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Alyssa

‘The Americans’ Recap: Games Without Frontiers

This post discusses plot details of the season finale of The Americans.

And so, we end where we began, with the music. Back in the first episode of The Americans, when Phillip and Elizabeth made love in their car after dumping the body of the man who raped Elizabeth during her training in the Soviet Union, “In The Air Tonight,” a distinctly unromantic song was unsettlingly perfect for that tentatively romantic moment—and as a frame for the rest of the season. “I’ve seen your face before my friend, but I don’t know if you know who I am,” Phil Collins sings in perhaps his most famous single. “Well I was there and I saw what you did, I saw it with my own two eyes / So you can wipe off that grin, I know where you’ve been / It’s all been a pack of lies…I know the reason why you keep your silence up, / oh no you don’t fool me / Well the hurt doesn’t show, but the pain still grows / It’s no stranger to you and me.”

The Americans is deeply concerned with questions of complicity, intimacy, and the difference between them, and fittingly for a show interested in those questions, it’s often its best when the camera is lingering on two people, capturing the claustrophobia or wide-open possibility that marks their relationship at any given moment. When The Americans began, Elizabeth and Phillip were the only pair who were both complicit and intimate, in murder and in marriage. But by the end of the show, their children Paige and Henry had attacked a man who may have meant them no harm and fled from the scene, and their neighbor Stan had become entangled with Nina, a staffer at the Rezidentura, at considerable cost to his own marriage. The characters on The Americans draw charmed, poisoned circles around themselves and their collaborators and lovers, and not just because some of them are spies or cops. It’s almost a condition of adulthood, the show argues, to have secrets, and a test of true intimacy to share the full extent of those ugly secrets with another person, and to accept that they won’t reject you for them. Stan’s inability to share his secrets with Sandra dooms his marriage. And it’s an expression of truly withering contempt for Claudia to tell Elizabeth “I know you better than you know yourself. And you don’t know me at all.”

The spread of that secret-keeping like a disease makes Peter Gabriel’s “Games Without Frontiers,” his scathing critique of international affairs, a triply appropriate song to close out The Americans‘ first season, and not just because Gabriel’s description of figures “Dressing up in costumes, playing silly games,” is a great shout-out to the Jennings’ wig collection. “Hans plays with Lotte, Lotte plays with Jane / Jane plays with Willi, Willi is happy again,” he sings. “Suki plays with Leo, Sacha plays with Britt / Adolf builts a bonfire, Enrico plays with it.” The description of spreading nuclear knowledge in that first verse is the perfect conclusion to an episode that reveals that Elizabeth and Phillip have been risking themselves for information that is truly “incredibilis,” and that the world is gearing up for an arms raced based on clever fantasy rather than substance. Just as countries cascade into the game, The Americans‘ characters have been pulled into deception, whether as a condition of their jobs, or because adulthood is a disease that infects us all with secrecy. And for a show that depicts its main characters having a lot of unprotected—both physically and emotionally—sex with people not their primary partners in the years before AIDS became a visible public health catastrophe, there’s something chilling about the viral nature of the song.
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Alyssa

Musician Grimes’ Amazing Breakdown Of Sexism Directed At Women In Entertainment

The musician Grimes, at the conclusion of her world tour, has written a terrific post on her Tumblr that’s basically a catalogue of the things she finds exhausting about being a woman in the industry she’s in. I’ve reproduced most of it here because it’s so striking:

i dont want to be molested at shows or on the street by people who perceive me as an object that exists for their personal satisfaction

i dont want to live in a world where im gonna have to start employing body guards because this kind of behavior is so commonplace and accepted and I’m pissed that when I express concern over my own safety it’s often ignored until people see firsthand what happens and then they apologize for not taking me seriously after the fact…

I’m tired of men who aren’t professional or even accomplished musicians continually offering to ‘help me out’ (without being asked), as if i did this by accident and i’m gonna flounder without them. or as if the fact that I’m a woman makes me incapable of using technology. I have never seen this kind of thing happen to any of my male peers

