Corporate Punishment

Though my previous post tries to address the Tenenbaum copyright infringement suit by way of a rough sort of social theory, in the end the case (like everything else in life, really) plays out as just another scene from the family drama. According to script, plaintiffs' attorney Reynolds spent a good hour excoriating defendant Tenenbaum for disrespect: of the truth,  of his college handbook, of the lawyer who deposed him, and ultimately of the conglomerate corporations that sell recordings. Reynolds is the earnest-dad type,  super-serious, with a crisp white shirt and a little bald spot on top. He has the habit of biting his lower lip just slightly while preparing to light into his next line of questioning. Watching as a rogues' gallery of exhibits, depositions, interrogatories, and screenshots flashed across the courtroom monitors, you knew Tenenbaum wouldn't be turned loose from the witness stand until he was very, very sorry. In fact I felt my stomach tighten--a traumatic flashback from those times long ago when my own father would lower the boom on us for some egregious infraction.

But wait. That's not Joel Tennenbaum in the picture, or rather, it is and it isn't. Tilt the image and refocus, and you may see that actually the bad boy here is defendant's attorney Nesson, and that's Judge Gertner chastising him on behalf of the law, the court, and the rules of procedure. No political speeches, she's telling him, no narratives, no unfocused questions, no fair use defense, no, you may not approach the bench. Whack!--whack!--whack! 

No, I'm wrong. Look again and you'll see that the child in the picture is actually the consuming public, that is, you and me. We're all being disciplined by this case, by the RIAA, by their whole posse of lawyers and consultants, and by the law itself--starting with the 30,000 file-sharers who were shaken down for $3-5000 each in out-of-court settlements. It was 'expert witness' economist Liebowitz (of the Cato institute inter alia) who connected the dots most clearly when he opined that unfettering markets always produces more goods, more profit, more pie. So that's what this case is finally about: disciplining the marketplace. By driving out all the free competition and making a deal with the itunes folks, the RIAA is funneling us back in line as paying customers. The law proves to be an effective paddle, the pain is quick and sure, the lesson learned.

Justice Cubed

In his opening statement in the Tenenbaum copyright infringement case (see "Justice, Equity, ...", 7/20), defense attorney Charles Nesson invited the jury to consider the Necker cube (pictured at left) as a "metaphor for the truth." His remarks followed the plaintiffs' opening, in which Tenenbaum was predictably described as dishonest and evasive, taking bread from the mouths of artists and technicians and their hungry children while shirking all responsibility for his misdeeds. Since the facts underpinning these assertions are fairly clearly on the record, Nesson's hope is not so much to refute them as to reframe them. Tenenbaum was and is a "nice kid," indistinguishable from the millions in his generation who "love music and technology," share files, and take for granted the free circulation of culture via the internet. Just as the eye sees the Necker cube in two equally 'true' orientations, the jury are enjoined to see Tenenbaum in these two contradictory but coexisting perspectives, rather than trying to decide which of them is 'the truth.'

Whether this parable of the Necker cube points the way to a successful defense remains to be seen. Certainly Judge Gertner's initial advice to the jury encouraged them to decide on what they thought was 'the truth' (singular), but in many ways the Necker/Nesson paradigm is truer to experience, at least for people who approach life reflectively. I am somewhat impressed by the jury's professional credentials, but whether they are a reflective bunch is harder to predict. 

I believe, though, that the double orientation of the Necker cube suggests a dualism in our public culture, and in this case as well, that is much broader than the simple question of Tenenbaum's guilt or innocence. Viewed from the corporate perspective, Tenenbaum is simply in the wrong: the labels produced the music, it's theirs to sell, he didn't pay. Underlying that scenario are all the verities of the marketplace: if the labels make a pot of money, that's because they deserve it. If Tenenbaum wants to enjoy the music, he has to denominate his passion in dollars. There is no place for sharing--cash is the nexus of all legitimate transactions. The plaintiffs in this case argue for this market-driven ideology, and their case exudes the self-righteousness of the possessing class.

