Cultural Production and the Digital Rights Movement

Hector Postigo

CULTURAL PRODUCTION AND THE

DIGITAL RIGHTS MOVEMENT

Framing the right to participate in culture

The Digital Rights Movement is an effort by activists and advocacy organizations toexpand consumer rights in media content use. A central argument for legitimatingthose rights pivots on a view of culture as a participatory endeavour. This articlefocuses on the Movement’s use of the discourse of culture and digital technologydescribing (1) how the Movement positions culture as necessarily participatory;(2) the role of mediating technologies in achieving a culture that is participatory;and (3) the connection of those visions to a discourse of free speech in the form ofwhat is termed here, remix speech. The article suggests that adopting this view ofculture and media consumption can result in a politics of participatory culture,where the political economic arrangements of the cultural industries and consumersare realigned.

Keywords ICTs; media studies; social movements; digital rights

(Received 1 November 2010; final version received 1 March 2011)

Introduction

For the past decade, digital technologies have made it increasingly easy forconsumers to take part in producing and distributing media content (of theirown creation or remixed) through various outlets such as YouTube, MySpace,Facebook and thousands of blogs and websites. At the same time, legal andtechnological changes have made it more difficult for users to access and reusecommercial digital content in creative ways. In response to increasingly restric-tive legislation (such as the Digital Millennium Copyright Act), retroactive copy-right extensions through legislation (the Sonny Bono Act) and the emergence ofcontracts as a way of preempting legal doctrines such as fair use, the DigitalRights Movement and its activists have mobilized to protest what they see ascircumscription of the public domain and to reframe the debate over digital

Information, Communication & Society Vol. 15, No. 8, October 2012, pp. 1165–1185

ISSN 1369-118X print/ISSN 1468-4462 online # 2012 Taylor & Francis

http://www.tandfonline.com http://dx.doi.org/10.1080/1369118X.2011.568509

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copyright away from a discourses that position appropriation and participation inmedia as piracy towards framing the debate as one of freedom and access toculture.

This article gives a brief introduction to the Digital Rights Movement, focus-ing particularly on its framing of culture and technology. This article showcasessome of the Movement’s discursive strategies, illustrating (1) how activists framecultural participation and access as a consequence of technology and culturalproduction; and (2) how they relate this participation and access to a discourseof rights. The discourse of rights is important in that it articulates importantunderstandings/framings of free speech and digital media, what this articlerefers to as remix speech, as well as other types of rights such as ‘creativerights’ or ‘participatory rights’.1 The consequences of this conceptualization ofculture, technology and participation have the potential to reconfigure traditionalunderstandings of the media’s relations to its audience if the Movement’s goalsbecome adopted widely, a situation that still remains to be realized.

Because this article describes the Movement’s concept of culture as partici-patory (among other things), before going further it is important to clarify theconcept as it applies here and as it has been applied in other settings. Specifically,Henry Jenkins has written extensively on participatory culture in fan commu-nities, and he and others have noted its increasing adoption by mass media con-sumers as a form of convergence culture (Jenkins 2006a). For the purposes ofthis article, I suggest that the Movement’s understanding of culture as participa-tory is subtly different from Jenkins’ concept of participatory culture in studies offandom and more recently in his and other’s accounts of convergence culture,where an increasing number of consumers behave like producer and consumersat the same time (Banks 2005; Kucklich 2005; Hartley 2006; Postigo 2007,2008b). Specifically, the concept of participatory culture from Jenkins andothers speaks of a culture of participation among sub-sets of content consumers.This I would contrast to the Movement’s notion that speaks of culture (the wholeof shared meanings parsed through mass media and new digital technologies) asnecessarily participatory. Culture for the Movement is meaningless or increasinglyalienated from a citizenry unless that citizenry can participate in its production. Theproduction of culture for the Movement is intimately tied to its framing of it asembodied in the products of the cultural industries and other mass media (inde-pendent film, internet production and so forth). To understand the relationshipbetween Jenkins’ participatory culture and the Movement’s definition of cultureas participatory, one might think of participatory culture as one of the means bywhich culture writ-large may become participatory (other means might belegally or technologically formalized into the workings of society by institutions).It may be the case that someday the practices of participatory culture maybecome widespread enough that they become the way consumers see theirrelationship to mass media and the mass media experience; that we see ourhand in the products of the cultural industries. In that case, the two concepts,

1 1 6 6 I N F O R M A T I O N , C O M M U N I C A T I O N & S O C I E T Y

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participatory culture and culture that is participatory, might converge. For nowthey remain related but different.

Method

This article takes stock of Movement-specific discourses surrounding the idea ofculture as it is parsed through cultural products.2 It is based on five years ofresearch on the Digital Rights Movement (its organizations, leaders and acti-vists). It draws on interviews with activists and advocates in the Movement,analysis of documents from social Movement organizations, analysis of mediaand protest campaigns and analysis of the technological infrastructures that influ-ence so deeply the digital rights (digital copyright) debate. This article does notfocus on one particular event or data point but rather uses the whole of theresearch experience to explain one aspect of the Movement’s dynamic: itsframing of culture. To that end, I focus on some examples that illustrateaspects of the Movement’s understanding of culture as briefly mentioned inthe introduction. Those examples show how Movement activists frame therelationship between technology and the idea of culture, how that framingrelates to broader discourses of rights and what the consequences are forsociety writ-large. The issues debated by Movement activists, copyrightholders and content distributors are of particular importance to communicationscholars. At the most basic level, they impact the kinds of access that we mayachieve over copyrighted materials that are the subjects of our own studies.At another level, they impact how we come to theorize and understand massculture and the consumers of the products of the cultural industry in thedigital age.

