Session 4: Papers by Tarleton Gillespie (“Characterizing Copyright in the Classroom: The Cultural Work of Anti-Piracy Campaigns”) and Kara Swanson (“The Bureaucracy of Genius: Private Rights and the Public Interest”)
Gillespie: Perennial STS concern: the social construction/impact of technology—there are debates about the relation and relative importance of construction and impact. Social construction is a convenient term that does a lot of work without necessarily being clear. Materiality: do the artifacts have politics? What are the implications of design? Politics: behind/next to those questions, how do institutions shape these arrangements and with what political implications. Example: DRM—how do stakeholders frame the debate? Discursive level: in language, categories and terminology, what work is being done?
Methodologically, STS’s instinct is to go to the ground and do ethnography. Who is doing the work? How does copyright play out in real spaces?
Public campaigns designed to convince and educate kids/adults/young adults to learn more about the dangers of downloading/piracy, particularly in 2003-2004. Why would the RIAA/MPAA do this? Might want to change people’s behavior; show Congress that you’re doing due diligence when you ask for stronger laws; frame the debate, especially around “piracy.” Along with public campaigns, there are less visible campaigns sent directly to schools/teacher curriculum resource sites: a boom starting in 2006-2007.
He’s not just interested in how these campaigns define and justify the law (many have sections saying “copyright is” which have various overstatements and emphases), but how the campaigns characterize the problem and the solution. It fits the issues into comfortable discursive frameworks. They draw on longstanding justifications that were there from the beginning, but are raised from the discursive terrain to greater importance.
He’s looking at campaigns targeting 3rd-6th graders: the designers often say that they’ve lost the high schoolers and college students, but still have a chance with these kids who are forming their moral universes. One theme: an equation between piracy and theft—“Q: What’s the difference between copying software from a friend and stealing software from a store? A: Nothing.” (Play it Cybersafe, Business Software Alliance) “Copyright infringement is just a fancy word for stealing.”
One term from three campaigns, two from the record industry and one from Microsoft, each designed independently: “songlifters.” People who take songs without paying for them. Songlifters = term of art for unauthorized downloaders.
Second theme: respect. “Respect other people’s creative work.” Abiding by the law = respecting the speed limit. But there’s also the concept of honoring. One suggested activity: creating dos and don’ts—the don’ts are about breaking the law, but the dos are much murkier—paying; asking permission; telling the teacher about how you’re using materials. Holding creative works in high esteem is the goal—that’s the double meaning of honoring.
Why kids? Well, they’re a captive audience in school, getting a message delivered inside a legitimating space. Thus it’s better than a PSA or magazine ad. Who can afford to do that? Many sources are trade organizations: MPAA, ASCAP, Access Copyright, Copyright Society of the USA, Microsoft (only single-source one he’s found), Business Software Alliance, WIPO. EFF is working on one right now as a corrective.
These organizations don’t make the curriculum themselves—they contract with a curriculum specialist like Junior Achievement or Weekly Reader Online. These specialists can’t exactly be propaganda machines—their business hinges on being seen as pedagogically valuable, and they provide other products like current events documents. Some organizations can be propaganda machines, though. RIAA worked with Young Minds Inspired aka Youth Marketing International, with a very different public face from the teacher-oriented first site.
An older MPAA/Junior Achievement campaign: What’s the Diff? In order to create pedagogical value, they have an exercise in which there’s supposed to be a debate. Distributed to 900,000 kids in 30,000 classrooms. 
In one exercise, students are assigned one of six roles and then one representative has to answer questions from the teacher.
The positions: producer, actor, key carpenter, singer, director—all professionals, and part of a classic, 1950s model of the film industry; the statements are all in first person. All define copyright as an economic imperative and say that filesharing hurts them. 
The sixth role is the computer user. He makes a series of radical and silly claims; he has no professional authority; and the top of his head has come off and starlight is coming out. Some of the kids might aspire to be one of the other five professionally; many students might already inhabit the computer user role, but the teacher doesn’t give them any resources to add arguments.
