Choice Words & The Right to Choose

Photo by David Crockett
Photo by David Crockett

Announcement of the Copyright Alert System just over a week ago brought some new readers to this blog, and among these was one who was offended by this post, which is coincidentally the most-read to date.  My use of the word slavery in context to BitTorrent sites exploiting labor inspired the reader to call me a racist. You can decide for yourself whether the accusation is fair, but the subsequent exchange of comments did leave me thinking about the word slave, which made me think of Prince, who performed in 1993 on Late Show with David Letterman with that very word inscribed on his face. [Date and show name corrected from original post thanks to comment from a regular reader.]

Prince is an unqualified musical genius, and in the tradition of geniuses, he has been as provocative in managing his career as he is with the production of music itself.  It occurs to me, though, that this particular artist also unwittingly personifies so many of the emotional and functional complexities in the business of making and selling music in the digital age.

Presently, the 1984 hit song “Let’s Go Crazy” is at the heart of an ongoing case, Lenz v UMG, brought by the Electronic Frontier Foundation in 2010. The case involves a DMCA takedown of a home video from YouTube depicting a baby dancing in a kitchen while Prince’s song plays on the radio in the background.  The short story is that the video was taken down in error and then restored, which is pretty much how DMCA is meant to work, but of course the video and Mrs. Lenz’s temporary inconvenience aren’t really the point. See Terry Hart’s analysis from August of 2010.

Interestingly, the CAS bump in readership here also brought a new reader/commenter with whom I had discussion about the altruism (or not) of organizations like EFF; and Lenz makes a pretty good example of what looks to me like a group of lawyers making much ado about nothing while hiding a rather large axe to grind.  The general public gets the easily digestible image “Prince sues mother and baby,” even though the suit was brought by Lenz and the EFF.  But the aura of Prince provides good cover for the real motive in this case, which is that the EFF is seeking a ruling that UMG willfully issued takedowns to non-infringing material (because honest mistakes are not grounds for a suit) in order to establish a precedent that would place a higher burden on creators seeking to protect their works online.  Writes attorney Luke Platzer in this guest post at Copyright Alliance:

“…the expansion of the 512(f) standard to challenge the reliability of copyright owners’ takedown processes — thereby forcing copyright owners to use more precise, but potentially much slower processes — appears to have been at least in part EFF’s goal in bringing the Lenz case.”

If you read the recent article in the Wall Street Journal about NBCUniversal’s counter-piracy efforts which can hardly keep up with its notice and takedown process, you might understand why many independent content owners have given up hope of protecting their work online; but by bringing the case in Lenz, the EFF would like to make that process even harder. In fact, cases like this aren’t about the work, they aren’t about the artist, they aren’t about free speech, and they aren’t even about fair use.  They’re about ivory-tower academics making a career out of fighting a problem that doesn’t exist. To paraphrase Hart, DMCA was 12 years old when the case began, and this relatively benign and temporary video takedown was the best example they had to reflect a supposedly comprehensive threat to free speech and democracy.  In fact, the recent misuse of DMCA by NASCAR to remove footage of a crash from YouTube makes a much better example than Lenz, but  Lenz  is already underway.  Still, the fact that Prince is the face of this story is somewhat paradoxical, although not necessarily incongruous, if we understand the mind of the artist.

Where this stuff gets a little complicated for the casual observer is that Prince is in fact an ardent — some might even say obsessive — protector of his rights on the Internet. He has gone to great length and expense to control where and how his work is used but has never, to my knowledge, filed suit against an individual user or fan for infringement. For anyone who thinks copyright is just about money, consider the likelihood, that it costs Prince more to pursue these actions than it is probably worth on the balance sheet. So why does he do it?  I don’t know the man, but I’m going to guess that it’s the same passion that drove him to the performance he gave in 1993 on Letterman.  It is one of the few live TV acts I’ll never forget because it was so strange — this virtuoso guitarist playing as though wrapped in a straight jacket, and scrawled on the side of his face in what looked like black marker, letters organized vaguely into a guitar shape akin to the glyph that would become his temporary moniker, the word — SLAVE.

I do find it fascinating that the same musician who has been unfairly tarred in the Lenz case is the one who can reasonably be described as our generation’s poster child of the artist bucking against his corporate “gatekeepers,” for those who would use that term. In fact, Prince’s frustration with Warner Music back then had nothing to do with money per se, but with the label’s reluctance to release his new album Gold over concerns of “saturating the market.”  Restraining an artist is a difficult thing, and I can only imagine doing so with Prince would be like trying to lasso a stallion with a length of yarn.  Yet even in the years subsequent to these events, even with all the resources at his disposal, Prince has not thoroughly embraced the so-called “permissionless culture” promoted by legal scholars, who perhaps don’t actually understand artists.  Some will assume the motive here is greed, although I would argue that this assumption is likely a misunderstanding of Prince in particular and many artists in general.  What those who don’t create art fail to grasp is that controlling distribution is often a component of the work itself.  This is why an artist as passionate, as obsessive, as prolific, and as influential as Prince will naturally rebel against both a Warner Music holding him back and a Google exploiting his work. And, yes, either form of restraint on his choices can make the artist feel like a slave.

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