I’m tired of the weird insistence that i need a band or i need to work with outside producers (and I’m eternally grateful to the people who don’t do this)

im tired of being considered vapid for liking pop music or caring about fashion as if these things inherently lack substance or as if the things i enjoy somehow make me a lesser person

im tired of being congratulated for being thin because i can more easily fit into sample sizes from the runway

im tired of people i love betraying me so they can get credit or money

I’m sad that it’s uncool or offensive to talk about environmental or human rights issues

I’m tired of creeps on message boards discussing whether or not they’d “fuck” me

I’m tired of people harassing my dancers and treating them like they aren’t human beings

I’m sad that my desire to be treated as an equal and as a human being is interpreted as hatred of men, rather than a request to be included and respected (I have four brothers and many male best friends and a dad and i promise i do not hate men at all, nor do i believe that all men are sexist or that all men behave in the ways described above)

Her objections break down into a very clear dichotomy. In Grimes’ experience, she’s expected to be one of two things. The men who grope her, or her dancers, or who assume she has no real input in creating her music and that someone else must be behind it—and that they could be that someone else—or who discuss her as if she’s a merely penetrate-able object, or women who treat her like a conveniently-sized clothes rack assume a kind of emptiness to her. Her lack of agency is a plus for them: if she can’t have opinions, she also doesn’t have consent to give that would interfere with people’s actions or fantasies, opinions about her body that would prevent stylists from treating her a blank palette, or a distinct creative vision that might get in the way of other people using her as a vessel for their own musical ideas.
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LGBT

Stephen Colbert Responds To ‘Accidental Racist’ With ‘Oopsie-Daisy Homophobe’

On Wednesday night’s Colbert Report, Stephen Colbert addressed the new song from Brad Paisley and LL Cool J, “Accidental Racist,” which happens to be, apparently, accidentally racist. Colbert described the song as “uniting all of us… to join our voices as one and declare, ‘This song sucks!’” He was so inspired by it that he wrote his own “awful” song to bridge the gay marriage divide. Joined by openly bisexual actor Alan Cumming, Colbert borrows Paisley’s tactic of playing dumb to avoid responsibility for homophobia. Cumming retorted, “If you don’t judge my parades, I’ll forget what you said about monkeys and AIDS,” a reference to the beliefs of Tennessee Sen. Stacey Campfield (R), sponsor of the infamous “Don’t Say Gay” bill. Watch it:

This post has been updated to correct that Alan Cumming identifies as bisexual.

Alyssa

Iconic Children’s Singer Raffi Cavoukian Speaks Up About Rehtaeh Parsons’ Suicide and Rape Culture

Like many of you, I’d imagine, I grew up listening to Raffi Cavoukian, the Egyptian-born Canadian children’s musician singing songs like “Baby Beluga” and “Down By The Bay”—I even have dim memories of going to see him in concert. He’s recently embarked on his first tour in ten years, and now, as both a Canadian and an advocate for children, he’s speaking out about the suicide of Rehtaeh Parsons, who hanged herself at 17 after she experienced bullying and social isolation after she was allegedly sexually assaulted and a picture of the assault distributed online—and about rape culture more broadly.

In a series of tweets today, Raffi wrote:




The idea that men have a role to play in reducing sexual assault isn’t new, of course. But there’s something particularly powerful about hearing Raffi, who’s both an advocate for children and someone whose music has always been predicated on the theory that children have the ability to absorb big ideas about the world and their place in it, say that rape culture is unacceptable. If we’re going to teach boys more actively about gender roles and respectful and consensual sexuality, that’s a process that’s going to require a foundation to be constructed fairly early in childhood. That’s not to say that we need to start sex education at five. But if we’re going teach boys about the huge range of things they can be in the same way we’ve reexamined roles and options for girls, and if we’re going to try to shift the perception of what values make a person a real man, someone like Raffi, who knows how to speak to children directly and uncondescendingly, will need to be part of the conversation.

