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Building a Green Bubble: The Beautiful Project

2009-02-12T17:14:00.001-08:00

I think it would be irresponsible to answer the question "what is society's most pressing problem" by pointing to anything other than the economic crisis. It is a relatively non-controversial statement to suggest that there are very few people in the media worlds of political reporting and cultural commentary who completely grasp the severity and depths of the crisis we are debating in the public discourse. Indeed, the economy is a complicated field to understand, and I certainly make no pretense to authority herein. But I am very concerned that while much of the recent news stories and punditry seem to be concerned with political warfare—whether or not Republicans and Democrats can get together on an economic stimulus legislation—there are plenty of signs that there is little that can be done to rescue the economy from a severe depression.

In a prescient article from the February 2008 issue of Harper's magazine, Eric Janszen warned that what we are now experiencing—the economic effects of the collapse of the housing bubble—are the consequences of what has become the normal ebb and flow of the macroeconomic mechanism that supports the American, and world, economy. Chronicling the evolution of bubble markets since World War I to the present moment, Janszen argues quite persuasively that the cycle of the bubble economy—the alternating "booms and busts" most recently manifest as the dot-com/dot-bomb and the current home-ownership-society cum foreclosure-auction-society—is now inextricably fundamental to the economic flow. Janszen notes: "That the Internet and housing hyperinflations transpired within a period of ten years, each creating trillions of dollars in fake wealth, is, I believe, only the beginning. There will and must be many more such booms, for without them the economy of the United States can no longer function. The bubble cycle has replaced the business cycle."

Janszen wasn't alone is his foresight. NYU economics professor Nouriel Roubini and contrarian Nassim Nicholas Taleb are two of the few more visible commentators who cried early warnings of the pending doom. And all three worry we are looking at a bigger problem than is commonly understood. While there are plenty of Pollyannas suggesting that fears of "Depression 2.0" are the product of undue cynicism, Taleb warns that globalization not only threatens to expand the scope of the disaster, but also the speed at which it might escalate. Employing a somewhat hyperbolic metaphor to illustrate his point, he notes that in a globalized world, "you cancel an order, a Christmas order here [in the USA], a factory in China closes hours later!" Contrary to previous recessions, this one is an instantaneous worldwide phenomenon.

Another sobering outlook comes from Martin Feldstein, Harvard professor and chief economics advisor during the Reagan administration. Recently named to the President's Economic Recovery Advisory Board, Feldstein echoes all of these concerns, noting that even if a stimulus makes its way into the hands of American taxpayers and businesses, the regular functioning of the broader economy may not be strong enough without a surrogate engine that keeps it afloat. Feldstein noted in an interview on Charlie Rose that one of his greatest fears is that: "we can prop up the economy, replace the lost consumer spending by having government programs and temporary tax cuts, but then at the end of two years, if we turn all that off, there's nothing to guarantee that the economy will continue to go forward."

Although this boom and bust prophecy puts Feldstein and Janszen on the economics team labeled by Robert Reich as "cyclists," even Reich's "structuralist" alternative acknowledges that some basic infrastructural changes are necessary to solve the economic riddle. Pointing to structural flaws in the economy that have worsened since the 1970s, Reich is quick to point out that American dependence on fossil fuels is one area that is sucking resources of American wealth dry.

While all of these commentators will have various degrees of confluence on any number of issues, it seems pretty clear that all would agree that the economy is in serious trouble. While not as clear, I would argue also that they would all also agree that one robust solution to this crisis might be the development of a green technology economy.

At the end of the Harper's article, Eric Janszen suggests that a Green Bubble is the only viable solution to the current debacle. Not only does he agree, Tom Friedman has been beating this war drum for awhile. Echoing Janszen in his NYT column in September, Friedman notes:

The late 20th century saw an Internet boom, bubble and bust. Some people made money; many people lost money, but that dot-com bubble left us with an Internet highway system that helped Microsoft, I.B.M. and Google to spearhead the I.T. revolution.

The early 21st century saw a boom, bubble and now a bust around financial services. But I fear all it will leave behind are a bunch of empty Florida condos that never should have been built, used private jets that the wealthy can no longer afford and dead derivative contracts that no one can understand.

Many of the economists cited above might disagree with Janszen's call for a new bubble. After all, what happens at the end of that cycle? What would we do when the Green Bubble pops? But if we take Friedman's point to heart, that a Green Bubble would leave behind a cleaner, more affordable, more efficient and more effective international society, we might be able to finally escape the boom and bust cycle of the bubble economy model. Because energy is the lynchpin of all economic activity, if we can develop an energy infrastructure that allows us to tap into the clean, abundant and persistent energy resources of the natural world, we might not need a new economic cycle to take up the slack. And rebuilding the world's energy infrastructure would be such a monumental and all encompassing project that, even though millions of jobs would be lost in the change, we would generate millions of jobs and hundreds of trillions of dollars of economic vitality in the process of transition.

So in conclusion, if we're lucky, if we can work hard and build enough innovation into the decision making process, and if we can successfully appeal to common sense—if not also profit motives—perhaps society's greatest problem since the Great Depression is really a moment of opportunity to finally move the world in the right direction.

More articles in this vein:
Secretary Chu

Obama campaigns for green in LA

On the return of assimilation as an American ideal

2009-01-10T00:36:00.001-08:00

Having had the luxury of growing up and having been educated in California -- a state where identity is notoriously in perpetual flux -- I have spent a lifetime in curious examination of the complex cultural constructions of race, ethnicity and identity in America.

CNN recently ran a piece about my high school -- Mission San Jose in Fremont California -- posing the sort of question that perfectly marks a sensationalist trend in "serious" journalism: Are Asian American students naturally more intelligent than their counterparts? Of course, this is an old debate that rings of bells and slippery curves, but the story was also based on a somewhat interesting bit of news: my former high school now enjoys a 75% Asian American populace and some of the highest test scores in the country. Correlation or causation, CNN asks pointedly. Sensitive to this emerging trend, and being the teenage makers-of-cool innovators we were in the adolescent world of the post-boomer American generation, my friends and I developed a conference workshop in the mid 1990s called "Melting Pot? My Ass!" Designed with sincerity and carried out with respect and dignity, if not also with rebellious teenage angst and fury, we carefully indicted and exposed that sinister American colloquialism for all of its conspiratorial insidiousness and its colonizing of our minds.

Having the last name Simpson, I grew up before the main cultural icon bearing my namesake was a cartoon, and turned my imagination instead toward a black man who enjoyed status as a celebrity athlete. I wore his jersey as my own, figuratively if not literally, and grew up with ambitions to become a famous football player. This meant, of course, carrying a notion of myself as "other" for most of my formative years -- a trend which is by now a commonplace in American society; one which, no doubt, adds to the agonizing beauty and complexity of our national character. Indeed, by the time OJ had gained a new version of celebrity, I had already reinvented myself a thousand times, and found myself protesting in solidarity with my classmates in Berkeley against Proposition 209.

Today, having been through the long existential matrix that leads through these kaleidoscopic and chameleonic modes and to the present moment, I now find myself increasingly drawn to the notion that part of the problem we face as a nation is not our lack of "sensitivity to and understanding of the diverse academic, socioeconomic, cultural, and ethnic backgrounds" of our neighbors, but instead is based on our inability to think of everyone under the national umbrella as complete and whole American citizens. This is a problem of language. With our words, our doctrines and catechisms of celebrated difference, we continue to slice and dice ourselves into increasingly separate corners. And then we wonder why we always end up glove to glove in the arena of cultural affairs.

Intellectual honesty begs one question: How can we be both hyphenated and united as one nation? This inquiry is as much a rebuke to the bigots and rednecks that seem increasingly to be constructs of our collective cultural imagination as it is to a generation of baby booming rebels who continue to refuse to let us become a melting pot of Americans separated not by the diversity of our ancestry, but by the differences of our ideas. What if we could live in a world where it was socially acceptable to disagree with one another? Now that would be change I could believe in!

I am a post-boomer/post-race American. I grew up embedded in the real world experience of an America that my parent's generation could only hope would exist. And due in large part to the generation of people I grew up with, a man named Barack Hussein Obama is now my President. And I think that says it all.

Obamoderate

2008-08-04T21:43:00.000-07:00

In the latest sign that Obama is a moderate Democrat, find this week's announcement that he is willing to compromise with the GOP on the offshore drilling problem in order to gain some support for developments in alternative energy policy. Call it flip flopping if you like - and it certainly is flip flopping when you phrase your original appeal around the staunch protection of certain issues - politics is ultimately about making complex compromise. In the long view, this is what governors in a republic are supposed to do. This is the way the American democracy was designed to function. It's the reason why the Founding genius of James Madison is honored in contemporary conversation by a meaningful phrase: Madisonian compromise. Sadly and finally, it is going to take a constitutional scholar cum president of the USA to rid the Democrats of their ideologues.

Let Obama's presidency be a warning shot across the bow of all the crackpot pols and pundits in the world, both amateurs and professionals. The era of big mouthed/small minded politics is drawing to a swift close. Your warning goes as follows: When it comes to the history and machinery of American politics and government, best to find yourself in the know before your find yourself left out.

Race Isn't Over

2008-07-27T16:59:00.000-07:00

First off, let's get something straight: Barack Obama is not a leftist pandering to the center, he is a centrist pandering to the left.

As a brief and crude history, let's look back to see how the long Democratic primary season leaves Obama in a rather unsavory position. With astute political calculations, Obama knew from jump street that he would be battling senator Clinton for the nod. Because of her unfavorables among middle American voters, and knowing quite well that her only route to the nomination was via this middle road, Obama had no choice but to play to the left of the party. And while the primary contests could have been an all out and ugly melee pitting demographic computations against one another, playing out a dark battle between identity politics and politics of victimhood, (and admitting that the primaries were ugly enough as they were because these issue boiled up from time to time), Obama owned these contests from the start because he came out early in opposition to the war.

Clinton's viability as a serious contender for the presidency, she thought, would hinge on her ability to appeal to the center and right side of American polity. Her husband had become so synonymous with doublespeak and disgrace among independent Americans, she knew that to sidestep the metonymic correlation of her candidacy with his presidency, she would have to find a way to make nice with moderate America. Her vote in favor of the war was only one major component in a long list of moderate to right leaning policy positions undertaken by the senator during the years leading up to the primary contests.

Clinton rightfully assumed that her gender would automatically guarantee the support of the leftist half of her party. She could not have guessed that a more interesting candidate with identity qualities that trumped her gender card would emerge as a serious competitor to the throne.

But team Obama knew he had a shot. Looking at the way Clinton was positioning herself on major issues, Obama knew he could outflank the first lady on the left. His problem then, as it remains today, will be convincing middle America that a black man can be trusted with the store.

The media would have us believe that the election is over and that we will skate right on through November as a mere pit stop on the way to January 20th's inauguration. But the race isn't over. Just as the primary contests are complicated by electoral politics that rank regional strategy above popular vote, so goes the national election. While polls seem to indicate that the nation as a whole favors a President Obama, the media storm raising in presumption of King Obama has all the makings of a monumental national tragedy. What would be the national mood if, given the current climate of commentary, we are all forced to watch as our hero falls short of his goal. Particularly if he loses despite a popular vote majority, the self-hatred that is manifest as naive skepticism and embraced by the Democratic party could ignite and burst in all sorts of ways. I worry that in some ways we are being set up by the media for the kind of national disappointment that can only be compared to traumas like the Civil War and Vietnam.

If Obama's troupe has all their lines memorized, we will begin to see some more nuanced policy positions rise in the next few months. At the moment, Obama knows that his "stay the course" strategy on his Iraq position has become untenable. What they are struggling with is how - in light of the fact that the primary campaign won on that issue - they can move the debate to new ground.

Using Afghanistan to reframe the debate was a deft move, and a nice try, but it didn't catch on they way they had hoped. While we learned that senator Obama is not going to shy away from using American force to bring stability (and democratic authority) to foreign soil, the American people are not going to so quickly forget that that Iraq is still the big issue. As tempting as it is to pretend it would go away if we would just look harder at the mounting problems in Afghanistan, in the end we know that Iraq must come to some sort of resolution.

Drawing our troops out before the Iraqi state is stable is not an option. At this point, anyone who is participating in the debate concedes this point. The facts on the ground will continue to lead the campaigning strategy, but I'm guessing that Obama's long tail still has a few wags left in store for the good old American dog.

Award Tour

2008-07-19T23:12:00.001-07:00

A couple predictions about the consequences and aftermath of Barack's world tour.

First, in light of the fact that the Senator has the Democratic nomination under wraps, and in light of the fact that he has been moving back to the middle ground from which his heroic ascent began, we will see the final turn towards the center. Obama's public opposition to the war in Iraq was a political masterpiece. His choice to oppose the war was also the beginning of his campaign. There's little doubt that he was intending to run for president at the time, and the gamble he took by siding against popular convention then is the single most intelligent political move in the past, oh, let's say 30 years. It will single handedly earn him the presidency.

The problem is that, if you look at Obama's political demeanor, especially his demeanor before his candidacy was taken seriously, you find a man who is not a liberal goo goo. In fact, if you listen closely and pick apart some of his remarks on many foreign policy issues, it's possible to see his inner liberal hawk peaking through his dovish campaign costume. I predict that this will be more clearly echoed by his choice of Senator Joseph Biden as his Vice President. IMHO, Biden makes a smarter choice for president at this point in history. His mastery of foreign policy makes him the most supremely qualified democrat to assume the Oval Office. But his counsel as Veep (or Secretary of State) will have to suffice, and there's no reason to suspect that it will not.

If Biden was the smartest choice, Obama will be the wisest choice. Indeed, the wisdom the American people will speak with their votes this November will be measured throughout the rest of time as the moment the world began to finally live up to the promises of modernity. A President Obama will usher in the beginning of the rest of history.

As much of a symbolic shift as his election will signal, much work must still be done to procure the natural rights of mankind across the global board. A President Obama will have the single greatest opportunity to usher in an era of blooming human rights for the greatest amount of under-served and neglected populations in the history of the project of civilization. And judging by my sense of his inner liberal hawk, he intuitively knows this to be true.

Obama is a true believer. I can say this firmly, and only, as a kindred spirit; they say it takes one to know one. There is no questioning that this naturally confident approach to the world is what has gotten so many people riled up about his candidacy (and about his rolling around in the mud). When it comes down to it, there is something inherent to his character that people are responding to, something spiritual that can not be expressed in policy positions and political analysis. He has the kind of charisma that can not be learned, although it must be worked out and perfected over teh course of a young life if it is to be worth any value to the general welfare.

And it seems that Obama has done this work. He gets it. He sees the big picture. And this is why he will return from this trip with renewed vigor.

Our efforts in Iraq have paid off. It may still be a bit too early to tempt the wrath of a cynical God with that kind of statement, but the facts on the ground increasingly seem to indicate that America's boldest, most brazen and most bellicose attempt to spread democracy and human rights is going to yield some kind of fruit. As we begin to fructify human rights in Iraq, the pill that will have to be swallowed by the skeptical camps in American public opinion is going to grow more and more bitter, as well as more jagged.

But the cynicism that has become a modern disease and cultural dysfunction has to die somehow if we are to build the kind of optimistic momentum that will be necessary to carry out the challenges ahead. The post-racial society, the post-fossil feuls society, the hyper-modern/hyper-efficient communications and mass transit society, the growing league of democracies/global law and order society, these feats will not be accomplished without a heavy dose of good old American "can-do" spirit.

It is this spirit that has disappeared from American life in the past 40 years. The boomercrats stole it from the world. and like I have said before, probably rightfully so, for without their disillusionment we would never have reoriented ourselves back towards the original goals. And no candidate for president has ever understood this as much as Barack Obama.

So we he returns and tells us all that we are on the verge of really making some monumental progress in Iraq and that his position on managing the situations soiunds less like 16 month timetable and more like a "whatever it takes" to get the job done approach, don't shed a tear nor look to see if the sky is falling. If you find yourself having rooted for a big loss in Iraq, you need some therapy. But don't take that too hard because most of your neighbors are in the same boat.

If you caught the silver lining and avoided the cynical approach, congratulations. Your eternal wisdom, the wisdom of optimism, is going to pay off once again. And without accusing our brethren of being unpatriotic, it is becoming increasingly clear that optimism is the national religion and to really embrace the American identity, it's a creed you have to swear your life to.

When Barack gets home, I think we will all finally begin to see that for the first time in a long time, we now have a leader who makes that easier to do.

A Vision in Purple

2008-07-17T11:21:00.000-07:00

The night that Barack Obama won the Democratic primary contests, his wife came on stage with him wearing a beautiful dress in a style that the fashionistas have been comparing to Jackie Onassis. Others still have suggested she looked more like Wilma Flinstone. You will remember, this historic night was also the occasion of the famous fist bumping incident that roused a public debate that definitively marked - depending on where you stood on the issue - whether or not you have been living under a rock for the past 20 years.

But what wasn't oft discussed was the fact that she was wearing purple. This, it seems to me, was a clear reference to the thrust of Obama's primary appeal: his promise of a post-partisan sensibility that merges blue state and red state sensibilities; his blunt defiance of contemporary political ideology; his embrace of a nuanced politics that is not so much moderate as it is idiosyncratic and well thought out.

As someone who has been watching the Senator since his days in Illinois, what is sad to see in his presidential campaign is not that he has "flip-flopped" his way across the ideological spectrum, but rather that, like a fish out of water, he has breathlessly flopped his way back into orthodox political maneuvering. You can tell that it hurts him to do so, his contortions and hollow proclamations painfully visible as he speaks from both sides of his mouth (the mass podcast of his switch on public financing that landed in my inbox comes most starkly to mind). But sadly, it seems more and more that these are the moves of a political expediency that are a necessary part of national politics. One person can't possibly be intellectually consistent and, at the same time, run for president of the United States. We are too diverse of a people to allow it.

