Monday, January 30, 2006

open source center and mosaic theory

On The Media-- Sum of Its Parts

Interview with David Pozen second year law student at the Yale Law School. His article on the "mosaic theory" appears in the Yale Law Journal Dec 2005

music industry

On The Media-- "GOOD GRIEF"



On The Media-- "Big Pharma, Big Phiction"

On The Media-- "Big Pharma, Big Phiction"

On The Media-- "Big Pharma, Big Phiction"

On The Media-- "Big Pharma, Big Phiction"

On The Media-- "STEAL THIS BOOK"

On The Media-- "STEAL THIS BOOK"

Ron Rosenbaum on Nabokov. Whose Lolita?

On The Media-- My Sin, My Soul... Whose Lolita?

using technology in katrina's aftermath

On The Media-- Not Dot Gov


On The Media-- Museum Heist

Hip Hop mixtapes and the music industry

On The Media--All Up In The Mix

Cass Sunstein on "Echo Chamber"

On The Media-- Wordwatch: Echo Chamber

On The Media-- Creation of the Media

Interview with Paul Starr, author of The Creation of the Media Political Origins of Modern Communications

On The Media-- Creation of the Media

wikipedia reporting

On The Media- Get Me Rewrite

record collectors and copyright

On The Media- Collectors' Edition

BROOKE GLADSTONE: In the 2001 film Ghost World, there's an important moment when Enid, a directionless 18 year old, impulsively buys a reissued blues album from an obsessive collector.

STEVE BUSCEMI/SEYMOUR: You like old music?

THORA BIRCH/ENID: Yeah. It's-good.

STEVE BUSCEMI/SEYMOUR: Well, there are some choice LP's in here that reissue some really great old blues stuff.


STEVE BUSCEMI/SEYMOUR: This is the one I'd recommend. If you don't like it, you can, you can bring it back for a refund.


BROOKE GLADSTONE: Listening to the album at home, Enid is transfixed by a track from Skip James.


BROOKE GLADSTONE: It's an experience shared by thousands of music lovers, made possible almost exclusively by the re-release of rare and out of print recordings. But soon that experience may also be rare, because of copyright issues that extend all the way back to the oldest recorded music, even recordings that have outlived their copyrights. OTM's Rex Doane, who has an amazing record collection, reports. [MUSIC]

REX DOANE: The earliest reissue labels helped appease the needs of hard core jazz fiends as far back as the '30s. But the big explosion in reissue activity occurred in the late '60s when dozens of rediscovered folk and blues artists played the festival circuit. Small labels like Arhoolie and Yazoo spurred the revival by re-issuing rare original recordings of blues pioneers such as Blind Boy Fuller and Memphis Minnie.


REX DOANE: The reissue market evolved quickly. In 1975, the Bear family label out of Germany began issuing definitive boxed sets of vintage American music. Nothing like it had ever been seen before. Bear family founder Richard Weize.

RICHARD WEIZE: I'm not interested in money. I just want to see a good product out. I would even put out a record if I only know I'm only going to sell a hundred copies, if I find it worthwhile. [MUSIC]

REX DOANE: Elaborate Bear family releases like their 12 CD Carter Family boxed set are prized by collectors, but carry a price tag too hefty to lure most casual fans.

RICHARD WEIZE: I don't think about the customer. I want to satisfy me. I don't care about the customer. The customer has to take what I'm presenting.

REX DOANE: While Weize patiently strives to manufacture lavish living monuments to the artists he loves, Giles Petard of the Classics label in France has a much more urgent approach. Simply put, Petard wants to reissue the complete recorded works in chronological order of all major and minor jazz, blues and R&B artists who ever recorded in America. That includes well known artists and the hopelessly obscure.

GILES PETARD: To me, this is a very important point, you know? And I think that's the great thing about a series like this, is that you can put out names that normally you would not be able to. [MUSIC]

REX DOANE: Names like Little Miss Cornshucks, a surprise best seller in the Classics series.


REX DOANE: Unlike high-end reissue labels, like Bear Family, which prefers to lease master tapes for optimum sound quality, Petard dubs directly from the original disks, and only releases material that has fallen into public domain. Since copyright protection of American sound recordings ends after 50 years in Europe, that leaves plenty of material for Petard. Little wonder he has put out over 1,000 CD's to date. [MUSIC] But there is growing resentment in the States over the flood of public domain reissues coming out of Europe.


REX DOANE: While U.S. label owners might have been able to look the other way when modest-selling material from their catalog was being copied and sold abroad, the unthinkable will soon be happening, when the never-endingly lucrative recordings of early rock and rollers like Elvis Presley, Chuck Berry and Little Richard turn 50. John Singleton, president of Sun Entertainment.

JOHN SINGLETON: We consider them legal bootleggers, because you know they had absolutely nothing to do with creating it, and they're throwing back, you know, our creations to us without any compensation to the, to the owners of the masters, the record companies or to the artists and you know, their families.

REX DOANE: Back in 1969, Singleton's father bought the rights to Sun Records, whose catalog includes the works of Elvis, Johnny Cash, Jerry Lee Lewis and Roy Orbison, all steady selling records for generations, now set to go into public domain abroad. Singleton says copyright protection of American sound recordings in Europe should be extended to 95 years, precisely the same period of protection that European recordings enjoy in the U.S.

JOHN SINGLETON: I think if our government should, you know, apply some pressure on the European Union to change the laws.

REX DOANE: For a family-run operation like Sun Entertainment, which actively markets its archives, the European incursion is likely to hurt. But the back catalog, for most of the other early independent labels like Excello and Imperial, have largely been ignored by the media conglomerates that now own them. It's a point not lost on Charlie Lang.

CHARLIE LANG: To me the, the reissue market to the majors is more like a stepchild, you know? They'll throw a little money at it when they have to, when nothing else seems to be working.

REX DOANE: Lang runs the on line mail order business, serves both as a retail outlet for hard to find reissues and as a one man blues crusade.

CHARLIE LANG: It's kind of duplicitous for these companies to push for an extension of copyright and not having any intention whatsoever of putting it out - the gimme-mine-now-and-I'm-going-to-keep-it-forever mentality has locked up a lot of American treasures in corporate vaults.

