American Identity is in the Music

My generation was raised on Schoolhouse Rock!. As such, we were not only told that America is a Melting Pot but were reminded of this on a regular basis in a song from that animated series, the melody of which is now ringing in the heads of any fellow Gen-Xers reading this post. Of course, the more mature truth is that America is not really a melting pot so much as it is a seething cauldron of incompatible ingredients that only manage to blend into something palatable after considerable simmer time. When The Great American Melting Pot episode first aired in May of 1976, it was just three months after violent race riots had broken out at a Florida high school over symbols celebrating the South in the Civil War.

In response to last weekend’s tragic events in Charlottesville, friends posted a number of comments and memes on Facebook contrasting the offense taken to NFL player Colin Kaepernick’s kneeling during the national anthem against the apparent dearth of outrage directed at Americans carrying Nazi flags in the streets. Granted, it’s hard to know the degree to which this particular hypocrisy really exists—I’d like to believe that most Americans across the political spectrum still denounce the waving of Nazi and Confederate flags in a violence-inciting, race-bating rally—but these allusions to the “Star Spangled Banner” resonate in context to the brewing clashes over nationalism and cultural identity. Kaepernick, who has now been joined by Michael Bennett of the Seattle Seahawks, has chosen an apt symbol of protest because the anthem is about as good an example as any of the distinction between American myth and American reality.

In 1991, playwright Tony Kushner sharply articulated America’s unique brand of hypocrisy in his AIDS-inspired play Angels in America when the gay, black character Belize says, “The white cracker who wrote the national anthem knew what he was doing. He set the word ‘free’ to a note so high nobody can reach it. That was deliberate.”

It’s a brilliant line.

Of course, the “white cracker” Francis Scott Key wrote the word free 34 years after the English composer John Stafford Smith wrote the high G to which Kushner refers. In 1780, the note corresponded with the lyric Venus in the song “To Anacreon in Heaven,” which was the official club song of the Anacreontic Society of London, a fraternity of mostly amateur musicians who would gather to enjoy concerts, drink, gossip, and drink more. As every American school kid is told, Key was moved to write the poem “Defence of Fort McHenry” upon seeing the flag still flying at dawn after heavy, overnight bombardment of the fort. Sung to the tune of “Anacreon in Heaven,” Key’s words would become the “Star Spangled Banner” but would not be adopted as the national anthem until 1931.

That the words of our anthem are American and the tune English—and the fact that they were paired during a war that is sometimes called the second revolution—reflects the fledgling creative voice of a new nation still writing its identity and still finding its place in the world. As the copyright critics love to say, “America is a pirate nation,” by which they usually refer to the fact that the book printers, shortly after independence, made a habit of pirating English books rather than pay to publish domestic authors. This is true. And had America remained a pirate nation rather than invest in its own creative capacity, the character of our society—and most likely our democracy itself—would be the worse for it. Because the voice that emerged, and which took nearly all of the nation’s first century to come into its own, is unambiguously multicultural, no matter what the bigots think. There is no such thing as “white male Christian” America, and there never was. Just listen to the music.

In fact, before “The Star Spangled Banner” became the official anthem by an act of Congress in 1931, the unofficial national song for many citizens and leaders was “America the Beautiful,” the lyrics of which are a poem written in 1893 by Katherine Lee Bates, a 19th century feminist who might have been gay. Conservative factions have occasionally lobbied for “God Bless America” as the national anthem because it places God in the center of the action, but this would provide little comfort to the kind of “conservative” on display in Charlottesville, since that song was written by a Russian immigrant jew named Israel (Irving) Berlin. (On a side note, Berlin also wrote “White Christmas,” and believe me, American Christmas celebrants would have precious little music to enjoy without Jewish songwriters.) Ironically enough, even though proposals from liberal groups to make the national song “This Land is Your Land” would be a non-starter, Woody Guthrie’s music is arguably the most American sound in the bunch. Though it is admittedly a bit jaunty for any kind of solemn occasion.

As students of the Enlightenment, the Founding Fathers understood that we would never get a seat at the grown-ups’ table of nations without fostering cultural and scientific enterprise, which was a pretty ambitious dream for a war-weary population of some three million farmers spread across an area of about 340,000 square miles. But what the hell? They had just won a revolution that should not have worked by any sane analysis and then sat down to write a user’s manual (a.k.a. the Constitution) for operating a society unlike any that had ever existed. Why not hope for great invention and art while they were at it? John Adams, in a letter to his wife Abigail dated May 12, 1780, expressed his hope for the country to attain intellectual and artistic stature thus:

“I must study politics and war, that our sons may have liberty to study mathematics and philosophy. Our sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.”