Alyssa

From ‘Brassed Off’ To Adrian Mole, Considering Margaret Thatcher Through Popular Culture

Reading comedian and actor Russell Brand’s meditations on the late Prime Minister Margaret Thatcher on my return to the States this week was a delightful experience in and of itself—reading Brand on almost any subject is a pleasure. But it also reminded me just how much terrific popular culture Thatcher inspired, and the extent to which pop culture did real battle with her ideas.

One particular place that portraits of Thatcher in pop culture congregated was in stories about teenagers and young adults, where she represented, as Brand suggested, a parental figure to be rebelled against, as well as a proponent of specific policies that characters found objectionable. In the anarchic sitcom The Young Ones, which began running in 1982, Rick, a bad poet who believes he writes for the people, threatens to bomb the UK if Thatcher “doesn’t do something to help the kids, by this afternoon,” and sees her as an enemy generally, despite the overall incoherence of his politics. In Sue Townsend’s Adrian Mole novels, the titular main character lives with Margaret Thatcher as both a scourge and as a rallying point, writing her into plays and poems with lines like “When you’re dressing in your blue, do you see the waiting queue? / Do you weep, Mrs. Thatcher, do you weep?” Her elocution lessons are, for Adrian, a sign of phoniness, her hair an object of nostalgia after John Major’s ascendance. It’s an awfully personal engagement with a political figure, a reaction that’s in part the result of a small nation being close to its leaders, and in part a response to policies that did affect teenagers and university students directly.

It wasn’t just novelists who took inspiration, and who were catalyzed by Thatcher’s policies. In a great, long piece by Aaron Lake Smith, he discusses in particular both the way that the Miners’ Strike influenced the punk band Chambawamba, and how British youth radicalism from the Thatcher era seeped into its partying culture, making underground techno parties an opportunity to invite clashes with the police:

The British Miners’ Strike, called in response to Thatcher union busting, was a decisive event in Chumbawamba’s political evolution. The group supported political bombings against South Africa’s corrupt racist leaders. This forced them to reexamine their pacifist stance. Diet and lifestyle became less important than solidarity with organized labor. The band recorded a three-track Miner’s benefit single, distributed pamphlets and food to worker’s families, and even started a theatre troupe to perform for the miner’s children…This was the first crack in what would soon become a fissure between Chumbawamba and the punk scene they were part of. No longer spouting the expected pacifist line, they were decried as “sell-outs.” Chumbawamba worked to incorporate themselves into their community in Leeds rather than to be punks standing apart from it. They chose to venture into uncomfortable situations with people who were different from them. As Chumbwamba became closer and closer with the miners, they distanced themselves from “the punks,” whom they increasingly viewed as petty, hardline, ineffective, and humorless.

Then, there’s the terrific romantic comedy Brassed Off, about the members of a brass band associated with a coal mine, based on the Grimethorpe Colliery Band, after the mine where they worked was closed as a result of policies initiated by Thatcher’s administration, as the Grimethorpe Colliery was in 1993. The main characters are former coal miner Andy (Ewan McGregor in an early star turn) and Gloria (Tara Fitzgerald), who has returned to town to research whether the mine could be made more profitable, and begins playing in the band—and reconnecting with Andy. The two of them wrestle with real issues as they commence a romantic relationship as adults, even though they’re attracted to each other. They have different political views, and different perspectives on how important the mine is to the social fabric of the town, given that Gloria is open to the prospect of shuttering it. Their coming around to the same conclusions politically is crucial to their coming around to the same conclusions about the viability of their relationship.

But the movie is also deeply engaged with one of Margaret Thatcher’s most-quoted arguments, the idea that “There is no such thing as society. There is living tapestry of men and women and people and the beauty of that tapestry and the quality of our lives will depend upon how much each of us is prepared to take responsibility for ourselves and each of us prepared to turn round and help by our own efforts those who are unfortunate.” The members of the miners’ band do the best they can to help each other through illness and severe depression, and they manage to keep the band going, giving back to a society that has made them redundant. But even though they have tremendous will to help each other, they have few of the resources that Thatcher suggests will fill the gap on issues like housing and employment. It’s hard for men and women to weave a tapestry that’s an alternative to a government-provided social safety net if they don’t have enough thread to clothe themselves.