REX DOANE: And they're reticent to turn the keys over to anyone, here or abroad.

JOHN BROVEN: I, I know independent record companies here in the States who would love to reissue many of the old recordings…

REX DOANE: John Broven has worked on dozens of reissued products for the Ace Record label out of London.

JOHN BROVEN: …but when they approach a major label and, and are told that they need to guarantee 25,000 CD sales for a project which is clearly only going to sell, say, 5,000 copies, then that music is just going to lie dormant in the vaults - nothing is going to happen.

REX DOANE: Despite the reluctance of some major labels to strike reasonable leasing deals and the tug of war over copyright protection, copyright attorney Bob Clarida of Cowan, Liebowitz & Latman says salvation could be on the horizon, or more precisely, on the internet.

ROBERT CLARIDA: If all the record company has to do is digitize an old tape sitting in a vault somewhere, it's very low-cost, so you know, the very technology that has caused so much problem for the, for the record business and the commercial world I think is going to make it much, much easier for people to gain access to all sorts of archival work that previously has not been commercially viable.

REX DOANE: The format shift from CD to MP3 is inevitable. But pessimistic music snobs fear there'll be a considerable wait for any musical treasures to emerge again from the back catalog. Some even contend that, after all the countless mergers and staff layoffs, most of the major music corporations don't even know what they've got locked away. Case in point - a couple of years ago, a small label that prefers to remain anonymous got an offer to license a blues track they had just reissued without permission. The offer came from a major label. The track they wanted to lease was something the major already owned. The small label responded accordingly. [OLD TIME MUSIC UP & UNDER] It took the money. For On the Media in New York, I'm Rex Doane.

supreme court file sharing decisions

On The Media- Owners Take All

open source media

Interview with JD Lasica author of Darknet: Hollywood's War Against the Digital Generation
On The Media- Darknet

the power of word of mouth

On The Media- Buzz Kill

Internet governance

On The Media- Internet Rules

Internet governance

On The Media- Internet Rules

On The Media-- Watching What You Pay

On The Media-- Watching What You Pay

pay pal, ebay and privacy

Vatican 'cashes in' by putting price on the Pope's copyright - World - Times Online

Vatican 'cashes in' by putting price on the Pope's copyright - World - Times Online

Sunday, January 29, 2006

Seeing Fakes, Angry Traders Confront EBay - New York Times

Seeing Fakes, Angry Traders Confront EBay - New York Times

Seeing Fakes, Angry Traders Confront EBay

SAN FRANCISCO, Jan. 28 — A year ago Jacqui Rogers, a retiree in southern Oregon who dabbles in vintage costume jewelry, went on eBay and bought 10 butterfly brooches made by Weiss, a well-known maker of high-quality costume jewelry in the 1950's and 1960's.

At first, Ms. Rogers thought she had snagged a great deal. But when the jewelry arrived from a seller in Rhode Island, her well-trained eye told her that all of the pieces were knockoffs.

Even though Ms. Rogers received a refund after she confronted the seller, eBay refused to remove hundreds of listings for identical "Weiss" pieces. It said it had no responsibility for the fakes because it was nothing more than a marketplace that links buyers and sellers.

That very stance — the heart of eBay's business model — is now being challenged by eBay users like Ms. Rogers who notify other unsuspecting buyers of fakes on the site. And it is being tested by a jewelry seller with far greater resources than Ms. Rogers: Tiffany & Company, which has sued eBay for facilitating the trade of counterfeit Tiffany items on the site.

If Tiffany wins its case, not only would other lawsuits follow, but eBay's very business model would be threatened because it would be nearly impossible for the company to police a site that now has 180 million members and 60 million items for sale at any one time.

Of course, fakes are sold everywhere, but the anonymity and reach of the Internet makes it perfect for selling knockoffs. And eBay, the biggest online marketplace, is the center of a new universe of counterfeit with virtually no policing.

EBay, based in San Jose, Calif., argues that it has no obligation to investigate counterfeiting claims unless the complaint comes from a "rights owner," a party holding a trademark or copyright. A mere buyer who believes an item is a fake has almost no recourse.

"We never take possession of the goods sold through eBay, and we don't have any expertise," said Hani Durzy, an eBay spokesman. "We're not clothing experts. We're not car experts, and we're not jewelry experts. We're experts at building a marketplace and bringing buyers and sellers together."

Company officials say they do everything they can to stop fraud. The company says only a minute share of the items being sold at any given time — 6,000 or so — are fraudulent. But that estimate reflects only cases that are determined by eBay to be confirmed cases of fraud, like when an item is never delivered.

Experienced eBay users say that the fraud goes well beyond eBay's official numbers, and that counterfeiters easily pass off fakes in hundreds of categories.

"EBay makes a lot of money from a lot of small unhappy transactions," said Ina Steiner, the editor and publisher of, an online newsletter. "If you've lost a few thousand dollars, you might go the extra mile to recover it. But if you've lost $50 or $20 you may never be able to prove your case, and in the meantime eBay has gotten the listing fee and the closing fee on that transaction."

The Tiffany lawsuit, in addition to accusing eBay of facilitating counterfeiting, also contends that it "charges hundreds of thousands of dollars in fees" for counterfeit sales.

In 2004, Tiffany secretly purchased about 200 items from eBay in its investigation of how the company was dealing with the thousands of pieces of counterfeit Tiffany jewelry. The jeweler found that three out of four pieces were fakes.

The case will go to trial by the end of this year, said James B. Swire, an attorney with Arnold & Porter, a law firm representing Tiffany. The legal question — whether eBay is a facilitator of fraud — is a critical issue that could affect not only eBay's future but Internet commerce generally, said Thomas Hemnes, a lawyer in Boston who specializes in intellectual property.

"If eBay lost, or even if they settled and word got out that they settled, it would mean they would have to begin policing things sold over eBay, which would directly affect their business model," Mr. Hemnes said. "The cost implied is tremendous."

But eBay members like Ms. Rogers have little desire to wait for court decisions; they say that the uncontrolled flood of fakes is driving down the value of the authentic goods.