What then is the competing social vision, the other orientation sketched out in Nesson's statement? This world, Tenenbaum's world (from which he was abruptly yanked by the plaintiffs), is very much grounded in the cashless transaction of sharing. Prominent in this social system are "friendship groups." Its landscape is a benevolent one: in Nesson's acccount, a surge tide of technical invention "washed over" the recording industry in the late '90s and left its songs "scattered on the beach," where young people can stroll and discover objects of delight, free for the taking. Put another way, it is a world where use value trumps exchange value, where personal tastes overshadow the consumerist impulse, while the internet guarantees instant availability. It is this benign, even utopian world, composed of fluid electrons rather than hypostatized atoms, that Nesson  designed as Tenenbaum's own. A similarly imagined world has been for some years the vision of many in the free software movement and other manifestations of an idealistic techno-culture, once labeled 'hacker', whose bête noire has always been the corporate desire to own the code, exploit the talent, and extract profit.

Just a few years ago it didn't seem like a very open question which of these visions was dominant in our social sphere. The utopian impulse--Tenenbaum's, Nesson's--looked like a throwback to an earlier decade, and corporate cops like the plaintiffs' legal team were ascendant everywhere. With the (temporary?) collapse of the financial markets, with the hope-driven election of Obama and the increasingly insistent ecological imperative, new life is being breathed into such visions as Tenenbaum's. It is now just possible to imagine the advent of a generation of young adults who will repudiate privatized market logic. I doubt that this tendency will affect the outcome of this trial (though you never know ...). But it confers on it a significance that extends far beyond whatever judgements are rendered in the terms of the law.

Art Revolution Utopia

I spent several hours on Saturday inside the world of Sol LeWitt. We were visiting the gigantic installation of LeWitt's wall paintings that will fill an entire factory building at MassMOCA, three floors' worth, for the next 25 years. You enter a world of pure concept--spare lines void of color that fill whole walls with simple geometric forms massively elaborated through repetition--at the ground floor. Then you rise into rectilinear patterns of primary colors, then into swirls and splashes of all sorts of colors, always articulated in terms of formally governed patterns. Those patterns, LeWitt's part of the job, enabled this installation, his chef-d'oeuvre, to be executed by a small army of art students according to LeWitt's instructions after his death. He has in this fashion bequeathed to us, by way of MassMOCA, a vast utopian space.

The occasion was made more remarkable by the participation of composer Steve Reich, who described his close personal and theoretical ties to LeWitt. Each is seminal to the minimalist movement in his particular art. Reich spoke of LeWitt's formal design programs as 'scores,' while Reich's own pieces unfold like the endlessly permutating figures in LeWitt's wall paintings. Later, we listened to Reich's "Music for 18 Musicians," his hour-long summum of complexity and instrumental color, in the museum's auditorium just steps from the LeWitt installation. With Reich's huge work, as with LeWitt's, you don't just listen to the work, you enter into it. You become subject to its abstract dimensions, measured not as space in this case but as duration. You live the music, transfixed by its regularities and modifications, according to its transmuting postulates of rhythm and tone.

These carefully intertwined experiences of art and music were all the more poignant as I had been thinking on the way out to North Adams of how unlikely a thing it is that we will ever slip the bonds of the present capitalist world-system, except perhaps in the direction of catastrophe. The heroic revolutionary vision of a 'better world' beyond the horizon of the profit-system is all but extirpated from our collective consciousness by what the French call la pensée unique and we in America refer to as 'the end of history.' Observing the jockeying of the Congress as it diminishes the already reductive initiatives of the President, listening to the unsyntactical grunts of the Mayor as he announces his campaign for reelection, I think 'What a sad and cynical affair our politics have become!' And yet all the vitality and promise that are missing from this dreary public sphere show themselves here, at MassMOCA, in these huge and utopian artworks. Totalizing artists, Reich and LeWitt have found ways to revolutionize the ways we see and hear, to build from first principles a new world of sight and sound. This may be small consolation for the morass of greed and inertia that constitutes our public sphere ... but consolation nonetheless.

Justice, Equity, Public Interest, and the MP3

Like the Moakley Federal Courthouse itself, Judge Nancy Gertner's courtroom is an orderly, even stately place, brightly lit and impeccably arranged. The judge likes things to run smoothly. This morning, for example, several courthouse staff spent a good half-hour lining up the technology so that when the time comes to play the 'evidence,' a series of allegedly pirated songs, they play on cue.

