In Manufacturing Consent, Noam Chomsky outlines 5 filters through which the dominant elite is able to control the media and regulate information.  They are: concentrated ownership, the influence of advertising, reliance on information from the government, flak (backlash) and “anticommunism” as a control mechanism[1].   Nowhere does he cite direct government control (i.e. regulation by legislation) because, as he states in an interview with Le Monde Diplomatique, democratic societies (as opposed to totalitarian states) “…operate differently. The [official] line is never presented as such, merely implied. This involves brainwashing people who are still at liberty.”[2] His assertion of “brainwashing” implies that the filters act solely on the minds and attitudes of citizens who are still, at least by virtue of our laws and constitution, free to choose

Twenty years after the publication of Manufacturing Consent, the world – particularly the media landscape – looks much different than it did in 1988.  The rapid rise of the Internet and the advancement of media technology have put tools into the hands of everyday citizens, allowing them to control their media in ways that were impossible 15 years ago.  Current technology gives us the freedom to watch television without advertisements on computers and DVRs, share digital music and movies freely on file-sharing networks, and even create new works, digital collages called “mashups” or “remixes” in the current vernacular, by superimposing different types of media on top of each other.  While media corporations have made claims that these types of sharing have caused significant damage to their businesses, government has been slow to respond to their appeals for broader legislation to protect their financial interests.  Instead, corporations have used other means to regulate the way media is shared and used.  In this paper I will explore the methods that content creators (i.e. media corporations) have used technology and other means to regulate and curb the spread of file sharing, paralleling and adding to Chomsky’s arsenal of “filters” used by corporations to control what citizens can and cannot read, watch, and listen to.  I will also examine the claims of big media that file-sharing, or “piracy” as it is sometimes called, infringes on their rights and harms their business – or whether, in fact, the abridgement of the right to share and remix media is a violation of the consumer’s constitutional rights and how this affects the political economy of media.  Finally, I will offer my own suggestions for actions that can be taken by individuals to become more “new media” literate and advance the cause of media sharing.

Alternate Methods of Regulation

The First Amendment of the US Constitution guarantees that “Congress shall make no laws…abridging the freedom of speech.” In 1789, when the Bill of Rights was ratified, it was unlikely that there were many means of regulating expression other than passing laws.   In Free Culture, copyright attorney and activist Lawrence Lessig outlines four modalities of constraint that work together to “support or weaken the right or regulation”[3], they are: Law, Market, Norms, and Architecture.   Law is the constraint provided by legislation – it is the most obvious, arguably the most powerful, and the one that media companies are lobbying the congress to support.  Although the other three constraints act more subtly, they are nonetheless extremely effective when it comes to control, and have been used frequently in recent years by media companies in an effort to protect what they see as their rights as copyright holders, and the ones I will focus on here.

Market is the modality that regulates via price constraints, and is traditionally thought of as punishment by fines or monetary sanctions.  For example, it is assumed that one drives the speed limit not only to keep from being thrown in jail, but because one doesn’t want – or can’t afford – to pay a hefty fine for his actions.  It is also the modality that Chomsky refers to when he writes about advertising used as a filter used to control content.  He says, “an advertising based system will tend to drive out of existence or into marginality the media companies and types that depend on revenue from sales alone.”[4] This is the marketing constraint at work.   This constraint, however, has come into play in a different way in the context of copyright battles.  Over the past several years, media companies have gotten into the habit of suing private citizens over alleged copyright violations.  Since the plaintiffs have deep pockets, and the average American could never afford to defend against a lawsuit brought by them, they are able to force settlements, which may tacitly imply an admission of guilt by the defendant – even though no law may have been broken.  An example of this is the case of Jesse Jordan, a college freshman who built a website with a search engine that was able to index all the files on his college’s closed network.  The site “only allowed people to view the names of music files that other students were willing to share, but did not help them copy those files.”[5] Regardless, because some of these files happened to be music files, the Recording Industry Association of America (RIAA) sued him for a sum of $15,000,000 [sic].  Jordan wanted to fight the case, but was told that it would cost at least $250,000 in legal fees alone.  Instead, he accepted an offer to pay a settlement of $12,000 and shut down his site in exchange for the RIAA dismissing the suit.  Big business had “won” without anything being decided as to the legality of his actions.  Still, even paying the settlement fee hurt Jordan financially.  When the case was over, his father said,  “Jesse’s worked very hard for three years, every summer, every weekend, to save up money for college. Now we’re in a bind. How is he going to have enough to pay for next year?”[6]

