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.