereft of common sense. How ridiculous.

So, what do I draw from this? The Boston press has spent a great deal of time on the Tenenbaum case, Monday-morning quarterbacking Charlie Nesson’s handling of the case. (Other Boston Globe coverage: Four record labels suing BU student; Opening statements made in civil suit over swapping songs; BU student’s admissions of illegal downloads may cost him $4.5m; and BU student fined $675,000 for illegal music downloads). And, on it’s face, it does look like Charlie could have handled it better — after all, he didn’t win.

But I am reminded of the dedication page of Larry Lessig’s Code and Other Laws of Cyberspace:

For Charlie Nesson: Whose Every Idea Seems Crazy — For About A Year

The op-ed and the letter show that there are those who understand that the business model that the record companies are pursuing is a pure construct of the current state of copyright law. For these people, at least, the “Lessig dilemma” does not hold (roughly, the Lessig dilemma is the notion that you have to become a lawyer *and* a telecommunications engineer to grasp the flaws with the current copyright system).

As I learned many years ago, Charlie does not subscribe to the Lessig dilemma. And, even then, he had a hard time articulating the strategies that he felt could get around Larry’s pessimism, largely leaving people scratching their heads (and, sometimes, measuring his neck for a rope). But, as the rise of the clog and citizenship production of internet content has shown, his ideas were effective.

So, I have to wonder what I’m not grasping about what appears to be his current quixotic approach to the problem. I am sure there’s a long game, and today’s Globe is evidence that he may well be making headway. But I’m not clever enough at reading the tea leaves — nor have I had the time to really study the trial transcript (if I even knew where to get it!)

But I am looking forward to what I assume will be an appeal.

See also this other letter to the editor today — Protecting school’s good name, one trademark at a time (responding to this article over the weekend – pdf – which got a reaction from the MIT student paper).