Kembrew McLeod, Freedom of Expression
Review by Rochelle Becker-Bernstein
Kembrew McLeod, Freedom of Expression: Resistance and Repression in the Age of Intellectual Property (Minneapolis: University of Minnesota Press, 2007).
How a Prank Started a Revolution
[1] Kembrew McLeod does not hesitate to place some of the blame for the impetus of his book on the band Negativland, a band known for pulling elaborate and controversial pranks, often at the expense of the works of others. In a self-mocking tone, he states that, "If Negativland hadn't been sued, this book wouldn't exist. As a teenage hipster-doofus, I admired the group because they held up arty, funhouse mirrors to the media-saturated culture that surrounded me" (117). This is consistent with the tone McLeod maintains throughout the book. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property, a serious analysis of the issues of copyright law, free use, and intellectual freedom, cleverly disguises itself as a fun, rebellious jaunt through pop culture. McLeod himself is no stranger to the prankster mentality, going as far as to trademark the phrase "Freedom of Expression" in 1998 (118). Thankfully, the trademark lapsed in 2004 due to his failure to complete the required maintenance paperwork, allowing liberal use of the phrase in this review and any other arena with no potential recourse (335).
[2] The central focus of Freedom of Expression surrounds the murky issue of copyright law and its effects on society. However, this is not a dry, technical manual steeped with legal jargon that defies even the strongest reader. Instead, McLeod relies on many notable pop culture references, like the many hip-hop artists accused of copyright infringement due to sampling, to sell his point about some of the disparate issues about copyright law and intellectual property. He justifies his reliance on pop culture by explaining that, "Referencing pop culture helps define our identities and cultural preferences. It also provides us with a kind of grammar and syntax that structures our everyday talk" (178). He does achieve this goal, as the text remains enjoyable and topical. It becomes difficult not to nod and chuckle along, as we relate and reminisce along with McLeod. He does not limit his text to the obvious discussion about sampling, reaching back further to classical, folk, and jazz music origins—genres that developed by often relying on previously heard or written sounds and images. The book begins with a familiar reference, Woody Guthrie's famous—o r infamous, depending on the argument—copyrighting of "This Land is Your Land." McLeod exhausts his examples, making his point difficult to overlook. When referencing the case between folk-artist Woody Guthrie and the perceived misuse of his song, "This Land is Your Land" by Dr. Francis Collins, a genetic scientist, McLeod explains that where "texts" like folk songs "were often considered common property," in the past, this conception is currently undergoing severe change and revision (15).
[3] His detailed discussion leads to what may possibly be his most important point, as much of the book is dedicated to danger of over-privatization. Privatization becomes one of many issues addressed, even in regards to activities we may consider to be basic rights as citizens—issues like voting. McLeod states, "Unfortunately, states have signed contracts that make it not only difficult, but often illegal, to have the [voting] machines examined by a third party because the company's software is heavily fortified by copyright, patent, and trade-secrecy law" (239). So what happens when voting results come into question? Who has the right to investigate a potential nationwide issue infused with immense importance? Not the general public, in most cases, as "[...] there are few legal ways for citizens to look for security flaws and other errors in electronic-voting software and machines" (239). Copyright morphs from being merely an annoying obstacle to overcome into something potentially scary with few limitations and massive ramifications.
[4] Of particular importance is how and why McLeod feels copyright laws have such an extensive negative impact on the world of academia. Like so many problems in academia, cost is at the heart of this problem. The average academic—and student—simply cannot afford to pay licensing fees for property use and most departments, if not all departments, lack the budget as well. Although the concept of fair use does exist, McLeod is quick to point out that "Fair use doesn't give people a free ride to do anything in the name of "criticism," for there are limits" (257). However, many individuals are choosing to simply not use certain materials to avoid any and all legal issues—it is just easier that way. What is the real cost of all of this to higher education? The answer is complex, but McLeod feels it is a high cost. He points to copyright law—and the zealots behind its maintenance—as, in many ways, defeating the goal of education. He explains that, "By giving our words (and even our copyrights) to journals, it was understood that we were increasing the intellectual richness of our area of study" (263). Although academic publication rarely includes direct compensation, the purpose of research involves promoting study, sharing research, and building on existing research. Thanks to copyright issues, even this is becoming problematic: "Today, however, this kind of academic gift economy is being threatened by the privatization of scholarly information, which significantly raises the price of access" (263). As costs reach near astronomical levels, students and professors cannot afford to use many currently copyrighted materials. The only real option, as McLeod explains, is to eliminate costly copyrighted material from course packets. Although this effort may save a well-meaning professor from copyright attack by well-paid corporate lawyers, it unfortunately serves no one: "When material is dropped from a course packet, no one gets paid and fewer people read it, which undermines one of the most basic missions of education: the dissemination of knowledge" (263). The very mandate meant to protect one's ideas simply serves as an agent of control.
[5] McLeod wisely explains that the copyright issues faced today due to the internet are nothing new. In fact, every time we undergo a technological remediation, we have been privy to similar insanity: "Virtually every time a new technology has been introduced, copyright industries have hysterically and hyperbolically responded the same way. After all, even the phonograph was supposed to destroy the music industry at the beginning of the twentieth century" (272). His examples of the uproar over the recordable cassette tape and eventually the VCR (the use of which was nearly outlawed by the Supreme Court due to the potential it had for copyright infringement!) shed important light on more recent companies such as Napster, Amazon, and iTunes. In his text, the internet is not the enemy. According to McLeod, the enemy appears to be those willing to manipulate and abuse copyright laws in favor of personal gain—those with little to no regard for the massive effect their actions may cause.
[6] One of the most compelling aspects of McLeod's text is the level of balance achieved. He carefully balances his pop culture and topical references with serious discussions of critical theory as he calls upon the likes of "DJ Derrida, Funkmaster Foucault, and Roland 808 Barthes" (73). In many ways, his tone borders on revolutionary, which he compares directly to Derrida's ideas of deconstruction: "The deconstructionist is a revolutionary reader, one who targets society's old, taken-for-granted meanings—waging a civil war of words that pits differing philosophies against one another until it is spilled" (132). This is not so different from what McLeod is endeavoring to accomplish. His use of pop culture is not a means of pandering to his audience; rather, by balancing current references, humor, and expressive language with hard-core theoretical discussion, McLeod gives his book an aura of credibility. Especially compelling is McLeod's incorporation of Roland Barthes' seminal essay, "The Death of the Author." The assertion that "...it is the critical reader who determines the meaning of the text" (73) becomes important when considering controversial issues like the impact of the VCR and sampling on copyright law. Who owns the songs on the radio? The author? The musician? The producer? The listener? The kid who illegally downloaded it online? What happens when a person complicates this already confusing situation by using just a small piece of a song to create a new piece of music? McLeod does not pretend to have all the answers to these confounding questions; however, he does seek to enhance and expand on this important discussion and investigation.
[7] Despite the often revolutionary and confrontational tone found in Freedom of Expression, Kembrew McLeod does not seek a physical call to arms. I do not think he anticipates anti-copyright law rallies with protesters holding up massive posters with pictures of his book cover—in fact, he even alludes to the fact that the disappearance of urban downtowns and the privatization of town centers and malls practically forbids this from happening. However, he does seek an intellectual call to arms—for awareness of the multi-faceted and problematic nature of copyright law, fair use, and intellectual property amongst the general public, not just among the corporate lawyers.