Norms are the constraints that keep people in line by imposing social sanctions for certain behavior, as opposed to legal or monetary ones.  Chomsky asserts that the filter of “anticommunism as the national religion” is an ideology that “helps mobilize the populace against an enemy” and “serves as a political-control mechanism”[7]. This idea has a parallel in the war on piracy in the aggressive PR campaigns waged by the recording, movie, and broadcast industries against file-sharing and remixing.  Posters declaring such slogans as “Piracy is Theft”, designed to make anyone who rips a song from a CD feel like a felon, have been ubiquitous since the late 1990’s.  Even celebrities have been recruited to exert influence over potential music downloaders. In 2000, the rock band Metallica filed a lawsuit against the file-sharing service Napster, stating that the practice of sharing music is “morally and legally wrong. The trading of such information — whether it’s music, videos, photos, or whatever – is, in effect, trafficking in stolen goods.”[8] In 2003, Madonna flooded peer-to-peer networks with spoof MP3 files – decoy tracks pretending to be tracks from her new album, American Life.  When played, the listener was greeted with the voice of Madonna saying “What the fuck do you think you’re doing?” and then going on to chastise the downloaders for stealing music.[9]

Architecture is the modality of regulation that has no direct analogue in Chomsky’s model, but has become a pervasive method of control in the digital age.   The way something is built – a piece of software, a DVR, or even a discrete piece of media (CD, digital video file, etc.) – can dictate what can and cannot be done with that thing.  If a record company builds copy-protection technology into a music CD so that the person who buys it cannot create MP3’s from the music tracks, then they are building there own “law” right into the product itself.  Any arguments of “fair use” are irrelevant at this point, because it’s simply not possible to create digital files in the first place.  Lessig says, “Architecture is a kind of law: It determines what people can and cannot do.  When commercial interests determine the architecture, they create a kind of privatized law.”[10] Obviously, when corporations create this kind of “privatized law”, they are circumventing both law and the constitution, and the argument over whether this kind of Digital Rights Management (DRM) is a constitutionally justifiable practice becomes an intensely political debate.

File-Sharing: Piracy or Free-Expression?

The “sharing” of media, whether it be its use in the work of another artist (“sampling” in hip-hop, e.g.) or simply its free distribution, has a long history in the United States as a method used by artists and others for both the creation of new works and the dissemination of information.  In 1928, Walt Disney created the first widely released sound cartoon, Steamboat Willie – a parody of a popular Buster Keaton silent film classic called Steamboat Bill, Jr.[11] This creation followed a long tradition of artists (also scientists, inventors, etc.) “borrowing” the work of others to build upon it and create something new.  In 1928, this was fairly easy to do – it was not only the “norm” of the time, but common law copyright statutes allowed a work to pass into the public domain after a period of 28 years.  With the Copyright Act of 1976, and the Sonny Bono Copyright Term Extension Act of 1998, corporate authorship of a work can now remain in copyright for up to 120 years. Today, it is virtually impossible for an artist to legally “borrow” a work to build upon it and create something unique.  These laws have created an atmosphere of restriction in this country that severely limits the ways in which citizens are able to express themselves by utilizing the artifacts of their culture.

With regard to file-sharing (i.e. the distribution of music and video files over peer-to-peer networks), I concede that musicians and artists should be compensated for their work.    But file-sharing services such as Limewire and Kazaa make media available that otherwise we wouldn’t have access to.  For example, my search for the song “Back When My Hair Was Short” by ‘one-hit-wonder’ 70’s band Gunhill Road yielded no results on iTunes.  My guess that the song is long out-of-print was confirmed by a visit to the music database website, allmusic.com.   If I wanted to listen to this song, even for my own personal use, I’d have no recourse but to download the file from a P2P network.  By doing so, I have, in effect, become a “pirate”, an outlaw.   Record companies have long maintained that such downloading is “stealing” and is killing their business, but is this really the case?  First, if they are not profiting from the sales of the song/album/video in the first place, then who is it I’m stealing from?  Second, the numbers don’t seem to support their claims that file sharing has a direct causal effect on declining CD sales.  According to Lessig, “In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion CDs were downloaded for free.  Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent.”[12]