Or maybe not. Maybe this was the golden opportunity to put that political commonplace to rest. In fact, much of what enthralled me so much about Obama was that he threatened to test this idea. It would have been risky, it would have defied convention, and it would have changed the country for the better. Of course, polls show that the old notion that you have to "play to the middle" to be true: you can't win an election without posing identity appeal to a majority of the population. The polling primer "Shares my values" is the key figure political operatives use to determine a candidates viability. Apparently it shows a correlation to positive electoral results. The measure of "shares my values" is another way of saying "someone like me." And this seems to be the bottom line for determining whether or not voters will punch a candidates name at the ballot box. But is that true in practice?

As a brief tangent, consider all of the online dating companies that have sprouted out of the internet, especially in the web 2.0 movement. Yes, I do come from a generation of people who meet their romantic interests through the internet. This is besides the point, but that's fine. By now, we've overcome the stigma, for the most part. But these sites - eHarmony, Match.com, OKCupid - each has some sort of internal algorithm that calculates your degree of fit with a potential lover. Based on your answers to a series of questions - sometimes a quite long series of questions - the computer drags your information across a database and spits out a list of people that you might like.

Maybe that's straightforward to you, but it baffles me! Have they really figured out how my answers to banal questions about my interests and preferences match with other people in the world? If so, what's the secret? It can't possibly be so simple as to match one person up with another person based on how many times both parties came up with the EXACT SAME answer, can it? Frankly, as much as I'd like to think that a magic formula has been devised to calculate how different answers fit together like a complicated social jigsaw puzzle, I'm forced to conclude that they haven't quite figured this out. Nor, I think, will they ever. The truth must be that there is no magic formula. Sure, we can see the big principles at hand: he likes girls with small noses and short hair, she likes guys with big feet and a hairy chest, he likes a gal who can cook a mean meal, she likes a guy who isn't afraid to change a diaper. And, of course, hormones, pheromones, and the libidinous need we all feel to be jumping someone's bones, all of these things are part of the delicate interplay of romance, lust and love. But what alchemy produces this unique chemistry? What really makes love stick? That, I'm afraid to say, is something we will never know.

Politics, following the allegory, works in the same way. Are we really such simple creatures that we won't vote for someone with whom we disagree? So what if Barack Obama shares my values? I mean, the big principles are here too: I can be quite confident that Obama will not staff the West Wing with a brigade of puppy-kickers. In the end, there's always going to be some simple common ground to stand on when dealing with basic human principles. But do I really need Obama to be just like me? Are we really that feckless of a people that we can't vote someone into office who has some different ideas about some important issues?

I like to think we're not. I like to think we have more self respect than that. I like to think that the national psychology isn't hanging onto every last piece of detail as we arrange our political preferences in a kind of identity Tetris. I really hope, at least, that we're not that lame.

And I was hoping against hope that Obama might try to show us how sensible we are. That he was going to avoid playing a politics of identity and lead us all back to an acceptable middle ground where we could all be friends again, regardless of our political leanings on various issues. I was really hoping he might test this populist conclusion about America's ability to deal with anomalies, that we need everything to fit so perfectly, because more than anything else, it is this stupid expectation that is deteriorating our social fabric.

As much as he has turned out to be an orthodox politician during this campaign, I am still hoping that once he has taken his seat behind the Resolute desk, he will lead us to a new place, that purple place he promised all those years ago.

The End of Politics of Identity

2008-06-24T02:57:00.001-07:00

The era of politics of identity that has defined American culture for the past 40 years can now officially be considered to be over. The fact that we will be electing a black president is not proof that racism is gone from the midst of our borders. No such day will ever come. But the fact that we will elect a black man to be President of the USA means unflinchingly and without a doubt that what it means to be black in America (and consequently what it means to be white, or any other color) will cease to have any locutionary force. We are experiencing the official end of the semiotics of skin color.

This moment has been in the works for awhile. If you look at popular American culture, you can see the various forms trying to make sense of a post-racial mentality throughout the past 15 years or so. In the world of music, we have witnessed the disassociation of race and genre. Beginning with a few artists in the middle and late 1990's, the stereotypical model of who and what a b-boy looked like (or what a rock guitarist looked like) began to break down. The identity models previously concretized by musical genre have opened up and dissolved into a more thoroughgoing equality of identity opportunity. This can be traced out with more detailed research, but you would be hard pressed to find knowledgeable commentators who would disagree with this premise. While the same integration is more difficult to trace in other cultural forms, there is now a widespread presence of non-white American citizens performing on mainstream television and film. This is true to such an extent that, while there are still quite a few stragglers and anachronistic holders on, the multiculturalists who pine after the days of a whiny disempowerment no longer hold any sway in the academic journals and stuffy seminar rooms across the nation. As a nation, we have moved on.

But where are we going? The dizzying array of intellectually inconsistent policy positions that have characterized American polemics of the past half century have almost annihilated any semblance of political reason. Our coalitions and associations of convenience and political expediency have obliterated the Enlightenment philosophies that characterized intelligent debate over the past few centuries. As a result, we have arrived here, steadily, with a more perfect Union in post-race America, but also without any kind of language for thinking about who and what we ought to be.

We need a return to a politics of ideas. And we need it quick. There are too many pressing concerns for us to founder too long in mystery.

Dear Boomercrat:

2008-06-24T01:35:00.000-07:00

Is it fair to say that the cat is out of the bag? Last week's announcement that he would forgo public financing for his presidential campaign pretty boldly revealed Barack Obama to the nation as an orthodox politician. If you have been paying close attention, this is not news to you. Obama has been pandering to all sides and interests on many policy items as long as he has been running for office. This is politics, after all. But his unique genius, as cited by David Brooks in a provocative column last week, is the fact that he has molded a political campaign of anti-politics. If you take the paradigm offered by contemporary pundits, one of the pillars of the Obama campaign has been the literal message of "change" that underlies all the campaign rhetoric. Brooks and others are now and will continue to hold Obama to his assertions that his campaign represents a turn away from politics of the past, pointing out how his history of maneuvering and shifting between political positions pulls the rug out from underneath his idealistic posturing. The sometime design of this analysis, and the conservative hopes pinned to it, seems to hinge on the public's supposed renunciation of Obama after the grand reveal. As if there were some sort of momentum building towards a tipping point when the movement that supports Barack Obama's candidacy will somehow turn against its hero; but it can be safely guaranteed that no such moment is going to take place, and this guarantee rests on a few important points.

The first flaw in the syllogism is the assumed premise that the Obama crowd holds more dearly onto political idealism than to winning a presidency. We do not. What is more important to a new generation of American pols is the presence of someone who more accurately reflects our sense of national identity. Just as a more thoroughly researched analysis of the psychological state more commonly referred to as "Bush Derangement Syndrome" might be developed and applied to come to a deeper understanding of American public opinion in the last five years, so too might a more academic model of "Obamamania" be used to describe its next two or three. What's refreshing about the latter is that the blindness of its hero worship is much more optimistic than the fervent hatred and ignorance that characterized the former, more cynical counterpart. But, alas, it is blindness nonetheless.

As a nation, we are a politically ignorant lot. I would guess that only a small fraction of Americans could associate various ideas with the political philosophies that found them. And while there is truth to the fact that you could make the argument that this is not their fault -- that the parties who are supposed to represent their interests sold intellectual honesty down the river decades ago -- the truth is that life is too complicated to pay attention to (or, much less, apply) the intellectual consistency of the patterns present in contemporary politics.

At best, Americans paint an impressionistic image of political ideology in their electoral preferences. As a result, syllogisms will always inevitably fall flat in their explanation of American politics. What is required, instead, is a kind of art history, a rhetorical interpretation that pays attention to the subtle details and contours of American life. Sure, all the clues we need to understand voters in America exist more broadly in our culture, but they can not be pieced together in a scientific way. Regardless of how many degrees in "political science" we award to students each year, you can't do science on people.

Obamamaniacs are relatively easy to understand. We want someone to be president who looks more like what we want our nation to look like. Of course, we want to elect a black man for president, but not because we're invested in the catharsis of unresolved adolescent angst about racial disparity that motivates our parents (although this is probably a factor somehow). We are more likely to want to elect a black man for president because he speaks our language. His intonations and inflections, his walk, his gestures, his wife's fist bump, his cool calmness in the face of tremendously stressful situations, his matter of fact manner, his honest style, and most importantly, his permanent contradictions of identity: these are the traits of a new American character.

To the extent that these moves reflect origins in black America, so be it. The organic process of cultural assimilation in America does not discriminate on a basis of ethnic origins; a cultural resource is a cultural resource, and we are all owners and beneficiaries of the legacy. What's important is that the product of this process helps us be more culturally buoyant and more autonomously human. Our culture, more than any other on the planet, is very successful in its achievement of these goals.

What the Civil Rights generation did give this country was a slate of new ideas about what this nation should look like. They stirred the melting pot. And this was a phenomenal accomplishment. But they were a transitional society, perpetually conflicted by the infelicity between their hopes and dreams on the one hand, and their realities on the other. The multicultural movement that they brought to bear on our childhood must have made them feel great about themselves, certainly good enough to help them forget about how comfortable they remained in the old systems of social identity that forged their senses of self and society.

But we did the hard work. We squirmed and struggled in awkwardness and embarrassment. We swam underwater through the murkiness that has been America for the past 40 years. And we've carved out real-life identities from the hard surfaces supplied; and we have done so quite successfully, despite having had to sift through all the tangled baggage that they left for us, untied and untidy. They gave us multiculturalism because, armed with nothing more than who they were, they figured we all wanted to feel empowered in our differences, that what we needed was a strong dose of self-esteem about who we were. But really, when we figured it out on our own, it was pretty clear that we all wanted to be the same. We don't want hyphens. We don't want to embrace our diversity in difference. We all want to be Americans, Americans only, with our ways of being kaleidoscopically permutated in all their idiosyncratic glory. But still we want only to be Americans. We want to express our diverse individuality as a unified whole. Multicultural diversity to young Americans isn't a rainbow coalition, it's a collection of rainbow people, each of us as multifaceted and diverse as the next, interesting amalgamations of varying cultural resources, and none of us belonging to any single category of character. We are a burgeoning nation of diverse individuals, connected in community by the fact of our uniqueness. Yes, indeed, we're all so unique that we're also the same.

Barack Obama gets this. He just plain gets it. And if you're well over 40, you probably don't. Or, to paraphrase a friend: you probably believe that you understand what you think we are, but we're pretty sure you don't realize that what you think you understand is not what we have become.

For you, Mr. and Mrs. Boomercrat, Barack Obama represents your achievements, a total rebuke of the historical past: slavery, Jim Crow, the grand failures of modern America. And let me join in the chorus when I sing: good riddance! But for us, Obama crystallizes our rebuke of the recent past, of which your lessons are a necessary part. For while you gave us the raw ore from which we've struck our new American alchemy, you've also left us with a full spectrum of more intractable dilemmas. The failures of contemporary American culture are much more difficult to pick apart. These are failures of ideas, failures of imagination, failures of wider public perception - a perceptual process which your own outlook precipitates. The basic fact that we're a generation defined by politics of identity and not a politics of ideas is undeniably due to your generation's nihilistic dismantling of the American way of life. One wonders how much of it was born of idealism and how much of it was just the product of your rebelliousness. If only your parents hadn't lost their souls at war, if only you hadn't thrown out so much of the baby with the bathwater, we might now have less work to do.

But you taught us how to do work. And that's what we're up to. So get on board, prepare the retirement nest, and hand the reigns over this fall. And buckle up, it's gonna be quite a ride now that we're finally at the helm.

America post-Obama

2008-02-26T22:29:00.002-08:00

I have been thinking a lot about what happens in America after we have elected our first black president. Not that this is an inevitability with Senator Obama. But I suspect it is an inevitability generally. And the fact that a major American political party will nominate a black man for a presidential candidacy seems substantial enough to take up this conversation as one which is intellectually due.

First of all, I think it's especially gratifying as a big FUCK YOU and I TOLD YOU SO to all the cynics and skeptics who have long mischaracterized and, frankly, plain misunderstood American culture. America, like any nation, is constantly involved in a process of competitive folk psychology. But the prevalence of frontloaded discourse depicting America as a nation so racist and bigoted that a majority of its people would never choose a non-white or non-male American as a felicitous representation of the American identity is particularly despicable. It is quite clear today that those who have taken part in that process should not only render themselves mistaken and feckless but must now accept the mediocrity of their punditry. You know who you are.

Aside from the long overdue death of hermeneutical skepticism, what happens to the American identity after we've elected a black president? It seems undeniable that this somehow gives birth to a new American sense of self, one which will raise with all the excruciating pangs of growth that any fledgling sense of self endures.

In the post-Obama world, what happens to the concept of black America? Identity politics in general - the baggage of baby boomerism - can summarily be pronounced DOA. But its spirit will haunt us and ask us to consider, quite baldly, what happens to the groups shaped and formed by its politics of division? How does a black person , previously over-identified by a discourse of belonging to blackness, come to conceive of self and group in a society which has now publicly affirmed full citizenship regardless of the color of skin? While this paradox has been grappled with since its inception at the nascence of the American frontier, much comfort and shelter from its incessant pressing on the minds of its existential itinerants has come in the shape of community. But when the borders that drew our internal communities swing open and bleed beyond what we've been formerly able to grasp, how will we manage the preposterous and boundless space of identity there opened?

I have the sense that what America is voting for with Barack Obama, and black America specifically, is the death blow to the notion of black America. The high rate of support amongst black Americans suggests to me that, consciously or not, black America is as tired of subgroup identity as the rest of subgrouped America.

What happens within black America now that a member of the group has achieved the highest rank of American citizenship, but has done so by participating in a grand process of identity integration. For example, the figure of Editor in Chief at the Harvard Law Review does not have a long history within the folk psychology of what it means to be black in America. But it will be permanently etched within the narrative and it will now occupy a space of grand gesture, as all finales should. A million boys in America will own the name Barack by the end of my lifetime and how many of them will plot the route of their namesake. And how many of them will be white and black, or both, and to what degree will it matter anymore when they've grown up knowing that one of the greatest men in their world had brown skin?

Barack Obama is a symbolic figure in American history because his story intertwines so much of the divided narrative of American identity. He serves - his presidency serves - as a transliteral bridge, connecting all of the American histories in a sweeping embrace of commonality and brotherhood. His presidency is the final riposte to the shameful past, but how long and in what form will its legacy decay?

It strikes me that this shedding of skin will be painful and wearisome. With the death of our folk psychological concepts will come deep seated mourning and sorrow. Despite the fact that this evolution will likely yield a golden age in America, a Renaissance unmatched in contemporary history, the immediate stages of this transformation will be marred by the struggle of a society without a coherent language. It will require a kind of creativity of national definition that we have not experienced in American life in a long, long time; not in my generation, maybe in my grandfather's but perhaps not since the Founding. But we are a nation defined by our vernacular, and I suspect we will not have too hard of a time in the forthcoming.

Where do we go from here?

2008-02-13T18:30:00.001-08:00

With Hillary Clinton's failure to accede the presidency, American society has expressed its final reprobation for the culture of political correctness. The Clintons are the American symbolic figures of the 1990's paradigm of atonement for America's shortcomings and worrisome transgressions. And, indeed, they were many and the decade long.

What Barack Obama offers the nation is a confirmation that we have accepted our sins and are now ready to begin, if we have not yet already begun, the processes of self-forgiveness that are the first signs of a transformation of consciousness. President Barack Obama will usher in a new era not only of American generational history but also a time of transcendence that leads us far beyond the legacy of slavery and persistent quagmires of race into an unknown mode of identity that will truly call the world's attention to the profound force and impenetrable reality of the American experiment.

2008-01-05T18:47:00.000-08:00

Regardless of whether or not Obama wins the presidency - and I think, and hope, that he will - what can no longer be denied is the cultural shift that has taken place in American polity specifically, and our culture and society generally.

It is no secret that a black man's presidential caucus victory signals a "monumentous" departure from the traditional assumptions of American character. Pundits and the commentariat have been speculating about the significance of this day for decades. Shelby Steele explained it most concisely the other night on Charlie Rose when he described Obama's rise to power as the collective expression of America's desire to redeem itself.

What is at once so refreshing and vindicating about the results in Iowa is that finally the vision of America that my generation - the post-boomer generation - was raised to invest and believe in has finally shown itself on the cultural stage. Although technically a late boomer himself, Barack Obama is the first politician to represent a post-boomer worldview.

The baby boomer generation gave to American democracy the "new left" and the kind of politics-of-victimhood and invective that is the inevitable consequence of molestation. Preyed upon by corruption on high and the traumatic collapse of the liberal ideals, the Boomers reacted with a forlorn embrace of tribalism and base political instinct. And they can not be blamed, for the betrayals and treachery that showed themselves in the form of the assassinations of heroes, political scandals, conscious racism and hatred, and failures of leadership all lead to an easy retreat to instinct and shelter.

The New Left was a movement in this country that floundered for a philosophical rationale for its existence. Classic political liberalism was discarded in favor of a kind of domestically progressive "realpolitik." The same foreign political doctrine that gives rise to the ultimate dismissal of American ideology abroad was latched onto by a desperate group of politically disenchanted idealists. The fashionable brand liberalism of the day didn't work, after all. The powers-that-were assured this was the case.

But the havoc realpolitik has unleashed abroad was revealed at home as the culture wars struggled to render a reasonable expression of American identity. But the basic failures of this movement abound exponentially. And the generations of post-boomer America have always known this to be true. The result has been a widespread disenchantment, especially among young Americans: a detachment from politics and the venomous fervor its contradictions inspire; and the widespread cynicism and skepticism that comes with the territory.

The meaning of Obama-the-candidate is far greater than Barack-the-man could ever hope to achieve in ten lifetimes. And what is most beautiful about the man who has become the vessel for this lost dream is that he knows this much is true. As he declared humbly and with a sincere tremble in his voice on the night of his victory in Iowa:

"I know you didn't do this for me. You did this-you did this because you believed so deeply in the most American of ideas - that in the face of impossible odds, people who love this country can change it."

You're right, Barack, we didn't. But then again we did; because there are few men who walk the earth who pose the intellectual gifts, the oratorical grace, the dashing good looks and the casual nonchalance of natural and god granted supremacy of leadership that Barack-the-man embodies. It takes a special kind of person to embrace these gifts and give them back to the world. Too many geniuses cower in the face of greatness. Too many gifted men have faltered at the opportunity to truly change the world for fear of what the change might bring.