These campaigns offer limited roles for students: students are fans and listeners; they play air guitar. Being a fan means being a consumer, buying music, not producing. Another position: aspiring to be part of the industry. The roles naturalize the professional role as currently constituted, telling students to start respecting copyrights now if they want to participate later. Third position: pirate. A pirate is not a fan. These campaigns reify existing ideological and institutional arrangements:
(1) Digital culture is commerce. Theft is not paying. MPAA says: “To legally own it, legally buy it. If you haven’t paid for it, you’ve stolen it.” That erases a lot of completely legit alternatives, including ones the record companies and TV studios are investing in! 5th graders are being told “you have to be really naïve to believe that anything is free.” Price becomes a measure of value. Price is its own justification. (Comment: these two things—there are authorized free options, and price is value—are in some tension. When price is advertising, and you pay by offering your mind up to be marketed to, the terms of the exchange may be inherently more fragile simply because there are more points of failure in the tripartite relationship between advertiser, broadcaster, and audience. Is going to the bathroom during the commercials stealing?)
(2) Digital culture is mass entertainment. We must preserve the industry as it exists now. The dream of stardom; there is no glimpse of collaboration or alternative forms of content.
We can ask (1) are these campaigns consequential in their own right? How will kids who’ve been exposed to them behave as voters, policymakers, moviemakers, technologists? This may be only a small part of their experience. (2) Are these examples of discursive tactics among many other similar interventions by these interest groups? (3) Is it indicative of the broader contours of the cultural discourse—the RIAA is not necessarily driving, but is embedded in, the larger discursive landscape. What norms and assumptions are already available and are being deployed here?
Kara Swanson: Her story is about the 19th century—the history of the patent clerk. Scientific truth becomes legal truth and property rights in the patent office. The system was formed, and various alternatives rejected, in the 19th century. Patent clerks are paid to think, but not to think too hard. Stuff goes into the black box—patent applications—and stuff comes out—patents—and no one outside the patent bar thinks too hard about it.
But patent clerks achieved invisibility, and that was a requirement for the patent system to work. In the 19th century, clerks were much more visible because their job was to implement property theories. But there wasn’t any consensus about the patent bargain and the relationship between inventors, government, and public, so they fought it out until they reached a stable equilibrium. Patent clerks were provocative—they angered cabinet officials and judges; they angered inventors; etc. They also evoked national pride and had a bottom-up influence on the developing patent law.
“Patent supervisor” Thornton saw the true inventor as a rare and wonderful creature in need of protection; he ran the new patent system for 25 years. He attempted to stop the issuance of patents he saw as not novel and useful enough, despite intervention from cabinet officials and judges who wanted his role to be purely ministerial. He claimed authority to refuse to provide copies of issued patents without the permission of the inventor. The Franklin Institute sought to publish all patents in their journal, making them generally available to spur new invention—they were fighting over what the public was and what it might do. Thornton feared copycat inventions; his view of the public was that it was dangerous.
Thornton lost on publication. Ironically, after Thornton’s death, it was when his successors failed to resist issuing patents, the clamor for reform got louder: by following the law they exposed problems with the patent system that weren’t attributable to a single man’s civil disobedience.
One view: the public is a collection of inventive citizens; everyone is a potential patentee. Another view: no, you need highly trained people.
The examiner was eventually shoved into the black box by detailed regulations designed to ward off criticism by removing the individual targets. Clerks today are standardized through an 8-month training program and a massive manual. Patent staff do matter, because they create property for distribution among the public.
Pam Samuelson: One theme of these two—is what we’re concerned about the elites or the public? Are inventors an elite class who needs protection? Are copyright owners a small class of powerful minds? Or are invention, creation and authorship widely distributed throughout the American populace? Rhetorical tricks: copyright campaigns assert creator and consumer as the only valid roles, even though we know that everyone can be a creator (comment: and the campaigns use that move, but only as a way of moving the debate back to “you the consumer should pay me the creator,” this time out of sympathy—you should believe you could be me, but you should also know that you aren’t me).
Isn’t it delusional to think that the antipiracy message works?
Another commonality: the corporatization of IP ownership, and corresponding bureaucratization of the patent office—it doesn’t play quite the same way in copyright. (Comment: certainly the public image of corporate copyright ownership is far more negative than the public image of corporate patent ownership.) The the corporate entities take matters into their own hands, including writing legislation for Congress to adopt. Individual inventors (and authors) wouldn’t drive bureaucratization.