Adams’s implication that America’s progress toward maturity would be reflected in its capacity for increasingly refined creative and cultural enterprise was prophetic, except for his references to European classicism. He could not have imagined the extent to which our major contributions would be unequivocally modern, technological, and culturally diverse—that the American voice would be defined not by statuary, tapestry, and porcelain so much as by movies, theater, TV, and sound recordings that would blow the church doors off their hinges, making new messiahs out of rock stars and rock stars out of inventors.

In this sense, I think “The Star Spangled Banner” became truly American when Jimi Hendrix played his electric guitar solo version at Woodstock in 1969. Simultaneously patriotic and revolutionary, Hendrix’s tortured virtuoso (significantly instrumental and electric) synthesized the aristocratic and tight-assed “To Anacreon in Heaven” with the sins of racism, the self-betrayal of the Vietnam War, and the psychedelic explosion of counter-culture into a performance that told a much deeper, more painful, and more complex truth in the American-born language of rock-and-roll. This sound, which would not exist without the American slave diaspora, traveled back across the Atlantic, helped bring the children of WWII out of the rubble, and was even returned to its own roots by a new “English invasion” of the United States. This produced an artist like Freddie Mercury, who died of AIDS, and whose recording of “We Will Rock You” has been the unofficial anthem of every NFL game for years.

In a 2016 documentary about world-famous photographer Harry Benson, called Harry Benson: Shoot First, the artist discusses a photograph he took in Vietnam depicting a pair of wheelchair-bound veterans shaking hands—one American the other Vietnamese. Benson tells us that the Vietcong vet said to his former enemy, “We used to sneak up on your positions in the dark, not to kill you, but to listen to your music.” If that doesn’t say something about where our better angels live, I’m not sure what does.

HART: Copyright and the Historical Record

In a new post on Copyhype, Terry Hart responds to the general assumption that the Founders would be “appalled” by the state of copyright today.  Personally, I think the Founders would be appalled by the application of the 2nd Amendment today and impressed as hell by the role professional authors and creators play in their Republic–but that’s me.  Hart writes …

“…there’s always a danger with using history. Someone who’s trying to make a point may try to find evidence in the historical record to support that point, so there’s a danger of abuse. And perhaps there’s no period more prone to this type of myth and mischief then the Founding period, the period beginning after the end of the Revolutionary War, through the drafting and ratification of the Constitution, and through the first Congress.”

Read full article at Copyhype here.

Enough With the Legal Theories About Piracy

When it comes to enterprise-scale piracy, it would be great if those who advocate its existence would just make simple declarations like, “I want free media and don’t care how I get it.”  Sure, that would be a childish thing to say, but still less offensive than all the pretense to rationale that accompanies piracy—the absurd legal arguments, the mystical economic analyses, and above all, the lionization of pirate site operators as though they are social revolutionaries in a grand culture war.  (Never mind that some pirate sites are verticals for larger criminal enterprises engaged in some pretty horrible activities.)  

Of course, an entrenched attitude is not easily pried from the mind once it takes hold; instead, it usually becomes fossilized under layers of facile talking points posing as ideas.  Petty aphorisms like sharing isn’t stealing, for instance, help paper over an otherwise complex issue and excuse ignorance of the broader implications of a phenomenon like media piracy. In this regard, the public is constantly fed variations on the theme that operating a website, which is purposely designed to exchange infringing material and, by virtue of that exchange, earns its owners millions of dollars is somehow not criminal.

And that brings us to the complaint by the United States against alleged Kickass Torrents (KAT) site founder Artem Vaulin and his unnamed co-conspirators.  The complaint was filed in an Illinois District Court on July 8, 2016 and Vaulin, a Ukranian, was arrested while traveling through Poland that same month.  Insisting upon his innocence, Vaulin chose to remain in Poland’s Bialoleka prison—it sounds pretty awful from this account on The Verge—for nearly a year, rather than prove his innocence at trial in the United States. (I’d personally try to avoid the Polish prison even if I were guilty, but to each his own.)  Vaulin is now out on $108,000 bail, fighting extradition, and is represented by Silicon Valley attorney Ira Rothken, who also represents Kim Dotcom.

As reported last Friday, Vaulin filed a motion to dismiss along with a litany of arguments contending that the copyright infringement counts against him are not properly criminal indictments. All of these arguments were rejected by the Illinois court.  The motion to dismiss was denied under the fugitive disentitlement doctrine, which basically says that if an individual refuses to appear in a U.S. court (i.e. makes himself a fugitive), then he may not avail himself of court protections like motions to dismiss.

