Tuesday, December 12, 2006

Reading Lawrence Lessig Makes Me Nauseous

Right now, I am: 1) finishing up a paper on music and intellectual property for my policy history seminar; and 2) quietly delighting in the death of evil fuckwad Augusto Pinochet. The connection? Among my researches, I have forced myself to sit down with some books by Lawrence Lessig, which I always thought I would enjoy, but find instead that I want to chuck violently at the wall.

As it turns out, this putative champion of freedom speaks from one of the most antidemocratic and repressive world-views ever. Lessig's jeremiads, as welcome as they may be for those of us who also hate the FCC and Hillary Rosen, derive from a free-market evangelism indistinguishable from that of the Milton Friedman-trained "Chicago Boys" who helped Pinochet and others wage their prolonged and deadly class war against the Chilean people. No thanks, Larry.

So, to backtrack: the goal I set for myself for this paper was to write about music and intellectual property and not mention napster, digital copyright issues, or "piracy." Instead, I am trying to look at attribution and exploitation, issues related to popular music as a form of collective work. My long-range interest is tracing the development of the idea of the employer's "shop right" in the creative output of session and studio musicians, which contradicts in many ways the abstract legal rationale that gives composers copyright in the first place.

This project represents, in one way, an attempt to bring my own personal history as a musician to my scholarly work. It is only very recently that I have come to realize that most of my life as a musician has been as a guitar-playing "sideman," not an "author" or "songwriter." I like coming up with parts for songs, writing little riffs, sometimes playing solos. Even in my forays into musical territory both more "out" (free improv) and more "in" (learning country pedal steel), I have been atttracted to a more or less homologous role. I like playing guitar in bands. I like hanging out with people who play music in bands. Incidentally, I tend to hate gesamtkuntswerk-crafting "geniuses" (which, amazingly, is what the Supreme Court of the United States has tended to require if you want to argue that your work is worthy of a copyright monopoly). That is probably neither here than there.

Whenever I have mentioned my philosophical opposition to the very idea of intellectual property to the lawyers in my extended family, they have typically responded: "but don't you feel bad if someone steals your music and you don't get paid?" In the past, I have found this something of a conundrum; in retrospect I can't imagine why. I never get paid for my music anyways. I am not an author or composer. On the other hand, most pop music (including, I think, that to which I have contributed guitar parts) gains its quality and substance from the collective contributions of many different performers, none of whom get any royalties or compensation (even when the parts they play are totally integral to the song, as is the case with Procol Harum's "Whiter Shade of Pale," whose keyboard player is finally suing for a cut of the royalties). My view of whether anyone can "own" permutations of musical materials held in common (such as "my" guitar parts, or "Elton John's" melody line) is simple: nope.

So, my concern is not to start a campaign to get royalties for session players, but to link the observation that the real authors of pop music don't get paid to the fact of widespread popular resistance to copyright to a larger agenda of capitalist critique. To wit: private property is stupid, let's make a better society not ruled by the whims of the market and the values of accumulation, acquisitive inidividualism, and liberal "equality." This is where Lessig's politics seem to jibe so weirdly with his "free culture" agenda. Besides the fact that his bio proudly trumpets his having clerked for heinous conservatives like Richard Posner and Antonin Scalia, Lessig's writing is rife with alarmingly wrong free market nonsense. Additionally, his books are written in that distinctively icky management literature Hudson News paperback style that tips you off that you are in the intellectual universe of Good To Great and Who Moved My Cheese?

I will have more damning evidence soon, but here is a soupcon of Lessig to tide you over. The background details are unimportant, except that you should note that the "farmers" discussed by Lessig had both ancient common law and nineteenth-century legal precedent on their side, and that they were, seemingly with a lot of justification, protesting airplanes that were flying over their land and driving their chickens crazy; notice the embarassing business jargon, the atrocious mixed metaphors, the pragmatist "common-sense" justification of technological change as an autonomous force demanding unquestioning obeisance, and the portentous cape-twirl at the passage's end:

"The Wright brothers spat airplanes into the technological meme pool; the idea then spread like a virus in a chicken coop; farmers... found themselves surrounded by 'what seemed reasonable' given the technology that the Wrights had produced. They could stand on their farms, dead chickens in hand, and shake their fists at these newfangled technologies all they wanted... But in the end, the force of what seems 'obvious' to everyone else-- the power of 'common sense'--would prevail. Their 'private interest' would not be allowed to defeat an obvious public gain."