For the past few months, Ms. Rogers and three women she met on eBay who are also costume jewelry buffs have banded together to track the swindlers they say are operating in their jewelry sector. "People have faith that eBay will take care of them, but it doesn't," Ms. Rogers said. "EBay has done nothing."

Carrie Pollack, who sells jewelry from her home in Sudbury, Mass., and is part of Ms. Rogers's group, said an authentic Weiss brooch of good quality could command $150. But she said the profusion of counterfeits had confused the market and diluted the value of such a pin to as little as $30.

"It's a situation that's facing all of us in the jewelry world, and I suspect other decorative arts as well," said Joyce Jonas, an antique jewelry specialist in New York. "It's totally out of control."

Over the past few months Ms. Rogers and her team have reported to eBay more than a thousand jewelry listings they believe to be fakes; only a few listings have been removed.

The women say that by watching the listings they have uncovered a ring of a half-dozen or so counterfeiters, most of them living in Rhode Island within a few miles of one other. They say the sellers supply one another with fake jewelry, conceal the fact that they are buying from one another to boost their seller status, and regularly dole out positive feedback to each other to fool potential buyers.

Ms. Pollack was unaware of the abundance of counterfeit pieces on eBay when she paid $360 for what she thought were genuine pieces of Weiss jewelry. She demanded a refund from the seller, who refused.

Ms. Pollack said it wasn't until she filed a formal complaint with PayPal, eBay's online payment system, that the seller offered to refund her money. Since then, she has sent eBay officials a raft of evidence pointing out the presence of the counterfeits, including an independent appraisal from Gary L. Smith, a gemologist in Montoursville, Pa., who declared the five brooches Ms. Pollack sent him to be unmistakable fakes.

This reporter, too, sent a butterfly brooch with "Weiss" stamped on the back, purchased for $12.99 recently from one of the alleged counterfeiters, to Mr. Smith. He determined that there was nothing vintage about it — certainly not the very new glue used to hold in the glass stones. (In a subsequent phone conversation, the seller, Garnet Justice, who lives in Leesburg, Ind., said she had "no idea" whether the pin was authentic, and offered a full refund.)

Antoinette Matlins, another gemologist, also purchased five vintage pieces from the sellers tracked by Ms. Rogers's group to determine their authenticity. She found them to be cheap knockoffs worth less than 10 percent of their sale prices.

But she was not surprised. Whether online or off, she said, "fraud is rampant in any venue where you are looking for a steal."

EBay's feedback system that allows buyers to post negative reviews of bad sellers is supposed to protect customers like Ms. Pollack. Yet all of the alleged counterfeiters had consistently positive ratings.

Ms. Steiner of said this situation was not uncommon. Buyers and sellers are often reluctant to leave bad reviews, lest their own reputations suffer.

EBay does not allow members to contact other potential buyers to warn them of possible fraud. Otherwise, said Mr. Durzy, it would be too easy for someone to try to ruin the reputation of a legitimate rival.

Ms. Rogers said she had no qualms about breaking the rules by contacting buyers about fakes she spots. In November, she even put up a listing that advertised a fake Christmas tree brooch from Eisenberg Ice, a vintage costume jewelry maker, just to make people aware of the fraud.

"The reason I am doing this is because eBay won't," the listing read. "Let's stop this madness — these fakes are pushing down the price of authentic jewelry."

"The frustrating part is that eBay just stands back and lets these people make thousands and thousands of dollars" while taking a fee for each transaction, Ms. Rogers said. (The company's profits rose 36 percent in the last quarter from the year before, to $279.2 million.)

After the spectacular case in 2000 when a fake Richard Diebenkorn painting was nearly sold for $135,000 on eBay, the company put in place a handful of safeguards, like the PayPal buyer protection plan, an improved system for spotting eBay policy violations, and improved detection of fraud in general. But when it comes to counterfeit goods, the problem has gotten worse.

Artwork is particularly vulnerable to counterfeiting. "The majority of things that appear on eBay are fakes," said Joel Garzoli, an art gallery owner in San Rafael, Calif.

Mr. Durzy argued that "if we began to automatically pull listings for things reported to us as fake, we could be pulling listings that are legitimate." He added that the company had to rely on trademark owners to "tell us something is counterfeit." Yet trademark owners like Tiffany say they have gotten no relief.

Ms. Rogers and her team say their efforts may be working. The number of bids on the fake vintage jewelry pieces has dropped sharply since they went into action, they say. Nonetheless, the seller who sold Ms. Pollack the knockoff is still in business and recently put up for sale a "beautiful Weiss brooch with lots of sparkle and shine." Starting bid: $9.99.

Wednesday, January 18, 2006

Blogging can be more than writing


Simon Dumenco's Media Guy column argues that blogging isn't qualitatively different than writing published in print. While I agree that written communication published in print shouldn't be privileged over that published on the web, blogging is different because it allows for different kinds of communication to flourish.

Not all bloggers are writers. Some post pictures, audio files, raw data, video etc. and are creating new ways of interacting with media and highly personal and creative ways to present and communicate with it. (As Adam Curry points out, it also gives people the ability to report by using and presenting their sources and not merely interpreting them. It allows for perfect copying rather than imperfect copying.)

As a professional writer, I was slow to take up blogging because I looked at blogging only as a way to publish writing. (I had to find that perfect idea.) Now that I'm looser in my interpretation of what to do with a blog, I'm realising the real potential for blogging as a way to interact with and track the information I encounter. It will be interesting to see how this will change my writing but I'm also thrilled to find these other ways to communicate with poeple.

Monday, January 16, 2006

ipod apathy?

I emailed Prof. Adrian North asking about funding and where the study cited in so many papers was published (none of the stories I read cited the publication. He kindly responded:

"The study wasn't funded unfortunately. The full citation is ...

North, A. C., Hargreaves, D. J., and Hargreaves, J. J. (2004). The uses of music in everyday life. Music Perception, 22, 63-99."

From the abstract it sounds like a very different paper than the media made it out to be.

