Music Modernization Act, Artificial Intelligence, and Cryptocurrency

“Angel Pumping Gas” is not a song about copyright regulatory policy, artificial intelligence, or cryptocurrency. I’m going to use it to round up all three of those subjects in this blog post.

  1. Music Modernization Act: Not Enough Of a Good Thing

“Why won’t this moment last?”

A.

“Angel Pumping Gas” is a 1999 song by the band Lindsey Pool, the second track on the album Postal. The song was circulated around various music sharing sites and services—but it was erroneously attributed to the band The Postal Service. Even now, comments sections on YouTube express surprise concerning the song’s artist. Google’s first result for lyrics attributes the song to The Postal Service. This serves as a clear, simple example of how easily information spreads online, and how difficult it can be to correct information online. If early 2000’s music sharing used a single database held the information for every published song, such an error might have never happened. A new law requires the creation of such a database, but there’s a lot still up in the air.

The biggest open question from the Music Modernization Act is: Who is going to create and maintain the required database of songs and rights holders? The law mentions that a database will be made, presumably by the Mechanical Licensing Collective that the law also creates. This is only forces everyone to ask more questions: who will be on the board of the Mechanical Licensing Collective? What methods will this organization use to create this database?

B.

Measured by content, “Angel Pumping Gas” is little more than an unnecessarily detailed recounting of purchasing gasoline. In fact, the middle two-thirds of the song is an entirely banal description of an entirely ordinary and unremarkable transaction. Only the beginning and ending of the song (and chorus) frame the experience in terms of the romance and desire that the singer feels. It’s either beautiful post-modern appreciation of the beauty in the mundane encounters of our lives, or it’s just a little bit silly.

The Music Modernization Act is either a beautiful resolution of a pressing problem in the music industry, or it’s just a little bit too narrow to be worth caring about. The Music Modernization Act was passed unanimously by the House. Sound Exchange and the RIAA have praised it. It seems like everyone loves it, so I was surprised to learn how narrowly tailored the new law is. It is almost entirely focused on problems specific to digital streaming of music. Though there were issues that required resolution in this area, there remain enormous gaps between current copyright law and the daily use of media and technology. It is unsurprising that the problem that got addressed was one that concerned the rich and powerful (record labels, digital platforms), but they did take the opportunity to include studio professionals in the legislation—a group that has historically be neglected. Music Modernization Act is not as far behind the times as I expected: it’s not a response to Napster, it’s a response to Spotify… but I would still like a more satisfying response to Napster than the DMCA.

 

  1. Artificial Intelligence All Around Us– And We Don’t Know What It’s Doing

“You ask ‘What Can I do?’ I say ‘unleaded fuel.’ You open up my tank and start the pump.”

“Angel Pumping Gas” is a wistful ballad that describes a brief meeting with a filling station attendant, with whom the singer is immediately infatuated. Filling station attendants are rare in 48 of the 50 states (NJ and OR have laws against filling one’s own gas tank… as does the town of Huntington, NY).  The entire premise for the song is slightly alien to the tens of millions of Americans who have always pumped their own gasoline.

For most young Americans in the 90s, gas station attendants were a historical curiosity—something referenced in films in the 50s and 60s. However, for residents of NJ and OR, having someone else fuel your car was a commonplace occurrence. Today’s emerging technologies have the same impact: a device or service is either a commonplace part of your life, or it’s a foreign concept. Twitter, Facebook, Alexa, Smartphone GPS navigation, Netflix, Twitch, YouTube, AmazonPrime- all of these things are, for most Americans, either so commonplace as to be unremarkable, or are simply not part of your life. As technology becomes more integrated in our lives, the difference between so-called “haves” and “have-nots” becomes more pronounced. The very premise of the song creates a divide in the audience: there those who have encountered a filling station attendant, and those who have not.

Our relationship with technology is already creating visible divides in our population. We aren’t always sure who is a bot, though some of us are willing to pay a lot for their art. Even as AI becomes an essential tool for the largest companies that manage important aspects of our lives, the law has no idea how it will handle the legal aspects of a tool that is on a complicated trajectory. Artificial intelligence is steadily becoming more and more commonplace- but the majority of us can’t see how or where AI is being used, much less which systems use what kind of data. Like a teen in the 90’s listening to a song about a filling station attendant, most people who hear about bots and AI have to turn to movies and pop culture references to draw up a mental picture, rather than rely on our own experiences.

 

  1. Cryptocurrency’s Perpetual Hype

“You walk over my way, I didn’t know what to say… I think that I love you, or maybe it’s just the fumes.”

The song details the singer’s desire and longing, wallowing in the idea of feeling a romantic desire for someone he doesn’t know. The song juxtaposes the intensity of the singer’s amorous emotions with the brevity and shallowness of the interaction. Our popular culture mirrors this adolescent infatuation in our reactions to new technologies: sudden, intense waves of excited fervor for a world-changing device or platform that either never arrives or seems to evaporate into the past shortly after it appears. (I have written before about the hype surrounding the Internet of Things… )

Cryptocurrency prices are down, but it doesn’t feel like the hype has suffered at all. The estate of one of the Wu-Tang Clan is starting a cryptocurrency, to be named after the deceased: Dirty Coin. The strangest part of this is that I haven’t seen blockchain applied in the kinds of contexts I expected it to find more success: online games, a new kind of customer loyalty program, or other gimmicky, comparatively low-stakes settings. Perhaps the hype is fueled by risk-taking and gambling, and such settings aren’t thrilling enough. This is unfortunate, because turning down the hype would allow the technology to actually move forward in much more appropriate, smaller steps, rather than trying to change the world all at once.