Despite yesteryears voice compelling us to stave off the possibilities of change and inhabit the security of the status quo, despite the propertied elites' investments in the politics of division, Obama has stepped bravely forward to lead us to the promised land. He is the fulfillment of the forgotten American dream, despite the treacherous histories - from slavery to Jim Crow to Watergate and Vietnam. He expresses the hopes and dreams of America's greatest generations and contradicts the reactionary doctrines of leftism that appeared in the ideological vacuum they left behind.

While to some Obama might look like the culmination of the leftist movements of the past few decades, I assert quite contrarily that he is a complete dismissal of their form. He embodies the return to America's classical liberal promises. Insofar as he can accomplish this feat, he will render the first attempt of the post-boomer society to force its vision - the original nascent American dream - back into the world.

2007-08-28T01:48:00.000-07:00

If we win in Iraq - and as I write that fragment it occurs to me how difficult it will be to know if and when we do - but if we do, what happens to the modern construction of the notion of classic liberalism?

The War in Iraq is an experiment that tests the basic truths of classical liberalism. It is also, ironically, a war that challenges the strict parameters of "postmodern" or contemporary incarnations of the liberal agenda.

The difference between these two systems, while central to this post, will have to be addressed in more detail in a forthcoming response. What is important here to note is that it now seems very possible to articulate a divergence between the classical notions of the promises of the classic liberal ideology and the ontology of leftist politics as it is practiced in a contemporary setting.

But what happens to the latter camp if we win in Iraq. While the idea seems almost preposterous given the current climate of skepticism and anti-establishment dissent at home, and given the increasingly imperious mass mediated frame of the action in Iraq, it is not impossible to imagine that a few years from now some sort of stable and nascent but thriving Iraqi society will reveal itself to the world. Indeed, it is hard to evade the concept that the polemics of American public discourse say more about our society and our own cultural dysfunction than it does about the facts on the ground in Iraq.

Compared to the traumatic chaos informing the disdain of the average Iraqi, our cynicism is an entirely different beast. Our emerging betrayal of hope for their future is a stark contrast to the optimism and aspirations of the Iraqi social fabric that is so desperately seeking a proper venue.

The classical liberal notion insists that Iraqis want to live in peace and prosperity, lavishing in the ironic spoils that are the imperfect Utopian order of democracy. But contemporary leftists would bring us home and leave the Iraqis to their own devices. They reject the natural supremacy of the classical liberal assumptions and remind us that we lack the authority to share our way of life with anyone because we certainly can not be sure that our way of life is the best way to live.

But what if the latter camp turns out to be wrong? Iraq could eventually prove the traditional liberal predictions about human nature to be quite accurate. In so doing, Iraq could eventually be the reaffirmation of the story modernity meant to unfold before the Nazis tore it down and left it in chunks to be further nihilistically discombobulated by the likes of Osama bin Laden.

If we win in Iraq, we all win. If we lose in Iraq, the cynics win.

But if we win? There's now a long, long list of people who have publically disclosed their positions on this issue. As bad as George Bush will look if Iraq devolves into a Hobbesian cauldron of debauchery, a long line of cynics and detractors who have written blogs upon articles upon spine tingling exposés and who appeared on numerous television programs and films will be paraded throughout the public sphere as emblems of the collective failure of American intuition.

While it is clearly a patriotic cornerstone of this nation to be reasonably skeptical of government, it is also patently unAmerican to fail intuition.

2007-08-26T21:15:00.000-07:00

The Iraq War is a symbolic war. We are not fighting a state; we're not fighting soldiers; we're not even combating a cohesive ideology. We are in Iraq defending the notions of democracy, law and order.

Like everyone else at the time, when the Bush administration jumped America into the regime change business, I was a bit shocked by the audacity. Nothing in my education at a left leaning university and within a politically liberal region prepared me for such a notion. At the time, having recently emerged from the post-structuralist, cultural studies consciousness of the last decades of the 20th century, the academic world had become very efficient at bludgeoning its students -- and popular society in general -- into varying degrees of submission and subscription to notions of the despicability of colonial imperialism and a righteous sense of Truth.

We just don't do that, I was told. We don't go traipsing across the world installing our moral authority and our legal machinery. Not only because it isn't polite, we don't seek (mis)adventure in the name of democratization because it is an enormous project. About half of the world's civilians live without the luxury of democratic systems. Starting a mission like this implied the uncorking of a foreign political vat of mythical proportions without any idea from where the tonic to wash it all down would come from. And furthermore, we asked, why waste our blood and treasure abroad when we are already too distracted from the inequities that show themselves at home?

Beginning with a Supreme Court case challenging the legality of the electoral results and culminating in the invasion of Iraq, these years were both an exciting and infuriating time for a late adolescent American mind. It was a unique time that provided an opportunity to squarely re-evaluate all the lessons I had learned in school across the observational template of the real world.

In the election of 2000, I voted for Ralph Nader. I was, and arguably still am, idealistic to a fault. I knew full well that Ralph Nader had no chance to win that election, but I voted for him anyways. Despite the fact that he seems to have grown a pair in the years since, Al Gore would not make an interesting President in 2008, much less in 2000. But this was before I gained an understanding of pragmatism - an understanding, I was dismayed to find, that is dismissed in a liberal education but still held firm by the working world.

My vote for Ralph Nader was a symbolic vote. I was not voting for a candidate, I was voting out an act of identity. I am as cognizant of that now as I was at the time. I procured an undergraduate degree in Rhetoric, after all. But I was 24 years old then and though conscious of my self-righteousness, I was still a bit too reluctant to risk seeing the multifold validity of varying perspectives. Recognizing that there is often more than one way to look at a coin is an easy enough idea to grasp, but it is a difficult meditation to practice.

With time, I learned that moral imperatives aren't squishy; they can't bend and still be legitimate. But understanding multiple perspectives doesn't mean dismissing one's own convictions for the sake of inhabiting a different world view - it means traveling one's own road to the intellectual intersection with the other path. Perhaps this betrays my position on the classical liberalism versus postmodern leftism, but it seems impossible to deny that if they try hard enough, people can always find moral common ground. But more than education and thinking, this kind of knowledge takes time, patience, experience and a critical attentiveness that is not encouraged by the mass mediated flux of everyday life. And it isn't available to an adolescent American man in the midst of a quarter-life crisis.

Consequently, during the 2000 election cycle, from the comfort of my parents living room in the uber-suburbanite fantasy world that was the silicon valley at the cusp of the "dot-bomb," I wasted a lot of hot air chastising the television set and the imaginary redstate rednecks that gave credibility to Bush and his hillbillyesque performance. But, despite all my best guffawing and eyeball rolling, I watched Ralph Nader lose and George Bush become President of the United States.

So, although it stung for awhile, and while my left-leaning friends were busy patting themselves on the back for their superior detachment from the political charade, I got used to it and, rather than swallow the bitter pill of defeat and bemoan the hell-in-a-hand-basket trajectory of the national leadership, and rather than live in the world of pain that is filled by that prescription, I forced myself to sympathize with a new way of seeing the world. I gave the guy the benefit of the doubt. I tried to understand how George Bush and his constituents looked at the world. After all, these were my neighbors, fellow man, my compatriots, and their candidate was now my President.

I will look for the clip, but one of the quotes that stood out in my mind (probably because I often repeated it with the pretense of expertise to my conspiracy theorist friends) came from the Newshour - I think (researching now). During a round table discussion, commentariat analysts posed various musings and theories of what the world would look like under the leadership of the remaining candidates. Someone suggested that George Bush and his neoconservative cohorts would invade Iraq the first chance they got. Whoever that expert was -- fret not, I will find it - they have a comfortable retirement awaiting them in Vegas. Because, as we all now know, despite all odds, this turned out to be the case.

At the time, the conventional wisdom was that modern governments do not invade sovereign nations to tinker with the native political environment. But we did just that, and we did it on somewhat of a whim. Frankly, while I get the impolity of this decision, I am seduced by the concept of spreading democracy and freedom across the planet. But this was not the case that was made in favor of this invasion. Or to the extent that it was made, and I would argue that it was pronounced with an equal volume as being central to the policy platform, it was summarily ignored by the sound bite stymied press.

Rather than helping us see this administration's decision to invade Iraq as a bold statement in favor of a new kind of foreign policy, one which asserts democracy by force, we were led to war assuming we would find WMD's and fall lovingly into the forlorn embrace of suppressed cum liberated Iraqis. It is interesting to note that, even if we had found WMD's and were embraced by a vast majority of the Iraqi state, we would still be fighting the same whack-a-mole insurgency we are fighting now. Aside from the fact that we would all have been spared one less Michael Moore cinematic atrocity, the presence of WMD's would not have made the American experience of this war any different.

While I stood in solidarity with my latte liberal friends when this President was first elected, many things changed over the next couple of years that thoroughly changed my mind about Bush and his regime change agenda. By the time we had landed on Iraqi soil, I was seemingly a Bush supporter and definitively in favor of the democratization of the region.

Regardless of whether or not it was a good idea to go to War in Iraq, the only thing worse than taking the risk to go in the first place is to leave now without having accomplished the symbolic goals we ascertained to begin this mission.

The Democratic party and its academic wing is sustained primarily by a twofold cultural force: the progress of the Civil Rights Movement and the wounds of the Vietnam War. Insofar as the party is hopeful and ambitious in its articulation of the successes of the Civil Rights generation, it expresses the best that America can become. Insofar as it inflects the reactionary politics of adolescent rebellion, victimization, and the trauma and betrayal of Vietnam -- then encapsulated by the scandal at Watergate, now inflected by the venomous fervor of anti-Bush rhetoric -- it expresses the very worst that America can't seem to shed.

2007-08-17T16:56:00.000-07:00

Despite the fact that we have done a miserable job managing the peace in postwar Iraq, and regardless of whether or not going to Iraq in the first place was a good idea, it is still pretty clear that there are a lot of Americans - liberal, moderate and conservative - who think that Saddam Hussein had nothing to do with the attacks suffered on September 11th.

I am not an intelligence analyst, nor am I a conspiracy theorist. I am, distinctively, a philosopher of language and culture and it is because of a basic theory of signification that I write this brief but important post.

Regardless of whether or not American intelligence was manipulated to cast an inauspicious pall over the Baathist regime, it is intellectually dishonest to suggest that Saddam Hussein was not - before 9/11/01 - already broadly prefigured as an icon of American defiance throughout the Muslim world in general, and specifically in the hotbeds of anti-Americanism in the Middle East. Islamic militants the world over, whether in staunch alignment or stark distinction from Hussein's agenda in Iraq, looked at him as an example of what a regime could get away with doing and saying in direct contest and resistance to the American interest and foreign policy positions.

He emboldened them.

This is to argue, once again, that saying Saddam Hussein had nothing to do with jihad in the 1990's is like saying that Michael Jordan had nothing to do with the mass popularity of the National Basketball Association in the 1990's.

The issue that Democrats need to discuss more frankly is not whether but how jihad is an international threat. The debate we never had in this country is whether or not it is desirable for us to pursue a mission of democratization.

If your answer is that democratization is neocolonialism and that our cultural logic is only applicable behind our own borders, I ask this question very sincerely: how do you rectify the intellectual gap between notions of liberal democracy as they are universally applied - the notions upon which the Western world is founded - with the limited notion that the moral universe circumscribed by these liberal ideals should only apply to the Western world? Are the truths we live by veritably self evident?

If your answer to this question contains a discussion of value priority, where do you situate national security in the value economy?

And for the record, I never liked Mike. I was a Laker fan. But I played with my tongue hanging out of my mouth like every other kid on the block.

2007-06-20T11:10:00.000-07:00

This morning on Forum, Michael Krasny and his guests discussed "Gender and Power Dynamics in Management." This was actually quite an interesting program discussing the way we respond generally to basic differences in the leadership styles of men and women. I had just recently been reflecting on how, in my work experience, female managers have always seemed much more sensible than male managers. The program provided some insight as to why I might have this sensibility about female leadership, suggesting that women tend to be more democratic in their decision making processes than men in similar positions.

My basic sense is that women manage more democratically because the culture establishes the source of the feminine power of persuasion to be much more subtle and behind-the-scenes than masculine power, which tends to be culturally characterized as more superficial and straightforward. A manager's main responsibility is to uncover and extract the performance of their worker's talents, knowledge and skills. It seems common-sensical that this will be more swiftly established by involving people in their own successes rather than authoritatively ordering people to be productive.

Female leaders are prepared by the cultural discourse to be more prone to modes of subtle persuasion than to effect change through brute force. Indeed, some will call this former management method manipulative, while others will call it enlightened. The point, I think, is that it is equally effective. And further to the point, if we have to call this the "feminine" style of management, it is important to note that women do not have a monopoly on this type of approach.

Something that stood out from the show that bothered me was the discussion of how the ramifications of institutional sexism result in lower numbers of women in professional leadership positions. One of Krasny's guests seemed to articulate the argument as going something like this: fewer women in leadership roles necessarily means less women can be prepared for leadership roles because young professional women need female role models in leadership positions in order to advance their careers.

Frankly, I find this argument to be specious and reductive, not to mention fallacious and absurd. Historically, the legacy of the culture we live in has extensively privileged men to positions of power and leadership. The fact that we now have increasing numbers of female leaders in powerful positions necessarily means that women have advanced their careers without the presence of female role models because until recent history, such leaders were not present. But more importantly, what is most worrisome and intellectually dishonest about this argument - that women need female role models - is that it perpetuates the same stereotype it aims to discredit, that women are somehow fundamentally different than men. In other words, if a woman can only use a female role model, there must be some categorical difference between men and women. Obviously, there are some basic biological differences, but if the complaint we are addressing - institutional sexism - is a cultural issue and not a genetic issue, we have to deal with the problem in terms of culture, not science. And in this case, we are not discussing a culture of family and parenting, but a culture of organizational leadership, a culture that does not operationally rely on sex roles for its function.

To say that a woman needs a female leader as a role model is to suggest that a woman can not learn from male leadership styles, or conversely - that a man has nothing to learn from a female leader. Of course, when put in this light, no advocate for gender equality will take this position, because it is entirely useless and paradoxical and offends our common sense. The problem, then, is why is this point so readily bandied about the public discourse on race and gender inequality?

We can examine this same leap of logic in an analysis of affirmative action, where proponents of "minority set-asides" often resign to the argument that we need affirmative action because people in various ethnic communities require role models of the same ethnic identity. For example, it is not practical nor desirable, they argue, for little black children to look up to grown white adults. While the argument is generally based on the notion of practicality, because the cultural differences between ethnic identities is so great that fluent communication does not function properly, the secret subtext of the argument seems to be that this kind of inter-racial relationship is dangerous because it threatens the integrity of the group identity. If black kids are learning from white adults, there is a strong chance that they will cease to bear an exclusively black sense of self. The results of this kind of mentorship would mean the ultimate discombobulation of a sense of solidarity in the non-white communities.

Ironically, no such quagmire is frequent to arise in a discussion of the nearly idiomatic idolization of black men - and black culture generally - by the white American youth. When white kids look to black culture for role modeling and cultural information, there is no sense of threat. I would venture to argue that this is because white kids don't have a sense of solidarity amongst themselves. There is no "white" identity. Consequently, no community based culture is threatened by the white youth's appropriation of other-than-white cultural information. For white kids, the entire palette of cultural color is available for their construction of identity. Their citizenship is granted the privilege and freedom of an unfettered access to cultural resources without a community obligation. This, it would seem, is the true promise of full American citizenship. As long as we embrace and uphold community identity as a criticism of race inequality, we uphold the asymmetrical balance of culture that disallows full citizenship to any American who does not pass for white. Indeed, when scrutinized carefully, there seems to be a widespread double standard when it comes to cross-racial role modeling.

So what to do? Institutional sexism and racism do exist, and they exist broadly across all spectra of social organization. I think it might be more effective if we could actually come to terms with what it is we are looking at when we discuss these problems. Political correctness and the various doctrines of "multiculturalism" that emerged late in the last century have always had a functional flaw in their criticism because they advance the basic ideology of the dominant discourse in their reaction to the legacies of inequality. They attempted to tackle the problems set up by these models by stridently pronouncing the under-represented voices within the dominant social model. While this was an effective way to point out the cultural dysfunctions of the old social organization, it failed to subvert the value system of the old regime because it necessarily affirmed its authority and legitimacy by operating within the parameters and rules of engagement it had already established.

Instead, I think we need to think about how to solve these problems in a more straightforward way that grants full citizenship to all members of the society. This means we have to abandon the reactionary call to arms that requires identification with specific communities - ethnic based, class based, gender based - and return to an understanding of equality of access to culture in the broadest sense, where all of us can look to whatever cultural resources we choose in the process of constructing identity. Nobody owns culture; it belongs to everyone wholly, equally and indiscriminately.

Juiced about Joost

2007-05-23T10:54:00.000-07:00

Over the course of the last few weeks and through to the middle of May, the television networks have been carrying out their upfront presentations with major advertisers in New York. But as AP television reporter David Bauder notes, the timing of these meetings could not be worse for the networks. He cites a recent study which shows that "more than 2.5 million fewer people were watching ABC, CBS, NBC and Fox than at the same time last year." Further, Bauder notes, "NBC set a record last month for its least-watched week during the past 20 years, and maybe ever then broke it a week later."

With figures like that, it becomes fairly difficult to deny the fact that we are in the midst of a cultural transformation. An optimist might even suggest that we may be beginning to experience a revolution of consciousness. A pessimist would indicate that we're probably just collectively coming to terms with the reality that there is nothing worth watching on television. I find it hard to argue with either point. As is usually the case with significant phenomena, there is certainly more than one factor at work in the function of this change.

If we can assert that traditional structures of television viewing have ceased to offer a fructifying identificatory resource to the culture, what is most interesting to think about is: what happens next? The 2.5 million viewers who have tuned out over the past year join a vast populous of culturati carving out new senses of self in the modern media matrix, simultaneously patching together the most logical forms of meaning making and waiting for someone or something to make sense of it all. If necessity is the mother of invention, in this mild crisis/celebration of cultural chaos, what technologies will we turn to next to make sense of our lives in the contemporary world?

