Literatura académica sobre el tema "Electronic books. Landfill final covers"

The article analyzes the problem of using digital technologies and the online space within the framework of labor law, based not only existing regulatory legal acts but also legislative drafts in the field of the digitalization of labor relations. Therewithal, the purpose of the study is to generalize current and future Russian legislation, to manifest the contradictions and gaps in the legislation, to evaluate laws and regulations from a practical point of view, and to elaborate proposals for their improvement. For this purpose, the authors take into account the existing experience gained in the course of experiments on the introduction of electronic document management by individual employers. The achievement of the research goals is ensured by the use of the formal legal method. First of all, the article draws attention to the tendency of expanding the differentiation of the labor regulation, caused by many factors, including the informatization of all social relations. It is concluded that the transition to an innovative, socially-oriented economy is impossible without a flexible labor market with new areas of employment, including employment through the use of information technology resources. Analyzing the practical aspects of electronic workflow, the article covers the theoretical aspect of the existence of the so-called “information legal relationship” in the subject of labor law. The analysis of the legislative drafts and the current legislation focuses on controversial wording and emphasizes that their incorrectness creates high risks of labor disputes. The authors insist that when introducing an electronic workflow, the parties should be provided with an alternative to the actions. The authors defend the view that it is necessary to clarify the scope of information transmitted by the employer to the Pension Fund of the Russian Federation when maintaining electronic employment record books with regard to the inclusion of information about employee awards in them. They also propose determining the procedures of the formation of human resources services in the Labor Code of the Russian Federation. As a final point, it is concluded that all the proposed initiatives are aimed at ensuring the tasks of the state for the introduction of digital technologies in all areas of social life, including in labor relations, and, ultimately, at achieving the optimal balance between the interests of the parties of the labor relations and the interests of the state, which is the main goal of labor legislation.

When George Orwell encountered ideas of a technological utopia sixty-five years ago, he acted the grumpy middle-aged man Reading recently a batch of rather shallowly optimistic “progressive” books, I was struck by the automatic way in which people go on repeating certain phrases which were fashionable before 1914. Two great favourites are “the abolition of distance” and “the disappearance of frontiers”. I do not know how often I have met with the statements that “the aeroplane and the radio have abolished distance” and “all parts of the world are now interdependent” (1944). It is worth revisiting the old boy’s grumpiness, because the rhetoric he so niftily skewers continues in our own time. Facebook features “Peace on Facebook” and even claims that it can “decrease world conflict” through inter-cultural communication. Twitter has announced itself as “a triumph of humanity” (“A Cyber-House” 61). Queue George. In between Orwell and latter-day hoody cybertarians, a whole host of excitable public intellectuals announced the impending end of materiality through emergent media forms. Marshall McLuhan, Neil Postman, Daniel Bell, Ithiel de Sola Pool, George Gilder, Alvin Toffler—the list of 1960s futurists goes on and on. And this wasn’t just a matter of punditry: the OECD decreed the coming of the “information society” in 1975 and the European Union (EU) followed suit in 1979, while IBM merrily declared an “information age” in 1977. Bell theorized this technological utopia as post-ideological, because class would cease to matter (Mattelart). Polluting industries seemingly no longer represented the dynamic core of industrial capitalism; instead, market dynamism radiated from a networked, intellectual core of creative and informational activities. The new information and knowledge-based economies would rescue First World hegemony from an “insurgent world” that lurked within as well as beyond itself (Schiller). Orwell’s others and the Cold-War futurists propagated one of the most destructive myths shaping both public debate and scholarly studies of the media, culture, and communication. They convinced generations of analysts, activists, and arrivistes that the promises and problems of the media could be understood via metaphors of the environment, and that the media were weightless and virtual. The famous medium they wished us to see as the message —a substance as vital to our wellbeing as air, water, and soil—turned out to be no such thing. Today’s cybertarians inherit their anti-Marxist, anti-materialist positions, as a casual glance at any new media journal, culture-industry magazine, or bourgeois press outlet discloses. The media are undoubtedly important instruments