Holy fuck that is dumb thinking and bad writing.

I've always figured that Lessig's free market nonsense, managementspeak & all, while indeed sickening, is probably useful for selling the idea of lightening up on the intellectual property thing to the murderous bastards who rule us. Them cutting us all a bit of slack in this regard would be really welcome.

I also think expecting thoroughgoing critiques of capitalism from Stanford law professors is a bit pointless- if it's going to mean anything, it really needs to come from below.
Hey, I've reading that book too! I also don't care for the bizlit argument-by-anecdote style; the passage you quote at the end is really atrocious. But I find Lessig sort of mushy on the issue of free enterprise. It's not like his basic argument is that the market should always rule. He seems to be saying that regulation and freedom should be in balance, and he makes a strong case against allowing government to be corrupted by powerful business influence. In his role with Creative Commons, he is a major figure in the movement to oppose traditional private copyright with an economy of shared and remixed creative property. Any thoughts?
And I just came across this Wikipedia entry that seems relevant to your discussion:
Whoa, my computer moronicity has reached new heights. I only discovered all of these wonderful comments while monkeying around with controls so I could remove some annoying porn ad masquerading as a comment.

So: I agree wholly with you dbr and mzn, that the positive effects of Lessig selling fair use-oriented ideology to the business travler probably outweigh the bad writing and free market junk. Nevertheless, I would add two things to the discussion in response to your very important challenges:

1) Re: anticapitalism from above/from below? I wrestle with this a lot, but I think the answer is probably that anticapitalism needs to be developed from above and from below. Ideas are a really important component of socialism or whatever one imagines the solution to capitalism might be. Intellectuals (maybe not stanford law professors, but certainly law professors employed by less frighteningly right wing places, as well, of course, institutionally unconnected organic intellectuals) can really do a lot of good by talking about workable alternatives to the reign of capital. Intellectuals are also the logical people to study the history of the failures and successes of various movements of the Left, and to write and teach the rest of us about them.

96 percent of the battle is figuring out a way to encourage intellectuals to not be condescending assholes; but 4 percent at least is also working against the anti-intellectualism inherent in a lot of grassroots movements. What do you think?

2)Mzn-- right you are about Lessig's free market orientation being mushy. Ultimately, I don't think he is a free market hawk; in fact, if I had to guess, I would assume that he will become increasingly critical of the market as the years go on. But, like joseph stiglitz and paul krugman, I am really critical of dudes who drink the kool-aid, work within the neoclassical system for 20 or 25 years, and then develop a conscience or realize that what Marxists have been saying all along is right. But meanwhile they have been publishing their papers, getting tenure, teaching free market crap to undergrads, etc. In the end, I think they are opportunists, and that their decades of willful naivete or whatever is really damning, on the level of ethics.

But, on a less ad hominem level, I would simply say that few captialist hacks are hardcore 100 percent free enterprise libertarians. Even Friedman, Hayek, etc. admitted to some role for states in regulating the market. What is crucial, as most business histories reveal, is that the coordination of certain kinds of market controls and certain kinds of formal economic freedoms is the essence of modern capitalist ideology. So it is wrong to characterize capitalist ideology as "laissez-faire," although a certain school of virulently anti-labor and antistatist demagogues have been succesful in selling this vision of economic history to most Americans. What kinds of state controls, in whose interests, and with what consequences for working people are really the questions... not market regulation vs. non-regulation.
I don't know, my impression of the role of intellectuals in actual political struggles is that they've been mostly really unhelpful, I mean, it sounds good, right, people need ideas & stuff to know what they're doing. I think people mostly already have ideas, they maybe need better ways of doing things with them, most of the Marxist/left/whatever stuff flowing out of the universities isn't going to be much use to them for that. I think modest increases in the general level of education of the very poor would have a vastly more positive effect on the world situation. Really, people can make their own decisions about what they want & need, they need to understand their own history for themselves, books can only help a little with this and there's a good chance of them introducing serious distortions, people learn better about this sort of thing through direct engagement in political struggle. They don't need more and better ideas, they need material resources and direct assistance, they need some time to get their heads together and see what they want to do.

That's what I think anyway, pretty much.
Very well said, dbr. It's hard to argue with that!
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