One suggestion is the forthcoming media marketplace formally known as Joost. Niklas Zennström and Janus Friis, founders of Skype and Kazaa, have collaborated to offer one of the more exciting commercial ventures to arrive in recent memory. Applying the same fundamental technologies at work in P2P file sharing, P2PTV will allow content providers to distribute their "television" programming on-demand to broadband users. This is probably the first significant unveiling of Internet television and it will be exciting to see how well this experiment pans out. There are indeed a series of other sites offering this kind of service, from YouTube, to Brightcove, to Veoh Networks and Sling Media to name a few, but none with the sheer commercial velocity boasted by the Joost venture.

Describing the new technology in comments published by the Chronicle earlier this afternoon, Daniel Leon, president of Sivoo, a Joost partner, explains: "They remade the music industry with Kazaa. They remade the telephone industry. People are anticipating they're going to remake this industry." That’s quite an endorsement, and one which seems to be building a tone of consensus amongst professionals in the online and television industries. Joost is one of the latest – and probably the most formidable – efforts launched by media companies to bring television programming delivery to the internet scene. The Joost project has accumulated over $45 million in funding and boasts having secured rights to television content from Sony, Warner Bros. and Viacom. Programming from Adult Swim, CNN, NHL, and Sony Pictures’ content -- possibly featuring staples like Jeopardy, Seinfeld, and the King of Queens -- will all be airing on Joost, just to name of few of the brands we will be seeing on this new technology, which is still in its testing phase.

Joost is changing the nature of internet based content, promising some fundamental changes to the way we view video online: “Unlike video-sharing sites like YouTube, which are dominated by short clips, Joost has made it its mission to popularize long-form, high-quality, ad-supported content online.” The arguments previously made in support of sites like YouTube and Google video – that people want shorter format content for web delivery – will meet their tests in the market as soon as Joost becomes available to the wider public. Joost will be a shock to the system for users who have grown used to the puerile, low grade production and delivery aesthetics of the YouTube phenomenon.

Michael Yanover, head of business development for the Creative Artists Agency, the company signed by Joost to locate top quality content for delivery over the platform, asserted earlier today that, “Joost takes entertainment to the next level through its converged television-Internet platform, offering consumers the best content available via a superior interface." Whether or not internet users want to watch television on their computers, and whether or not this enhanced user interface will make the site more desirable still remains to be seen.

What is guaranteed is that the new platform will be delivering classic television content on demand to users who already pay for a cable television service। How long will it be before we see the convergence and demise of the various television cable operators? How long will it be before we see the convergence and demise of computer and television technologies as we know them? The devices in our home will certainly adjust to the media formats becoming available. As well, the hours upon seemingly infinite hours of useless programming we must endure on our television sets will slowly fade into the background of information age history as users can choose content immediately, on demand, without enduring the whims and fancies of program directors and marketing consultants. With this technology, we move one step closer to the egalitarian promises that are delivered by a democratization of the mediated society.

Internet television is the new kid on the media block. The ontology of television viewership is about to change drastically and it is likely to have a significant impact on the way television content is produced and received. A few years down the line it is not hard to imagine that we might all be interacting with a commingled batch of televised and web-based content on machines that look something like Jeff Han's reification of the technology most popularly represented in the film "Minority Report."

It is exciting and bewildering to think about the unpredictable ways these new technologies will effect media production and ethics. We will certainly begin to obtain a more realistic understanding of what sort of programming is popular. Ratings will finally begin to reflect real people's viewing habits. This mark of interactivity creates a whole new kind of media ethics.

What if media we have traditionally considered to be taboo and intolerable becomes the most popular content available? Will commercial interests fundamentally change the nature of the public sphere? Will the capacity to measure specific users viewing choices structure the society in more inclusive or exclusive ways? Will there be any detectable difference at all? It is hard to say, and hopefully we will know very soon, but for now I am content to wonder about what the media will be doing tomorrow.

A Journalist in Wolf's Clothing?

2007-05-14T21:16:00.001-07:00

On April 3, 2007, blogger, freelance journalist and SFSU alumnus Josh Wolf was released from the Federal Correction Institution in Dublin, California after earning the dubious distinction of serving the longest prison term for protecting journalist sources in the United States. As a publisher of a blog that documents protests and progressive activist events, Wolf captured videotaped footage of an anarchists' anti-G8 protest that took place on July 8, 2005 in San Francisco.

The United States Attorney believed that Wolf's footage contained information that could be used to identify perpetrators of violent acts that took place at the anarchist rally, including the assault of a police officer and the arson of a police vehicle. The United States District Court empaneled a grand jury and the FBI subsequently subpoenaed Wolf, ordering him to turn the footage over and testify in front of a grand jury. Wolf refused, citing press freedoms and his journalistic privilege to protect sources, and was eventually jailed for contempt of court. At the time of his release, Wolf had served 226 days in jail, breaking the previous mark of a journalist's prison term for protecting source materials by 58 days.

One of the problems posed by the Josh Wolf case is the absence of a legal standard and definition of what journalism looks like and who can be considered to be a journalist. In an interview for Frontline, Wolf explains: "I describe myself a lot of ways. I'm a journalist. I'm a documentary filmmaker. I've made some narrative films. I'm an activist. I wear a lot of hats . . . I'm also a video blogger." California, like most other states, has a media shield law that confers special protections to journalists. Self declarations aside, the question remains: is what Wolf is doing accurately described as journalism?

In the Frontline interview, Wolf acknowledges this concern, stating that: "One of the critiques about me not being a journalist is that I'm not objective. It's pretty clear what my politics are. But back when the First Amendment was written, when we guaranteed a free press, there was no such thing as objective journalism." While this question is better served by an historical debate over the intentions and meanings of the Constitution, it is important to note that Wolf seems to be making no claims to objectivity. Regardless of whether or not objective and impartial newsgathering and dissemination was established as a journalistic principle at the time of the Founding, it is undeniably an integral aspect of most professional codes of journalistic ethics both in the United States and abroad.

While going to jail for one's convictions and grand intellectual principles is admirable in any shape or form, and while a serious discussion about Wolf's 1st Amendment rights could be had outside of the ambit of a discussion about professional journalism but still within the realm of free speech, Wolf's case squarely calls into question the identity and definition of what journalism ought to be.

Should Wolf be considered to be a protected person under a media shield? Is it reasonable to suggest that activity that looks like journalism should always be exempt from some form of regulative control? Or should we be putting more pressure on the individuals who consider themselves to be journalists? Absent of some formal way of recognizing who and what journalism is, there are too many mixed messages freely propagated in the culture about the essential rights and freedoms of the citizens and of the press. Because this leaves the public with no definitive way of knowing what is and is not respectable and credible journalistic information, this ultimately functions as a profound disservice to the public interest.

For consideration, an article from the Fall 2006 issue of Media Ethics magazine brings to light three high profile cases of journalistic malfeasance that have recently degraded the credibility of the media generally: Jayson Blair and the New York Times, Jack Kelley and USA Today, and Dan Rather and CBS News. In each case, in only slightly unique ways, the "professional journalists," who by all measures of the term would be covered by media shield laws, perpetrated fraud on the public and rendered gross journalistic malpractice. But what has changed? Aside from the fact that these journalists no longer work for the same institutions, many if not most journalists involved in scandals continue to practice as professional journalists in some respect. What guarantee does that give the public that news information of the future bears any resemblance to truth?

While it has always been agreed that the freedom of the press is one of the primary principles supporting the function of democratic self-government, the balancing act that determines what fits into the purview of press freedoms, and what does not, has always been a complicated and elusive task. While it is obvious that journalists require some protections that insulate their activities from the government's reach, it is not clear where to draw the line.

The News is Flat

2007-05-14T15:20:00.006-07:00

In another sign that Tom Friedman was right when he claimed that the world is flat, the Los Angeles Times reported last week that PasadenaNow, a lifestyle magazine covering the city of Pasadena, has hired two reporters in India to cover the Pasadena City Council meetings for the publication. Per the article, these outsourced reporting jobs will be held by two people living nearly 9,000 miles away from the news source they are covering: "One lives in Mumbai and will be paid $12,000 a year. The other will work in Bangalore for $7,200." The article also indicates that one of the two journalists had attended the UC Berkeley Graduate School of Journalism.

In an International Business Times article, the online magazine's publisher, James Macpherson, explains the move, saying "I think it could be a significant way to increase the quality of journalism on the local level without the expense that is a major problem for local publications." And perhaps Macpherson has a point. It is safe to assume that there are not many small publications with UC Berkeley Graduate School of Journalism graduates on their staff. The AP reported that the 51 year old Pasadena native posted job ads on the Indian version of Craigslist with position summaries that explained, "We seek a newspaper journalist based in India to report on the city government and political scene of Pasadena, California, USA."

This idea is not only bizarre, it breaks the rules of the common cultural supposition that some industries were insulated from outsourcing. Journalism was generally assumed to be one of, if not the most prime example of such a field. Robert Niles, a commentator at USC's Annenberg Center of Communication's Online Journalism Review, expresses the concern arising over the issue, as "it plays to journalists' fear that the global outsourcing epidemic that many of us have been covering for more than a decade now threatens our jobs." Niles goes on to complain that he believes "the attitude behind the outsourcing reflects so much of what is wrong with the practice of journalism today." Rob Gunnison, director of affairs at UC Berkeley's Graduate School of Journalism agrees, telling the LA Times, "it just seems so fundamental to journalism to be there."

A sensible point, especially when we assume all the basics about news reporting. It seems obvious that in order to conduct proper newsgathering and in order to provide thorough reporting on relevant issues, journalists need to be close to the source, frequently visiting the events and people making news. And it seems clear that they should be enmeshed and existentially engaged with the cultural logic of the news making environment in order to make meaningful choices about what information should and should not be reported, who should and should not be interviewed, and to provide a proper perspective and create a meaningful context for the information being examined. All of this is very difficult to achieve from 9,000 miles away. While it does certainly remove news reporting out of the cultural bias that is sometimes reflected by localized journalism, this is not what advocates for journalistic objectivity had in mind.

Although this move ultimately devalues the quality of journalism overall, because there is no substitute for being on scene, it seems unavoidable and makes too much business sense to be deterred as a practice. Given a choice between a professionally trained and experienced journalist and a C grade lackey from slacker University, USA, it is safe to say that most people will prefer to get their news from the former. Based on a brief look at the kind of journalism that is proliferating, maybe a bit of international competition will do journalism some good. Perhaps journalists have gotten a bit too comfortable with their sense of entitlement to their work.

Indeed, most of the anxiety about this issue is spurred by the fact that journalists had long considered themselves immune to the problem of outsourcing. One can only imagine the smug look on the faces of millions of Americans who have lost manufacturing and computer jobs to outsourcing as journalists get a taste of the spine tingling, hair raising realities of globalization. Welcome to the party.

Free Flow of Information

2007-05-14T15:20:00.003-07:00

On May 2, 2007, a bipartisan team of Congressman introduced the Free Flow Of Information Act. Representatives Mike Pence (R-Ind.) and Rick Boucher (D-Va.) have brought forth the bill in the House, while Senators Richard Lugar (R-Ind.) and Christopher Dodd (D-Ct.) introduced the same bill in the Senate.

While 33 states and the District of Columbia have already enacted legislation protecting journalistic privileges, this would be the first federal media shield law. Similar bills have been introduced to Congress in recent years but have never made it out of committee hearings. However, recent developments such as the Valerie Plame Affair and the record setting imprisonment of blogger Josh Wolf have raised the political profile of the shield law issue.

Perhaps what is most interesting about such a law is that, in order to confer protections to journalists, the bill has to come to terms with a legal definition of what journalism is and who can be considered to be a journalist.

The language in the bill cites protections for "covered persons," defined in the bill as: "a person engaged in journalism and includes a supervisor, employer, parent, subsidiary or affiliate of such covered person." The FFIA goes on to define journalism as "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." Distinguished from earlier attempts to create a federal shield law, the new incrnation of the FFIA now shifts the definition of journalism away from an individual's association with a formal news organization to the actual practice of news gathering and dissemination.

As defined, the new law would confer protections to New York Times reporters and bloggers alike. While Boucher told CNET news that they are "not attempting to extend this privilege to everyone in our society," he did explain that the law's "intent is that bloggers who are regularly involved in newsgathering and reporting, within the scope of that definition, would be entitled to the privilege."

The CNET article goes on to indicate measured support from Christine Tatum, President of the Society of Professional Journalists who said that while she would like to see the protections in the bill be as far reaching as possible, she qualifies her support for journalistic privileges with the comment that "if everybody's a journalist, nobody's a journalist."

The establishment of a truly bipartisan coalition introducing the bill and the presence of broad based support from heavyweight media organizations such as the SPJ, the Newspaper Association of America, the National Association of Broadcasters, the Reporter's Committee for Freedom of the Press, and the Ameircan Society of Newspaper Editors promises that the new version of the FFIA will be more successful this go-round.

Acts of Meaning

2007-05-14T15:19:00.001-07:00

As I woke up this morning to NPR on my clock radio, I was struck by this story featured on today's installment of Morning Edition. The report tells of the "culture of deception" that characterizes America's leading subprime mortgage lender, Ameriquest. In the report, former employees discuss the shady sales practices that were not only accepted but also encouraged by Ameriquest managers. It is even stated that loan officers at Ameriquest were trained by a showing of the film "Boiler Room."

By way of disclosure and explanation, a younger version of myself thought that "Boiler Room" was a decent movie. But please do not take this post as any sort of film critique. What is noteworthy and useful to my anecdotal report about this film is the way it was latched onto by many of my peers who entered into the financial services sector within a few years of its release. On more than a few occasions, references to this film were made by my colleagues in casual conversation. And the general tone of their commentary was always celebratory and glorified, as if there was something specifically appealing about the lifestyle and general conduct of the characters in this film: something that each of these separate individuals aspired to achieve.

It is not a profound or controversial statement to suggest that the average late-adolescent male might find the idea of bombastically making lots of money to be quite an alluring proposition -- particularly if the accrual of this wealth can be carried out in a covertly deviant, legally suspect and rebellious way. But the film ends as a cautionary tale of greed and excess. And the moral we are supposed to leave with is one that insists that we pull our base selves up by the bootstraps and come to grips with the consequences of our actions lest we hurt innocent people with our recklessness. At least that's the logical, common-sensical way of looking at the film - that we're supposed to learn a lesson, we're supposed to leave the theatre with some understanding that the fate of the film's characters, that the narrative mechanism of the plot ought to be advisory in some way.

Apparently that's not the case with this film. Apparently there's something more instructive than the plot device applied. Or maybe our baser selves are attracted to the shimmer, sparkle and flash of overblown glamour to the extent that cautionary tales make little or no headway in defusing the human pursuit of self destruction. Regardless, Ameriquest saw an opportunity to provide its sales force with an instructive cultural model. The culture of deception that floats in this film is the same culture of deception Ameriquest managers thought relevant to their project of internal corporate identity. And it is that same legitimate cultural model that was appealed to by my cohorts in the financial services sector.

It may not be surprising to know that these individuals no longer work in financial services. Indeed, subprime lending has gone out of political and economic fashion in the past several months. Foreclosure rates are climbing and the doomsdayers talk about the forthcoming economic bubble bursts. Depending upon your outlook and what you have at stake, the sky may indeed be falling.

But it's hard to point the fingers of blame, and that's certainly not the point of this post. As recent college grads looking for work -- any kind of work in a poor jobs market -- my friends never intended to do the dirty work of the subprime lending business. As filmmakers, Ben Younger and his staff never intended to engender a corporate culture of deception. "Boiler Room" is not responsible for tipping into motion some giant cycle of events that ultimately leads to a possible economic catastrophe.

So then, what is the point? If we can't blame the media for causing the problems of culture, we certainly can't hope that the media could ever solve them. To help get there, I want to mention an idea that has stayed with me from an undergraduate course that I was taking right around the same time that "Boiler Room" was in theatres. In his book "Acts of Meaning," Jerome Bruner introduces the idea of a "folk psychology," a concept that is useful for any conversation about the role of the media in the construction of culture. After hearing this morning's piece on Ameriquest's boiler rooms, I thought of this idea and went back to the text to look for some illumination. This is what Bruner offers:

All cultures have as one of their most powerful constitutive instruments a folk psychology, a set of more or less connected, more or less normative descriptions about how human beings "tick," what our own and other minds are like, what one can expect situated action to be like, what are possible modes of life, how one commits oneself to them, and so on. We learn our culture's folk psychology early, learn it as we learn to use the very language we acquire and to conduct the interpersonal transactions required in communal life. (35)

I mention this idea because it points directly at and reaffirms the power of the media practitioner. Media makers can and do shape and shift the folk psychology because we are involved in the actual production and construction of the "possible modes of life." Through a dynamic interaction and relationship with the cultural reality, media makers can subtly move the cultural language and shift our agreed upon cultural connotations.

As a piece of mass mediated culture, "Boiler Room" is both part and parcel of our folk psychology. But so is NPR, and Bruner's work, and, to some degree, so is this class blog on media ethics. In this regard, I don't mean to cast aspersion on the contents of culture, only to point out an anecdotal case of one way that mediated culture functions in the construction of identity and culture and why ethics is important in the management of mediated messages. I also wanted to echo a point that media practitioners ought to be endlessly preoccupied with: the consequences of their acts of meaning.