The Digital Rights Movement

The Digital Rights Movement focuses on a number of related issues, includingprivacy, net neutrality, bloggers rights and expanding access to digital content.The Movement is rooted in a number of cultural, social and technologicalchanges that have transpired over the last three decades. Among these is therise of the computer and digital technologies, which has made it possible forconsumers to have access to powerful editing and production technologies thatcan give them the ability to substantially alter proprietary content and createcontent of their own. At the same time, the internet and the World WideWeb have allowed for content to flow over vast networks, often uncontrolledby the original producers of that content. So in venues such as Usenet, IRC(Internet Relay Chat), the PirateBay (using bit torrent technology) and otheronline venues, Hollywood films and TV series flow freely. At the same time,on video-sharing sites such as YouTube, remixes of that content are re-uploaded

C U L T U R A L P R O D U C T I O N A N D T H E D I G I T A L R I G H T S M O V E M E N T 1 1 6 7

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by mashup artists3 and participatory fans. Given the World Wide Web’s evol-ution over the past two decades, there are a great many sources for commercialcontent, a great many technologies that can allow users to alter it and a greatmany ways in which it can be ‘re-broadcast’ to others.

There is no doubt that the web houses a strong participatory culture, aculture that crosses the boundaries between media producers and consumersand that appropriates from TV, Radio, Hollywood and Video Game industries(Jenkins 2006b; Taylor 2006; Postigo 2008b; Banks & Humphreys 2008). TheDigital Rights Movement is a voice rooted in this culture, especially the Move-ment’s commitment to expanding consumer rights,4 and it sees participatoryculture in digital environments as a starting point, a means to achieve broaderparticipation in cultural production writ-large.

The movement and culture

The role of ‘culture’ as an organizing meme for the Movement is becomingincreasingly important. For the Movement, culture is seen as the collection ofinformation and entertainment products that have historically been producedby the cultural industries. The idea of culture that surfaces through Movementdiscourse is most closely related to the Frankfurt School’s concept of massculture in its form (standardized set of entertainment goods; broadcast, print,etc., for the mass of society) but importantly is not related to the FrankfurtSchool’s interpretation of its function (meant to lull the masses into a falsesense of need and consumption which would then keep them from questioningthe power relations in society). The Movement, like those that have critiquedthe cultural industries, assumes that access to cultural production is an importanttool for establishing power relations in society but accepts that culturalproduction can happen outside solely materialist, institutional settings and thatthe answer to power relations reproduced through the cultural industries isnot an elitist high brow response.

Movement activists and organizations have an understanding of the powerthat comes with controlling cultural production. Its discourse about cultureand ultimately a citizen’s rights to it have been melded with its understandingof the cultural industries. For the Movement, ownership of culture (ownershipmeaning a sense of control and access over the meanings of images, sounds and messagesthat unite a given group) is control over cultural products. These products may orig-inate from the cultural industries (media corporations controlling print, televi-sion, radio, music and the internet) but they may also come from everydayusers who take advantage of inexpensive and readily available digital mediaand technology to distribute (some might say broadcast) their own creationsonline.

The Digital Rights Movement understands culture as necessarily participa-tory and makes the argument that if a citizenry cannot participate in its


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production and discourse, then culture itself is not entirely, truly culture. Inother words, culture cannot be said to be a collection of shared meanings, aset of common or overlapping lived experiences parsed through the variousmass media, if the great host that imparts those meanings and lives them hadlittle to do with its organized manufacture and distribution. Consequently, forthe Movement, culture writ-large is mass culture, and its material is composedof the products not only from the cultural industries but increasingly from thecontributions of everyday consumers and media users. Importantly, for manyactivists, a culture that is participatory is also about a shared ownership overcultural products that do not necessarily privilege creative participation butallow for the possibility of participation. In other words, participation should be anoption (protected by rights) in the experience of mass culture; whether one exer-cises that option is irrelevant to it being an integral part of what culture should be.

