Kembrew McLeodMinneapolis/London: University of Minnesota Press, 2007
$18.95/Trade Paper
Freedom of Expression is a worthwhile contribution to the vastly expanding field of intellectual property studies, and the edited reprint of this interdisciplinary and activist work conveys a more convincing argument than the original 2005 edition.
Kembrew McLeod is a James Madison University and UVA trained sociologist whose undergraduate part-time job in a record store got the best of him. He developed an interest in popular music with a particular fondness for indie bands, which he tried to implement in his sociological research. While most scholars of popular music have a background in disciplines other than musicology, some of the most famous researchers in this field originally are sociologists. It was sociologist Dick Hebdige who put punk music on the map as a relevant sub culture, while Simon Frith’s efforts to transform the field of popular music studies to a relevant academic discipline have been invaluable, and he remains one of the most influential ‘pop professors’ today. McLeod is thus in good company.
As a sociologist cum popular music scholar, McLeod became interested in intellectual property––a debate which has always been closely tied to the music industry. With the advent of widely accessible internet technology and file sharing software in the mid 1990s, digital music files from CDs could easily be (re)distributed online by consumers. This made the music industry realize that what had become their property and source of income––music––would no longer exclusively be available through their commercial infrastructure. As examples such as Napster illustrated, people could download music without paying for it. The music industry and some musicians started protesting against this practice which they regarded theft and piracy, and a fierce debate evolved between supporters and opponents of file sharing. In this debate certain problems have arisen. First of all, it remains unclear whether file sharing actually affects record sales. Second and more fundamentally, it turned out that traditional legislature had a hard time adapting to phenomena like file sharing––the digital realm went outside the scope of traditional intellectual property law. These problems in law went beyond the music industry exclusively, since virtually all copyrighted material could be (re)distributed online.
McLeod’s concern for intellectual property therefore naturally exceeded the realm of popular music per sé, and brought his research into the sphere of yet another scientific discipline: law. In legal academic discourse, intellectual property studies has long been an established field, and from here a vast amount of scholarly work on intellectual property in the internet age has come out. By far, the most prominent scholar in this respect is Lawrence Lessig from Stanford Law School. In his numerous books, Lessig has consistently pointed out the dangers of a too rigid copyright legislation, which has found resonance in the work of other acclaimed legal scholars like Cass Sunstein and Jochai Benkler. The argument conveyed by these authors covers the relation between copyright legislation, freedom of speech and creativity––the arts, in other words. It therefore leads no surprise that the work of these lawyers has been eagerly picked up in the humanities, by scholars without a legal background interested in the cultural connotations of copyright law. Intellectual property is a hot topic in the humanities these days, with the work of Siva Vaidyanathan, Hellen Nissenbaum and Kembrew McLeod as the most prominent exponents of this popularity. Of these three authors, Nissenbaum’s these is most firmly rooted in law exclusively. Vaidyanathan proposes a more historic-dialectical approach, while McLeod operates from yet another perspective, grounded in the social sciences.
Freedom of Expression is the 2007 reprint of an original 2005 book, whose subtitle Overzealous Copyright Bozos and Other Enemies of Creativity revealed its activist content. For this reprint, McLeod has changed the subtitle to Resistance and Repression in the Age of Intellectual Property, which complements the book’s more balanced appeal. Albeit very brief, the foreword written by Lawrence Lessig attributes the acceptance of Mcleod’s as a credible scholar in intellectual property to the more official and serious appearance of this reprint.
McLeod is concerned with the way in which modern copyright law hinders artistic and scientific creativity. Originally copyright law consisted of a carefully constructed balance between creative people, creative industries and the general public. It offered protection for the artists and scientists, providing an environment in which they feel safe enough to produce work by not allowing others to exploit (copy) their creative efforts. Original copyright law grants creators and the industries representing them limited control over their objects. After a certain period of time a work enters the public domain, free for anyone to use. Moreover, there was also the principle of ‘fair use’: under certain circumstances, people are allowed to violate copyrights. Copyright law is thus intentionally flexible, it allows for partial control and is intended to be a workable balance between creators, creative industries and the public. Creators are encouraged to be creative, industries can develop, yet it is the public that wins the most: they are ensured of access to culture, that moreover eventually will become theirs.
This situation would change around the year 2000, with the passing through congress senate of the Digital Millenium Copyright Act (DMCA) and Copyright term Extension Act (CTEA). McLeod points out that both laws were the result of intense lobbying by the creative industries, in a climate of overall panic that the Internet would annihilate all existing structures of media ownership. This, as McLeod argues in conjunction with Lawrence Lessig, is simply not true: not only has concentration of media ownership increased in general in the internet era, the above mentioned new copyright laws have made this situation only worse. Due to the DMCA and CTEA, owners of copyrighted work have far more control over their intellectual property than before: they can restrict fair usage of their work and its entering into the public domain. With this, the balance between creator, industry and public that constructed copyright law has been disrupted: unlimited private control over creative work in the end keeps it away from society.