The Substantial Difference Between Copyright and Intellectual Property

2007-04-25T12:11:00.000-07:00

The Rhetoric of Digital Sampling

Digital sampling has become a staple technique in the production of popular American music: “almost every pop record contains at least one sampled sound.”[1] It has also become the touchstone for legal controversy in the music industry. As our modes of communication and identity adapt and shift to help us navigate our rapidly expanding, mass mediated public sphere, where “we are all besieged and blitzed by fragments of imagery, contradictory or unrelated, that shake up our old ideas and come shooting at us in the form of broken or disembodied ‘blips’,”[2] it is becoming increasingly apparent that some of our legal frameworks are failing to accommodate our evolving civic needs and rights. While digital sampling is both a cause and effect of this accelerated, vertiginous and metamorphic matrix of cultural crisis, as an art form that creates meaning out of the chaos of information presented by this space, it may also be a kind of stabilizing force. As we approach a cultural crossroads, while our copyright laws were intended to express the original equilibrating virtues of republican democracy, the rights of individuals are now increasingly and asymmetrically enhanced at the expense of the broad and long term vision of civic prosperity. As this balance begins to shift, our evolving cultural environments in the technological age – exemplified by the burgeoning processes of creative expression such as digital sampling and enhanced by the exponentially increasing amount of intellectual contributions to the public sphere – now demand a more accurate copyright rubric. Because it occupies a space of legal, moral and cultural consequence, digital sampling provides a specific arena in which we can analyze the effect of copyright doctrine on the cultural, political and economic well being of the United States.

The History of Digital Sampling.

The two extremes of hip hop are the sophisticated cross-cultural fusions which meld the oldest traditions with the freshest of musical technologies or, at the other pole and clinging for life, the bottom line of street survival. They are indicative of sharp contrasts within its city of origin, New York.[3]

Clap your hands, everybody
If you got what it takes.
'Cause I'm Kurtis Blow and I want you to know
That these are the breaks.[4]

Digital sampling was forged from the same alchemic stew that gave rise to the mercurial elements of the urban sound, underground–turn–pop culture of hip-hop. As cultural siblings, the history of these forms is substantively intertwined. Briefly, to illuminate their cultural significance, we can trace their heritage from a point of departure at the crucible of the political angst that surfaced during the earliest stages of what has come to be known as the post-Vietnam era in American life.

When “disco” arrived in the early Seventies, deejays[5] were employed by nightclubs to keep the dance floors and the bars crowded. The beat oriented nature of disco was conducive to a lively atmosphere and lots of dancing, and it began to attract a new generation of young people to the nightlife scene. This led early deejays to pursue the art of “blending”: matching the tempo of one song with the next to create a seamless transition – adding continuity to the music that embodied a more contemporary party atmosphere.

A significant feature of disco and funk music, and still a significant feature of many live band performances, is the part of the song in which the drums and percussion take over;[6] “the part of a song after the chorus where the song changes at the interlude [and] [t]he musical element is broken down for a few measures.”[7] This segment of a song is generally called a “break.” The break likely gets its name because, during a live performance, it originally served the purpose of allowing the rest of the musicians to rest while the drummer was allowed to showcase his skills. Also, as an element of musical change, the break adds a dynamic shift, breaking the song’s repetition.

Essentializing the beat based nature of funk and disco music, the break section is usually quite musically distinct from the rest of the song; because it is a percussive segment that is characteristically beat and rhythm based, it tends to inspire the peculiar, beat-oriented-human-phenomenon of dance in a more direct way than other aspects of a song.

Sometime during the Seventies, deejays in and around the South Bronx noticed that it was during the breaks that the crowd became most lively and responsive to the music. This observation led to the development of a new branch in the art of deejaying. Deejays began to buy two copies of the same record and would orchestrate a maneuver that sustained the break for lengthier periods of time. Utilizing a process coined as “beat juggling,” switching the signal from one deck to the next, deejays would play a break on one table while queuing the same break on the other side. At the end of the section on one table, the deejay could switch the signal to the other table to play the same or, eventually, another break on the other deck, once again seamlessly matching the beats and creating a continuous flow of danceable music, ultimately weaving through a menagerie of wild rhythms, limited only by imagination and the sounds available on records.

One of the most influential hip hop pioneers was Jamaican-born Kool DJ Herc. Sometime in the 1960’s, Jamaican disc jocks had begun to experiment with “dub,” a musical form that commingled Jamaican and usually non-Jamaican music by running two records simultaneously. Kool DJ Herc and other Jamaican arrivals introduced dub to New York’s blossoming hip hop scene and may have been very influential in the formulation and propagation of the hybrid musical concept that hip hop has embraced.[8] Integrating the influence of the dub techniques, deejays began to mix “breaks” and other elements to create new soundscapes in order to elicit the most celebratory reaction from the dance floor. This turntablist faculty of observing and appropriating all the available means of musical persuasion was the seminal creative phenomenon that led to the genre of music and culture now broadly called hip hop.[9]

Hip hop began to foster a new community. Street gangs in the Bronx grasped a more progressive way to compete: cultivating deejays, MC’s, graffiti artists and “break dancers,” displacing violence with artistic pride and evolving from rival street gangs into rival “b-boy crews.” As one commentator notes, “[s]ince nobody in New York City, America or the rest of the world wanted to know about the black so-called ghettoes – the unmentionable areas of extreme urban deprivation – the style was allowed to flourish as a genuine street movement whose presence was felt only through the prominence of one aspect of the culture – graffiti.”[10] And for about five years, hip hop marked its territory as an underground culture in and around New York. Soon, however, the music industry would read the writings on the wall and a new musical form would launch hip hop culture into the global marketplace.

Entrepreneurial producers began to recognize that a new market was emerging with the popularity of the new sound. Disco’s materialistic overdose primed the stage for hip hop’s arrival; and in 1979, Sugarhill Records released the first big hit rap record: ‘Rappers Delight,’ by The Sugarhill Gang. Rap piggy-backed disco in more ways than one. Not only did the deejay culture stemming from the disco-club environment stimulate the early development of hip hop, rap music was primordially thrust out of a musical crucible of disco, funk, soul and jazz; hip hop became the elocutionary force that transliterated the emerging musical styles and processes instantiated by dub and break-beat juggling. (‘Rappers Delight’ is a premier and primary example of this process of musical amalgamation with its use of a remake of the disco track ‘Good Times,’ by the band Chic, to provide the basic background beat and bass-line for the cartoonishly comical lyrics delivered by The Sugarhill Gang).[11]

The success of hip hop may very well be related to the success of many primary musical contributions; cultural evolution is necessarily a movement or expansion that must start at some space before morphing into a new arena; it is a process that is reflexive, organic and context bound, as all meaning making activity must be. One scholar remembers that “even great composers such as Bach, Handel, and Vivaldi borrowed from preexisting works.”[12] But hip hop, as a natural projection and musical movement, is also its own cultural space, invoking its own ideas and organizing its own original expressions amidst, about and through an intermingling-of, commentary-on, and reference-to the general resource of meaning we all use to understand the world around us.

Derived as a method of survival for a world marked by “unmentionable areas of extreme urban deprivation,” hip hop expresses the angst of rebellion for a new generation of American youth and affirms the struggle and injustice of second class citizenship. Its derisive lyrics suggest the cultural needs of a new generation of American citizens. As the old forms, models and popular characters began to lose their relevance to the realities of the American experience, hip hop offered a new voice. An example of this is illustrated by this verse from ‘Rapper’s Delight’:

I said by the way baby what's your name,

she said I go by the name of Lois Lane,

and you could be my boyfriend you surely can,

just let me quit my boyfriend called Superman.

I said he's a fairy I do suppose

flyin through the air in pantyhose.

He may be very sexy or even cute

but he looks like a sucker in a blue and red suit;[13]

In its musical appropriation and subsequent transformation of cultural meanings and contexts, paving a mediated space of identity that was not previously directly available to the entire population, hip hop became an empowering form that gave a public voice to a segment of society that had been kept under the thumb of a more homogenous and dominant pop-culture.

As the street morphed away from the Man of Steel to the “wheels of steel,”[14] a new slate of superheroes was cast for this new chapter in the music industry, appearing in the iconic forms of animated rappers and hyper-stylized deejays. Stimulated by the success of the new sound, hip hop began to carve out a profitable corner of the music world and faithfully defied the rumors that this subcultural phenomenon was just another bad little fad. Along with their constituents, as they invented “a new language of musical speech, painting, dance, dress, slang, musical composition, even a succession of musical tools, hip hop’s pioneers chopped out their own niche in a world increasingly dominated by global capital.”[15] The world slowly began to embrace the maturating identity options presented as the “b-boy” and the “b-girl.” Schooled with “an attitude of creating from limited materials,” the tools they used were simple at first; “Sneakers became high fashion; original music was created from turntables, a mixer and obscure (highly secret) records.”[16] As it continued to uncover a mass appeal, hip hop became commercially viable. As more and more successful rap albums incorporated elements of previously recorded music, the business of making hip hop music – saddling the burgeoning computer and electronics technologies – drove the engineering of better and more complicated electronic devices and allowed the culture to set roots in the mainstream music market. And, as analog gave way to digital technologies, the simple deejay tools gave way to a full fledged electronics industry where,

[b]y the ‘90s, these samplers could run multiple loops of long or short sections of music simultaneously . . . Now layers could be built up, using a rhythm loop from, say, ‘Funky Drummer’ by James Brown . . . a bass line from a Funkadelic record, some atmospheric strings from a blaxploitation soundtrack like Cotton Comes to Harlem and synthesizer squirts from a J.B.’s funk track . . . Painstaking hours could be spent, using state-of-the-art technology, to make a new track . . . Somehow, in all the waffle about morality and legality that arose around the subject, the fact that this was an extraordinary way to compose music was bypassed.[17]

Digital sampling had arrived. What began as an experimental realm of musical play had emerged as a mature music industry. Machines were now being designed and manufactured for the sole purpose of making the appropriation of sound an easier and more affordable process.[18] Producers were now endowed with a vast array of new technology with which they could dissect and reconstruct an infinitude of musical elements. As more and more musical information became available for the artist, and as it became easier to grasp and manipulate that information, musical collage through digital sampling became more apparently relevant and useful as a means of expression.

A Social Theory of Hip Hop

Language forms a kind of wealth, which all can make use of at once without causing any diminution of the store, and which thus admits a complete community of enjoyment; for all. Freely participating in the general treasure, unconsciously aids in its preservation. –Auguste Comte.[19]

He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask, then, when did they begin to be his? when he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common; that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will anyone else say he had no right to those acorns because he had not the consent of all mankind to make them his? Was it robbery thus to assume to himself what belonged to all in common? –John Locke.[20]

Hip hop has evolved as a culture that is specifically tailored to a mass mediated society. As a fundamental feature of hip hop, digital sampling is a particular kind of artistic expression that partially functions as a medium of symbolic regurgitation. Because we increasingly exist in a society of mass information, our cultural forms have begun to adapt strategies to help us collectively navigate the symbolscape and comfortably integrate massive amounts of information. Art that emphasizes our situation in a mass mediated world by creating new expressions that extract, reconfigure and reproduce this mass mediated matrix in various ways are becoming increasingly abundant, but also increasingly more important for a society that must now work more diligently to digest and metabolize a meaningful and autonomous coexistence with symbols. As our cultural contents and reservoirs of language expand and evolve the public sphere, our forms of communication and identity must shift to accommodate and support the development of the societal spaces of public and personal intimacy. Digital sampling is a premiere example of this cultural adaptation.

Avante-garde movements in art may have predicted the rise of this collage based, amalgamating and inter-mediated form of artistic expression. In the late Fifties, artists such as Andy Warhol began to experiment with the appropriation and transfiguration of popular images.[21] Reshaping the way we see the commercially oriented world immediately surrounding us, pop culture is “manifest in our everyday experience through photography, movies, billboards, commodity packaging and all commercial ‘visuals’ that are so commonplace we hardly notice them though we absorb them totally.”[22] This kind of art is sometimes quite striking because of its ability to generate a concise and meaningful commentary not only about the images themselves, but also about a society that produces ubiquitous images that are universally recognized.[23] Because we do live in a society that is so fundamentally dependent upon a collective participation of information, and which consequently bombards us with massive matrices of symbolic information, popular art forms – and other kinds of communicative actions that can take these symbols and use them to articulate meaning – are vital not only as free and original expressions, but also because they add models to the shared matrix of information: models that symbolize the successful comprehension, integration and articulation of coherent meanings that have been simultaneously decoded by and which exist within and sustain the balanced organic chaos of mass mediated culture. Their contribution to the symbolscape is invaluable for a society that is scrambling for more relevant ways to fructify autonomous identity within a swelling public sphere that is frequently fragmented, disjointed and swarming with exponentially alienating information.

Sampling the symbols that occur in our environment in order to create new meanings and facilitate the integration of mediated information into our collective psychic conglomeration of ideas somehow enriches our experiences and enables us to be more symbolistically fluent, psychologically buoyant and culturally cognitive. Because these symbols are mass mediated, they increasingly measure and mark the space we must negotiate inwardly and outwardly in forging identity and personal relationships. If we want to forge more autonomy and intimacy and mitigate anxieties and alienation, it is imperative that this realm of human expression retain an organic and fluid nature and that copyright law and other administrative forces allow cultural forms like digital sampling to facilitate the ability of the general symbolic matrix to obtain and endow mature and fructificative identificatory force.

The preservation of an unfettered creative license, unbounded access, and untethered interaction with the totality of mass mediated rubrics of selfhood is increasingly important because, as one social theorist has explained:

[t]he process of self-formation becomes increasingly dependent on access to mediated forms of communication – both printed and, subsequently, electronically mediated forms. Local knowledge is supplemented by, and increasingly displaced by, new forms of non-local knowledge which are fixed in a material substratum, reproduced technically and transmitted via the media . . . Individuals’ horizons of understanding are broadened; they are no longer limited by patterns of face-to-face interaction but are shaped increasingly by the expanding networks of mediated communication.[24]

As this passage conveys, we now increasingly inhabit a world where our boundaries of intimacy are entangled with the mass mediated public sphere. As a society, we are now beginning to learn how to structure a selfhood that achieves intimacy with and through the symbolic matrix presented by the multimediated public sphere. This is to say that, because the public realm is becoming such an integral part of each individual’s reality, we have begun to develop modes of selfhood that achieve intimacy by simultaneously appropriating and articulating the terms of the public sphere. In fact, one could argue that selfhood in a mass mediated society exists in the very interdependent space of intimacy and autonomy, the commingling field between appropriation and articulation.[25]

This process is becoming increasingly organic and symbiotic; perhaps it will eventually privilege neither the public nor private sphere. This emerging balance is the growing space of interdependence that is transforming intimacy and selfhood. Cultural forms that enhance this space of interdependence between appropriation and articulation contribute to our ability to achieve intimacy, simultaneously inwardly and outwardly, which is arguably the primary function of the self.

Digital sampling, as an artistic method, structurally echoes the complicated inter-relational matrix of this new space of intimacy; hip hop is so fundamentally an art of amalgamation that its structure is an intrinsic characteristic of its expressive content. As a structural model that reverberates through the public sphere, digital sampling in hip hop represents a structure of organic interdependence between appropriation and articulation that can be used as a map to navigate the symbolscape in search of identity and intimacy.

Digital Sampling as Language.

Writing about music is like dancing about architecture. --Elvis Costello.[26]

The self is a symbolic project that the individual actively constructs. It is a project that the individual constructs out of the symbolic materials which are available to him or her, materials which the individual weaves into a coherent account of who he or she is, a narrative of self identity.[27]

The organic cycles of meaning-making are a salient feature of our basic human faculties of language. Inter-mediating forms and forums of communication, exemplified by hip hop or Warhol’s brand of Pop Art, are the natural metaphors that can be seen as palpable reality-based examples of how our linguistic structures of selfhood have adapted to a mass mediated world. As mentioned earlier, in an effort to demonstrate the kind of commentary that is engendered by the self-referential art that creative tools like digital sampling make possible, a short lesson in structural linguistics allows us to see that even the words we use in every day life are themselves symbolic signs or metaphors for meanings. As we become conscious, we begin to accumulate a vast collection of meanings that we cognitively organize by and with symbols. Sometimes these symbols are so closely tied to meanings that we are not immediately able to distinguish between the signs and their meanings. This often feels so true that meaning begins to seem significantly natural and universal. But at a second thought, self indexically speaking, even the necessary correlation between the succession of black lines appearing as the symbols we know as words and text sitting on the page before us here – and the meanings we ascribe to these words and text – is lost. It becomes very obvious that our ability to understand these signs is entirely dependent upon the organizing cultural forces that have connected these symbols to meanings. In order to communicate, within the cultural logic, we use words and other symbols to point – outwardly as well as inwardly – towards these meanings.[28] The important point is that, while we individually construct meanings for our symbolic organization, and while this construction is variable and existentially arbitrary from one person to the next, we all share an interdependent and collective cultural resource from which we draw our symbols and meanings. There is no idea independent of any other idea. Although each individual must subscribe to the symbolscape in their own idiosyncratic way and each creates a world that is highly existentially organized by varying subscriptions to cultural categories and specifically connotated experiences, we all have in common the general resource of culture from and with which we carve out our identities and our communicative actions.

Likewise, digital sampling can be understood as a process of language on two levels. It is a technical language that bears its own system of meanings to function mechanically; and it is a communicative art. First, it calls on the general resource of available recorded music to make musical meaning, using bits and pieces of that resource to formulate musical structures and ideas. Second, because the meaning of those musical samples is dependent on not only the language of music, but also on the general resource of cultural contexts and connotations that we all use to understand what various elements of music mean in the first place, sampling is an art from that invokes the basic functions of our symbolistic capacity to make meanings out of signs.

To illustrate this process, if we consider the quote by Elvis Costello presented at the beginning of this section, we can begin to come to terms with the binary processes of human language. Costello implements a metaphorical commentary about the nature of language, detailing its complexity and outlining the limitations of its variations. The poetic played out in the notion that “writing about music is like dancing about architecture” has force not because it plays on words, but rather because it creates an ironic map of what these concepts could do to each other. It is not impossible to imagine a dance about architecture – such a performance might be quite beautiful – but there is a common understanding amongst those of us who have learned what dancing and architecture are that we can understand how communicating specific ideas about architecture through dance might be quite a cumbersome and inarticulate process. Simultaneously, the argument could also be made that one could communicate many things about architecture through dance that could never be communicated with words or design sketches. The point here is that dancing is as much of a bonafide form of human language as is sketching blueprints, writing sheet music, literary criticizing pop culture and digital sampling.