of social cohesion and fragmentation, political power and dissent, democracy and demagoguery, and other fraught extensions of human consciousness. But talk of media systems as equivalent to physical ecosystems—fashionable among marketers and media scholars alike—is predicated on the notion that they are environmentally benign technologies. This has never been true, from the beginnings of print to today’s cloud-covered computing. Our new book Greening the Media focuses on the environmental impact of the media—the myriad ways that media technology consumes, despoils, and wastes natural resources. We introduce ideas, stories, and facts that have been marginal or absent from popular, academic, and professional histories of media technology. Throughout, ecological issues have been at the core of our work and we immodestly think the same should apply to media communications, and cultural studies more generally. We recognize that those fields have contributed valuable research and teaching that address environmental questions. For instance, there is an abundant literature on representations of the environment in cinema, how to communicate environmental messages successfully, and press coverage of climate change. That’s not enough. You may already know that media technologies contain toxic substances. You may have signed an on-line petition protesting the hazardous and oppressive conditions under which workers assemble cell phones and computers. But you may be startled, as we were, by the scale and pervasiveness of these environmental risks. They are present in and around every site where electronic and electric devices are manufactured, used, and thrown away, poisoning humans, animals, vegetation, soil, air and water. We are using the term “media” as a portmanteau word to cover a multitude of cultural and communications machines and processes—print, film, radio, television, information and communications technologies (ICT), and consumer electronics (CE). This is not only for analytical convenience, but because there is increasing overlap between the sectors. CE connect to ICT and vice versa; televisions resemble computers; books are read on telephones; newspapers are written through clouds; and so on. Cultural forms and gadgets that were once separate are now linked. The currently fashionable notion of convergence doesn’t quite capture the vastness of this integration, which includes any object with a circuit board, scores of accessories that plug into it, and a global nexus of labor and environmental inputs and effects that produce and flow from it. In 2007, a combination of ICT/CE and media production accounted for between 2 and 3 percent of all greenhouse gases emitted around the world (“Gartner Estimates,”; International Telecommunication Union; Malmodin et al.). Between twenty and fifty million tonnes of electronic waste (e-waste) are generated annually, much of it via discarded cell phones and computers, which affluent populations throw out regularly in order to buy replacements. (Presumably this fits the narcissism of small differences that distinguishes them from their own past.) E-waste is historically produced in the Global North—Australasia, Western Europe, Japan, and the US—and dumped in the Global South—Latin America, Africa, Eastern Europe, Southern and Southeast Asia, and China. It takes the form of a thousand different, often deadly, materials for each electrical and electronic gadget. This trend is changing as India and China generate their own media detritus (Robinson; Herat). Enclosed hard drives, backlit screens, cathode ray tubes, wiring, capacitors, and heavy metals pose few risks while these materials remain encased. But once discarded and dismantled, ICT/CE have the potential to expose workers and ecosystems to a morass of toxic components. Theoretically, “outmoded” parts could be reused or swapped for newer parts to refurbish devices. But items that are defined as waste undergo further destruction in order to collect remaining parts and valuable metals, such as gold, silver, copper, and rare-earth elements. This process causes serious health risks to bones, brains, stomachs, lungs, and other vital organs, in addition to birth defects and disrupted biological development in children. Medical catastrophes can result from lead, cadmium, mercury, other heavy metals, poisonous fumes emitted in search of precious metals, and such carcinogenic compounds as polychlorinated biphenyls, dioxin, polyvinyl chloride, and flame retardants (Maxwell and Miller 13). The United States’ Environmental Protection Agency estimates that by 2007 US residents owned approximately three billion electronic devices, with an annual turnover rate of 400 million units, and well over half such purchases made by women. Overall CE ownership varied with age—adults under 45 typically boasted four gadgets; those over 65 made do with one. The Consumer Electronics Association (CEA) says US$145 billion was expended in the sector in 2006 in the US alone, up 13% on the previous year. The CEA refers joyously to a “consumer love affair with technology continuing at a healthy clip.” In the midst of a recession, 2009 saw $165 billion in sales, and households owned between fifteen and twenty-four gadgets on average. By 2010, US$233 billion was spent on