BBC NEWS | Entertainment | Download generation 'apathetic'

thoughts when I read the initial interpretations in the press
1) why would a format that often is free feel more like a commodity than one that was also an object (eg a cd or a record?)
2) there has been a boom and resurgence of a participatory music culture (as opposed to passive consumer culture) with the advent of mp3s and music downloading. There seems to be no awareness of this phenomenon (and the related boom in self-made recordings and DIY performance)
3)there seems to be a bias towards performed music as opposed to recorded music
4) what are the implications of sharing music and the passion that can display

Also, the power of the press release and spin is an amazing thing. Here is a study from 2 years ago made relevant by invoking the emotional idea about apathy and the popularity of iPods.

Adam Curry's Copy Paste Culture

copying is how we learn
copying is how we commmunicate
when we copy poorly or imperfectly we also communicate poorly (e.g. game of telephone and illusion of originality in the media)
the better our copies, the better our communication
copying can create a network

Sunday, January 15, 2006

Copy Wrong and Copyright: Serial Psychos, Coloured Covers, and Maori Marks

All from Cultural Analysis
special issue on copies
Cultural Analysis, Volume 3, 2002
Copy Wrong and Copyright: Serial Psychos, Coloured Covers, and Maori Marks

Diarmuid Ó Giolláin
University of Notre Dame/University College, Cork

The three papers, in very different ways, deal with questions of reproduction, from the good and the bad, so to speak, to the ugly—the assimilation of American popular music by "coloureds" in South Africa discussed by Carol Ann Muller; the appropriation of indigenous cultures in New Zealand, the subject of Peter Shand's paper; serial murder in the USA, discussed by Philip Jenkins. Each discusses the legitimacy of "copying," and shows how it can indicate both orthodoxy and deviance, self-expression and lack of originality, continuity and appropriation. It seems clear that the context of the copying as much as and perhaps more than the object of the copying is what raises the complex issues discussed by the three authors.

Seriality, reproduction, and copying are subjects that have been discussed in folkloristics mostly under other names. Hans Naumann's concept of "gesunkenes Kulturgut" in the 1920s saw the reproduction of elements of high culture by the lower social classes as characterizing much folklore materials. The passing of literary tales into oral tradition has been studied in many contexts. The notion of tradition, central to the discipline for much of its history, has conventionally been understood as a form of reproduction and in that sense the "tradition bearer" (a rather dubious term to say the least) is someone who copies. Ritual can be linked both to seriality, referring to regular succession, as well as to reproduction, since it should follow a prescribed form in its performance and often imitates a myth or an aspect of a myth.

But copying presupposes that the copy is as stable a form as the original. The difficulty of the notion of the copy in folklore is that folklore itself—rather like language—is usually understood as being anonymous, communal, and characterized by variation, where the superorganic "original" exists only in the virtual world of langue or competence or Aarne-Thompson type, and the "copy" alone—parole, performance, version—has an objective existence, even if only in the moment of utterance. If variation characterizes an art form, then can the notion of ownership even exist, and if ownership, copyright? Copying, after all, presupposes an original. Still, J.H. Delargy has shown in "The Gaelic Storyteller" that storytellers could have some sense of ownership of tales. He tells of a storyteller who was anxious that his rival should not hear a tale he told and was particularly proud of. About to begin his tale in a house one night he asked was his rival present. Satisfied that he was not he told his favorite tale, whereupon the rival emerged from hiding calling out "I have the tale now in spite of you!", immediately began to tell it, and finished as dawn was breaking (Delargy 1945, 200).

The jealous storyteller, of course, did not invent the tale, which he had acquired in the same way that he acquired the rest of his repertoire. But the fact that the tale was not widely known gave him a certain advantage over his rival, and the advantage depended on the rival remaining ignorant of it. This is still not the same as intellectual property, though ownership of a kind may accrue from an admired individual interpretation. Anthony McCann's work on the controversial expansion of the Irish Music Rights Organization into the domain of traditional music shows how it led to an eventual contractual agreement with the principal traditional music organization under the terms of which "traditional music in its original form" was free of copyright, whereas recognized individual interpretation was not (McCann 2002, 70). This question of authorship and authorization is one of the issues discussed in depth in Peter Shand's complex and enlightening article on intellectual property rights and indigenous arts.

Copyright can threaten as well as protect a community's cultural heritage. Privatizing the cultural resources shared by a community is a form of alienation and—notionally, at least—breaks the chain of transmission by which cultural traditions span the past, present, and future. According to Sven Lütticken, "[w]e have reached a strangely archaic state of civilization, where the idea of emulation has given way to the taboos of copyright—as if Barbie and Harry Potter were images of gods guarded by a caste of priests, and to make unsanctified use of them were blasphemous" (Lütticken 2002, 90). The band Negativland argue that "cultural evolution is no longer allowed to unfold in the way that pre-copyright culture always did. True folk music, for instance, is no longer possible" (Lütticken 2002, 89). Capitalist society at least acknowledges this problem with time limitations on copyright, after which the work of art falls into the public domain. At the time of writing, a case in the US Supreme Court is challenging the success of major players in the culture industries, such as Disney, in repeatedly extending their copyright beyond the usual expiry date ("Larry Lessig vs. Hollywood," Chicago Tribune, 9 October 2002).

Culture as an intellectual commons, to which all members of a community have access as a resource for building the future, is a metaphor widely used in the context of the privatization of the world's cultural and natural heritage. While the medical and agronomic knowledge produced by non-Western cultures—referred to as indigenous or traditional knowledge—has been treated as nature, and subjected to various forms of exploitation from patenting to genetic engineering, the Romantic cult of the artist's originality and autonomy underlies the copyrighting of cultural heritage in the West (cf. Sheri J. Tatsch, review of On Biocultural Diversity: Linking Language, Knowledge, and the Environment, edited by Luisa Maffi, in this volume).


The intellectual commons is very different to the right to appropriate at will from other cultures. The concept suggests a reciprocity based above all on relative equality, which is not a characteristic of the relationships between indigenous peoples and settler peoples. But neither is it a characteristic of the relationships between the traditional arts and the formal systems of commerce and law. In practice it is often difficult to distinguish between notions of the indigenous, the traditional, and the popular, which are modern notions and indeed are constructed as the other of modernity. In some ways they coincide with Gramsci's notion of the subaltern. Both the indigenous and the traditional may also rest on ethnic distinctiveness, and the former nearly always so, but they are subject to the control of the state and national society.