The Digital Rights Movement’s activism for access to cultural products ispart of a debate that straddles online practices of appropriating and remixingmass media content and the laws that regulate copyright. In many ways, thedebate was initially defined by legal scholars such as Jessica Litman, LawrenceLessig, James Boyle, Yochia Benkler and Pamela Samuelson. These debatesdeal with the appropriate balance of copyright vs. the rights of the public andthe means by which policy change and technological regulation in this domainwas achieved (Boyle 1997; Benkler 1999; Lessig 1999; Samuelson 1999;Litman 2001). But as it has evolved, others have come to take ownership ofthe issues as well. There are a number of other actors in the Movement:some are lone activists using the power of the web to distribute hacks and resis-tive technologies with the explicit purpose of putting pressure on technologicalmeasure that prevent access to digital content. Others are an increasing numberof elite intellectuals such as those mentioned earlier whose legal work and cri-tique has put pressure on laws that limit a user’s ability to ‘rip mix and burn’.Still other actors are organizations (such as the Electronic Frontier Foundation(EFF) and FreeCulture.org) whose advocacy, protests and legal work makeever more persuasive arguments for digital rights. Laws that work in tandemwith access control technologies or other technological protection measures(TPMs) for digital content have been a particular target for the Digital RightsMovement, and the increase in regulations, lawsuits and other legal tactics bythe content industry continue to be evidence of an ongoing struggle over masscultural production.

Activists and organizations in the Movement generally believe that culture(through cultural goods) should be accessible to those who wish to tinker,change and comment on it. Movement activists believe in participatory-consumerand citizen-centred expectations of access to cultural products dependent on the ‘right’5

mediating technologies. Technology has a privileged place in Movement discourseabout access: it is the primary mediator of culture. The Movement expendsmuch energy making arguments about the way technology ought to mediate


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the relationship between consumers and cultural products. It equates the possi-bility of having access to cultural products with citizenship and technologies thatallow access with ‘good’ technologies, facilitating the moral good and givingusers their legal rights. The Digital Rights Movement therefore is also in thebusiness of constructing the meanings of technologies, some of which areframed as liberatory and others framed as inhibiting of widespread participationin cultural production.

An extension of the discourse of access through the ‘right technologies’ is anargument for interpreting the kinds of production carried out by consumers asfree speech or as related to some fundamental rights as perceived by Movementactivists (‘creative rights’ or ‘participatory rights’, for example). ForMovement activists, the ability to participate in culture through the pro-duction/re-production/re-mixing of cultural products is framed as the abilityto speak, to produce remix speech if you will. The Movement views the bodyof cultural products produced by mass media and other content creators asthe building blocks for a more robust and content-rich cultural discourse, onenot bounded by one singular format but formulated by a number of contentforms; the Movement views culture as communication composed of text,images, video, music and other user-appropriated and -altered products.Activists make these arguments through various framing strategies exemplifiedby issue campaigns, public statements on issues of concern, interviews withmedia and instances of culture jamming.6

In its understanding of culture, the Movement is admittedly technology-centric and this focus is rooted in its history, its contemporary experienceswith digital media and how the Movement imagines a future where culturewrit-large is a remix culture. This is not to say that the notion of culturefrom the Movement is narrow but rather that it is a product of context and ulti-mately an argument for the way we ought to relate to the products of the culturalindustries. For the Movement, the historical trajectories of digital technologies(for communication, production and distribution of content) and their ever-increasing ubiquity within post-industrial nations such as the United States is acentral defining element of digital rights, such as they are.

It is the case that emerging consumer practices in digital media, such asmaking mashups, machinima, social networking, knowledge-creation in wikis,crowd-sourcing and other participatory and networked phenomena, would notexist without the attendant technologies of easy-to-use digital video/audioediting software, video games, the internet and web 2.0 technologies (wikis,blogs, YouTube, etc.). The Movement’s consideration of culture and partici-pation therein is softly techno-deterministic; it considers the choices made bythose that designed the networks, the protocols and technologies, and howthose choices had consequences for what is possible. It also acknowledges thatthere was a fair amount of appropriation and reconfiguring of technologies byhackers and users so that the ultimate technological architecture is one in


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which many actors had a hand: it was socially shaped as well as socially shaping inits impact. The Digital Rights Movement’s understanding and use of technologyand its attempts at framing culture are shaped by the histories of the World WideWeb and computing, libertarian ideologies, the hacker ethic and participatoryculture. It should serve us well to remember that technologies that mediatecontent have politics – contentious politics that inform technological designso that machines embody visions of culture, participation in it, its construction,dissemination and reproduction (Winner 1985). We cannot forget that when itcomes to manipulation of digital content, participatory practices are realizedthrough a host of media that are often designed to frustrate user participationas well as to facilitate it (Gillespie 2006). Ultimately, we can say that culture,as the Movement frames it, is understood through a techno-social lens. Theculture that it wishes to define and argue for is ultimately a deeply technologicalone – one tied to medium and dependent on the flows of community andknowledge that course through digital networks.

The reader may surmise that it is a truism that culture, in industrial andpost-industrial societies, has for some time been a techno-culture. The television,the automobile, nuclear power, the telegraph and the steam engine, for example,have all shaped national identities, economies, institutions and practices. Thediscourses and arguments that the Digital Rights Movement deploys to defineand understand culture are a bridge from the technical realities of our time tothe attendant practices of participation; they are a cognitive leap (as all attemptsto understand the world must be) and a way to use language, images andmetaphor to capture the moment and define the future.

When activists, then, make arguments for access to cultural products as anecessary characteristic for culture writ-large, they do so in relation to technol-ogies. In their discourses and imagery, they recruit technology and position it insupport of their vision or as evidence of the forces mounted against them.