The case in question pits the music recording industry, a phalanx of blue-suited lawyers and expert witnesses, consultants, and corporate executives, against Joel Tenenbaum, a twenty-something grad student who did what most other folks his age do: he 'illegally' downloaded hundreds of his favorite songs and--gasp!--shared them. For this 'infringement' the industry hopes Gertner and the jury will order him to pay hundreds of thousands of dollars in 'damages.' Aligned with Tenenbaum is Harvard law professor (and my good friend) Charlie Nesson, an affiliated local law firm, the Bill of Rights, and possibly, depending on how the case reaches the jury, a populist streak in the American consciousness that doesn't like to see big corporations use the courts to push ordinary folks around. But the road to that jury hearing passes through Judge Gertner.

The Judge, who described herself from the bench as a "creative judge," is known as something of a maverick, even a bit of a leftie, none of which was in evidence during this morning's pre-trial maneuvers. She displayed a primary allegiance to the institution of the law, which she referred to as "these four walls," and insisted that the case had to be trimmed to fit its dimensions. She declared her interest in keeping the various issues in "the right boxes," which could prove an impediment to Tenenbaum's defense. To be specific, the doctrine of "Fair Use"--what an ordinary person might think was appropriate use of song files given the available technologies and habits of file-sharing--rests at the center of Tenenbaum's defense. But Gertner suggested she might relegate this argument not to the trial itself but to the box marked "damages." If she does so, Tenenbaum loses the chance to prove that he is not a thief, a 'pirate,' but an ordinary non-commercial music listener. In effect, Gertner's rage to order may exclude Nesson's larger vision of what is equitable in this case.

I had a chance to hear a bit of that larger view this morning, as Nesson argued for a conception of the law as circumscribed, both theoretically and historically, by liberty. It is this elegant appeal to a higher principle--to a notion of popular sovereignty, in stark contrast to the plutocratic firepower assembled on behalf of the plaintiffs--which might well inspire a jury to see the larger interest in the case. We all have a stake in this vision of cyberspace as public space, of the internet not just as a field for online commerce, a profit center, but a public square where ideas--and yes, songs--can be freely exchanged. The recording industry and its gunslinger lawyers would like to mount Tenenbaum's head on a pole, as a warning to the rest of us. If Gertner insists on her narrow view of the case, overruling Nesson's visionary one, she just may let them do it.

Money Matters

I'm no economist , but two recent stories in print have usefully clarified the present situation for me. One is the up-close and ugly account by Michael Lewis in the current Vanity Fair of the egregious fraud carried out at A.I.G., at a cost to US taxpayers of $182.5 billion. This is old news, but it acquires poignancy with the article in yesterday's New York Times celebrating Goldman Sachs's triumphant 2nd quarter, with profits exceeding $2 billion. I have trouble grasping sums in the billions, but a more personal number was quoted in the article: of Goldman's 26,000 employees, the ones at the median make $600,000 annually, plus benefits. That's 13,000 employees whose pay exceeds that princely sum. And why not, when a company makes such high profits, because it is so skilled in speculative trading, as the article admiringly suggests.

What's the connection between these two stories? Well, at the very end of the Times article you can read what Lewis elaborates in considerable detail, namely that the A.I.G. bail-out was also, and perhaps primarily, a bail-out of the investment banks and other Wall St. entities, Goldman Sachs among them. It was their losses that A.I.G. supposedly 'insured,' but not really--the losses were too great. It seems these brilliant and richly rewarded Goldman traders had lost $13 billion betting on subprime mortgages, but no matter: they and the other banks and A.I.G. were all 'too big to fail,' so the government covered their losses, at 100 cents to the dollar, with our money. Now that they are back to their winning ways, they get to keep all the profits--it's only the losses that show up on the public balance sheet.