The modern state wishes to integrate both "the traditional" and "the indigenous" into national life. The industrial era, contends Ernest Gellner, is the age of a universal high culture (Gellner 1983, 35), and he argues that in the development of the modern European nation-state the options for folk culture were either "induced oblivion" or "created memory" (Gellner 1996, 139). In the latter case, where high culture was usually of foreign origin, traditional culture was appropriated to provide a symbolic underpinning for the modern nation-state. Traditional cultures since the time of Herder have been appropriated as national culture: this is Gramsci's notion of the "national-popular," exemplified in the creative ambiguity of the German word "Volk": nation, people, and plebs (see Forgacs 1993, 187-188). The value of traditional culture to Herder was that it reproduced the Volksgeist. This did not preclude high culture from doing likewise, although in practice it did not; that was the reason for Herder's project of creating an authentic German literature.

Indigenous groups, though incorporated into the wider society through state institutions and capitalism, have rarely (the exceptions being Latin American) provided a symbolic foundation for the modern nation-state. Indigenous cultures, like European traditional cultures, have been idealized from the pre-Romantic to the postmodern eras as implicit or explicit challenges to modernity, but their specificity, their authenticity, depended on their distance from modernity. The "noble savage" to Rousseau and folk culture to the Romantics were meant to relativize the universalist claims of European high culture in the way that "indigenous knowledge" today relativizes the Western episteme (cf. Gupta 1998, 172, 179). European folk culture's symbolic value, though, unlike that of indigenous culture, was above all in the national domain, and copyright of the consequent folklore archives rested not so much with the contributors or their descendants as with national institutions.

It is dominant groups in society who determine which cultural elements are superior and worthy of being preserved. Subaltern groups may create cultural products of great aesthetic value, as Néstor García Canclini points out, but they have not the same possibilities to accumulate these products over time, to elaborate them through formal training and institutionalization, and to gain recognition for them as part of the general cultural heritage (García Canclini 1995, 137). Gramsci depicted folklore as "a conception of the world and life" that was not elaborated or systematic since these latter qualities are in fact characteristic of hegemony (Gramsci 1985, 189). Without this elaboration, it is more difficult to protect cultural products through copyright.

Claude Grignon and Jean-Claude Passeron see cultural relativism as attributing autonomy to popular cultures, but to do so "it must . . . treat dominated cultures as if they were not so." An alternative position they outline refuses to ignore the relationships of force underlying the various statuses of different groups constituting a legitimate social order. Where "the populist marvels at discovering the symbolic treasures in a popular culture . . . the bourgeois like the misérabiliste sees only penury" (Grignon and Passeron 1989). Néstor García Canclini extends this argument. He argues that "the majority of the texts on craftwork, festivals, and traditional music catalogue and exalt popular products without situating them in the logic present in social relations. They limit themselves . . . to listing and classifying those pieces . . . which stand out by their resistance or indifference to change" (García Canclini 1993b, 65-67, 71-73). The process of identifying this "resistance or indifference to change" is a form of elaboration whereby popular artistic forms are "fixed" by the collector. As such they are more easily owned and copyrighted. Barbara Kirshenblatt-Gimblett has pointed out that the process of collection creates scarcity, and turns serial ethnographic objects into singular artifacts that, because of their singularity, acquire the aura of the art object (Kirshenblatt-Gimblett 1991, 388-393).

The development of markets for "primitive art" and "folk art" in the twentieth century led both to their "promotion" to high art, through institutions of patronage such as collectors, specialist journals, and galleries, which emphasized singularity, and to the place-specific, "typical," qualities of tourist kitsch, which depended on mass production. But these cases may not represent appropriation as such since the indigenous or folk producer may supply the market. It is when the outsider enters the picture that the accusation of appropriation comes into play. Hence, looking at the appropriation of indigenous cultural products, Peter Shand sees a divide in practice between "a commercial use with high intellectual pretensions (the fine arts market)" and a "more base and more explicitly commercial exploitation." He defines appropriation "as a mode of cultural engagement [that] is dependent on an ability to separate a given object or design from its cultural milieu for the purposes of its employment in a different one," pointing out that "it is predicated on formalist assumptions as to the recognition and meaning of cultural heritage."

This definition is not that far removed from Lauri Honko's notion of "the second life of folklore," referring to folklore material being used "in an environment that differs from its original cultural context," and Honko makes a convincing case for the rejection of more negative notions in order "to try to restore the research value of events in the second life of folklore to something approaching their indisputable cultural value" (Honko 1991, 43). Néstor García Canclini argues that what he calls "cultural reconversion" prolongs the existence of traditional cultural forms by articulating them to modern processes:

cultural reconversions, in addition to being strategies for social mobility, or for following the movement from the traditional to the modern, are hybrid transformations generated by the horizontal coexistence of a number of symbolic systems. . . . High, popular, and mass art nourish each other reciprocally. (García Canclini 1992)

Still, Shand does not quite accept the postmodern position that "all forms of cultural production occur within a complex field of interaction, quotation, and re-quotation." He supports the contention that "to try to isolate the koru [a much appropriated Maori pattern] in any way would stifle its ability to communicate and participate in contemporary culture." Shand argues that "it is not clear that the languages (linguistic, artistic, symbolic) of indigenous peoples are so 'cut loose,'" though his contention that "language is what sustains people," backed up by a Maori saying that when language is lost "humanity will be lost," is a rather Herderian argument.

In settler societies, settlers' culture is often experienced as imitative and provincial, a copy lacking both the metropolitan sophistication and the sense of place of its European source. "We Brazilians and other Latin Americans constantly experience the artificial, inauthentic and imitative nature of our cultural life," as Roberto Schwarz has put it in a celebrated essay (Schwarz 1992, 1). Elements of indigenous culture have often been subject to appropriation for that reason, though within limits, since indigeneity also points to prior ownership of and a continued moral claim to the land. Symbols of national identity or national qualities taken from nature in settler societies—bald-headed eagles, maple leaves, kiwi birds, kangaroos, sabras (though let it be said that this is a special case)—in part sidestep that problem.