Access and control: constructing culture and technology in iPod and‘Gizmos’

As noted previously, a central argument about culture from the Digital RightsMovement suggests that culture must be accessible; ‘access’ meaning theability to edit, mix, copy, use and reconfigure mass cultural products in waysdefined by the creative user. The role of technology in this argument aboutculture is at times conflicted: technology is both the central impediment andfacilitator to participation in culture.

In the former case, the advent of TPMs in digital media is seen by the Move-ment as an ongoing challenge to overcome. Specifically, TPMs that regulatecopying, editing and playback of digital content pose a potentially serious chal-lenge since they have the capacity to negate all the possibilities made availableto users via easily accessible content-editing applications, content-capturing


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tools and digital distribution networks, most of which come included with PCsand Macs or are available online.

A prevalent framing theme for the Movement constructs the meaning oftechnologies as either facilitators of its vision of an accessible, participatorycontent ecology or as guardians against user agency. If technologies are the entry-ways into culture, then whether they are participatory or not dictates whetherculture itself is participatory and accessible. There are a number of instanceswhere the counter constructions/framings of technology play themselves outas both sides of the debate attempt to appropriate the meaning of technologyand thus control the general understanding of the role of technology in realizingopenness and freedom in cultural products.

The content industry and technology makers in their framing of the technologiesand cultural goods (music, TV shows and films) have often constructed an image offreedom when distributing digital technologies such as operating systems (Windows,Mac, Linux), electronic consumer goods (iPods, cell phones, DVRs) and softwaremedia players (iTunes, Winamp, Video Lan Client). Some of those technologymakers and content industry actors have done so while at the same time embeddingthat technology with strong access and use limitations and protecting it with restric-tive end-user license agreements (EULAs).

Apple’s iPod and iTunes are an important historical example that illustratesthis meaningful framing and its counter framing by the Digital Rights Movement(Figure 1). The now famous iPod ads on magazines and on television featured adancing silhouette freed from the confines of his or her world, un-tethered froma living room, computer or stereo. Purposefully the silhouette was darkened,implying that it can be anyone – you or me. Also purposefully, the silhouettewas devoid of place, of geographical context (save the fleeting knowledge that

FIGURE 1 Left panel: example of Apple’s Ad for the iPod circa 2003. Right panel: example

of Defective by Design’s re-rendering of the Apple ad from www.defectivebydesign.org.

Used with permission according to terms outlined in defectivebydesign.org.


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http://www.law.duke.edu/boylesite/intprop.htm

it is probably someone in a culture and country where iPods are the rage).It could have been anyone in any place.

The counter construct deployed by a Free Software Foundation (FSF) projectcalled ‘Defective by Design’, is powerful in its understanding of the essentialmessage of the ad and its counter narrative. At the time when Apple was fullycommitted to digital rights management technologies to control access anduse of the songs sold on the iTunes music store, Movement culture jammerscreated a different message. The silhouetted figure is tied to and by the iPod, awitty counter construction that acknowledges the realities of TPMs and thesystem7 employed by Apple at the time: that the consumer was not reallyfree but was actually tied to using only the iPod, tied to using only the iPod’ssoftware (iTunes) and that the uses of those songs were limited by the Apple’sEULA and the technologies that enforced it. Two visions arise of access and par-ticipation in cultural products, one that shows freedom and another that showsbondage. The latter, through its argument, suggests also the opposite aboutculture: that true freedom around culture is free of access constraints and thattrue culture ought to be accessible.

Since January of 2009, Apple has dropped the use of TPMs to protect musicfrom copying and editing but it seems that it is done so not out of pressure fromthe Digital Rights Movement but in attempts to seek competitive advantages inthe market for digital music. Tarleton Gillespie pointed out on his blog shortlyafter the move by Apple that music companies have started realizing the draw-backs of limiting distribution of digital music through Apple’s channels, whicheffectively gave the computer giant control over the market for digital musicsold online as well as control over the means to play digital music boughtfrom Apple’s Music Store (music store downloads only played on Apple’siTunes software) (Gillespie 2008). Music studios started offering music freefrom TPMs through other venues such as Amazon.com, expanding the distri-bution channel and effectively pressuring Apple to do the same. Ironically, ithad been the music industry that pressed Apple for strong protections earlyon, but when the industry saw the magnitude of the market for digital music,economies of scale were too lucrative to ignore.

While Apple’s decision to drop digital rights management software is anattempt to stay competitive, what defines that competition is in part the expec-tations from consumers, which have been created by technological possibilitiesmade real though technologies that make cultural goods accessible. It wouldmake little sense to make TPM free music a selling point unless consumershad come to value it as a feature worth having. In that sense, the Movement– when it constructed a narrative about technology and access to culturegoods – played on and expanded a vision already rooted in consumer expec-tations: that access should be part of the digital product experience. The Move-ment was in conversation with those expectations (already present amongconsumers) and reflected them.