electronic products, three-quarters of the population owned a computer, nearly half of all US adults owned an MP3 player, and 85% had a cell phone. By all measures, the amount of ICT/CE on the planet is staggering. As investigative science journalist, Elizabeth Grossman put it: “no industry pushes products into the global market on the scale that high-tech electronics does” (Maxwell and Miller 2). In 2007, “of the 2.25 million tons of TVs, cell phones and computer products ready for end-of-life management, 18% (414,000 tons) was collected for recycling and 82% (1.84 million tons) was disposed of, primarily in landfill” (Environmental Protection Agency 1). Twenty million computers fell obsolete across the US in 1998, and the rate was 130,000 a day by 2005. It has been estimated that the five hundred million personal computers discarded in the US between 1997 and 2007 contained 6.32 billion pounds of plastics, 1.58 billion pounds of lead, three million pounds of cadmium, 1.9 million pounds of chromium, and 632000 pounds of mercury (Environmental Protection Agency; Basel Action Network and Silicon Valley Toxics Coalition 6). The European Union is expected to generate upwards of twelve million tons annually by 2020 (Commission of the European Communities 17). While refrigerators and dangerous refrigerants account for the bulk of EU e-waste, about 44% of the most toxic e-waste measured in 2005 came from medium-to-small ICT/CE: computer monitors, TVs, printers, ink cartridges, telecommunications equipment, toys, tools, and anything with a circuit board (Commission of the European Communities 31-34). Understanding the enormity of the environmental problems caused by making, using, and disposing of media technologies should arrest our enthusiasm for them. But intellectual correctives to the “love affair” with technology, or technophilia, have come and gone without establishing much of a foothold against the breathtaking flood of gadgets and the propaganda that proclaims their awe-inspiring capabilities.[i] There is a peculiar enchantment with the seeming magic of wireless communication, touch-screen phones and tablets, flat-screen high-definition televisions, 3-D IMAX cinema, mobile computing, and so on—a totemic, quasi-sacred power that the historian of technology David Nye has named the technological sublime (Nye Technological Sublime 297).[ii] We demonstrate in our book why there is no place for the technological sublime in projects to green the media. But first we should explain why such symbolic power does not accrue to more mundane technologies; after all, for the time-strapped cook, a pressure cooker does truly magical things. Three important qualities endow ICT/CE with unique symbolic potency—virtuality, volume, and novelty. The technological sublime of media technology is reinforced by the “virtual nature of much of the industry’s content,” which “tends to obscure their responsibility for a vast proliferation of hardware, all with high levels of built-in obsolescence and decreasing levels of efficiency” (Boyce and Lewis 5). Planned obsolescence entered the lexicon as a new “ethics” for electrical engineering in the 1920s and ’30s, when marketers, eager to “habituate people to buying new products,” called for designs to become quickly obsolete “in efficiency, economy, style, or taste” (Grossman 7-8).[iii] This defines the short lifespan deliberately constructed for computer systems (drives, interfaces, operating systems, batteries, etc.) by making tiny improvements incompatible with existing hardware (Science and Technology Council of the American Academy of Motion Picture Arts and Sciences 33-50; Boyce and Lewis). With planned obsolescence leading to “dizzying new heights” of product replacement (Rogers 202), there is an overstated sense of the novelty and preeminence of “new” media—a “cult of the present” is particularly dazzled by the spread of electronic gadgets through globalization (Mattelart and Constantinou 22). References to the symbolic power of media technology can be found in hymnals across the internet and the halls of academe: technologies change us, the media will solve social problems or create new ones, ICTs transform work, monopoly ownership no longer matters, journalism is dead, social networking enables social revolution, and the media deliver a cleaner, post-industrial, capitalism. Here is a typical example from the twilight zone of the technological sublime (actually, the OECD): A major feature of the knowledge-based economy is the impact that ICTs have had on industrial structure, with a rapid growth of services and a relative decline of manufacturing. Services are typically less energy intensive and less polluting, so among those countries with a high and increasing share of services, we often see a declining energy intensity of production … with the emergence of the Knowledge Economy ending the old linear relationship between output and energy use (i.e. partially de-coupling growth and energy use) (Houghton 1) This statement mixes half-truths and nonsense. In reality, old-time, toxic manufacturing has moved to the Global South, where it is ascendant; pollution levels are rising worldwide; and energy consumption is accelerating in residential and institutional sectors, due almost entirely to ICT/CE usage, despite