Colonialism has decimated indigenous communities. Every indigenous language in the Americas, Australia, and New Zealand is endangered. Indigenous peoples are alienated from their own ethnic traditions and yet excluded from equal membership in the dominant settler society. Not unaware of modern political ideas, they have a variety of attitudes towards their own heritage. Defining a community is difficult in ethnographic practice, while legal definitions are inevitably conservative and fossilizing. The community's own depiction of itself may represent a traditional ideal of cultural reproduction, while the state's understanding of the community may be the product of the bleak statistics of its own most interventionist agencies. The ideal self-definition of the community may be part of an attempt to "hold" history when history has been experienced as a succession of catastrophes, but it can also silence voices within itself. Definitions of the community essential to the legal protection of community-based cultural products are thus fraught with difficulty.

If indigenous culture has become greatly weakened, it may be more difficult to distinguish its products from those of the rest of the population. Beate Sydhof has referred to such a problem in the case of European "folk art": "We have assigned it the role of a concept from the old rural society and set it in the mould of an antiquated relic." She shows that after its alternate idealization and commercialization, it emerged "in the shape of specific objects destined mainly for the mass tourist market." The problem is that "any connection with 'the people' has long since disappeared," the "people" "have gone on to create quite different things," and "a gulf has arisen between the conception of folk art and the reality of folk, or popular creativity" (Sydhof 1992, 185).

The colonizer and the colonized are not foreign to one another in the postcolonial society. Gramsci's notions of the hegemonic and the subaltern are useful here since they are premised on participation in a single social system, though they may cut across colonial divisions premised on race. The colonized and the colonizer come to co-exist in the one culture and indeed in the one individual; this after all is the nature of hegemony, and points to the problem of defining an "authentic" indigenous culture in the absence of its complete and utter segregation. Discussing originality, Shand argues that what matters is "what is consequential from the assertion of originality," with a gambit running from "strategic essentialism (original as exclusive and exclusionary . . . )" to "a principle of respect, consultation, and authorization . . . ."

He points out the continuous risk to indigenous peoples of different "forms of colonial violence—physical, environmental, economic, and epistemic." His position "looks to the retention of the philosophies, significations, knowledges, and strategies of indigenous peoples as being the key to any consideration of the cultural expressions of their making," showing how control over them is "an important site of resistance to colonial, imperial or, in recent years, global capitalist assaults." Moreover, "cultural resistance with respect to the arts is a means of retaining the strength and resonance of original voices and avoiding co-option into a dominant cultural ethos."

The question of indigenous rights to cultural property is part of the general question of the protection of folklore and traditional culture, as considered in the UNESCO's 1989 "Recommendation on the Safeguarding of Traditional Culture and Folklore" (Seitel 2001, 8-12). The Recommendation mentions intellectual property rights in passing, though it does not deal directly with issues of biopiracy. However, the participation of indigenous groups in the making of international legal frameworks is severely limited by the fact that such frameworks are usually worked out between representatives of states. Indigenous groups were thus refused admission to the decision-making sessions of various follow-up meetings to the Convention on Biological Diversity adopted at the 1992 Earth Summit in Rio de Janeiro, where state representatives monopolized the negotiations.

The UNESCO Recommendation acknowledges that "[w]hile living folklore, owing to its evolving character, cannot always be directly protected, folklore that has been fixed in a tangible form should be effectively protected" (Seitel 2001, 9). It does assert that member states should "design and introduce into both formal and out-of-school curricula the teaching and study of folklore in an appropriate manner" (Seitel 2001, 10), but the dependence on member states to further the principles of the Recommendation reveals a key weakness when the traditional culture in question is that of stateless peoples.

Shand shows how these issues have been explored in New Zealand and elsewhere. The thorny questions of authorship, ownership, copyright, authenticity, authorization, and identity involved may never be satisfactorily answered. Still, the posing of these questions, and the legal formulations that try to do justice to them, are evidence of sincere attempts to move beyond Eurocentric models.


If Hans Naumann could understand folklore as the copying of high culture in a debased form, high culture in turn can "copy" folklore, as indeed it always has. In any complex society high and popular cultures have always had a symbiotic relationship with one another that only extreme cultural relativist positions have sought to deny. Copying takes on a newer meaning in the modern age, with the development of industrial capitalism, increased competition in markets, growing commodification in ever wider domains of life, improved methods of mechanical reproduction, tighter legal and commercial definitions of originality—and all against a backdrop of greater social mobility, wider access to education, and an increasingly democratic sensibility. The "authentic" domains of high culture and folk culture recede before a new popular culture that is a product of the new industrial and commercial worlds and owes much of its power—and its "inauthenticity"—to mechanical reproduction (cf. de Carvalho 1992, 27, 29).

The means of acquiring all cultural forms is imitation. The traditional apprenticeship to a master was a process at the end of which the qualified practitioner of a trade—and indeed, until the Romantic period, the artist—emerged. Everyone who has learnt a new language will remember the laborious imitation of the teacher. Before one can compose original sentences one must first imitate those of others. A similar process is an important part of the history of the acquisition of American popular musical forms in South Africa, as in other countries.

Carol Ann Muller's paper is an ethnomusicological study of the imitation of American music by the "coloured" inhabitants of Cape Town. European high culture provided a model for members of the coloured and African elite, whereas American popular culture appealed to other social classes. "While the state legislated to deny people of color citizenship in political terms, the media continued to embody a more democratic sensibility." In Cape Town the copying and covering of the foreign music led to what was locally called a culture of "carbon copies." The distinction Muller makes between the "carbon copy" and the "sonic mirror" is perhaps more apparent than real, more a question of early and later stages in the assimilation of the new musical forms. American music was learnt in very modern ways—through radio, records, and films. This made it accessible to people who by and large could not read or write music, though they could and did write down the words of songs. The music reached a wide audience through live cover performances.