Alyssa

What Brad Paisley And LL Cool J Don’t Understand About Accidents In ‘Accidental Racist’

I can’t decide if I’m relieved or annoyed that Brad Paisley and LL Cool J released “Accidental Racist” while I was off the grid in Mexico. But their awkward melange of country and hip-hop, and even more awkward effort at racial dialogue has produced some great writing, whether it’s Ta-Nehisi on the choice of LL Cool J to provide racial cover rather than another rapper to provide a real half of a dialogue or Alan Pyke on the song as an attempt to heal America’s racial wounds with a fist bump. What I’m actually most struck by in the song, though, is its title, and what the idea that you can be “accidentally racist” means:

Most definitions of “accident” require that an incident that fits that description meet two criteria: that the event in question be both unintended and unforseeable. And it’s characteristic of our conversations about race that when someone causes offense, they insist that they aren’t culpable because their actions or speech were unintended, ignoring the question of possible foresight. It’s a means of defending yourself that puts responsibility for offense on the person who is offended, painting them as paranoid, suspicious, and generally lacking in good faith, and that allows people who are careless about race to avoid actual responsibility for hurting others. And it’s a defense that would be impossible for most people to make if they stepped back and weighed the question of whether, despite their intentions, their actions or speech could be foreseen to cause harm or summon up painful history.

Paisley’s first verse on “Accidental Racist” follows this formula to a T. He wants “the man that waited on me / At the Starbucks down on Main” to know that he doesn’t intend to telegraph his racial politics, that “The only thing I meant to say / Is I’m a Skynyrd fan.” But it doesn’t require prodigious powers of prognostication to be aware that Lynyrd Skynyrd is a band with a complex racial history, and that the Confederate national and battle flags are hurtful emblems to a lot of people. Expressing confusion that “The red flag on my chest somehow is / Like the elephant in the corner of the south” isn’t genuine surprise: it’s playing dumb, denying foresight that’s available to anyone even mildly aware of American racial politics and history. And refusing to engage in that process of thinking before you speak, or sing, or put on a t-shirt (or hell, buy a Skynyrd shirt that has a hot lady and the American flag mocked up to look like a tattoo, instead) isn’t an accident. It’s a deliberate decision, one born out of a decision to place your own comfort or convenience over the needs of other people.

Defending the song on Good Morning America today, LL Cool J insisted that “Hate can’t drive out hate, only love can. So what we’re talking about is compassion.” I don’t necessarily disagree with that sentiment. But for an act or person to meet the definition of compassionate requires more than a bland and friendly neutrality. Compassion requires both engagement and consideration for other people, and often some sacrifice. It’s leaving the Confederate Flag in the drawer at home and finding a better symbol of anti-racist Southern pride, not expecting other people not to inconvenience you because you’re really a nice guy.
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Alyssa

Brad Paisley And LL Cool J Have Given Us The Racial Healing Equivalent Of ‘Americans Elect’

In trying to dream up a #slatepitch on the new Brad Paisley-LL Cool J collaboration “Accidental Racist,” a variety of contrarian avenues spring to mind: “Why Brad Paisley, Like Skynyrd Before Him, Is Right About The Stars & Bars.” “If You Love The Band You Can’t Hate ‘Accidental Racist.’” “Good Intentions Redeem Gag-Inducing Lyrics In Paisley-LL Collabo.”

None of those headlines can sustain a valid argument. Taking the The Band-themed one first: “The Night They Drove Old Dixie Down” and “Tears Of Rage” would spit in your tea if you tried to use their rich portraits of confederate humanity to excuse “Now my chains are gold but I’m still misunderstood/I wasn’t there when Sherman’s march turned the South into firewood” (LL) or “Fixed the buildings, dried some tears/But we’re still sifting through the rubble after 150 years” (Paisley). In the case of the Skynyrd pitch, you’d just be retreading a million strained defenses of the Confederate flag that boil down to “…BUT I REALLY LIKE THAT FLAG DON’T TAKE IT AWAY!” Because again, there’s no comparing the subversive lyrical tenor of “Sweet Home Alabama” – arguably the only classic rock staple more widely misunderstood than “Born In The USA” – to the godawful writing of “Accidental Racist.” And the on-wax conflict between Neil Young and Skynyrd provided exactly what’s lacking from the simplistic detente Paisley and LL attempt to voice: the unblinkered honesty that combativeness brings.