Is the gas station attendant in the song the destined One True Love of the singer? It’s not impossible. Are there are a lot of fumes around gas stations? In my experience, yes- always, in fact. Will cryptocurrencies bring about a Utopian future? It’s not impossible. Do crowds tend to favor exciting hype over careful, substantive analysis? In my experience, yes- always, in fact.

Conclusion

“We share our precious moment in a glance…  and as I drive away, her memory’s here to stay—her deep blue eyes have left me in a trance.”

The singer bemoans that he needs to leave, as the road calls him away. His lack of control is an unstated axiom of the logic that he must follow. The singer is a passive pawn of forces around him: fate, the road, filling station attendant (her authority to invoke payment and her beauty), the transaction, his emotions. He begins the song by attributing the encounter to fate and concludes with the resigned acceptance that the separation is, perhaps, better for all involved. This is not a song about a person taking decisive actions; this is a song about a consumer making his way through a brief and common transaction in the life of a middle-American.

Society seems to display about as much mindfulness and self-possession in approaching technology. We owe it to ourselves to take more effort and more thought regarding our laws and our technology than an adolescent’s unapproached crush.

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Capitol Records, LLC v. ReDigi, Inc.: No Re-Selling Digital Material

While this case will probably never be considered a landmark case in copyright law, it typifies, for me, the kinds of new issues that arise in IP law as the world changes. It seems that an online store (“ReDigi”) attempted to sell used digital material (e.g., iTunes purchases that the purchaser no longer wanted to hear or see). A judge in the Southern District of New York ruled (last week) that this particular store, ReDigi, was a “clearinghouse for copyright infringement.”

I recently wrote about digital property, mostly with Steam’s store and service in mind. The upshot was that I worry about how much money I can invest into things I don’t “own” (in the sense that we are used to). Let me explain this further: most of the time, when we buy digital property, we actually buy a license to use the property, not the property itself. This is why it is coherent to courts to treat a physical object so differently from a digital one- the legal relationship the “owner” has with each is in a completely different category. This is what raises concerns for me- that my legal relationship with my digital property is different from my ownership over my physical property. Much of my concern is related to my assertion that more and more of our “property” will be digital in the future. As our property interests migrate to a digital world, it is deeply troubling to think that we would have a weaker grasp on our interests in the future.

Of course, the marketplace itself (independent of legal conceptions of ownership or license-ship) determines a great deal of this. After all, it is up to the record companies, development studios and distribution services to choose how to write their Terms of Use agreements. If these decision-makers become convinced that it is in their better economic interest to give a type of ownership that allows resale (and other aspects of physical property ownership) rather than the weaker licensing that many currently sell, the law need not budge on the issue of digital copyright. At least in theory, the law only identifies the correct situation, sorts it into the appropriate category, and applies the prescribed consequences. (The extent to which that is true is a subject of enormous debate, as you can imagine.) If the marketplace writes its contracts of sale in a way amicable to notions of property ownership for a world of digital property, the law need only enforce the appropriate contracts.

There is another sort of law, besides the law of the courthouse and the law of the marketplace, that bears on this subject. That is the law of the programing language itself. Part of the reason ReDigi  was decided to be infringement was that the transfer of the digital property was really a movement of a copy, not of the file itself. More abstractly, the issue the court takes with digital ownership is that digital objects do not behave like physical objects, especially for the reasons we suppose we have based our laws of ownership upon. Yet digital objects only behave in accordance with the programing language that describes them and the actions we may perform upon them. We have control over the digital landscape in which these objects exist, and we can decide (at least to a very large degree) how they behave and how we can (and cannot) interact with them.

In summary, I posit that changes in the marketplace and in programing standard practices can help consumers have more satisfying legal relationships with their digital property. The fact that these changes are available makes it all the less likely that the law will step in and protect consumers in this area (until or unless the abuse becomes excessively wanton).

Note 1: The structure of this approach, with a law of courthouse, marketplace, and programing code, is adopted from Lawrence Lessig’s “Code and Other Laws of Cyberspace” and “Code 2.0”

Note 2: The ReDigi ruling came out last week, but I was swamped with some time-consuming law school assignments and so couldn’t write this analysis sooner.

Viewing People as Isolated in the Age of Interconnection

One of the prevailing views of ownership is “not a contract between myself and my property, but between myself and the world ABOUT my property.” The point of owning something is for everyone else to respect my relationship with a thing- be it a pen, a house, or trademark. Why, then, do we frequently fail to accept that piracy is a wanton and willful disrespect of an artist’s relationship with her property?

Perhaps we misunderstand property and ownership at the outset. As I have said before, a common rejection of copyright is that “copying is not theft, because it does not deprive the owner of their thing.” This apparently rests on the notion that to own something has weight insofar as it means I can have it. The competing view is that ownership has weight insofar as no one else can have what I have. This is the difference between understanding property as a contract with a widget vs. understanding property as a contract with the world about my widget.

Fundamentally, I trace this misunderstanding to a generation that internalized all too well the elementary school maxim to mind one’s own business. I think it likely that we became too adept at seeing the world in terms of single individuals, isolated and independent, alone in the world. Seeing the world like this, it makes more sense that an act cannot be wrong if it does not directly disturb others, or does not directly interact with them. I spoke to the broad implications of this kind of view in my post “A Head in the Sand is not an Ideal Source of Rights.” Applied here, attempting to see property claims as irrelevant to anyone neither an owner nor a piece of property can cause confusion over why copying might infringe on someone’s ownership. I think our views of piracy and copyright would be rather different if our relationship (or our view of our relationship) with the artist were closer (or felt closer). I wonder: are devoted fans of a band, game studio, actor, etc. less likely to pirate the works of their idols? If so, perhaps a good way to enforce copyright is to build a strong sense of community so that consumers feel that they are helping themselves and each other by abiding copyright, rather than taking free rides through piracy.