An example of how the file-sharing issue is negatively impacting our political economy is the recent controversy surrounding TV networks and their demands that video files of the presidential debates and political ads be removed from video sharing sites, citing copyright infringement.  CBS, CBN, Fox and NBC have all issued takedown notices to YouTube, which they see as their right under the DMCA (Digital Millennium Copyright Act).  This, clearly, is an abridgement of our rights as citizens to have access to the kind of political information that we need to thrive as a democracy.  In a statement issued by the Electronic Frontier Foundation, copyright attorney Fred von Lohmann says, “This is not piracy, but fair use, no different from what Saturday Night Live and The Daily Show do every night. Sending unfounded takedown notices is not only against the law, it also threatens to interfere with the vibrant political debate occurring on community video sites like YouTube. Remixing the news to make your point is what political speech looks like in the 21st century.”[13]

In summary, the ability to use and build upon previous works is essential to creating a culture of innovation and a democracy where ideas can be shared freely.  The restriction of this ability can be considered to be an infringement of our First Amendment right to free expression without governmental or private control of ideas.  In a 1996 article in the Yale Law Journal, Neil Netanel writes, “As all authorship involves a degree of borrowing from earlier works, an overly broad copyright represents an unacceptable burden on creative expression.”[14] In Free Culture, Lessig makes the point that permission to use works may still be granted, but that “it is not often granted to the critical or the independent.  We have built a kind of cultural nobility; those within the noble class live easily; those outside it don’t.”[15] Thus Chomsky’s idea of mass media being controlled by the dominant elite has firmly taken root in digital culture.

Solutions

Clearly, governmental and corporate response to new technology by means of copyright legislation and DRM is creating a climate in which media control is becoming ever more restrictive, creating “filters” that Chomsky couldn’t have imagined in 1988.   As citizens of a democracy, however, there are steps that we can take to mitigate the effect of these restrictions, and perhaps even reverse them.  Luckily, the same technology that corporations are attempting to control has also put tools of activism in the hands of everyday people.  The most important way that we can be “new media” literate is to be aware of our rights, know when they are being violated, and to do something about it.  Bloggers have gained much ground over the past several years, and have started to bring about a fundamental change in the way news is reported.  Social media tools such as Twitter and Facebook can also be used effectively to disseminate ideas and spread news stories and viral memes that undermine the corporate agenda.    An awareness of existing alternatives to corporate control is another important means for bringing about change.  The open source software movement, which provides alternatives to commercially controlled technology, and the Creative Commons, which provides a new way for artists to assign their own “copy rights” to their work, are both excellent alternatives to the corporate agenda.  Remix culture is here to stay, and we owe it to our country and our culture to find effective solutions that allow us to remain free.


[1] Noam Chomsky, Manufacturing Consent: The Political Economy of Mass Media (Pantheon Books, 1988)

[2] Le Monde Diplomatique, Democracy’s Invisible Line, http://mondediplo.com/2007/08/02democracy; August, 2007

[3] Lawrence Lessig, Free Culture (Penguin Press, 2004) p. 121

[4] Noam Chomsky, Manufacturing Consent: The Political Economy of Mass Media (Pantheon Books, 1988)

[5] Amy Harmon, “Suit Settled For Students Downloading Music Online”, The New York Times, May 2, 2003

[6] ibid

[7] Noam Chomsky, Manufacturing Consent: The Political Economy of Mass Media (Pantheon Books, 1988)

[8] Christopher Jones, Metallica Rips Napster, Wired, April 2000

[9] Matt Mason, The Pirate’s Dilemma: How Youth Culture is Reinventing Capitalism (Free Press, 2008) pp. 68-69

[10] Lawrence Lessig, Code 2.0 (Basic Books, 2006) p. 77

[11] See Lessig, Free Culture (Penguin Press, 2004); Chapter One: “Creators” pp. 21-30

[12] Lawrence Lessig, Free Culture (Penguin Press, 2004) p. 71

[13] Electronic Frontier Foundation, TV Networks Must Stop Blocking Election Videos on YouTube, http://www.eff.org/press/archives/2008/10/20, October 20, 2008

[14] Neil W. Netanel, “Copyright and a Democratic Civil Society”, Yale Law Journal 106 (1996); http://www.history.ox.ac.uk/ecohist/readings/ip/netanel.htm

[15] Lawrence Lessig, Free Culture (Penguin Press, 2004) pp. 10-11

Leave a Reply