In the case of the redemptive-intentions #slatepitch, Rembert Brown already provided the appropriate irate mockery of LL’s inexcusable offer to “forget the iron chains,” among other lyrical crimes. But Brown left just enough meat on the bone to make a separate point:

This is the Americans Elect of pop culture racial healing.

Americans Elect was the Thomas Friedman-inspired moneypit for earnest rich people who believe that our policy issues can be fixed by taking the raspy edge off our politics. That’s an old idea, supported by the constant poll finding that Americans claim to want a less-caustic politics, but gutted by the real, sharp divides which underlie our policy conflicts. We genuinely disagree over the proper balances of liberty and safety, of individual and communal interests, of private property and public resources. The federalist, tri-partide cauldron our founders built functions best when those disagreements flare up underneath it and cause the country to change somewhere between as quickly as is morally just and as slowly as is socially practical. Efforts to smother those conflicts rather than identify legislators capable of crafting them into a truly responsive politics are counterproductive, and born of elites who are tired of the shouting and incapable of seeing its potential value.

The post-racial aspirations voiced by Paisley’s narrator and LL’s “black yankee” interlocutor suffer from the same self-serving, battle-weary ignorance that drove Americans Elect. While the voices in “Accidental Racist” espouse hyperawareness of color, they’re also calling for an approach to racial differences that’s functionally identical to the colorblindness canard Alyssa’s gutted before. The performers call for racism to magically heal itself through major chords and willpower. It’s The Secret by way of Tinkerbell. Paisley doesn’t want to talk to the coffeeshop guy about racism any more than LL wants to talk to white folks about mandatory minimums or systemic disparities in educational outcomes. They each want to know that ‘We’re cool, right bro?’ without actually engaging the ugly substance and legacy of American history. “Accidental Racist” deserves every ounce of clowning it gets, but a song this earnest that actually grappled with racial divisions wouldn’t merit such epic shade-throwing. Unfortunately, the aesthetics here are exactly as simple, cheap, and foolish as the sentiments. Indemnity masquerades as forgiveness, and squeezes critical self-examination conveniently out of the picture for stars&bars fans.

Like Americans Elect, the failures of “Accidental Racist” at least offer a sort of negative-space sketch of what forward motion might look like. There may be a professional political class that exploits voter antagonisms for profit rather than progress, but the antagonisms themselves are real. A third party that severs some of those antagonists from the parties that are minimally responsive to them in policy terms might do some good, but one that wishes them away is both foolish and damaging. Similarly, imagine the good that might come of pop artists calling not for a peaceful, easy, made-for-Clearchannel conversation about how racism manifests in 21st-century America, but for a difficult, contentious, honest, and combative one.

How appropriate that Paisley locates the initiating event for his narrator’s earnest call for getting over it all in a Starbucks. “Accidental Racist” is the shiny plastic version of a call to productive racial discourse, a cheaply made thought-jalopy that will break down the second anyone foolish enough to buy it drives the thing off the lot.

Alyssa

‘Mad Men’s Don Draper, Rick Ross, And Narrowing Down The Definitions Of Rape And Assault

Over at Feministing, Mychal Denzel Smith has a great piece comparing Rick Ross and Don Draper as men who are very invested in building up fantasy worlds that justify their own privilege:

I don’t mean to compare the rapper and Mad Men’s leading character’s status as sex symbols, because the parallels go beyond the superficial. They are both products of fiction. They’re both identity thieves whose actual life stories hold the potential to ostracize them from their chosen communities. But more importantly, they both have constructed elaborate fantasy worlds around an idea of masculinity they know isn’t true to who they are. And neither one can escape.