This whole sorry story was public knowledge last fall, when the Paulson plan set the bail-outs in motion--Secretary Paulson, you recall, was Goldman's former CEO doing a tour of duty at Treasury. But in the shock of November, 2008, economic virgins like myself found the whole thing hard to fathom. But no more. Somehow with Goldman's announcement of huge profits and huge salaries (with multi-million dollar bonuses to follow), the picture has come wonderfully into focus. The plan we can now call Paulson-Geithner-Summers is, simply put, a massive transfer of vast sums of money from taxpayers to the very wealthy. We ordinary Americans put ourselves in hock to the future, to the tune of trillions, so that the folks who created this debacle, working at Goldman and other such establishments, can make ten, fifty, a thousand times more money than ordinary decent working people. That's the financial system our president and his team have worked so hard to preserve.

But we had no choice, they said--and still say. If we hadn't acted, the "whole sucker," as President Bush so eloquently put it, was "going down."  And what a wonderful thing that could have been. Picture it: A.I.G. defaults, a dozen giant, over-leveraged, totally irresponsible banks go down too, with all their unbelievably greedy hands on board. Instead of covering their trillion-dollar losses and setting them back up to do it all over again, the government lets it collapse, then steps in and takes over. Instead of making good their speculative losses, the government takes its--our--trillions and infuses that capital directly where it's needed, into credit markets that are not just speculative but productive, that keep the real economy going. There was a moment, last fall, when such a thing might have happened. The system of capitalist finance had failed, utterly. That was the moment when we might have created a public financial sector, the one Olivier Besancenot has been talking about in France (and not a soul here in America, as far as I can tell). The time had come, the system really had crashed under the weight of its own irresponsibility and greed, we had every reason to replace it with a financial service in the public interest. Instead, Mr. Hope, Mr. Yes-We-Can and his team of Wall Street profiteers decided to refloat the whole thing with our money. And with today's Goldman story we're back in business, making the already rich even richer, selling out the rest of us. Our moment of historical possibility came--and went--and now we're left holding the bag. But not to worry--it will happen again, maybe soon. And next time, with the advantage of hindsight, next time we the people must be ready to take our destiny in hand.

The next Obama

I've never given up the Dennis Kucinich campaign t-shirt I got when Dennis spoke in Cambridge back in '04. Actually I wear it for a night shirt because it's many sizes too large. And if you want to take that as a metaphor for Kucinich and the Presidency, go right ahead.

 

Whatever you say about Kucinich as a potential President--and many rude things have been said--as a candidate he has insisted on the need for transformative and collective--read: socialist--solutions to the intractable problems of capitalism, militarism, environmental degradation, income maldistribution, global exploitation, unavailable healthcare, and more. These are the urgent topics our politics should address, and Dennis is one of the few who does. No, Kucinich won't be the next Obama, but his brand of radical populism can help us think about some further directions our politics needs to take.

Imagine for a moment that Obama continues to reframe the national agenda as he has started to do--reinstating core values like scientific rationality and social justice and internationalism. Imagine that he manages to guide his party through modest successes in 2010, and gets reelected in 2012. Picture him working deliberately to build consensus for a variety of reforms: not just a greener energy policy and some form of national health insurance, but even a whiff of nuclear weapons reduction and  financial regulatory reform, along with fairer tax distribution to pay for these expensive but necessary measures. 

So according to this modestly optimistic scenario we will find ourselves, five or six years from now, just a few baby steps along the way to major structural changes. But we need to build new systems--and quick--before we destroy ourselves and our planet. At best we will have barely started back in a progressive direction  after the abysmal detours of previous administrations. Who will Obama be preparing to pass the torch to? I won't pretend to name names--few come to mind--but I will offer this prescription: that successor will need the political skills of Obama, combined with the collectivist sensibilities of a Kucinich, a Paul Wellstone, a Bernie Sanders. Obama may use his great pedagogical skills to lay the foundation for this transformation, but he won't achieve it in eight years even if he wants to--and it's not clear he wants to. He will need to be the precursor to someone bolder, who can really realign the systems of power. Right now there are only a handful of national figures who even seem to understand this goal. One of them needs to grow--fast--into the next Obama.

What America Means to Me

Midnight, July 4, 2009.

Bombs bursting in air ... Thousands of people, by foot or bike along the Charles River, peaceably assembled to celebrate the nation's independence ... English, Spanish, many languages ... No military parade (there was a fly-over, fighter jets, so fast you couldn't see them) ... No hysterical speeches, no call to battle, no celebration of empire, just the "Stars and Stripes Forever," the "1812 Overture" (Bonaparte thrown back!), and this spectacular but chastely republican fireworks display ...