Both papers talk about rhetoric over the evils of cheap copying and dissemination. Particularly interesting—the idea that the inventor masters his fate by registering his invention, and the patent office just processes the application mechanically. Copyright, by contrast, is not bureaucratic in the sense that it’s so automatic that there’s virtually no job for the Copyright Office to do—they just record it.
What is to be done? If you find the education campaigns troublesome, what next? Samuelson’s solution: write a copyright law that ordinary people can read.
For patents, Samuelson emphasized, it turns out that the concept of the “patent bargain” of rights for disclosure that we take for granted wasn’t part of the story, or at least Thornton’s story, at the beginning of the US system. The crisis now: there are too many bad patents. Solution, for patent and copyright both, is to cut back—subject matter restrictions; give exclusive rights to fewer works.
Julie Cohen: She’s not even going to try to draw common threads. For Gillespie: loved the discussion/how kids are encouraged to stamp a (c) symbol on all their own work. Looking to the history of education to distinguish between propaganda and pedagogy might be helpful; it’s a recurrent question. Every time there’s a shift in public sentiment about some important issue in the science/public policy field, it becomes a pedagogical issue—green education/recycling; health issues (comment: Exxon has teaching guides on the environment!).
Respect: Schools now have mottoes, and it’s really trendy to have respect as part of a core value/motto. So it’s hooked into a larger cultural phenomenon. There’s also outreach to clergy—Cohen went to a High Holy Days service where the rabbi gave a list of internet don’ts, including don’t download music without paying.
For Swanson: The notion of the imaginary is public, contested and evolving; what struck her was Swanson’s use of “imaginary” to describe an individual person’s view of the proper patent system. So in Swanson’s work people proposed different imaginaries. Was that how the actors themselves thought of what they were doing? It may have been less self-conscious than the kind of “framing” we all do now, since we’ve read George Lakoff like good liberals. A focus on narratives or beliefs would have felt more natural to Cohen.
There’s clearly enormous contingency in the evolution of the concept of the inventor. How do you deal with that? She would like to hear more about the fluidity in the system first, then apply the theory of the imaginary later.
Recommended reading: Annelise Riles on law as anti-network.
Lemley, for Gillespie: He knew it was bad, but not that bad! Re the shoplifting analogy: cultural norms go in both directions. How do people now think about shoplifting?
Gillespie: Interestingly, songlifting gets you away from more problematic words—thief seems too harsh, and Disney has made pirates cool.
Madison: These programs are the tip of the iceberg—the “agreements” that kids and parents are required to sign about access to computers at school. The kid promises not to do all kinds of things with school computers, including copying without permission. Often parents are asked to sign as well. It’s completely under the radar, and provides a means for disciplining kids in vague and ambiguous circumstances. Patent industries also have curricula, but the perceived risks and opportunities are very different. They don’t warn you not to infringe; they’ve figured out that this is an opportunity to teach kids how to invent. It’s a pre-science fair curriculum: figure out where there’s a problem; figure out a solution; reduce it to practice and then document it. It’s somewhat cynical, but has a very different premise.
Gillespie: The software ones are halfway in between—the Electronic Software Association’s curriculum is all about creativity, not downloading; you end up with an “all rights reserved” sticker as the reward for creating your poster.
Riskin: Interesting to look at plagiarism—there’s a lot of conflation between copyright and plagiarism in these curricula, and in the classroom context plagiarism is a really big deal.
Fisk: How law is translated into communities where it is practiced: Lauren Edelman et al., “The Inflated Threat of Wrongful Discharge Law”—how lawyers convince clients they’re at risk of huge jury verdicts every time they fire an employee, perhaps to run up bills. And a literature on desk clerk law—the law is not what the law says but what the individual bureaucrat says—e.g., the practice of name changes when people get married, and clerks either insist that a name change is required or advocate that women should do it. Whether kids are paying attention or not, this may be the only thing they ever hear about copyright law.
Gillespie (in response to my comment about advertising-supported media as a challenge to price as the measure of value, and further discussion about attribution as taking the place of “price” to indicate that there is some value in circulation): Once you separate property, payment, distribution, and attribution, which copyright was thought to manage all together, you begin to see how messy these issues are.
Eschenfelder: How do we integrate the education campaigns with the evidence that most kids who are online create things? Aren’t they getting a different story from their peers? How do they learn it’s okay to do a mashup?
Gillespie: Media literacy programs!
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