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iPods are not the only technologies signaled out as important mediators/facilitators of participation in culture. The EFF’s Endangered Gizmo’scampaign is a good example that points to the privileged position given totechnology as mediators of access and control over culture. In this case, theEFF wanted to create a sense of urgency surrounding policy processes andlaws whose formulation often included input from content industry but notfrom consumers and technology innovators whose products gave users morecontrol over content. The EFF framed technologies that facilitated useraccess to content (either for copying or editing) as living within an ‘environ-ment of innovation’ that had grown dangerous for some important consumertechnologies, either killing them off or endangering them with extinction. Inits framing campaigning, the EFF outlined a list of ‘endangered Gizmos’ andthose that had become ‘extinct’ due to the machinations of the content indus-tries and hostile laws (Figures 2 and 3). In doing so, the EFF created a narrativeof ‘good’ or ‘right’ technology vs. bad laws. Good technologies were those that

FIGURE 2 ‘Endangered technologies’. Images were taken from www.eff.org.


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facilitated user access and allowed consumers the ability to use content accord-ing to their needs and wants. The narrative of an extinct technology was meantto give the argument about technological access a level of urgency, not unlikeMovements to save biological species. The Movement argued that if we do notact soon, some ‘species’ of good technologies might be gone forever.8

Table 1 lists the functionality and the laws and lawsuits that were seen as athreat to the endangered and extinct technologies. Some of these included‘Streambox VCR’, which allowed the user to record streaming content meantto be played on the Real Networks Real Player while others were hardwaretechnologies such as the HDTV tuner cards used to parse digital cable signalinto consumer PCs. All of these technologies were framed as allowing for anincrease in access to cultural goods and opening the potential for a participatoryrelationship with the digital content. Writing about the HDTV tuner card, theEFF noted that ‘with one of these cards, you can build your own personal videorecorder (PVR), a VCR updated for the digital age. Like a TiVo, a PVR lets youwatch digital television the way you want: pause live TV, save recordings toDVD, remix “60 Minutes” so you’re the news anchor’.

For the Movement and for the content industry, the meaning of technol-ogies and its relationship to culture are often constructed in oppositional ways:good technologies vs. bad technologies, good technologies vs. bad laws or bad

FIGURE 3 ‘Extinct’ technologies. Images were taken from www.eff.org.


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TABLE 1 Endangered gizmos.

Technology Status Function Threat

DVD X-Copy Extinct Allowed copying of DVD content Hollywood lawsuit under the DMCA

Replay TV Extinct Digital video recorder, allowed user to skip

commercials and send content to other

devices

Hollywood lawsuit under the DMCA

Streambox VCR Extinct Allowed users ‘to record and play audio

streams that were originally intended to be

played with a RealPlayer G2’

Lawsuit by RealNetworks Inc. under the DMCA

Advance eBook processor Extinct Allowed users to access and copy eBooks by

circumvent the eBook Protection

Adobe asked FBI to arrest developer

Napster 1.0 Extinct Allowed file distribution Lawsuit under the DMCA and other copyright statute

Morpheus Endangered Allows users to share files peer-to-peer from

their personal computers

Entertainment industry sued makers of Morpheus and Grokster for

contributory and vicarious copyright infringement

Unencumbered digital-to-analog

(D/A) and analog-to-digital (A/

D) converters

Endangered Convert digital data to analog sound Entertainment industry would like to use these ubiquitous devices

(found in most digital media player) as watermark readers,

enforcing licensing terms

Total recorder Endangered Total recorder allowed users to record any

audio their computer can play. An analog

recorder

Entertainment companies pressing for operating system-

authentication of soundcard drivers. So that computer audio

software that is not cleared by content industry will not work on a

computer

iPod + Linksys AP + Sony CD/RW Endangered Allows users to create, record, transmit, play

back and share music, movies and other

kinds of digital content

Content industry lobbying to make these technologies adherent to

the Induce Act (proposed legislation that aims to make creators

of new technologies liable for ‘inducing’ copyright infringement

pcHDTV card Endangered Convert PC to a personal digital recorder for

TV programming

Broadcast flag mandate would have made this technology adhere to

licensing and broadcast terms transmitted with digital signals

potentially preventing from recording some programmes

Note: Data were taken from www.eff.org.

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technologies vs. good laws. The moral and ethical discourse about technologyand law is evident in how both sides of the debate frame their campaigns tosway public opinion. The content industries talk of ‘pirates’ and ‘thieves’and of breaking and entering the digital locks on content, while the DigitalRights Movement talks of creative rights and open cultural production.Moral and ethical claims slide into discourse about culture and access to it.The discourse of what is right constructs arguments that say that access tocontent for the purposes of remixing and participating is good and the technol-ogies that realize the vision of cultural production hold the moral high ground.Thus, when we note the constructions of meaning around technology, we alsosee simultaneously the construction of arguments about the nature of culture inthe digital age and claims for the ‘good’. Copyright law is often just beneaththe surface of these constructions of technology and culture, outlawing user-centred technologies and legitimating ‘locks’ on content.

Activists see technological mediation as central to participation in culture,allowing for or inhibiting access depending on who deploys and frames the tech-nology. But participation is dependent on not just technology but also on under-standing participation within a framework of broader, widely accepted values inthe US society. Thus, the Movement often conceives of participation in culture asa case of free speech, and in digital networks, this is a case of being able to speakin the language of digital media.