This reasoning is the general argument coined by Lessig and reworked by all his followers, including McLeod. Freedom of Expression takes this argument further, and addresses the ways in which current copyright law affects creativity, science and avant-garde art (spiced with a healthy dose of grassroots activism). McLeod’s work distinguishes itself because of its interdisciplinarity, and the clever way in which the author draws parallels between folk music and gene patenting, Marianne Moore and Missy Elliot, and Yoko Ono and DJ Danger Mouse. Indeed, the situation in which Woody Guthrie’s heirs protect the copyrights of “This Land is Your Land”, which Guthrie appropriated out of existing folk melodies, is similar in many ways to the pharmaceutical industry owning the rights to certain human genes––genes they neither created nor genetically modified. In both cases, public property is reworked into private property, and the laws supporting this hurt those intending to rework “This Land is Your Land” as much as those doing independent genetic research. In the end, the public is deprived of relevant works of culture and scientific progress altogether.
As McLeod’s convincingly argues, this privatization of knowledge and culture rules out avant-garde practices. In contrast to romantic ideas of originality and uniqueness, the notion of avant-garde mainly concerns re-working of existing material. This argument is in line with classic accounts on the nature of avant-garde as provided by theorists like Clement Greenberg. Avant-garde art comments on other art’s disciplines and procedures, it is an “imitation of imitating” (Greenberg 3-21). McLeod in turn explicitly mentions the work by the Dada and Situationist movements as most clearly illustrating what is the essence of avant-garde: turning culture against itself. Groundbreaking artistic expressions like Marcel Duchamp’s Fountain (1917) and L.H.O.O.Q. (1919) pose originality and authorship as problematic, concepts that are also central to copyright. Original, pre-DMCA copyright law to McLeod underscores the validity of intentional fallacy in literary theory and the work of Roland Barthes, Michel Foucault and Jacques Derrida. The limited amount of control over objects that original copyright law proposes, underscores that ‘authors’ never have the final word over their work. Works of art and science are situated in society, whose reception and interpretation ‘owns’ these works as much as their creators do. While literary theory has declared the authoritative author for dead already in 1968, current copyright laws like the DMCA grant authors far more authority over their work than wanted in a prosperous cultural environment.
Notwithstanding this at times dense theory, Freedom of Expression is a surprisingly pleasant read. This is mainly because of McLeod’s engaging writing style, and the personal, often witty anecdotes he illustrates his argument with. Issues of intellectual property clearly concern the author, given his record as an activist. As it turns out McLeod managed to trademark the phrase “Freedom of Expression”, and sued AT&T when they used it in a commercial slogan. Moreover, he got arrested while handing out free copies of the First Amendment in an Iowa strip mall and allegedly sold his soul on eBay. At times these anecdotes get awkwardly serious: McLeod reveals the ‘independent’ skater documentary Dogtown and Z-Boys (Stacy Peralta, 2001) to be completely funded by Vans shoes as 90 minutes of product placement. He moreover stirs up the controversy over the faulty Diebold voting machines and addresses the ties Diebold has to the Republican party. It is in these many and often poignant anecdotes that McLeod most obviously turns to his background as a sociologist. His activism shows traces of participatory research, and he has conducted a numerous amount of interviews to support his arguments. In this sociological approach, McLeod has found a significant niche in intellectual property studies that bridge between legal studies and humanistic theory. He supports his well researched theoretical argument with many clear examples of how artists, scientists, corporate strategists and the general public relate to (or are effected by) issues of intellectual property. By reading Freedom of Expression, one does not only get a clear grasp of how intellectual property law works, but also of how intellectual property has its resonance in culture and science, and of how the theoretical humanities can shed a different light on copyright law altogether. It is thus of value to both the lawyer and cultural critic.
Most of this also applied to the original 2005 publication. The original work however was more openly activist in its rhetoric, which might have put off those readers looking for a balanced interpretation on the state of affairs in the world of intellectual property. In this reprint, the author has made an effort to dose his activist expressions more sparingly, which makes his overall argument more convincible and more likely to reach a larger audience. For this work indeed deserves to be read by many, as it compellingly points out how issues in intellectual property affect us all as audience and society.
Works Consulted
Greenburg, Clement. “Avant-Garde and Kitsch.” Art and Culture: Critical Essays. Boston: Beacon Press, 1965.