Or it might be that they don’t want to escape. They both know that what they’re selling is bullshit, but they do it anyway because it affords them the opportunity to indulge every hyper-masculine fantasy they’ve been told would bring them happiness. In Don’s 1960s world it means he has a beautiful wife, a beautiful ex-wife, beautiful mistresses, beautiful kids, a beautiful home, a thriving business, the envy of Pete Campbell, and respect. Every night he should lie down to sleep feeling like a king.

The occasion for the piece was Ross’s decision that it’s super-cool to rap that he: “Put molly all in her champagne, she aint even know it. I took her home and I enjoyed that, she aint even know it.” After having it pointed out to him that this sentiment is less than charming, Ross insisted that he wasn’t advocating rape because that wasn’t the term that he used, and added that “”I would never use the term rape in my records. As far as my camp, hip-hop don’t condone that. The streets don’t condone that. Nobody condones that…I just wanted to reach out to all the queens that are on my timeline and all the sexy ladies, the beautiful ladies that had been reaching out to me with the misunderstanding.” Talib Kweli has been among the people who have pointed out that this sentiment is idiotic.

But Ross’s attempt at an explanation also points to a direction I think Smith could have taken his piece in: Ross is making the same attempt to narrow down what constitutes rape and sexual assault that characters on Mad Men make all of the time. Don Draper would never think of himself as someone who assaults a woman when he shoves his fingers up Bobbie Barrett’s vagina in a restaurant. Ken Cosgrove couldn’t possibly think that chasing a coworker down, dragging her to the floor, and pulling up her skirt to see the color of her panties is harassment or assault. Pete Campbell doesn’t understand that pressuring the German au pair employed by his neighbors is an ugly form of sexual coercion. And Greg Harris, Joan Holloway’s fiancee, doesn’t see himself as a rapist for years after he assaults Joan on the floor of Roger Sterling’s office—and maybe not even after Joan tells him that “You’re not a good man. You never were, even before we were married, and you know what I’m talking about.”

Because rapists are bad men, and a specific class of bad men. They’re men who can’t get a woman’s consent to have sex, rather than ones who just don’t, or won’t. Rapes happen in alleys, in bushes, late at night, rather than in martial beds, during the day. Rape only happens between strangers, rather than between people who know each other. A woman wasn’t raped unless she has cuts, bruises, was in fear of her life. If a woman had too much to drink, she wasn’t raped. If a woman consented to sex with a man before, she wasn’t raped. If a woman is unconscious and therefore unable to give a definitive no, it isn’t rape. If a woman ought to be sexually available to you, it can’t possibly be assault.

Rick Ross may have a better class of drugs available to him than the men who harass and assault the women around them and go on thinking of themselves as perfectly nice guys, if not world-conquering ballers on the same scale as Ross or Don Draper. But he’s a great illustration of how the same old excuses echo down the ages—and how they transfer from one set of men to another as men of different races and classes get access to the kind of privilege that men like Don guarded so carefully in the past.

Alyssa

Tegan And Sara’s ‘Heartthrob,’ Robyn, And The Shifting Gender Norms of Pop Music

I’m late to Tegan and Sara’s excellent Heartthrob, but listening to standout track “Now I’m All Messed Up,” I noticed something interesting. In the song’s excellent, heartwrenching chorus, the twins sing “Now I’m all messed up / Sick inside, wondering where / Where you’re leaving your makeup / Now I’m all messed up / Sick inside wondering who / Whose life you’re making worthwhile”:

What’s intriguing about those lines is not just that they’re good and precise, but that the default interpretation of them would probably be—the rise of makeup for men in certain circumstances notwithstanding—that Tegan and Sara are singing to a woman. That shouldn’t be surprising to anyone who’s followed the band for more than half a minute: both of the twins are gay and in long-term relationships with women. But where in the past, those songs and lyrics that clearly referenced women, like the deftly sketched object of desire who is “Dignified in what she does / When she sings the smile that she brings / To all of you unaware of what’s to come ” in “Superstar” were part of what, along with their production, made them kind of a cult group. I think I heard them for the first time at the Women’s Center in college. Now, it doesn’t seem to have pigeonholed them at all. Even if it’s women singing about other women, plenty of guys seem to be able to hear their own experiences in lyrics like these.