Muller clearly explains why coloureds should so assiduously learn this music the dissemination of which paralleled the extension of the political and commercial power of the United States. The music provided them with representations of people like themselves and offered "a kind of cosmopolitan citizenship, a membership in a truly imagined community of English-speaking, modern people of color," and it suggested "possibilities for freedom, if not its full achievement, and for racial and cultural equality." Another related reason, which Muller does not directly broach, is that modern urban society probably invalidated many of the models of folk culture while high culture was neither accessible to the popular classes nor relevant to their modern urban experiences. American popular culture, explicitly modern and with its seductively "democratic sensibility" that seemed to transcend the notorious inequalities of American society, showed millions of ordinary people a way to live in the modern city that they could identify with (cf. Schou 1992, 146; García Canclini 1993a, 68-69).

Muller does not discuss the question of appropriation as such: the fact that South Africans made their own of musical forms that initially were not theirs. The much more draconian copyright enforcement of today would probably have precluded the "carbon copy" culture of South Africa that was possible a generation or two ago. The "[p]eople posturing as 'Cape Town's own' Frank Sinatra, Doris Day, or Bing Crosby [who] brought these traditions to life" might have a legal case to answer.


Philip Jenkins looks at repetition as a pathological problem. He explains the ideas of seriality and uncontrollable repetition as obsessive pathologies in modern society, examples of the irrationality that Protestants attributed to Catholicism or of the psychiatric diseases that are diagnosed by modern science. Citing the work of other scholars he shows how "the concept of serial killing is formed by an elaborate process of interaction between the ostensibly 'real' world of criminal justice and the 'fictional' realm of popular culture." He sees an archetypal figure given flesh and blood (in a manner of speaking) by a combination of sectional interests and a receptive public sphere (the latter largely articulated by the culture industries today as by oral tradition in the past). The interests involved were those of the FBI and particularly of its Behavioral Science Unit. They were served by the spectre of itinerant psychopaths at large who could not be combatted within the jurisdictions of state police forces alone. Jenkins shows that the notion of the serial killer was popularized in the 1980s and he sees the consequent fear being used by conservative political and moral agendas to row back on the liberal gains of the 1960s and 1970s.

Jenkins argues that repetition is at the core of seriality, "and the inability to avoid seriality." He contends that "the idea of uncontrollable repetition has proven deeply frightening to many cultures because it denies the ability to choose that is central to free will." Still, his reference to myth does not follow through on the meaning of myth as sacred narrative, closely related to ritual. Repetition through ritual is at the core of religious systems and of communal identity. The relationship between myth and history is a sometimes explosive one, both through the reproduction of mythical archetypes over time—as in the shaping of historic lives by the heroic biography (see de Vries 1963, Raglan 1965, and Eliade 1971)—and through deliberate political appeal to them—the mythical reference in the name of Hitler's Operation Barbarossa gives chilling testimony to that (see Iesi 1993).

If one can speak of an interaction between the realms of criminal justice and of popular culture in the imagery of the serial killer, can one similarly speak of a relationship between an individual and an archetype? Mircea Eliade writes of what he calls "the mold of the archaic mentality, which cannot accept what is individual and preserves only what is exemplary." Thus events are reduced to categories and individuals to archetypes, and he points out that this is done almost to our own day (Eliade 1971, 43-44). The influence of the heroic biography on the lives of historical figures is one such example. In a number of celebrated cases from antiquity to the modern period there has been a clearly political dimension to it, as when a series of individuals, often years apart, identified themselves with a lost leader who represented a heroic archetype. The most famous case is that of the Portuguese king, Sebastian, killed in battle with the Moors in 1578. Shortly after the battle, rumours of his survival came back to Portugal with the few boatloads of survivors. Over the next twenty years four false Sebastians appeared, causing disturbances and stirring up rebellion. At the beginning of the 19th century a sect of sebastianistas appeared and was opposed by the church. The tradition of "o príncipe encuberto," "the hidden prince," remained and was recorded in Brazil in 1838 (Caro Baroja 1979, 132).

Jenkins argues that the opposite of serial murder is "control, in self and society," and he shows the inverse relationship of the perversity of serial murder to the assertion of conservative values. But the notion of tradition itself, fundamental to conservative, if not only to conservative group identity, rests on the idea of repetition. As the Irish proverb has it, "ná dein nós agus ná bris nós" ("don't make a custom and don't break a custom"). Repetition is also a form of control and indeed of self-control—the following of rituals, the saying of prayers by the faithful, the observing of the Sabbath, the marching up and down of soldiers—l;that helps to structure life. Repetition is also central to oral, if not only oral, narrative. It is a central technique of the media, as is seriality: the soap opera and TV series were already prefigured in the nineteenth century publication of novels in serial form. The recent Washington sniper case shows how 24-hour cable news coverage of the case—putting other stories into the shade for the best part of three weeks—played a major role in feeding public anxiety, despite the fact that the US crime rate is 26% lower than a decade ago ("24-hour news stokes nation's fear factor," Chicago Tribune, 11 November 2002).

Jenkins contends that serial murder made such an impact on public consciousness because of its "mythological connotations," arguing that the killer "fulfilled all the mythical roles of the supernatural night-prowlers of old." Straying from place to place, serial killers "lack any ties that could keep them in one place, any conventional sense of home or family" and "thus symbolize the failure of traditional ideals of community in modern America." Still, the more positive role of another figure distinguished by rootlessness, individualism, and violence as a central American symbol—the cowboy—could profitably be related to the question of the serial killer. According to Max Weber's sociological formulation, charisma, a special quality of an individual's personality setting him apart from others, was outside the domain of the everyday and opposed to authority, but tended to recede with the establishment of permanent institutional structures (see Morris 1987, 72). Jenkins suggests that the inadequacy of institutional structures was behind the FBI's promotion of the idea of serial killers. Is the serial killer a sort of cowboy who has outlived the frontier?


From indigenous knowledge as the last frontier of capitalist exploitation to the Wild West-like criminal itineracy of the serial killer; from the appropriation of indigenous culture by dominant groups to the appropriation of American popular culture by oppressed groups; from imitation as compulsive pathology to conscious self-identification through imitation; from the copy as the rip-off to the copy as legitimate self-representation: reading the three papers raises a number of common questions despite the diversity of the perspectives. The authors of the three papers and the editors of Cultural Analysis are to be congratulated for the wideness of scope and for the keenness of analysis.
Works Cited

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Iesi, Furio. 1993. Cultura di destra. Milan: Garzanti.