Language is any conglomerate way of communicating ideas. It is so intensely organic that it does not make any sense to attempt to stratify or categorize meaning making activity in any authoritative way. It might be argued that categorization of language is useful only insofar as meaning making requires a kind of poetry to form the logic of culture. As poetry is marked by play between categorical distinctions, it is these distinctions that form the logic of our cultural narratives and, furthermore, it is this consequent logic of culture that allows us to make social agreements that are required to forge communications in our efforts to forge identity in search of intimacy. In the end, it is this plasticity of language, this organic play and poetry, which signals consciousness as being separate from the inorganic world and unique to life. And it is this sacred priority of language that is supposed to be protected and preserved by civilized societies that are founded on the bases of natural human rights.

Finally, dizzily concluding this section, we can hopefully begin to grasp the privileged articulative immediacy and referential specificity that a collage based expression obtains over verbal communication when trying to make this kind of point.[29] When hip hop or collage based Pop Art places the particular pieces of the general cultural resource in its expressions, as a unique instance of language, it immediately calls out the cultural connotations of those pieces. Because the meaning of each of these pieces is very specific, an identical reference is seemingly impossible to achieve otherwise. What is important, however, is that these new collage based expressions use these images not only to point towards their existing cultural identification, but to somehow also situate these images in a new context to make new meanings. Because these new expressive commentaries are impossible to generate without the precise meanings conjured by these images, and because we live in a society that privileges the freedom of expression, it is difficult to understand why contemporary copyright laws would impede the progress of these new cultural forms by imposing restrictions on the use of the available cultural resources. If we limit access to the general resources we all use to make meanings, we limit the language available to express ourselves. Consequently, if the symbolscape is monopolized by copyright, we are left anxiously stranded in a mass mediated world of fragmented and jumbled cultural information without our natural linguistic structures to organize an autonomous selfhood. As a result, we become less able to implement and exercise this expressive faculty in pursuit of intimacy. While it is not literally expressed, the virtue of free speech and the principles ensconced in the idea of democracy ultimately revolve around this primary notion, that we have a natural right to language because it is language that makes us human.

Nonetheless, after situating digital sampling in its proper context as a fundamental factor in the creation and reception of the vibrant hip hop music and culture, finding its critical function as a complex inter-mediary art form that contributes to our cultural resources and enhances our identificatory structures, and even after seeing digital sampling as a natural derivative and extension of the basic systems of human language that we use in everyday life, none of these points removes digital sampling from the current ambit of copyright law. Despite much debate, and lacking any authoritative judicial consideration, and mostly because of the deep pockets of the special interests (recording labels) that supervise the discussion, digital sampling is still widely feared to be a copyright infringement and, under the threat of expensive litigation, is sanctioned by the asymmetrical mores of the music industry.[30] The question remains to be, what are the fates of these cultural and natural values if we continue to let the fear of law tread on their domain?

A Basic History of Copyright Policy.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispose himself of it. –Thomas Jefferson, 1813.[31]

Copyright doctrine has undergone a series of political shifts since its origins in 16^th century England. Early common law copyright arrangements were designed to serve the Crown’s concerns that factious and heretical dissent could suddenly propagate at a more liberal and expedient pace with the help of the emerging printing press technologies. These earliest common law protections granted printers and booksellers the exclusive rights to print works, but only those works that were approved by the Crown.[32] At its inception, under monarchy, copyright was primarily a mechanism of censorship.[33]

By the time the Founding Fathers set down to design the Constitution late in the 18^th century, copyright had become, as it is concretized in American law, a limited protection to be granted to original creators in the arts and sciences in the form of a limited monopoly. Now, acting not as an instrument of censorship but as a special right and privilege, copyright protections intended to create an environment conducive to the invention and progress of the arts and sciences.[34]

In America, the original policy of copyright protection revolved around the basic democratic concern for the public good. As a means to prod the progress of society, at the immediate expense of the general population, the government enhanced individual rights so that, in the long term, by fostering an environment of creativity, these individual privileges would reconcile with the rights of society as a whole in the form of an accumulating abundance of works that would contribute to the broader cultural resource available to everyone.

At the time of the Founding, there was much debate about whether the Constitution should allow Congress to confer limited monopolies in any form. Corresponding from Paris, Thomas Jefferson expressed to James Madison that he had deep concerns regarding the synonymous treatment of copyright and property. He discerned an important distinction between tangible property and ideas: that the latter can never have a natural scarcity. Concerned that copyright monopolies would eventually encompass idea protection, Jefferson explained that an expressed idea was peculiar because “no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” Jefferson was also opposed to monopolies in principle. Being a land holder and a slave owner, Jefferson was not a foe to protections for property, but he did express the basic fear that the power of state-granted monopolies, without the natural regulative force of free market competition, would snowball to the extent that private entities would be able to control the ebb and flow of ideas and speech, endowing them with the rather undemocratic role of overseers on culture. Because a monopoly unilaterally determines the cost of its contributions to society, the basic rules of competitive supply and demand no longer organize the economy. Monopolies are able to generate profits in an unregulated way, particularly if they make their products integral to the economy. Furthermore, Jefferson realized that while monopolies on property can be extremely detrimental to the market because they limit or remove the spectrum of consumer choice, monopolies on ideas strike deeper into the heart of democracy by limiting the spectrum of free expression.[35]

Balancing the general public good and the rights of individuals is a complicated function of republican government. It is important to note that when the law takes measures to privilege individual rights, it is designed to do so in the interest of the greater public good. Limited monopoly protections were designed to function as an incentive to create new works. This limited monopoly would grant artists complete control of the reproduction and distribution of their goods so that they could profit accordingly, limited only by their entrepreneurial abilities. If a profit could be guaranteed to the creators of new and better goods, more people would be willing to risk the investments required to create new works, and the public would be served by a stimulated competition of invention. More competition means an abundance of choice – one of the most fundamental principles of democracy. Without copyright as the balancing mechanism, it is presumed that capable individuals and groups would make stern efforts to exploit new expressions by copying them and distributing them to the market without ever having to invest the time or money to invent the works in the first place.[36] While this would momentarily serve the public good by making these few works broadly available and less expensive, it would also diminish the incentive to create, which would ultimately diminish the number of creative expressions available to the public.

Contrasting Jefferson’s view that these limited monopolies would decay the free market, Madison argued in The Federalist that copyright was a rare case in government where the “public good fully coincides with the claims of individuals.” Introducing the copyright and patent clause to the Constitution, Madison believed that copyright would generate a progress in the arts that would contribute to the quality of learning, literacy, and to a generally more informed public. However, Madison did not speak of copyright in terms of property. Rather, copyright was to function as a mechanism that “looked forward as an encouragement, not backward as a reward.”[37]

James Madison was arguably the most influential architect of the Constitution. His Virginia Plan served as the basic working draft which the Constitutional Convention used to map out the nation’s charter. Of particular concern to Madison at the time, understanding that his world was being launched into a great democratic experiment, was that the rights of the few could be superseded by the voice of the majority. A prominent historian has characterized Madison’s philosophy as being one that recognized that “the true problem of rights was less to protect the ruled from their rulers than to defend minorities and individuals against factious popular majorities acting through government.”[38] Consequently, Madison pioneered the American politics of minority rights. Ironic to contemporary connotations of the phrase, his original concern was not for the disenfranchised minority voice, but rather for the few wealthy landholders who feared that, with democratic authority, the majority of Americans could impose their will upon the state. Limited monopolies stem from this Madisonian philosophy. The preservation of the minority voice and the establishment of monopolies are not generally considered to be strong democratic principles. But it is precisely these kinds of republican twists of governing that have endowed the American democracy with its staying power. By orienting itself towards the greater public good, sometimes defying the immediate passions of the majority will, Madison’s version of republican government evenhandedly and calmly executes the broader democratic goals of the state.

As a mechanism that preserved the public good in the long run, limited monopolies were an appropriate republican instrument for an infant nation. But, as the visionary Jefferson could see, monopolies could pose a dangerous threat to the integrity of a society founded on the democratic ideals of liberty and choice. Although nobody could have foreseen the details of this impending threat, Jefferson was certain that “the benefit of even limited monopolies is too doubtful, to be opposed to that of their general suppression.”[39]

In all fairness to James Madison, today’s mass mediated world has created cultural conditions that call copyright monopolies more squarely into question. Digital sampling and the hyper-technologically industrialized and mass mediatized cultural situations that demanded its presence were still two hundred years away. If only he were lucky enough to make a video conference call to Paris, Madison might have been more persuaded by Jefferson’s distaste for monopolies. Perhaps Jefferson more clearly understood the slippery slope that would be established when limited monopolies found their legitimacy in the Constitution. Or maybe we have neglected to preserve the integrity or otherwise perverted the regulatory republican mechanisms originally envisioned by the Framers. But it seems like Madison would now certainly agree, carrying forward his emphasis on the broader cultural good and his theory of minority rights, that copyright has overstepped its proper role and has fallen out of its republican balance. While Madison’s personal concerns for minority rights may have been more elitist than banal, and while his politics may have been more oriented towards republican stability than the passions of the majority voice, his ideals were seated soundly in the general public good. And while it is suggested that Thomas Jefferson would have loved Napster[40] (and despised Bill Gates), with his instincts for intermediating between various ideological sources, his gift for gleaning the common goals of diverse political theories and by his essential talent for composing complicated compromise, it seems that James Madison would have been a masterful digital sampler.

The copyright clause is one example of the kind of “Madisonian compromise” that characterizes many important pieces of the Constitution. While copyright protections are empowered by the Constitution, it is particularly noteworthy that copyright itself is not a Constitutional right.[41] But the policy embedded in the Framers’ language is brilliantly clear, that “Congress shall have the power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[42] While the right itself is not Constitutional, the policy behind copyright protections is concretized in the Constitution. The Congress was endowed with the power to create legislation that would confer limited monopolies so long as these protections served the purpose of promoting the progress of science and the arts.

Taking this basic principle into consideration, a more significant shift in copyright doctrine has evolved even more recently. Down the slippery slope and against the grain of the Constitutional policy of promoting the arts, we have now begun to treat copyright as an outright protection for property. This is apparent even in our cultural vocabulary, with the phrase “intellectual property” now finding itself to be a common idiom, popularly used to describe creative works.[43] This conflated copyright policy of prioritizing individual privilege entails a major digression from the original policy that demanded limited monopolies to serve solely to stimulate the creative progress of the arts for the sake of the public good. Now, rather than primarily focusing on the broader concern of society’s right to a broader cultural resource, copyright has become a property protection that blindly endows individuals with an extensive entitlement of property ownership.

This latest shift in copyright doctrine can be seen as the result of a mysterious conceptual blurring of the copyright policy and the copyright rule. The copyright rules that were designed as limited monopoly mechanisms have displaced the original Constitutional policy of promoting the progress of the arts to the extent that these rules have induced an independent policy of intellectual property rights. We currently seem to operate under the supposition that an artist is entitled to an outright absolute monopoly over her work just by virtue of being the creative artist rather than measuring that artist’s interests against the greater interests of society as a whole. Unfortunately, this runs contrary to the Constitutional vision of what copyright laws should do and challenges the basic Constitutional notions of our democratic republic. [44]

Digital Sampling and Copyright Infringement.

Sound recordings did not gain copyright protection until 1972 when the Sound Recording Amendment of 1971 became effective. This legislation was designed as a specific response to the fact that, during “the 1960’s and 1970’s, one fourth of all records and tapes sold in the U.S. were illegal duplicates.”[45] In 1974, the Sound Recording Amendment was made a permanent part of the Copyright Act of 1909; copyrights for sound recordings were then also later incorporated into the Copyright Act of 1976.[46] This is an important point because it reveals that copyright for sound recordings was designed specifically to prohibit “duplication,” or record piracy, not digital sampling.

When digital sampling popularized, a question was raised as to whether or not the appropriation of only pieces of an original sound recording counted as copyright infringement. Digital sampling had not yet emerged as a significant way of producing musical expression when the Copyright Act was drafted. Consequently, as even some dissenting commentators have noted, digital sampling presents a problem that has “no obvious solution in the language of the Copyright Act.”[47] Although some critics have claimed that digital sampling is piracy, it is very clear that the kind of piracy that Congress intended to deter with the Sound Recording Amendment is very distinct from the artistic methods expressed by digital sampling techniques.

In the end, the distinction is bright; Digital sampling is not record piracy. Because there is this bright distinction between digital sampling and record piracy, the subsequent debate over digital sampling has become a competition to interpret and predict the intent of copyright policy, language, and the scope of their protections. Competing analyses of the economic effects of sampling on the value of original work implore a reevaluation of the balance between rights of expression and rights of property. Ultimately, a balance must be struck with an eye towards the policy goal of copyright protections as announced by the copyright clause in the Constitution: to promote the progress of the arts.

In determining whether or not digital sampling is copyright infringement, a court primarily makes recourse to the language of the statutory body governing copyright protections: the Copyright Act of 1976. The structure of the protections conferred by the Copyright Act illuminates the issues raised by the digital sampling debate. The test for copyright infringement provided in the Copyright Act demands that a plaintiff must first prove ownership of the original recording and then must show that the defendant copied the sound recording by demonstrating that the defendant both had access to the original work and that the two works are substantially similar.

Because the language of the Act was drafted before sampling became a popular practice, only controversy has surfaced to situate its legal status. To this date, courts in the United States have not made a serious attempt to discuss the legitimacy of digital sampling as an art form and as a fundamental feature of the production of modern music. The controversy met the law in 1991 when a court offhandedly presumed digital sampling to be a blatant copyright infringement. This court was the first of only two United States District Courts to have considered the unauthorized use of digitally sampled elements of a sound recording. No other courts have considered digital sampling at length.[48] With its famous decision in Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., the United States District Court for the Southern District of New York reprimanded rap artist Biz Markie for sampling elements of an earlier recording, reminding him of the Seventh Commandment when beginning its decision by bellowing the catchy tenet “Though Shalt Not Steal.” [49] Accused of knowingly stealing copyrighted materials, the defendants in this case attempted to justify their use of a sample with the contention that “digital sampling was a widespread practice in rap music,” a claim that the court quickly dismissed as “totally specious,” noting that “[its] mere statement . . . [was] its own refutation” and further, that arguments trying to exempt lawlessness on the basis that everybody else is similarly breaking the law are “always destined for abject failure.”[50] Needless to say, the defendants’ argumentative tack did not compel the court to measure the complicated matrix of philosophical and economic concerns surrounding the digital sampling debate; the court ultimately held that digital sampling constitutes a “callous disregard for the law.” Because the court was so eager to lend an incisive – albeit dogmatic – response to the defendant’s position, but more because of the fledgling legal representation brought to bear the legitimacy of digital sampling, the court did not thoroughly consider the ramifications of the digital sampling versus copyright debate.[51]

In the second case, Jarvis v. A&M Records, the United States District Court for the District of New Jersey also came out in opposition to digital sampling. Again, the court found that “there can be no more brazen stealing of music than digital sampling.”[52] As in the first case, the court strictly applied the test for copyright infringement. Unfortunately, digital sampling is a quick study under the copyright infringement rubric; access and substantial similarity are quite necessarily a fact of digital sampling. This was more or less immediately surmised in Jarvis, as the court noted that “the copied parts could not be more similar—they were digitally copied from plaintiff’s recording.” However, the defendants in this case presented a more persuasive argument regarding the legality of digital sampling. Echoing the distinction between digital sampling and record piracy, the defendants asked the court to appraise the claim that copyright infringement should exist “only if the two songs are similar in their entirety.”[53]

Remembering that the statutory language was designed to thwart duplication, not the creation of new art, the requirement that a new work not have substantial similarity to the original work is particularly frustrating. Because this phrase was devised in an effort to deter duplication, and because Congress is instructed by the Constitution to “promote the progress of the arts,” it would seem that artistic methods that incorporate pieces of old works in the expression of new ideas would gain a privileged status under the light of copyright law. But this has not been the case. Instead, courts have strictly interpreted the language of the statute, implying that even minimal similarity between two works might be grounds for infringement, particularly when the similarity is identical. Because digital sampling is essentially a method of copying, courts have found that it inherently commits a substantial similarity. Nonetheless, the degree at which a new work becomes substantially similar remains to be determined; controversy over digital sampling and substantial similarity entertains a nebulous and vague aesthetics debate over quality and quantity and fair use, ultimately asking judges to render decisions to questions about the rhetoric of art and culture that are much more appropriately answered by the public. Consequently, digital sampling now finds itself in the unappealing position of not knowing whether or not it is allowed by the law.

The phrase “substantial similarity” presents an awkward framework for determining copyright infringement and may be the primary source of confusion. The crux of the digital sampling debate finds itself balancing on the meaning of these words. The realm of their interpretation is the conflicting intermediate space between the copyright clause in the Constitution that implores the progress of the arts and, on the other hand, the evolution of copyright policy into the contemporary paradigm of intellectual property rights. This conflation, and the lack of a judicious rendering of law, has allowed American culture to be organized on the corporate schedule. Substantial similarity seems flawed because it unilaterally privileges the artists’ stake in the work. If the average person is asked to discern a similarity between two works, the statute insists that the question balance not on whether the new work contributes new meaning to the world, but rather on whether or not it uses previous works in generating this new expression. The code, in this case, is more concerned with locating the previous work in the new work, uncovering its focus to be based not on a policy of promoting new art, but rather on a policy of protecting old works.

The Constitution requires copyright law to promote the progress of the arts. It also requires the freedom of speech. Remembering that Madison’s political philosophy was one that “looked forward as an encouragement, not backward as a reward,” it is hard to see how the substantial similarity phrase in the statute contorts to match the copyright policy that gives it life.