A similar kind of identification-bending happens in Robyn’s “Dancing On My Own” when she sings that “I’m not the guy you’re taking home,” a bit of language that could be part of a language barrier, but more likely, seems to be Robyn simultaneously conjuring up “stilettos and broken bottles” and speaking in the voice and to the experience of her gay male fans:

It doesn’t seem to me yet that this kind of pronoun fluidity to mix up the gender of the person we imagine as the protagonist of the song, or the expectation that you can identify with a song even if the sexual orientation of the lyrics or the gender of the singer clearly aren’t yours has completely conquered pop music. And of course there have always been cross-gender affiliations between singers and their audiences. But I wonder if this kind of protean approach is less closeted than it once was, if it’s less a form of code than simply a reflection of social and musical reality. Whatever it is, if it gives Tegan and Sara a chance to break out to mainstream audiences while still writing songs that are clearly addressed to women, it makes me very happy.

Alyssa

Why The Judge Who Struck Down Digital First Sale In New York Isn’t Helping The Copyright Debate

For those of you who were hoping that we might figure out a sane way to resell digital content in the same way there’s a thriving secondary market for used books, CDs, and movies, seem about to be disappointed after a New York judge, in a sweeping decision, rejected the idea that files are objects in the same way that other means of delivering content are:

The company believed that the lawsuit that followed was one of “first impression” insofar as the plaintiff — Capitol Records — might wish to have it declared that the first-sale doctrine didn’t apply to digital goods. Supporting ReDigi’s side was Google, which unsuccessfully attempted to file an amicus brief. Other tech companies also had a stake; Amazon, for instance, has gained a patent on a market for “used” digital music and movie files.

The record industry wasn’t seeking a big declaration. In its own papers, the plaintiff only said that letting users buy and sell previously purchased tracks on iTunes amounted to a “clearinghouse for copyright infringement.”
Nevertheless, on Monday, U.S. District Judge Richard Sullivan went swinging for the fences; unfortunately for ReDigi and those hoping for a vibrant e-market of used song files, the judge wound up completely rejecting the company’s position. He did so not only by turning to the law of copyright but also the law of physics, declaring the “impossibility” of what ReDigi was touting. “The first-sale defense,” he wrote, “does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.”

This strikes me as a decision that goes against the interest of both consumers and content providers. If content providers want individuals to get on board with the idea that files are property, and that the transfer of them without compensation causes damage to creators, an important part of that idea is that files are distinct objects, rather than ephemera that can be copied at no loss to them from a production standpoint, or loss of their ability to sell other downloads. I also am not sure how Judge Sullivan’s understanding of physics transfer to cyberspace, but perhaps he’s never bumped up against the memory limits of an iPhone before. From a business standpoint, it would obviously be preferable to content companies if they were the only people who retained the right to sell those objects. But that’s an idea they had to surrender on with physical objects a long time ago, learning that it creates a more stable market and preserves product standards to let people resell objects they’ve purchased than to block the first sale doctrine and see illicit copies of textbooks, burned CDs, or bootlegged VHS and DVD copies of movies begin circulating among people who aren’t actually a market for those products in their new, unused form.

Digital resale, I’d think, actually represents an opportunity for content companies to get more of their money back from resale than the resale of physical objects. If resale can be brokered through the original venues that sold the tracks, movies, or books, those venues could write contracts with publishers, studios, and record labels that let artists and content companies get some money back from those resales, along with both the sellers and the venues. A stable and brokered secondary market is probably the only way to guarantee that people who sell files will really get them off their computers—I imagine iTunes could write its code such that if you resell a track through the service, then try to upload it to iTunes without paying for it again, the file would be disabled and you’d get a warning, in the same way Amazon could probably scrub all versions of a track you’ve resold from its cloud storage. Having both sides in the digital content debate acknowledge that files are objects could produce a kind of detente, in which content companies grant consumers some more rights to do what they want with the objects they’ve purchased in exchange for consumers’ acknowledging that if they’re getting money off resale, there is in fact value in individual copies of files.

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