Vaulin is charged with four criminal counts comprising three counts of criminal copyright infringement (§506 of Title 17) and one count of money laundering.  The 50-page complaint, filed by the investigating Special Agent for the Department of Homeland Security, cites compelling evidence alleging that Vaulin was the founder of the KAT network; that he and his associates purposely designed KAT with the goal of hosting torrents containing infringing material; that they knew their conduct was illegal; that they provided incentive for users to engage in infringement; that illegal activity took place within the United States; that the KAT network generated about $17 million/year in revenue from traffic to infringing content; and that the owners sought to hide funds through dummy corporations in bank accounts set up in Latvia and Estonia.  Here’s just one highlight from the complaint that makes several points rather simply:

“March 29, 2011, when an individual reached out to Vaulin…with the subject line “new movies.” The individual asked about the movies Kung Fu Panda and The Hangover, remarking that people were asking for those movies. Vaulin replied that same day, noting that Kung Fu Panda was added six hours ago and that The Hangover was just added.”

As I say, I get the self-interested reasons why people rationalize what these site operators are doing; but when the indictment is handed down, let’s not pretend we’re straying into some ambiguous area of criminal law.  Piracy advocates and copyright antagonists are very fond of the refrain that the owners of a site cannot be held criminally liable for the activities of its users.  But there are several examples like the quote above indicating that the KAT site operators knew exactly what they were doing, and it’s frankly stupid to pretend otherwise.

Nevertheless, copyright antagonists like Mike Masnick at Techdirt place a lot of emphasis in this case on the supposed ambiguity of of secondary liability, which is a common law principle applied in civil copyright cases but for which there is no federal statute proscribing the conduct. The theory being applied is that if Vaulin and his colleagues merely own a platform on which infringement takes place, they themselves cannot be criminally liable.

Indeed this secondary liability issue is one of the arguments presented by Vaulin’s attorney; and it is true that there is no statute in Tile 17 (the Copyright Law), which explicitly states that aiding and abetting copyright infringement is a crime. In fact, Rothken asserts that because the 1909 Copyright Act explicitly criminalized secondary liability but the 1976 Act does not, this implies that Congress does not consider secondary liability to be criminal. Yeah…no.

In the 1909 Copyright Act, each criminal statute included its own aiding and abetting provision; but by the time the 1976 Act was written, the federal criminal code had been completely overhauled and included a general provision for aiding an abetting of all criminal violations against the United States.  Thus, the court rejected Rothken’s reasoning, stating that a separate aiding and abetting provision in the 1976 Copyright Law would have been redundant.  Title 18 §2 states:  (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. 

Thus, the Illinois court has held that if one is alleged to have helped people commit criminal copyright infringement, induced them to do so, rewarded them for doing so, and/or profited from their doing so, then one is properly charged with criminal copyright infringement.  And if that sounds like common sense, it’s because it is common sense.  And I will add that if this story were about trafficking in some less popular form of illegal activity—like snuff porn, or harmful counterfeit goods—I highly doubt that many average defenders of pirate sites would hope to see the law applied any differently.

I will not enumerate each of Vaulin’s defenses the court rejected, lest this post become unreasonably long and of interest to about ten law nerds.  But suffice to say that the defenses sound to this law nerd like a lot of grasping at straws. My personal favorite, though, is the assertion that torrents are not protected by the copyright law, and it is therefore not possible to infringe torrents.  That’s kind of like getting caught with a truckload of bootlegs and declaring that “audio tape isn’t illegal.”  As the court patiently explained, the torrents are the means to infringement, so it was a no-go on the twisted logic being applied there.

In his somewhat hand-wringing rebuttal to the opinions of the court, Masnick writes, “No one denies that there were people in the US who used the platform for infringement. But just because people are using the platform for infringement, doesn’t make it criminal infringement. For something to be criminal copyright infringement it has to reach a much higher bar than just ‘people downloaded stuff.’”

He’s absolutely right.  And a plain, common-sense reading of the details in the complaint should make clear to any reasonable person that the government has met the burden to bring a criminal indictment in this case. The 2016 DOJ guidelines regarding consideration of criminal charges in IP cases recommend weighing several factors that define best practices independent of the the type of IP involved.  The recommendations consider factors such as deterrence, potential economic harm, public safety, recidivism of the actors, and the efficacy of civil proceedings in lieu of criminal charges.  Suffice to say, an enterprise operating at the scale of Kickass Torrents easily checks off several boxes under the guidelines.

I mention this broader view of IP enforcement because, as indicated above, it is a dangerous precedent—no matter how popular pirating movies and music may be—to wish that the law worked differently than it does, especially in the digital age.  We live in a networked world in which transnational IP infringement can mean tainted food or drugs or other unreliable products getting into the supply chain. Cyberspace is still a relatively new frontier for crime; and some pretty nasty characters have sought to argue the same kind of defenses being used in this case in order to distance themselves from the harm they cause simply because their presence is virtual.  So, to any parents who, as cited in the complaint, were asking for Kung Fu Panda on KAT, I’d say be very careful what you wish for.