What the 4th of July means to me: the small-town patriotism of my '50s childhood, a parade around the block with sparklers and flags, and a neighborhood cook-out (or crab feast if we were lucky). Americans--some were WW II vets--proud of their role as saviors of Europe, as pillar of the Free World. Our visionary Founding Fathers, the Liberty Bell, the Tea Party, the pursuit of happiness ...

But the long road from those times leads through Vietnam to Iraq by way of Nicaragua, Chile, Guatemala, Iran, many more. America's soldiers fan out across central Asia to the Pakistani border, drones dealing death from the sky, the projection of power. America's greed, the greed of its bankers with no upper bound, the greed of its credit-addicted consumers, brings the world to its knees while the dollar stays strong. America is Assyria, Carthage, Rome, sped up. 

How to reconcile these contrasting flashes of the American identity this 4th of July, under a placid sky, in a throng of orderly, contented fellow citizens, gazing in wonder at this pyrotechnic sacrament? 

now more than ever

I return to this blog prompted by two specific events in the political world, not in France but here in the US. First, the publication by Elizabeth Kolbert, in the recent New Yorker, of a perfectly shocking profile of Jim Hansen, the NASA climatologist whose work on global warming has been path-breaking for three decades. Hansen himself is not the shocking part: he comes across as measured, factual, reasoned as usual. But what he has to say is appalling: far worse data than even a few years ago, strong evidence that we have passed the tipping point in the feedback loop of carbon retention in the atmosphere, and thus decades closer than we thought to eco-catastrophe. Even worse, though, are the remarks of people in government, congressional staffers and the like, who suggest that Hansen is being hopelessly intractable--he just doesn't 'get it.' And what he doesn't 'get' is that there is no way in hell the US political establishment can respond to this slow-motion train wreck in any appropriate way. Too much to lose, not enough political capital to spend, etc. So these people think Hansen should just lighten up, admit that politics is what it is, and ...  what exactly? Just watch as a climatic cataclysm that could end human life on the planet, or at least disrupt every form of civil order, slowly takes shape? Is this really the 'common sense' view? Apparently, and despite the undeniable truth of what Hansen says, that the laws or geo-physics are immutable, whereas human behavior is in theory adjustable. But no--politics as usual as driven by American finance capital and practiced in Washington DC is equally immutable. If desertification, flooding, dislocation, vast mortality are the consequences, that's just how things are.

Event 2 is the Carbon Trading bill, passed by the Congress with much fanfare though facing some trouble in the Senate. This is Obama's big initiative, a historic change in American policy, etc. etc. Of course the bill as passed is totally inadequate to address in any meaningful way the disastrous data Hansen puts forth, but  ... but what? Well, at least we're not in total denial any more, we're trying, it's a start. Bullshit! Sorry, but every word of praise heaped on this sham bill is a continuation of the American joy-ride to extinction. Folks just don't get it--THIS IS AN EMERGENCY, and the best we can offer is token half measures? 

To my mind this legislation is all the proof we need that our systems of power and governance DON'T WORK. The current world-system, Capitalist or what have you, under the aegis of our United States, is on a death trip. Our present leaders may die rich and self-satisfied, their children may use their stockpiled fortunes to fend off the inevitable (while climate dislocation wreaks a holocaust of unimaginable proportions on the world's poor). But the generation of their/our grandchildren will no longer find the Earth habitable. Are you OK with that, dear reader? Shall we just chill while we can and think about something else? Isn't our system 'working' if it gets us through the next two or three  decades without compromising our unprecedented and disproportionate habits of consumption? What do we care about posterity? That's what the smart folks in Washington seem to be saying to Jim Hansen, but he's not buying: at 68 he is embarking on non-violent resistance to the status quo. And in the same spirit I'm still pulling for an eco-socialist movement in Europe to show us Americans the way to an alternative. Only by socializing our governance can we hope to escape the trap of free-riderism, aka greed, that keeps real fundamental change in consumption off the table. Socialism may not be the solution, but it offers at least some  chance of collective response.  Some may find it quixotic or fanciful. But what should we call the complacency that simply accepts the suicide of our species as 'how things are'?