Joe Karaganis, a researcher at Columbia University’s American Assembly, and Bodó Balázs, a professor at Budapest University of Technology and Economics and Fellow at Harvard University’s Berkman Center for Internet and Society, will discuss their ongoing research on culture and media piracy in the U.S. and Europe.Today we had a roundtable discussion of IP-less spaces and gender.
Karaganis will discuss a recent comparative study, "Copy Culture in the US and Germany," which maps digital media practices and attitudes toward copyright enforcement in the two countries.
Balázs will discuss his ongoing research on the complex system of rules and governance mechanisms in piratical P2P file-sharing “darknets,” including communal enforcement of intellectual property –like regimes within such communities.
Peter Jaszi: mapping connections between areas of gender studies and IP scholarship, leading in some years to a larger, more formal gathering. Today is a mapping day.
Lorraine Aragon: just as the law is starting to look at negative spaces of IP, we find law moving in to colonize them. Her background is in things like Indonesian art—post-TRIPS cultural property thinking is increasing. Gender frame: communities of practice in places like Indonesia are gendered. So you can look at how promotion of circulation is done v. sequestration of knowledge: the cultural ecology.
Chris Sprigman: writes on negative spaces of IP. Looking at more communities within that negative space; connections between gender/social class/history and the rules of how creativity works in particular communities.
Me: I talked about Viviana Zelizer and fandom as interprenetrated commercial/noncommercial space: certain kinds of market relations meld with a gift economy.
Libby Smigel: Dance Heritage Coalition—dance history and dance criticism. Our connection to law came through fair use best practices for dance libraries/archives. The dance field wasn’t terribly clear on what kind of IP/copyright really applied to it or didn’t.
Vicki Jackson: longtime participant; has written on quilting as one of these communities.
Sean Pager: norms within filesharing communities: there will actually be takedowns in those communities if you put up the wrong kind of material. (I am desperate to know more, which is why I like the paper by Balázs above.)
Michael Carroll: anthropologists like to measure the gap between what people say and what they do; gender plays an important role in that gap. (Though see this report on P2P practices in the US and Germany, which are generally similar across men and women.)
Daniela Kraiem: women’s paid and unpaid care work. Spaces that are part of the informal economy but make up what’s most important to people—art, family, care obligations. Spaces generally based on intergenerational reciprocity rather than on bargain or exchange—long-term relationships, family and communities of practice similarly.
Christine Haight Farley: interested in trademark and gender. Taking an online design course and the biggest conversation among 5000 course members is about IP.
Sprigman: we’re at the beginning of investigating the negative space. Communities that have been looked at: fashion, food, open source software, roller derby, comedy, magicians, tattoos, but even there none of the articles represent a complete view of any industry: fashion is enormous and ever-changing. Some areas remain untouched: furniture, an important US industry, existing on the borderline of IP, with some design patent/TM action but mostly no IP protection. Emeco just sued Restoration Hardware for knocking off the Navy chair; he doesn’t think it’s a good suit. North Carolina, where the industry is centered, is open to researchers. Food—much more work to be done. Cookbooks serve a lot of functions, only some of which have to do with cooking: signalling social class/taste/gender.
Within communities of pirates, more work to be done. Furthernet: watching their IP norms. Within jamband community, there are robust norms (Mark Schultz has a paper). Are there conversations among musical communities about whether that model can be exported?
Also different perspectives. His centers in law & economics. That’s a reasonably useful lens, but to be a real area of scholarship, this needs to attract scholars who think differently and use a variety of tools. How IP without IP interfaces with IP generally: Why has fashion gone so little noticed for so long? Something about law: IP lawyers are interested in places where IP is, not where it isn’t. But IP isn’t really for people who love termination of transfers; people who practice it tend to admire the creative spirit and the people who use it for a living. They think IP is the handmaiden of creativity: sometimes it is and sometimes it isn’t. If we break the supposed iron link between IP and creativity and recognize the true elasticity of that link, we need that kind of anthropological scholarship.