Speaking in the language of digital media and the construction of culture:remix speech

The Movement’s argument about culture (that it ought to be free, open andaccessible and that that condition is created by technology) allows it to makean argument for ensuring a culture that is participatory: that being able to partici-pate in culture requires the right to speak in the language of digital media (a sort of remixspeech); that right being equivalent to free speech.

The relation of remix speech to free speech is important for the Movement.Free speech in the United States is a powerful frame within national history andcultural mores. To tie the Movement’s goals to free speech is to make the Move-ment relevant and accessible to broader publics who may not necessarily be par-ticipatory, productive consumers but can sympathize with the preservation of aConstitutional right. Arguments and legal theory regarding free speech notwith-standing, the social construction of free speech in this context is what mattersmost; it is how activists come to understand their practices and their relationshipto culture that shapes their notion of speaking in digital media. For the Move-ment, the framing of free speech as remix speech is tied to (1) its communicationthrough digital media; and (2) its form as a composite, a collage of content that ispart of an intellectual property system (mainly through copyright law). In otherwords, for the Movement, free speech is parsed in the language of digital media,


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digital media that has made control over cultural products by cultural industriesmore effective.

A good example of what is meant by this idea of remix speech is the ‘mashup’.In a mashup, creative users/artists splice together multiple content formats(video, audio and images) from a number of sources (news broadcasts, televisionprogrammes, video games and more) to create a novel collage often presented asa video on popular sites such as YouTube. These collages are often ironic; theyinclude voice-overs or creative editing that put their characters (sometimes valu-able intellectual properties such as Mickey Mouse) in contexts that are notintended by the original creators.

One such mashup is the ‘Read My Lips’ video produced by director andeditor Johan Soderberg during US President George W. Bush’s and BritishPrime Minister Tony Blair’s tenure. In that particular mashup, the mashupartist collected a number of clips from news broadcasts of both PresidentBush and Prime Minister Blair and edited them together. He then overlaid thevideo track with the song Endless Love, sung by Diana Ross and Lionel Richie.The mashup artist slowed the playback speed and selected particular shotswhere, as the mashup plays, it appears as if George Bush and Tony Blair are ser-enading each other, batting their eyes at each other and singing tenderly thewords of Endless Love (Soderber, 2002).

The mashup is a witty and creative critique of the cozy and at times uncriticalrelationship between Great Britain and the United States, especially following theattacks on the United States on 11 September 2001. The mashup is also a com-plicated array of potential copyright law violations. It appropriates extensivelyfrom broadcast news and plays a significant portion of the song ‘EndlessLove’. Furthermore, the video is available online on YouTube.com and othervideo distribution sites and thus could effectively constitute a public performanceof the song and a rebroadcast of proprietary television content.

By reconfiguring content such as mashups and other related types of activeparticipation in cultural production as free speech, the Movement can connectcultural production to a master frame9 in the US society and tie its argumentsabout culture to that frame. While arguments about fair use might strike theaverage citizen as esoteric, arguments about free speech strike a much more con-sonant cord. These arguments often dramatically illustrate threats against accessand participation in culture, positioning citizens outside or locked out of theircultural heritage.

The view that the language of digital media is a collage of the cultural pro-ducts produced in part by the mainstream content outlets suggests a view thatthese products are the raw materials for novel instances of appropriation and par-ticipation. Movement activists and Movement leaders have constructed themeaning of these cultural products as part of a common land, a universally acces-sible field of ideas that ought to be reasonably available to citizens.


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The narrative of being locked out of participation and thus locked out ofculture by limiting the potential of remix speech is present throughout theDigital Rights Movement. By way of one last example, a number of booksmake this argument both in their titles, texts and in the imagery they portray.Leading legal scholar James Boyle’s recent book, The Public Domain: Enclosingthe Commons of the Mind, argues that increasingly laws and practices that limituser access and control over content can lock citizens away from creativityand their culture and portrays the commons as an Elysium that is lockedbehind the gates of copyright; where citizens can only gaze at its light fromdarkly lit corners (Figure 4). James Boyle, through collaboration with othersin his Center for the Study of the Public Domain, has also produced a graphicnovel titled Bound by Law, which examines and explains many of the currentissues affecting access to cultural products. It is meant to educate documentaryfilmmakers but it also makes arguments about culture and free speech, notingthat further contributions to culture and commentary need access to engage infree speech. The role of digital technology is highlighted, noting the ease bywhich these technologies make participation possible (Figure 5). The protagonistin the piece (a documentary film maker) is portrayed as battling the forces ofrestrictive copyright that at every turn make her craft difficult to perform. Attimes she is portrayed as super hero (along with lawyers from the EFF) battlingthese forces; the visual narrative makes it clear that indeed there is a battle overthe boundaries of the public domain, a battle that implicates all people who useculture as a sampling ground for further creativity.

Conclusion: consequences for seeing culture asparticipatory – a politics of participation

In the course of this article, I have outlined the ways the Digital Rights Movementframes discourses of culture, participation, technology and free speech. TheMovement’s understandings of these concepts are important in conveying a world-view they wish make into a reality: to create a culture of participation. While onemay or may not agree with the how convincingly the Movement makes the impor-tant connections between free speech and creative and participatory rights (and somakes its arguments more universal), the point here was to describe the process.In this conclusion, I hazard to imagine what the consequences would be if themovement’s arguments were to be accepted. In that sense, I show my leanings.As a digital media scholar and one who enjoys seeing (and writing about) partici-pation in media production by average users, the ideas of a culture that is partici-patory and of creative rights are not unattractive.