Kirshenblatt-Gimblett, Barbara. 1991. Objects of Ethnography. In Exhibiting Cultures. The Poetics and Politics of Museum Display, edited by Ivan Karp and Stephen D. Lavine. Washington and London: Smithsonian Institution Press.

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Friday, January 06, 2006

The New Folk Tradition

I've been trying to get an assignment for a piece on mp3 blogs as the new folk tradition for sometime so I feel somewhat vindicated to see Pareles refer to the practice of trading audio as folklore.

Critic's Notebook: The Dead's Gamble: Free Music for Sale

The Dead did a quick turnabout - call it a half-step uptown toodleloo - this week. First, band representatives told the Live Music Archive, at, which includes countless jam-band concerts in its repository of freely downloadable music, to stop making available its trove of live Grateful Dead recordings, which have been free online for years. Grateful Dead Merchandising ( now sells downloads of the band's own concert recordings, and didn't want free competition.

Fans were so furious that within days, the band was forced to relent partway. Now recordings made by audience members are back on the archive, available for download. The Dead's pristine soundboard recordings, with minimal crowd noise, are no longer available for quick downloading, but can be played as streams (and recorded in real time). It's not a complete reversal, but all the music is online again. Now, however, the Dead are going to find out how difficult half measures can be.

The Dead's easygoing attitude toward concert recordings had been a bulwark of its legend. At concerts, there was always an authorized "tapers' section" - a mini-forest of high-quality microphones on long poles - and the band never tried to stop fans from trading the recordings, as long as they weren't sold. The traders' network upgraded through the years from cassettes by mail to digital downloads.

Doubtless there were some cottage-industry sellers of Dead concerts. But on the whole, fans respected a simple ethic: Enjoy, don't profiteer. With no restrictions imposed, fans took it upon themselves to do the right thing. The more committed ones went beyond passive listening to active, time-consuming archiving, editing and processing of the music they cherished: making, for instance, so-called matrix recordings that synched the clean soundboard signal with a touch of audience recording for a more realistic ambience. And it all existed, like so much of the Dead's example and legacy, outside the structures of the recording business.

As in so many other ways, the Grateful Dead set an example for jam bands (and other do-it-yourself types), who found that concert recordings were a great way to build word of mouth. Sites like sprang up; there's also a Napster-like peer-to-peer interface, the Furthur Network (, named after the destination sign on the Merry Pranksters' bus, which the Dead once rode). It swaps recordings from an approved list of performers, including the Dead, the Dave Matthews Band and Sigur Ros.

For the Grateful Dead, and the many bands that emulated them, there was logic to the whole libertarian enterprise, as well as to the old hippie spirit. Each improvisational concert was different, and thus worth collecting. The best ones would convince new fans that they had to see the next concert, and the next. The band not only was handsomely paid in the first place for shows that routinely sold out arenas, but also kept its own recordings should it ever want to issue them. (It has done so, in 36 volumes of multiple-CD collections called "Dick's Picks.")

There was also something far less tangible and pragmatic, but no less essential: a generous suggestion that once the music was in the air, it belonged as much to listeners as to the band. The concert recordings were like memories, to be shared and savored, rather than products. On his Web site (, the Dead's bassist, Phil Lesh, writes about using to hear old concerts while writing his autobiography. Even if a Deadhead was not downloading dozens of concerts, the boundless opportunity to do so meant something. There was a bond of trust between the band and its fans - one that is now strained.

The Dead are thus the latest victims of the notion that digital copying is qualitatively different from every recording technology since the invention of music notation. Yes, digital copying is fast; it's exact; it's easy. For a recording business that has realized far too late that it is selling music, not discs, digital copying has destroyed the old monopoly on pressing and distribution.

Digital downloads can also provide numbers for accountants to tabulate and for statistics-mongers to misinterpret. (Just because 10,000 people download a concert doesn't mean 10,000 people would pay for it.) Oddly enough, the numbers also seem to encourage visions of wringing every statutory nickel out of every recording ever made. In conformity to copyright law that was designed for sheet music and discs rather than the Web, visions persist of the Internet not as a cornucopia, but as a pay-per-play jukebox. The Deadheads' old trading network had looked back to an earlier model: music as folklore.

Suddenly, after all these amicable and profitable years, Dead representatives are talking about "rights" to those concert recordings. It's lawyer talk, record-business talk, and entirely valid on those terms; the Dead do hold copyrights and are entitled to authorize or withhold permission to copy their work. (So, incidentally, are those who own the copyrights to Dead concert staples like Buddy Holly's "Not Fade Away." )

Enforcing that permission on the Internet is another matter. Digital-rights management by technical means is iffy at best: widely circumvented by professional pirates and problematic for consumers trying, for instance, to transfer songs from their CD's to an iPod. Sony BMG Music, trying to limit copying of CD's, included software that created security hazards in its paying customers' computers and is now recalling some four million CD's and facing lawsuits. The next Windows operating system may place anticopying mechanisms beyond users' control.

The Dead's problem is more temporal than technical. Grateful Dead recordings, including soundboard recordings, have been circulating since the inception of the Internet and are not going to disappear by fiat.

The Dead had created an anarchy of trust, going not by statute but by instinct and turning fans into co-conspirators, spreading their music and buying tickets, T-shirts and official CD's to show their loyalty. The new approach, giving fans some but not all of what they had until last week, changes that relationship.

No doubt it will sell some additional concert downloads in the short run. But by imposing restrictions, it will also encourage jam-band fans - a particularly Internet-savvy demographic - to circumvent those restrictions, finding the soundboard recordings through unofficial channels. The change also downgrades fans into the customers they were all along. It removes what could crassly be called brand value from the Dead's legacy by reducing them to one more band with products to sell.

Will the logic of copyright law be more profitable, in the end, than the logic of sharing? That's the Dead's latest improvisational experiment.
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