Jaszi: what’s the range of methodologies available? Formal survey research; less clearly bounded information collection.
Sprigman: most formal—used Bureau of Labor Statistics to study fashion prices over time. Price at the top turns out not to be meaningfully disciplined by the presence of low-end knockoffs. Whatever is going on with knockoffs, there’s little elasticity. That’s very formal data collection/analysis. So too the Von Hippel etc. survey of French chefs—qualitative data backed up with quantitative survey of consequences of norm violation. Narrow but defensible conclusion about copying and attribution in that defined community. Then there is qualitative empirical work. Comedian study is relatively formal: we had a script for the interviews, though we could stray. Experimental studies also offer another option—his work on valuation of IP. Would love to start testing norms about copying/appropriation/credit. Many norms that we have documented in scholarship could be tested in the lab. Historical studies, sociological studies of institutions—all needs to be done.
Carroll: participant-observer/longitudinal studies—gaps often get revealed over time.
Sprigman: Ashley Mears’ book on Pricing Beauty is a great example of this. Embedded herself as a fashion model. Great work on how agencies and models think.
Me: recognize that as scholars we are also norm entrepreneurs intervening in these very fields—my DMCA advocacy, Sprigman testifying before Congress, AU promoting fair use principles. Scholars should do that when their work has practical applications, but it’s a tension we need to recognize—we don’t leave the fields we study untouched.
Smigel: in the dance field, people worry about influence (that is, one choreographer on another), but they haven’t come together to talk about underlying questions.
Aragon: anthropologists already accept that law itself is partly constructing what it purports to regulate. At the same time, with globalization and confusions about how the world has changed, we have gotten so busy looking at global connections that we aren’t doing sustained microanalytic examination of norms. Innovation as a concept: creativity works as a more open concept than innovation. Indonesia—an ethnomusicologist has looked at when music is at the same level of change, Americans emphasize its newness but Indonesians emphasize its continuities with the past, because that’s their source of authority. IP thrives on newness, but the undercurrent is that nothing is really novel. Magic studies: exposure more of a threat than copying. Also shows up in cross-cultural studies.
Smigel: Recurrent theme from choreographers: I want my process saved more than I want the outcome/a videotape. Often a very organic process that changes from work to work; doesn’t seem copyrightable, but they feel it’s the signature part of what makes them an important artist.
Carroll: what would preservation look like?
Smigel: conundrum. We have 3000 hours of a rehearsal tape for one artist, including water breaks; not simple. We embedded an archivist to watch the creation of a work; we believe it’s the first embedded archivist. There were moments where pieces of the work emerged because of smells in the studio that day. They didn’t come in with a fully formed work but rather incorporated all sorts of things, including contributions from participants. Differs by artist, location, collaboration. A lot of contemporary dance is now collaborative, falling out of simple single-author copyright scheme.
Jaszi: possible to derive some findings about unarticulated norms that relate to, e.g., contributions of dancers v. contributions of choreographer? Almost all of these investigations don’t focus on geographic specificity, but maybe we should be more attentive to that even with constructed nongeographic communities (e.g. online) which may be different from place-based communities. Culture of hip-hop in a particular city, for example: thick accounts of creativity in a particular place and time.
Jamal Thompson: it depends. Seattle’s filmmakers have a shared history/psychology (we’re not LA and Vancouver overtook us and the weather’s horrible), but that’s very different from the hip-hop community’s or the performing arts community’s.
My thoughts: design v. serendipity; both affect online and offline spaces. Some cities invest in having an “arts” industry, successfully and unsuccessfully. Norms of attribution on Tumblr, for example; not necessarily intentional even though we assume that online design is always deliberate. User communities react to affordances but not necessarily in predictable ways.