What then would be the consequences of the Digital Rights Movement’sviews on culture, participation and technology? One important consequencecould be the reconfiguration of the relationship between the creative industries


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and the host of media consumers. That is to say that because culture is partici-patory, the relations that exist (in terms of ownership of the means of distri-bution and production) would be reconfigured to help create a mass culture inwhich people can participate. Mediated by the technological and legal changesthat the Movement envisions, a new political economic arrangement is a poten-tial outcome. This outcome has important implications for mass media and cul-tural production writ-large. Long-standing political economic analysis of the roleof audiences has established that participation in media environments has resultedin audience commodifaction, viewing consumers as a ‘working audience’ or as aunit of sale (especially in television) for advertisers (Smythe 1977; Jhally 1982;Jhally & Livant 1986; Bermejo 2009). This trend in mass media has onlyincreased in the last few years, where the audience work now takes the formof user profiles on sites such as Facebook, on user knowledge bases for countless

FIGURE 4 Front cover of James Boyles The Public Domain. Used with permission.


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commercial software applications (such as Microsoft Windows) and modifi-cations to video games (Postigo 2003). The media experience seems to betruly turning participatory but the conditions of participation remain squarelyin the hands of those that own the technological infrastructures and those thathave access to the policy-making process. The Digital Rights Movement’sdiscourse of rights and its view on culture as participatory provides a possiblelegitimating rhetoric – a rhetoric that could lead to communal ownershipover the products of not only the cultural industries but knowledge/informationproducts as well (social networks, the new digital commodity par excellencewould qualify too).

Are people becoming more politicized about their media consumption or isthe gadgetry and the fetishization of experience winning out over a politics of

FIGURE 5 Front cover of the Center for the Study of the Public Domain’s Bound By Law.


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participation? The jury is still out. Organizations such as the EFF and the FSFcontinue the fight. Recently, for example, the EFF launched a new knowledgerepository called copyrightwatch.org, in an effort to inform activists and advo-cates about the international issues surrounding ever-restrictive copyright andlicensing practices worldwide. By framing digital rights as an issue that is inter-national in nature, the EFF connects the interests of a global cadre of activists,positioning the Movement as global enterprise. However, for the Movement’snotions of a culture that is participatory to take hold more framing workneeds to be done. It is not enough that Time magazine name ‘You’ person ofthe year for all our hard work in creating user-generated content and shapingthe future of media, clear evidence that participation and its power is well under-stood by media companies. The Movement will need to continue advocacy andframing campaigns so that when we celebrate user-generated content, we do socritically, realizing that user ownership should be part of the bargain – anoutcome of the invitation to ‘rip, mix, burn’. An important consequence ofwidespread adoption of the Movement’s politics of participation is a criticalform of participation that recognizes the ways in which users have agency increating the products that shape mass culture and legitimate claims over thecontent they create.

Notes

1 The idea of creative and participatory rights comes from interviewswith activists and advocacy groups. See, for example, Postigo2008a. While not explicitly noted in that article they are implied inthe interviews discussed there.

2 Cultural products meaning primarily the products of the culturalindustries.

3 See sections below for a discussion of mashups.4 In another article, I have outlined how the Movement does this by both

institutional (lobbying and legal work) and extra-institutionalmethods. In the latter case, the Movement does this by capturingthe various meanings associated with participating in mass culturalcreation; capturing the meaning of user vs. consumer, fair use andas exemplified in this article the idea of ‘culture’ (Postigo, 2008a).

5 What I mean here by the ‘right’ technology will be explained furtherin the following sections. For now, right technologies should be under-stood as technologies whose meaning has been constructed/politicizedand interpreted as supportive of user rights; technologies that realizethe Movements vision of culture. The ambiguity in the term ‘right’ (asin correct and as in ‘Constitutional right’ is intended for these


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technologies are seen a both to the Movement. They are right in thesense that they are the proper ways of mediating cultural products andthey also ensure certain user rights.

6 Culture jamming is a semiotic resistive tactic that often converts wellknown corporate/elite symbols into their meaningful opposites,undermining their intended impact and laying bare the contentiouspolitics under their original/encoded meanings. I do not go intogreat detail regarding the theoretical implications of this tactic forMovements writ large. See Naomi Klien’s well-known text No Logofor more on this tactic.

7 Interestingly, the name of the TPM system for Apple was called Fair-Play, a clear reference on Apple’s part that it had struck a bargain ofsorts between wary copyright owners selling their goods in a digitalenvironment and consumers who were eager to ‘rip, mix and burn’.

8 In previous work, I have analysed this campaign as it framed legalimplications for the movement. Here I look at how the technologieswere framed as facilitators of accessible culture. Together theseframes build the overarching narrative of the interconnectedness oftechnology and culture as seen from the point of view of the digitalrights movement.