advances in energy conservation technology (a neat instance of the age-old Jevons Paradox). In our book we show how these are all outcomes of growth in ICT/CE, the foundation of the so-called knowledge-based economy. ICT/CE are misleadingly presented as having little or no material ecological impact. In the realm of everyday life, the sublime experience of electronic machinery conceals the physical work and material resources that go into them, while the technological sublime makes the idea that more-is-better palatable, axiomatic; even sexy. In this sense, the technological sublime relates to what Marx called “the Fetishism which attaches itself to the products of labour” once they are in the hands of the consumer, who lusts after them as if they were “independent beings” (77). There is a direct but unseen relationship between technology’s symbolic power and the scale of its environmental impact, which the economist Juliet Schor refers to as a “materiality paradox” —the greater the frenzy to buy goods for their transcendent or nonmaterial cultural meaning, the greater the use of material resources (40-41). We wrote Greening the Media knowing that a study of the media’s effect on the environment must work especially hard to break the enchantment that inflames popular and elite passions for media technologies. We understand that the mere mention of the political-economic arrangements that make shiny gadgets possible, or the environmental consequences of their appearance and disappearance, is bad medicine. It’s an unwelcome buzz kill—not a cool way to converse about cool stuff. But we didn’t write the book expecting to win many allies among high-tech enthusiasts and ICT/CE industry leaders. We do not dispute the importance of information and communication media in our lives and modern social systems. We are media people by profession and personal choice, and deeply immersed in the study and use of emerging media technologies. But we think it’s time for a balanced assessment with less hype and more practical understanding of the relationship of media technologies to the biosphere they inhabit. Media consumers, designers, producers, activists, researchers, and policy makers must find new and effective ways to move ICT/CE production and consumption toward ecologically sound practices. In the course of this project, we found in casual conversation, lecture halls, classroom discussions, and correspondence, consistent and increasing concern with the environmental impact of media technology, especially the deleterious effects of e-waste toxins on workers, air, water, and soil. We have learned that the grip of the technological sublime is not ironclad. Its instability provides a point of departure for investigating and criticizing the relationship between the media and the environment. The media are, and have been for a long time, intimate environmental participants. Media technologies are yesterday’s, today’s, and tomorrow’s news, but rarely in the way they should be. The prevailing myth is that the printing press, telegraph, phonograph, photograph, cinema, telephone, wireless radio, television, and internet changed the world without changing the Earth. In reality, each technology has emerged by despoiling ecosystems and exposing workers to harmful environments, a truth obscured by symbolic power and the power of moguls to set the terms by which such technologies are designed and deployed. Those who benefit from ideas of growth, progress, and convergence, who profit from high-tech innovation, monopoly, and state collusion—the military-industrial-entertainment-academic complex and multinational commandants of labor—have for too long ripped off the Earth and workers. As the current celebration of media technology inevitably winds down, perhaps it will become easier to comprehend that digital wonders come at the expense of employees and ecosystems. This will return us to Max Weber’s insistence that we understand technology in a mundane way as a “mode of processing material goods” (27). Further to understanding that ordinariness, we can turn to the pioneering conversation analyst Harvey Sacks, who noted three decades ago “the failures of technocratic dreams [:] that if only we introduced some fantastic new communication machine the world will be transformed.” Such fantasies derived from the very banality of these introductions—that every time they took place, one more “technical apparatus” was simply “being made at home with the rest of our world’ (548). Media studies can join in this repetitive banality. Or it can withdraw the welcome mat for media technologies that despoil the Earth and wreck the lives of those who make them. In our view, it’s time to green the media by greening media studies. References “A Cyber-House Divided.” Economist 4 Sep. 2010: 61-62. “Gartner Estimates ICT Industry Accounts for 2 Percent of Global CO2 Emissions.” Gartner press release. 