Kraiem: feminist legal method: asking the other question: where are the others in this story? A lot to be done in this space simply by doing that. Then there’s consciousness raising. Belongs to a heavily female online forum with very strong pro-copyright beliefs, but then they freely share and comment on unpublished excerpts with the expectation that it’s copyright that lets them do that. Then there’s explicit norm violation in order to push/change the norm: Pussy Riot etc. Self-conscious decision to violate norms.
Sprigman: was fashion/food outside IP because of neglect of the creative output of women? Doesn’t have a great answer for that yet. But even if we answered yes, there’d still be a normative question: is the right answer “now give me mine” or something else?
Kraiem: a 2-tiered world.
Sprigman: politically, the idea that it was discriminatory (intentional or unconscious) would increase the likelihood that copyright would extend to fashion.
Jaszi: returns to the point that our findings are politically useful to some groups—a real possibility that work may have direct consequences in ongoing doctrinal contests.
Thompson: men aren’t opposed to pioneering/tweaking—open source looks like that, but literature v. code has a gender mapping. (Of course historically literature was seen as the province of men!)
Kraiem: increased formality draws more male commentary. A full chapter/work would draw more male attention. The informal, constant back and forth draws almost no male attention.
Sprigman: in open source, often you get little bits of code meant to do something very specific; the whole task is componentized. It’s not the level of formality, but the clarity of the expectations—an idea about how to make this routine run better/use fewer processor resources.
Jaszi: how different communities are constituted, who participates, and to what extent the characterization of communities as gendered is operative.
Smigel: Martha Graham warned people that if she watched their dances she’d appropriate what she found useful and make it better in her own work. Has seen how a dancer can learn and remember a routine. That was pre-copyright of dance—1930s/40s, when only narrative was copyrightable. Postmodern/experimental: Merce Cunningham, Judson Church group. Now, a choreographer bristles at being labeled Judson Church: we were all doing different things! They seem to feel much more investment in individuality/breaking away from Graham. Now: Julia Rhodes/Lucky Plush, much more indicative of current mashup generation in seeing that almost everything in her toolbox comes from some predecessor, and she footnotes these in her programs, including jazz hands of Bob Fosse, contractions from Martha Graham/William Shatner in Star Trek, Beyonce’s Single Ladies. Some people go to another culture and bring back ideas and never credit; Rhodes’ great lament is that the dancers she works with don’t know dance history. Her website: stealthisdance.com: self-deprecating look at what she thinks we all do.
Post-Graham, it was a period of male dominance. Male choreographers appealed to IP, TM too to establish distinctiveness/control. Suspicion among dance community that materials will be stolen occasioned more than once accusations that a female choreographer who had access to public records at NYPL had access to moves that very few people had seen performed live and used them without attribution for commercial benefit.
RT: different subgroups: there are some fan groups that are mainly self-identified women, and some that are mainly self-identified men. Star Wars fan films v. fan video/fan fiction.
Carroll: what are people willing to reveal to the community? Fear of copying may matter—if you rely on the community to enforce; if the community doesn’t have a history and can’t recognize a ripoff, that makes norm based enforcement harder.
Elizabeth Jackson: dance may also have been late to copyrightability because it was female (non-narrative: of course non-narrativity has also been associated with femaleness). What do we make of dance norms now that dance has been assimilated into IP law?
Vicki Jackson: Gee’s Bend in Alabama, remote and inaccessible; quilting generally genders female; domestic/gift economy. Passed-down patterns and the norms seemed to work. Then there were interventions that were very male: the first intervention, civil rights workers/Freedom quilting bee who came & saw these quilts and put them to work making patterns that were more classical quilting to be sold at dep’t stores, no longer messy/utilitarian. But the underground, abstract art continued. Recently, another male monetizer: promised that money would return to the community; this intervention has shaken up the community. The old quilts were now hanging in galleries and art museums, valued in the $100,000s. Young granddaughters are doing derivative works, selling them under the auspices of this monetizer. Creates conflict/crossroads. In the past, they’d been told to quilt Amish-like quilts and it’s not clear that money will come back, but notions of what their craft was have been disrupted. It’s the IP that’s valuable now—the sanitized prints/designs, mass produced, not the imperfect/slightly smelly version actually covering a bed in the quilter’s house.