9 Master-frames in social Movement theory are nearly ubiquitous waysof understanding or lending meaning to an issue or cultural form. Inthe case of this example, free speech in the United States is commonlyunderstood as an important and universally held value.

References

Banks, J. (2005) ‘Opening the pipeline: unruly creators’, paper presented at theDigital Games Research Association, Vancouver, Canada.

Banks, J. & Humphreys, S. (2008) ‘The labour of user co-creators’, Convergence: TheInternational Journal of Research into New Media Technologies, vol. 14, no. 4,pp. 401–418.

Benkler, Y. (1999) ‘Free as the common air to use: first amendment constraintsof the enclosure of the public domain’, New York University Law Review, vol. 74,no. 2, pp. 354–446.

Bermejo, F. (2009) ‘Audience manufacture in historical perspective: from broadcast-ing to Google’, New Media and Society, vol. 11, nos. 1 & 2, pp. 133–154.

Boyle, J. (1997) A politics of intellectual property: environmentalism for the net?,[Online] Available at: http://www.law.duke.edu/boylesite/intprop.htm(5 February 2010).

Gillespie, T. (2006) ‘Designed to effectively frustrate: copyright, technology, andthe agency of users’, New Media and Society, vol. 8, no. 4, pp. 651–669.


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Gillespie, T. (2008) ‘In the end, will it be Apple who kills DRM?’ Scrutiny, [Online]Available at: http://www.tarletongillespie.org/scrutiny/?p=83 (5 February2010).

Hartley, J. (2006) ‘Facilitating the creative citizen’, [Online] Available at: http://www.onlineopinion.com.au/view.asp?article=5036 (29 November 2006).

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Jenkins, H. (2006b) Fans, Bloggers, and Gamers: Exploring Participatory Culture,New York University Press, New York.

Jhally, S. (1982) ‘Probing the blindspot: the audience commodity’, Canadian Journalof Political and Social Theory, vol. 6, nos. 1–2, pp. 204–210.

Jhally, S. & Livant, B. (1986) ‘Watching as working: the valorization of audienceconsciousness’, Journal of Communication, vol. 36, no. 3, pp. 124–143.

Kucklich, J. (2005) ‘Precarious playbour: modders and the digital games industry’,Fibreculture, vol. 3, no. 5, [Online] Available at: http://journal.fibreculture.org/issue5/kucklich_print.html (5 February 2010).

Lessig, L. (1999) Code and Other Laws of Cyberspace, Basic Books, New York.Litman, J. (2001) Digital Copyright: Protecting Intellectual Property on the Internet,

Prometheus Books, Amherst, NY.Postigo, H. (2003) ‘From Pong to Planet Quake: post-industrial transitions from

liesure to work’, Information, Communication & Society, vol. 6, no. 4,pp. 593–607.

Postigo, H. (2007) ‘Of mods and modders: chasing down the value of fan baseddigital game modifications’, Games and Culture, vol. 2, no. 4, pp. 300–312.

Postigo, H. (2008a) ‘Capturing fair use for the YouTube generation: the digitalrights movement, the electronic frontier foundation and the user-centeredframing of fair use’, Information, Communication & Society, vol. 11, no. 7,pp. 1008–1027.

Postigo, H. (2008b) ‘Video game appropriation through modifications: attitudesconcerning intellectual property among modders and fans’, Convergence: TheInternational Journal of Research into New Media Technologies, vol. 14, no. 1,pp. 59–74.

Samuelson, P. (1999) ‘Intellectual property and the digital economy: why the anti-circumvention regulations need to be revised’, Berkeley Technology Law Journal,vol. 14, no. 519, pp. 1–49.

Smythe, D. (1977) ‘Communications: blindspots of western marxism’, CanadianJournal of Political and Social Theory, vol. 1, no. 3, pp. 1–27.

Soderberg, J. (Producer) (2002 ) ‘Bush Blair’, [Online] Available at: http://www.soderberg.tv/ (12 February 2010).

Taylor, T. L. (2006) Play Between Worlds: Exploring Online Game Culture, Cambridge,MIT Press, MA.

Winner, L. (1985) ‘Do artifacts have politics?’, in The Social Shaping of Technology, edsD. McKenzie & J. Wajcman, Open University Press, London, pp. 28–41.


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http://www.tarletongillespie.org/scrutiny/?p=83

http://www.onlineopinion.com.au/view.asp?article=5036

http://www.onlineopinion.com.au/view.asp?article=5036

http://journal.fibreculture.org/issue5/kucklich_print.html

http://journal.fibreculture.org/issue5/kucklich_print.html

http://www.soderberg.tv/

http://www.soderberg.tv/

Hector Postigo is Associate Professor in the Department of Broadcasting

Telecommunications and Mass Media at Temple University in Philadelphia.

His research interests focus on the intersection of user/consumer practices

and digital media. Address: Department of Broadcasting Telecommunications

and Mass Media, Temple University, 2020 North 13th Street, Annenberg Hall,

Philadelphia, USA. [email: [email protected]]


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Cultural Production and the Digital Rights Movement

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Transcript of Cultural Production and the Digital Rights Movement