The substantial similarity requirement for copyright infringement has persistently bewildered judicial interpretations of digital sampling. The Jarvis court complained that “the test for substantial similarity is difficult to define and vague to apply” and was forced to rely on an interpretive framework that finds the lowest common denominator, explaining that “the test to determine substantial similarity is the response of the ordinary lay person.” The defendants agreed, but argued contrarily that if a lay person could easily perceive a difference between the new work and the original work to the extent that one “would not take the one for the other,”[54] then a copyright infringement has not occurred. The principle behind this argument is the democratic organization of the free market. Under this framework, the value of the difference between the works is enhanced and concretized by competition in the market. Even if the works are necessarily similar, because they are sufficiently different, the market ultimately decides which work is more valuable to the culture by voting with its buying power. Furthermore, this upholds the Constitutional policy that drives copyright law because it emphasizes the progress of the arts by promoting new contributions to the cultural resource, by ensuring that this resource is relevant to societal demand, and by prioritizing the cultural resource over individual rights, especially when the new contributions resemble pieces of older works. What is premiere in this framework is that the public, not a court of law, makes the final approximation of the value of the work. Above all things, this is the fundamental thrust of the American ideals of democracy, free market competition and free speech.

Unfortunately, the court slighted this aspect of the defendants’ arguments in favor of a more strict adhesion to the copyright rubric that inheres a language of similarity, not difference. It is this blind emphasis on the code of law that uncovers the courts’ consistent evolution of copyright doctrine. In spite of its political origins, what originally appeared as a mechanism to preserve the integrity of civic culture has become a state-granted and state-protected instrument of corporate monopoly. Because of the business structure of the recording industry,[55] while copyright was originally designed to protect the artists’ incentive to create, it now protects the corporate monopoly on recording rights and inhibits the free and independent exploration of new methods and new kinds of expression. With their overbroad and offhand evaluation of the legality of digital sampling, the courts have sanctioned the recording industry’s oversight of the digital sampling debate. In conjunction with these overbroad District Court decisions that imply and impose speculation that digital sampling is copyright infringement, a de facto fee schedule and licensing system has been organized and controlled by the superior bargaining strength of the record industry, [56] making digital sampling a “hazardous occupation.”[57]

Fortunately, the facts of these two cases limit the scope of their holdings. Because neither court undertook a serious analysis of digital sampling with respect to copyright law, later courts might be inclined to rule that digital sampling is in fact not copyright infringement. Rather than embark on the arbitrary course of determining issues of degree and fair use, a court could outrightly decide that digital sampling is protected as free speech and that copyright monopolies have overstepped their proper role for a current mass mediated cultural environment that leans heavily on the contributions of new technologies and artistic innovations. Copyright law was designed to promote experimental innovations and creativity, not to stifle it. At the point when such experimentation and creativity becomes a “hazardous occupation,” later courts must be very serious when retracing the steps of preceding decisions that have unwittingly lent their authority to the suppression of the arts and the progress of civic culture.

Looking back at these cases, a court is likely to find that digital sampling is indeed deserving of a more focused analysis and a more balanced treatment. There is a cumbersome tone to the reasoning in both of these decisions that should alert future courts in their consideration of the digital sampling issue. An example of how these two decisions have narrow scope is revealed not only in the facts of each case, but also in the language of their holdings. First, in the Grand Upright case, the court held that the defendants had willfully infringed the plaintiff’s copyright, citing the fact that the defendants had sent a letter to the plaintiffs, asking for permission to use the sample. Even though no permission was granted, the defendants used the sample in their song. The court held that the request for permission implied that the defendants believed they would be infringing copyright if they used the sample without the plaintiff’s consent. Indeed, it has been claimed that “[t]he court found the request-for-consent letter the most persuasive evidence in this case.”[58] Because the defendants did proceed to use the sample without consent, the court found the use to be a willful infringement. Consequently, the court did not undertake an analysis of digital sampling. In the courts mind, because the request-for-consent letter already showed that the defendants believed they were infringing copyright,[59] the court did not find it necessary to determine whether or not digital sampling was copyright infringement in the first place. Unfortunately, the defendants may have in fact believed that digital sampling was indeed a legal method of making music but, in the uncertain legal climate surrounding digital sampling, resorted to asking for permission to allay the threat of subsequent litigation. In fact, an unintentional consequence of the Grand Upright decision is that it discourages samplers from trying to obtain consent because these requests can later be construed to prove that they willingly infringed what they understood to be copyrighted materials.[60]

The fumbling logic that anchors this unscrupulous jurisprudence is also available in the Jarvis decision. Tracing back over the defendants’ arguments that what is important when dealing with digital sampling is not the amount of similarity but whether or not a distinction can be made between two works, the court explained that,

defendants misconstrue the scope of the examination, at least in the context of fragmented literal similarity, where there unquestionably is copying, albeit of only a portion of plaintiff’s song. If it really were true that for infringement to follow a listener must have to confuse one work for the other, a work could be immune from infringement so long as the infringing work reaches a substantially different audience than the infringed work. In such a situation, a rap song, for instance, could never be held to have infringed an easy listening song or pop song. See, e.g., Grand Upright . . . (finding that rap song infringed easy listening song).[61]

The Jarvis court implemented this quagmire to evade a finding that digital sampling was “immune from infringement.” This is due to the fact that judges may be particularly shy when it comes to making new law. Presumably, finding that digital sampling is not copyright infringement is a responsibility that District Courts would rather not bear. Consequently, the Jarvis court found the grounds for its reasoning in the illogic of the Grand Upright decision. The court argued that, because infringement existed in the Grand Upright case, it must also exist in the Jarvis case because the facts in both cases are relatively similar. There was digital sampling in both cases and it was found in the first case that digital sampling was illegal. However, the Jarvis court was particularly cowardly because the defense in their case posed significant challenges to the copyright infringement treatment of digital sampling that were not addressed in the Grand Upright case. Rather than engage these arguments and debate the legality of digital sampling, the court relied on the precedent for authority and sidestepped the issue. This becomes extremely vexing when we go back to the Grand Upright case and find that, in the reasoning of that decision, there is no apparent response to the Jarvis defendants’ challenges.

Because the courts have not been asked to seriously consider the legality of digital sampling, it is still uncertain whether or not sampling is in fact copyright infringement. Although these two courts grossly presumed digital sampling to be copyright infringement, they did so because these cases did not present arguments to the contrary. Perhaps the defendant’s legal counsel in Grand Upright intended to do so when they explained that sampling was a widespread practice in the production of rap and pop music. However, they failed to compel the Court to consider this argument through the lens of the original copyright policy embedded in the Constitution. Offhand, a court must uphold the statutory requirements of the Copyright Act when considering copyright infringement. However, had the lawyers argued a defense that invoked the original Constitutional policy of limited monopolies, explaining that the progress of the arts would be impeded by a finding that digital sampling is a copyright infringement because it makes digital sampling expensive and leaves recordings that use samples in an uncertain state of music industry limbo while publisher’s scramble to achieve permission and clear the samples,[62] suddenly the argument that everybody in the music industry is using samples gains some legal weight. If sampling is a staple practice in the production of popular music, imposing restrictions on the creation of this kind of art blatantly challenges the progress of the art and the promotion of civic culture. Copyright, the mechanism that once preserved an incentive to create, now broadly discourages creativity.

Conclusion.

Congress or a future court will have to debate the much more complicated questions that arise when trying to balance the broader public goals of expanding cultural resources and access to those resources with the diminishing individual rights of monopoly on individual contributions to that resource. When it is recognized that the copyright policy embedded in the Constitution serves the rights of the general public, it becomes more difficult to confer copyright protections that sap those rights. It seems that if digital sampling was granted a liberal exemption from copyright infringement, there would be more work produced for the cultural resource, not less. Although and because this would certainly cast the music industry into rough and unstable terrain, after a period of adjustment, a greater variety and an enhanced quality of civic culture would undoubtedly begin to emerge.

The rise of intellectual property talk engenders a cultural logic that confers a pride of ownership to artists. What is most at stake when a song is sampled is not the economic value of various recordings, but rather the ego of their authors. But the Constitution was not designed to protect creators from having their feelings hurt. Being able to contribute to the cultural domain should be considered to be a privilege, not a lucrative career. This artistic egotism and cultural sense of entitlement is a particularly despicable cultural blight on American society that is corroborated – if not endowed – by unscrupulous jurisprudence. As we participate in the assertion of individual rights over the good of society as a whole, we contribute to the general poverty of American culture. The original vision of the American idea is blurred by near-sighted legislation and a cultural logic of intellectual property. Fortunately, the rise of a new generation of artists and the maturation of a new generation of American citizens, lawmakers and judiciary will correct the reigning overdose of propertied elitism that characterizes the state-granted corporate control of American culture. Hopefully, digital sampling will be able to play a major role in catalyzing this change.

Now a “billion-dollar-a-year industry,”[63] hiphop has come a long way from the deejay beat juggling that sprung spontaneously from block parties in the Bronx. Riding the waves of the waning funk and disco craze, hip hop sprouted not only a new sound and culture, it invented a new way of making music, making meaning and articulating while it evolved and enhanced the public sphere’s capacity to generate relevant identity. As hip hop gave rise to a thriving form that is both a result-of and which contributes-to mass mediated culture, as a sign of its time, digital sampling has emerged as a metaphor for understanding ourselves in an information age. Because it exemplifies the kind of artistic endeavor that is so intrinsically connected to the health of the American culture, the preservation of digital sampling as an art form is guaranteed by the copyright clause in the Constitution which clearly distinguishes copyright policy to be oriented towards the goals of achieving cultural progress.

As Americans, we are the beneficiaries of a way of thinking that prioritizes rhetorical freedoms. Because language and symbolistic faculties primarily characterize the human animal, this philosophy of rhetorical liberties finds a superior kind of ontological legitimacy in the natural order of the world. The genius of the American idea is that these freedoms would function not only as a means to pursue individual happiness, but also as a primary administrative factor in the structure of the democratic republic that aims, above all, to promote the progress of American society.

[1] Michael L. Baroni, “A Pirate’s Palette: The Dilemmas Of Digital Sound Sampling And A Proposed Compulsory License Solution,” University of Miami Entertainment and Sports Law Review 11 (1993): 71.

[2] David Toop, Rap Attack #3: African Rap to Global Hip Hop. (London: Serpent’s Tail, 2000) 194.

[3] Toop 12.

[4] Blow, Kurtis, The Breaks Mercury Records, 1979.

[5] “Deejay” is used in this essay, as it is sometimes used in pop nomenclature, to refer to the “DJ,” or “Disc Jockey.” The evolution of acronym-to-noun pronounces a changed sense of the agency ascribed by the form. This is a poignant distinction here because it demonstrates the evolution of the art form of the DJ as a radio programming host who merely switched records for the audience’s listening pleasure, to the skilled sense of the DJ as a musician who actually weaves together soundscapes and utilizes musical techniques to alter and transform the listener’s musical experience. Now a popularized form in contemporary pop music, often termed “turntablism,” the new language ascribes a new skill set to the faculty and responsibility of the formerly termed “DJ.”

[6] Toop 14.

[7] Bob, Budda. These Are The Breaks. Bomb Hip-Hop Magazine Online. June/July 1995. http://www.bombhiphop.com/breaks.htm. Accessed 30 Nov. 2001. e.p. 1.

[8] Randy Kravis, “Does A Song by Any Other Name Still Sound As Sweet?: Digital Sampling And Its Copyright Implications,” The American University Law Review 43 (1993): 238.

[9] Toop 14

[10] Toop 14

[11] Toop 16

[12] Kravis 256

[13] The Sugarhill Gang, Rappers Delight Sugarhill Records, 1979.

[14] http://www.urbandictionary.com/define.php?term=wheels+of+steel

[15] Toop xii

[16] Toop 15

[17] Toop 191

[18] Baroni 70

[19] Bourdieu, Pierre, "The Production and Reproduction of Legitimate Language", Language and Symbolic Power, translated by Raymond, Gino and Matthew Adamson, Harvard University Press, 1991, pp. 91.

[20] John Locke, Two Treatises of Government (New York: Hafner, 1947) 134.

[21] Paul C. Weiler, Entertainment, Media, And The Law: Text, Cases, Problems (St. Paul: West Publishing, 1997) 169.

[22] Richard G. Tansey and Fred S. Kleiner, Gardner’s Art Through The Ages (Fort Worth: Harcourt Brace College Publishers, 1996) 1112.

[23] Compared to these kinds of inter-mediating artistic forms, as we will see shortly, as this verbal analysis persists, the sort of commentary these next passages are trying to make will be obviously much more contrived and difficult to make when the actual content of the mass mediated images are not somehow present in the expression itself. This is, in general, the shortcoming of critical theory as an art that aims to negotiate autonomy and is a strong reason to embrace the arts themselves as theoretical apparatuses

[24] John B. Thompson, The Media and Modernity: A Social Theory of the Media (Stanford: Stanford University Press, 1995) 211.

[25] In fact, this interdependent space is becoming so increasingly synonymous with intimacy that previous contextualizations of the processes of intimacy may begin to lose ground to this new publicly intimate space. While we have always drawn on the public sphere to navigate our space of selfhood through a process of appropriation, we are now more increasingly locating intimacy in that public space itself with processes of articulation. The mass mediated information society provides us not only with a language we can appropriate and articulate privately, it has also created more public space of articulation. Whereas previously our sense of self was characterized more by a one way process of appropriation and articulation that was more primarily characterized by appropriation, now, because there is increasingly more public space for articulation, the process has begun to be more symmetrical and balanced. Not only do we increasingly appropriate information from the increasingly expanding public resource for private articulation, we now also are more able to appropriate information from our non public world and articulate it publicly.

[26] Timothy White, "A Man Out of Time Beats the Clock," Musician Magazine 60, October 1983: 52.

[27] Thompson 210

[28] And many times we are not entirely successful. Certainly, there is not always a bright distinction between symbols and meanings because all meanings are dependent upon their relationship to other meanings which are consequently also dependent upon the inter-relationability of their symbols. Meaning making and language are undoubtedly indeterminate and infinitely organic and relational processes that change fluidly yet which still retain their living functionality.

[29] All things considered, including context and academic protocol, I doubt how forceful and meaningful this paper would be if it was submitted as a blank sheet with the term “words” inscribed at the middle of the page. But I must admit I have been consistently tempted to try and see!

[30] “It is standard procedure for record companies to package the offer of a record deal with a co-terminus publishing contract. Because of antitrust laws, they can’t compel the artist to sign with their publishing affiliate but, from a practical standpoint, they will have considerable leverage.” (Xavier M. Frascogna, Jr. and H. Lee Hetherington, The Business of Artist Management, (New York: Billboard Books, 1997) 153.) A very small minority of song writers actually retains all of their publishing rights. It is an assumed fact of the music industry that the recording labels that monopolize music distribution will insist that musicians assign their publishing rights in order to get a recording contract. While this practice is mutually beneficial to the musician who wants access to the distribution chain and the label who needs music to distribute, on the digital sampling side, and for musicians who wish to maintain their independence in a world where distribution is becoming extremely democratized by the internet, because of the monopolies endowed by copyright law and because of this unbalanced and preposterous preponderance of bargaining power in the hands of the major recording labels, creating new music that integrates elements from copyrighted works is extremely expensive. In this case, rather than promoting the progress of the arts, copyright law now stifles and inhibits the free exploration of new artistic expressions; and further, by protecting the stagnant chain of distribution, copyright law enhances the industry monopolies and flattens the artistic spectrum, consequently diminishing free market competition and degrading the diversity and quality of available music resources. As we will see shortly, this is diametrically contrary to the original Constitutional policies that intend copyright protections.

[31] Siva Vaidhyanathan, Copyrights and Copywrongs (New York and London: New York University Press, 2001) 23.

[32] Thompson 269

[33] Vaidhyanathan 38

[34] U.S. CONSTITUTION Article 1, Section 8

[35] Vaidhyanathan 24

[36] See footnote number 43, page 23.

[37] Vaidhyanathan 22

[38] Jack N. Rakove, Original Meanings: Politics and Ideas In the Making of the Constitution (New York: Knopf, 1996) 290.

[39] Vaidhyanathan 23

[40] Siva Vaidhyanathan, Why Thomas Jefferson Would Love Napster The Cilux Project. August 2001. http://www.cilux.net/copyrightwrong.html. Accessed 15 November 2001. e.p.1. [ All site content free for use in full or in part with attribution - and this sentence!] This article was originally discovered at the MSNBC website, but just as the heading at the Cilux site predicted that “given the sentiment of the article and its incongruous host, it may not stay available for long,” the article is no longer occupying precious kilobytes of advertising space on the MSNBC site.

[41] Baroni 65

[42] U.S. CONSTITUTION Article 1, Section 8

[43] Vaidhyanathan 153

[44] Vaidhyanathan 11

[45] Baroni, p77

[46] Baroni, p77

[47] Margaret E. Watson, “Unauthorized Digital Sampling In Musical Parody: A Haven In The Fair Use Doctrine?,” Western New England Law Review 21 (1999): 476.

[48] Watson 481

[49] The condescending timbre of this autocratic decision, and the elitist hue of a prominent commentary that bemoans the fact that “[m]odern usage of samples is rampant” and even refers to hiphop as “filth” and “monotony” (Baroni, 70, 104) are revelatory examples of the kind of unfavorable language, figures and metaphors that signal the preponderance of a widespread assumption of cultural supremacy in the legal world that colors the entirety of the digital sampling/intellectual property debate with terms of access, ownership, class and race. Beyond the scope of this essay, this kind of impolitical language easily supports strong arguments being made by those seeking to uncover an assymetrical pattern in the ontology that grounds intellectual property.

[50] Carl A. Falstrom, “Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records, Inc. and the Future of Digital Sound Sampling in Popular Music” Hastings Law Journal 45 (1994): 365.

[51] Watson 482

[52] Watson 484

[53] Weiler 356

[54] Weiler 356.

[55] See note 28, page 15.

[56]A. Dean Johnson, “Music Copyrights: The Need For An Appropriate Fair Use Analysis In Digital Sampling Infringement Suits,” Florida State University Law Review. 21 (Summer, 1993): 163.

[57] Falstrom 368

[58] Johnson 162

[59] The court’s slip of logic is formally called “affirming the consequent.” As one commentator has noted, the courts assumption that seeking permission for a sample is constitutive of copyright infringement is the equivalent of presuming that any man who wears a condom is HIV positive (Falstrom, 377).