Sprigman: crystallizes the style so that it becomes abstracted from the quilt. The style becomes a thing apart from the quilt; are quiltmakers now creating examples of the style rather than quilts—does it change the way they understand what they’re doing?
Jackson: maybe—the first intervention led them to have a “day job” creating the Amish-style quilts, but now that Gee’s Bend has become a mass merchandised style, there are ripoffs.
(Reminds me of conflicts in fandom over things like Fifty Shades of Grey and pulling-to-publish.)
Aragon: Indonesia: shift occurs in commodification in which the men become the designers and the women apply the hot wax, when women formerly did design too. Women control knowledge on dyes—age-related/post-menopausal; passed down within families.
Sprigman: this empirical work requires investment in studying, but the payoff is great. Traditional knowledge scholarship is implicated/exciting—there’s a lot of IP without IP around the world. Too simple to say “we should protect this as a domain of no IP” but there are consequences to bringing culture work into the formal legal system, and some are pretty serious. Communicative function of creativity and monetization may conflict—commoditization may interfere with people’s ability to make meanings, even in intimate relations.
Smigel: has inspired her to think beyond dance: consider yoga, commercialized Pilates, other movement systems: traditional values but also commodified.
Jaszi: give us a research wish list.
RT: kids. What are kids learning about IP, credit, etc. What do they believe and what do they do?
Jaszi: intergenerational transmission—sometimes it’s kids teaching younger kids (playground games and verses, with norms of their own about the values of fidelity and innovation), and sometimes it’s adults.
Product v. process: if we just ask about IP/products we may not see how things are made, which is key information.
Sprigman: big variation in US v. European treatment of design protection. That deserves study in terms of its effects on business practices.
Discussion of hairstyles: no protection, generally, but Jacob says that some places do try to protect their process. Farley: compare hair braiding, and the labor involved in braiding.
Aragon: context dependence of innovation: something looks innovative to you because it’s from a different culture, but others in that culture recognize it as a variant or a standard move. Compare things like Zumba where traditional moves are packaged and licensed—some of these programs can be offensive, as when they bring out the “talking stick” disconnected from its Native American roots.
Farley: Zumba’s story is that it was created by accident: Latin dance moves used for exercise; monetized with an IP lawyer early on in the story.
Carroll: need ethnographic studies about what kinds of copying are ok. Why is it ok for two people at a cocktail party to show up in the same car but not for two women to wear the same dress (even by coincidence)? Sprigman: “Who Wore It Better?” features when stars wear the same outfits—it’s not just about who’s better looking. Avoiding copying is a way of deferring direct competition. Farley: not necessarily gendered; except that men don’t worry about wearing the same shirt.
Thompson: presentation matters—look at the Apple example.
Jaszi: that’s a limitation of the work on food so far; it’s focused on recipes and not on presentation. (I wonder if that’s a lawyerly discomfort with the non-replicable which can’t really be copied and thus can’t really be protected by IP, though we are often willing to pretend it can be. And there’s a gender connection back to the specificity/materiality of the body.)
Farley: increasing number of cases about restaurant décor (TM) and style.
Carroll: empirical research shows that how something tastes is influenced by its presentation. Wine: wine you think is more expensive tastes better; GIs told to people affect taste; glasses affect taste.
Jaszi: that moves us towards the process side of the process/product scale.
Farley: Hooters case: sued a Fla. restaurant; judge held no infringement because the Hooters outfit was functional.
Jaszi: Fields that are ghettoized/involuntarily gendered female. Writing instruction as an example. Responsible for transmission of norms about plagiarism, academic honesty, good and bad writing practice. Interesting opportunities for study.