[60] Kravis 270

[61] Weiler 357

[62] Falstrom 368

[63] Baroni 71

on painting and writing

2006-09-13T15:31:00.000-07:00

I'm no expert on art or art history. and i boast no expertise forging an organized interpretation of any author's strokes or strategic choices. but there is a thread i follow casually in the greater scopic drive to understand the visual world.

something of a theory I have picked up along the way of becoming a writer is to explore the way in which metaphors shape the reception of texts. in painting and art, this boils down to the feelings evoked by colors, lines and shapes. and such is also true of the written word.

the locutionary force of a text is bolstered and buoyed by word choice. the tone of your writing is timbred by the colors of the connotations of the terms applied in your writing. if you aim to paint a rosy picture of some sort, employ rosy language. the cumulative effect of the your linguistic palette provides a psychic disposition towards your argument.

the same should be more broadly understood in the craft of the moving image. i can't count how many times I've seen a television advertisement that creates a really unsavory visual representation of some sort of social problem and then climaxes with the presentation of their product as the solution to the mess portrayed. the problem with this kind of advertising is that, because it spends the bulk of its representation creating uncomfortable imagery, it leaves its audience with the lasting impression of discomfort, despite the fact that the product being advocated has appeared in the text as being the solution to the problem. we leave this kind of advertising with an ugly feeling which is metonymically transposed to the product. this certainly is not the intent of the advertising, and not desirable to the client, but because the idea i am arguing here is not widely grasped in the advertising industry, and because we are too easily willing to believe that our intellectual grasp of a clever punchline is more important than our visceral response to the aesthetic subtext of the argument, money is invested and wasted on a perpetual basis on this kind of campaign.

an example that comes to mind is the "what's in your wallet" campaign tailored for Capital One. ad after ad, we are exposed to a marauding horde of pirates and pillagers who ultimately are staved off by the manifestation of the Capital One card. Ironically, and perhaps intentionally, the stress inflicted and inflected by the marauding horde that carries the bulk of these advertising messages is psychically akin to the sort of stress the average consumer bundles into the psychic matrix of debt management in a consumer society. There is an imperious way in which this kind of message taps into the conglomeration of emotional disarray of debt culture and pushes us into greater consumption, and further use of our Capital One cards. Indeed, consumption is well documented as being employed a primary self-palliative self-defense mechanism for dealing with stress. Feel like shit today? Go buy something you don't need! We all know, as we delay buyer's remorse, that this is undeniably true. Spending money we don't have today to put off stress until tomorrow is always an attractive, if destructive option.

Personification of the Corporation

2006-08-30T11:43:00.000-07:00

There is a strain of anti big business thought that has become de rigeur amongst the cosmopolite and their fawning hordes. Throughout the public discourse, the contradictions and paradoxes abound as young urban professionals, riding comfortably in the thick leather that clads the interior of their german cars, pluck cigarettes from kitschily crafted cardboard boxes and waft intellectually about how corporations are the bane of society.

The seething undertones of hatred are opaque in this discourse, and one can guess where they come from. While the institutions at which we have aimed our disdain have changed over time, the knowing winks and nods we have all exchanged in a mutual reassurance of our righteousness has remained steady.

When it was still fashionable, ethnic stratification caught the public imagination. Behind closed doors, members of various groups huddled, pointed, snickered and sneered at the others. And while elements of this particular expression of our collective disdain are still to be found in modern times, they are anachronistic and increasingly out of style.

Previously, the greater course of world history unfolded the story of us-versus-otherness under the grand narrative of aristocracy, lordship and power via birthrights. Class colored social structure more thoroughly than ethnic identity, although racialization played directly into the deck dealt by this doctrine.

But a peculiar shift has emerged in the last 50 years. Perhaps because World War 2 unleashed the triumph of modern technology over the powers of political discourse. Some would argue because Naziism forced us to look squarely at the promise of modernity and why it had failed to produce the fruits of its ideals. Regardless, this shift produced a new capsizing of the model, where now the old lines separating the classes and races were slashed and shuffled, realizing a truly pluralist society forged of bonds amongst the least likely characters.

But the disdain towards the other has survived.

On Kindergarten, Kickball & the Absence of Cynicism

2006-08-23T03:04:00.000-07:00

Sometime during the first several weeks of kindergarten, I had already found myself thrust under matters of great consequence. Set alive with anxiety, trembling nervously and staring wide-eyed into a rapidly approaching and impossibly crucial moment, I cast my gaze skyward to the red rubber ball arcing high above our heads, lobbed just beneath the generous branches of the old oak tree that stood strong and stout in the middle of our field.

The tree was third base. I was playing shortstop for our kickball team and found myself suddenly mobilized by the unlikely loft of a high fly ball. Our five and six-year-old legs wanted the might to launch fly balls on the regular, and at the infrequent rate that they occurred, less often still were these pregnant, wobbling, red rubber fliers destined to arrive with any proximity to our six-year-old hands. Not once had one been caught by any of us to produce a much coveted out. And so, awestruck, jaw dropped, I readied myself as it became clear that this one was coming straight towards me.

That the unfolding of my social life and my entire capacity to fulfill adolescent goals and dreams depended upon the encroaching event was not entirely lost upon my fledgling sense of self. Even then I knew that, whichever way things would turn out, what was about to happen in the next few seconds was very important, indeed.

I had been rigorously trained for the events of this day. Mastering the art of the catch was a fundamental aspect of my preparations for a successful childhood. At this point in life, as far as kids are concerned, one’s ability to catch a ball is perhaps one of the few objective measures of human potential. It is a ritualized family practice that begs anthropological study; at some early point kids are inevitably and invariably brought into an open area such as a yard or large room and are hence made subject to a persistent bombardment of usually round projectiles made from complicated plastics and other synthetic materials. Children wait at one end – nervous but eager to please with arms and hands spread readily about – and as balls are tossed with various trajectories and competing levels of patience or disappointment: eyes inevitably close, fruitless and flailing grasps are made, many heads are bonked and many tears are shed.

Regardless of the results, most all of us were subject to this rite of passage at some point in our younger lives. And the propensities we demonstrated therein likely determined whether or not we would track a life path in the general direction of either the Heisman Trophy or the Nobel Prize.

I caught the ball.

And I immediately won friends and influence. I became, in a word, popular. The rest of my young life was a perpetual celebration of that day. Not only had I demonstrated to my peers that I was athletic, physically coordinated and very, very lucky, realizing that this accomplishment would likely be a temporary burst on a long path of duds, after the catch I reassured my peers by displaying the cool and calmness of a cocksure veteran. Despite the pride bubbling wildly inside me, I had the momentary grace to at least pretend I meant to do it, always knew I could, and that I had only done what any average kindergartener would have done had they been in my shoes. My demeanor was designed to express happy surprise, but also the belief that everyone else on the field was just as capable of executing the same feat at any given moment.

And so much was true. I may have broken the ice that day, but within the week, several of my classmates had also caught fly balls and performed other athletic maneuvers that inspired us all to become better kickballers, and consequently, better kindergarten citizens. Still too young and untouched by the cynicism and weariness of the world, we cheered each other on, even when the result of these plays was the retirement of our own teammates. We were much more impressed by our ability to execute the game the way it was supposed to be played. At this point in our lives, that was still more important than winning.

Pete Philly & Perquisite

2006-08-18T05:10:00.000-07:00

checkout their site and buy their album.

These cats could save my attention to hiphop. I am not shy to admit that I lost interest in where the music was moving to long ago. In fact, I will gladly take partial credit for starting the widespread word of mouth that hip hop is dead. I insist that it started to die the day "they" gave it such a stupid fucking name. "Hip Hop." What an absurd sound to roll out of my mouth. I can't squeeze the phrase out without silently cursing the perpetrators of such a vernacular clusterfuck. And it's even worse to write it; forces every culturalite to decide whether or not to capitalize it. separate into two words? combine it? or go the sell-out route and hyphenate...

Pete Philly and Perquisite's artistry offers a reminder of how absurd the music is supposed to be. It has a sense of humor about itself. And that's when I realize how I stop liking hiphop when it gets so serious. Although tempted, I'm not going to make the blanket statement that the last thing music should be is serious, but I think lightheartedness is something that draws my own particular existential compass to hiphop. It's where hiphop was born, with the whimsical production and laid back delivery pronounced by old Tribe, De La and Pharcyde tracks - artists who anchor hiphop for my generation, but who nod to the comedic nature of the likes of Slick Rick and Dana Dane for spiritual inspiration.

For example, find the song Insomnia. Trip on the lyrics like: "Oooo weee! Who me? Who be the emcee of the day today? It's me! The emcee, but I'm also the emcee of the night, righhhht?" Okay, I realize that isn't mind numbingly clever to read, but cast in the context of its delivery, you will find yourself wanting to make a new friend named Pete. Seriously, I don't think I've heard songwriting like this in hiphop in maybe forever, not even amongst the late 1990's underground geniuses, not simply in its clever quips and flashbacks, but in its compsoition and timing. The delivery is impeccable and either these cats are genius talents or they actually spent time to conceive with deep concentration from sun's rise to sun's eve, as is glaringly clear on "Insomnia" from what seems to be an earlier release.

For a second, Pete Philly sometimes sounds a little too much like Methodman here, or echoes too much Q-Tip & Mr. Long there, but you quickly realize he makes these allusions as homage and does so elegantly. I can't think of a single living emcee who can pull any of this off. But to top it all off, flabbergasted, I find my head nodding to beats that are equally well constructed and harmonically piercing. Perquisite kills almost every single track. I could almost vomit.

When I find myself liking music at 30 years old, I am always reminded to ask whether or not my taste is too particularly driven by my age. Do I like this music because it appeals to me as an adult? Or is it just plain old good music that I can't help but like? I can't say with any authority, but I would suggest the latter and you can ask your little cousins to verify.

Long Beach Grand Prix 2006

2006-08-14T14:58:00.000-07:00

4/18/2006

High speed open-wheel auto racing is the international riposte to the growing popularity of the American NASCAR series. Urbane, faster, and more technically complicated than American stock car racing, the open wheel circuits generally attract a savvier race fan.

If it's true that the average American associates the term NASCAR with images of Budweiser brandishing bible-thumpers and tobacco chewing grandmas, let it be said that open wheel racing poses an alternative allure, sporting the kind of sophistication, subtlety and nuance as might be found in a well-stirred-martini laced exchange between Monacan royals, Brazilian jetsetters and American dilettantes.

The European based Formula One series, widely regarded as the pinnacle of all motor sports racing, is the world's most expensive sport and serves as the idealized version of open wheel racing. As the cosmopolitan older cousin to other open wheel leagues, F1 has increasingly turned its nose up at the American venues, currently holding only one race here at Indy. So unless you have the G500 on standby for trans-Atlantic pond hops, you may be pleased to find that Stateside open wheel race fans are blessed with two world class racing forums: the Indy Racing League and the Champ Car World Series.

The IRL is popularly notable as the home of team Rahal Letterman Racing (Letterman of CBS Late Show fame) and their phenom and all around babe, Danica Patrick, the most successful female driver in contemporary automobile racing. IRL is primarily an American league, this year operating all but one race on American soil, and boasts as its flagship event the most famous American race, the Indianapolis 500.

The Toyota Grand Prix of Long Beach is the season premiere of the Champ Car World Series, the only other open wheel league with significant events in the U.S. Originally serving as the West Coast home of an F1championship in the late 70's to early 80's, the Grand Prix of Long Beach has long served as a Mecca for open wheel race fans in California.

My Dad took me to my first Long Beach Grand Prix in about 1982 or 1983. As I was about six years old at the time, I don't remember much about the race except for making sure that I caught a glimpse of Mario Andretti, the Italian American racing legend whose cultural iconography is even celebrated in the annals of hiphop, of all places, with a nod from Q-Tip: "lyrically I'm Mario Andretti on the mo-mo, ludicrously speedy, or infectious with the slow-mo."

And Q-Tip was right. The speeds these cars achieve is certainly ludicrous. Perhaps this is what is most appealing about open wheel racing. As last summer marked my return to race fandom as Champ Car inaugurated its first event in San Jose, I was lured back to a downtown road course for a day spent immersed in the sun, sights, and the obliterating fighter jet engine-like sounds of machines whizzing by at speeds approaching 200mph.

This idea itself is bombastic enough, but to see the actual spectacle of it in person is incredible. Watching the race live, as an adult this time, and as an adult who drives a car through downtown San Jose on a semi-regular basis, I gained a new perspective on what it actually means to be hurling through space at these speeds. Needless to say, I was profoundly impressed by the sheer audacity of man to have created such a thing. And once again, I was hooked.

My Dad and I made a trip down to Long Beach last week, and aside from Tecate's $9.00 per beer monopoly on the race grounds, the Grand Prix did not disappoint. One of the more exciting additions to race weekend is Champ Car's association with Formula Drift, "the first and only sanctioned and recognized North American professional drifting championship series." An imported piece of Japanese sport already embraced by car enthusiasts in various corners of the world, drifting is about to arrive on the American scene in full force with the coming release of "The Fast and the Furious: Tokyo Drift." The drifting in Long Beach was for exhibition purposes only on race weekend, with the actual championship taking place the previous week, but the skill and car control demonstrated by these drivers makes for quite a show.

Cock Blocking

2006-03-29T18:14:00.000-08:00

They say revenge is the guilty pleasure of a simple mind. To that I say only: they don't call me Simpleson for nothing.

I talked to three of my neighbors today, all of whom agree the rooster has to go. The city continued its feckless streak and still refused to come out to "keep the peace." So it came time to take the resolution of this problem into my own hands.

And having accumulated less hours of sleep this week than I normally do in one night, I was ready, willing and eager to take on the task. So Friday night I ventured back to Fremont to pick up an old friend, my family BB gun. She's a classic, a Daisy, and she rained terror on the birds of suburban Huntington Beach during my childhood in the late 1980's. I brought her out a few times in my teenage years as well, just to make sure the old girl still had her kick. And although she takes a few more pumps than she used to, as I brought her back Friday night, I knew she still had all the gusto required to get the job done.

My sleep schedule is off by several time zones. Erik and I are on our way to the snow in a matter of hours, and I have been awake since 1:30AM, so I figured tonight would be the proper night to scout out sniper posts and plot the assassination.

The rooster crows about twice an hour between 2AM and 9AM, much contrary to the popular notion that they only crow when the sun rises. I figure if this were a stereotypical rooster, I would have been able to adjust and might even have grown fond of the wake up call. But this cock took to calling out his territory every 20 minutes or so at the most ungodly hours, and he did so from only a few meters away from my window.

So tonight I have been waiting, clandestinely venturing into the patio area behind my apartment at every crowing call, to see if I could pin him down. He had set up a roost in this tree behind the apartment, and he crowed with all his might from this tree, putting his beak at ear level if you were standing on this patio deck area, making for quite a noisy operation.

By now, having done much research on the fact, I have discovered that chickens see very poorly in the dark. This disability causes them to be as cautious as possible in the darkness, clamorous cock-a-doodle-dooing aside. And so this rooster stayed true to his kind and made no sudden moves when I approached. Consequently, I was unable to locate him in the thickness of the trees when I went to find him on at least 10 occasions. Eventually I surmised to wait for the sunlight.

So I popped in a DVD, and then another, sitting out the roosters endless crowing, knowing that when the light came, he would dismount the tree and begin his daily romp through the neighborhood. He must have thought he was some sort of badass - crowing all through the blocks with not a single challenge. Little did he know that there are no other chickens within miles because, after all, he is a just a rooster. But his ignorance and his false notion of cock supremacy only made me hate him more. And so I nearly salivated to the point of drooling with anticipation when I finally heard him jump out of the tree and onto the stairs below.

Daisy had been prepared and was pumped to maximum strength. And she was just as eager as I to pull off a winning shot. So as I crept up, I took a deep breath and pulled the butt of the rifle to my shoulder. Closing one eye, I sneered down the barrel and through the sight as I tipped my gun downwards so that it would point over the ledge as I moved into position.

A million thoughts ran through my head in the next fraction of a second. It was morning now and the whole building could see what I was up to if they cared to have a look down into the patio. Would my neighbors little girls be up yet? If they saw this they would certainly be traumatized. What if this rooster screams to high hell and the whole world is up in arms over the pain I am causing him with a poorly placed shot in the wing. What if the chicken has already meandered down the stairs and under the cover of the building and foliage? I already chased this fucker around the block once, I will not do that again. But fuck waiting for another day and enduring continued sleeplessness. And the most encroaching thought of all: what if I miss?!

But I calmed myself, took a breath and pushed the thoughts away. I was now in assassin mode and had but one purpose for living: to kill. This frame of mind is a unique place to be. It puts you in touch with the essential nature of the world's soldiers and hunters, and it takes me back on a brief journey to pre-civilized time when killing for meat was a way of life.

But here, this time, I had no intention to eat this kill. This bird is a wild chicken roaming the streets of downtown Oakland. Bird flu, cancer, God knows what kind of disease reaps inside this creature. No, this time it was strictly murder. I was blood thirsty. This was war.

Calm, collected, my heart and breath now willed to stopping, I peaked out over the ledge and immediately saw the grotesque and muddied white feathers of the roosters neck, his hideous red head and his evil beady eyeball. He didn't see me right away, he was looking down the stairs. And I knew then that I had to take the shot before he caught me creepin. I aimed for his head, but decided it was too risky a shot, and so trained the sight down to the base of his neck to an area that would be square between the shoulders on a man. Once there, I wasted no more time and pulled the trigger . . .

The next moment is a contradiction of slow motion and fast forward images. I hit the sucker right as I had aimed and he fell immediately to the concrete steps, flapping his wings nervously as the life began to creep out of him. By now, I had already begun to reload and re-crank the rifle anticipating having to take another mercy shot to put him out of his misery.

He tumbled down the stairs, making rooster like sounds that were quiet and muffled as he had begun to accept that he was dying. There would be no great tumult. No grand murderous scene of blood and flailing. He was going to go quietly with as much dignity as he could muster, and somewhere on the level of base animalistic kinship, I respected him for that.

He finally settled beneath the steps to retire. He was still kicking and I had an angle, so I put one last shot through him to end it all. He stopped moving, only quivering faintly, and then nothing.

silence . . . at last.