6 April 2007. ‹http://www.gartner.com/it/page.jsp?id=503867›. Basel Action Network and Silicon Valley Toxics Coalition. Exporting Harm: The High-Tech Trashing of Asia. Seattle: Basel Action Network, 25 Feb. 2002. Benjamin, Walter. “Central Park.” Trans. Lloyd Spencer with Mark Harrington. New German Critique 34 (1985): 32-58. Biagioli, Mario. “Postdisciplinary Liaisons: Science Studies and the Humanities.” Critical Inquiry 35.4 (2009): 816-33. Boyce, Tammy and Justin Lewis, eds. Climate Change and the Media. New York: Peter Lang, 2009. Commission of the European Communities. “Impact Assessment.” Commission Staff Working Paper accompanying the Proposal for a Directive of the European Parliament and of the Council on Waste Electrical and Electronic Equipment (WEEE) (recast). COM (2008) 810 Final. Brussels: Commission of the European Communities, 3 Dec. 2008. Environmental Protection Agency. Management of Electronic Waste in the United States. Washington, DC: EPA, 2007 Environmental Protection Agency. Statistics on the Management of Used and End-of-Life Electronics. Washington, DC: EPA, 2008 Grossman, Elizabeth. Tackling High-Tech Trash: The E-Waste Explosion & What We Can Do about It. New York: Demos, 2008. ‹http://www.demos.org/pubs/e-waste_FINAL.pdf› Herat, Sunil. “Review: Sustainable Management of Electronic Waste (e-Waste).” Clean 35.4 (2007): 305-10. Houghton, J. “ICT and the Environment in Developing Countries: Opportunities and Developments.” Paper prepared for the Organization for Economic Cooperation and Development, 2009. International Telecommunication Union. ICTs for Environment: Guidelines for Developing Countries, with a Focus on Climate Change. Geneva: ICT Applications and Cybersecurity Division Policies and Strategies Department ITU Telecommunication Development Sector, 2008. Malmodin, Jens, Åsa Moberg, Dag Lundén, Göran Finnveden, and Nina Lövehagen. “Greenhouse Gas Emissions and Operational Electricity Use in the ICT and Entertainment & Media Sectors.” Journal of Industrial Ecology 14.5 (2010): 770-90. Marx, Karl. Capital: Vol. 1: A Critical Analysis of Capitalist Production, 3rd ed. Trans. Samuel Moore and Edward Aveling, Ed. Frederick Engels. New York: International Publishers, 1987. Mattelart, Armand and Costas M. Constantinou. “Communications/Excommunications: An Interview with Armand Mattelart.” Trans. Amandine Bled, Jacques Guot, and Costas Constantinou. Review of International Studies 34.1 (2008): 21-42. Mattelart, Armand. “Cómo nació el mito de Internet.” Trans. Yanina Guthman. El mito internet. Ed. Victor Hugo de la Fuente. Santiago: Editorial aún creemos en los sueños, 2002. 25-32. Maxwell, Richard and Toby Miller. Greening the Media. New York: Oxford University Press, 2012. Nye, David E. American Technological Sublime. Cambridge, Mass.: MIT Press, 1994. Nye, David E. Technology Matters: Questions to Live With. Cambridge, Mass.: MIT Press. 2007. Orwell, George. “As I Please.” Tribune. 12 May 1944. Richtel, Matt. “Consumers Hold on to Products Longer.” New York Times: B1, 26 Feb. 2011. Robinson, Brett H. “E-Waste: An Assessment of Global Production and Environmental Impacts.” Science of the Total Environment 408.2 (2009): 183-91. Rogers, Heather. Gone Tomorrow: The Hidden Life of Garbage. New York: New Press, 2005. Sacks, Harvey. Lectures on Conversation. Vols. I and II. Ed. Gail Jefferson. Malden: Blackwell, 1995. Schiller, Herbert I. Information and the Crisis Economy. Norwood: Ablex Publishing, 1984. Schor, Juliet B. Plenitude: The New Economics of True Wealth. New York: Penguin, 2010. Science and Technology Council of the American Academy of Motion Picture Arts and Sciences. The Digital Dilemma: Strategic Issues in Archiving and Accessing Digital Motion Picture Materials. Los Angeles: Academy Imprints, 2007. Weber, Max. “Remarks on Technology and Culture.” Trans. Beatrix Zumsteg and Thomas M. Kemple. Ed. Thomas M. Kemple. Theory, Culture [i] The global recession that began in 2007 has been the main reason for some declines in Global North energy consumption, slower turnover in gadget upgrades, and longer periods of consumer maintenance of electronic goods (Richtel). [ii] The emergence of the technological sublime has been attributed to the Western triumphs in the post-Second World War period, when technological power supposedly supplanted the power of nature to inspire fear and astonishment (Nye Technology Matters 28). Historian Mario Biagioli explains how the sublime permeates everyday life through technoscience: "If around 1950 the popular imaginary placed science close to the military and away from the home, today’s technoscience frames our everyday life at all levels, down to our notion of the self" (818). [iii] This compulsory repetition is seemingly undertaken each time as a novelty, governed by what German cultural critic Walter Benjamin called, in his awkward but occasionally illuminating prose, "the ever-always-the-same" of "mass-production" cloaked in "a hitherto unheard-of significance" (48).

Ever since I tripped over Tiddles while I was carrying a pile of discs into the studio, I’ve known it was possible to get a laugh out of gramophone records!Max Bygraves In 1978 the music critic Lester Bangs published a typically pugnacious essay with the fighting title, “The Ten Most Ridiculous Albums of the Seventies.” Before deliciously launching into his execution of Uri Geller’s self-titled album or Rick Dees’ The Original Disco Duck, Bangs asserts that because that decade was history’s silliest, it stands to reason “that ridiculous records should become the norm instead of anomalies,” that abominations should be the best of our time (Bangs, 1978). This absurd pretzel logic sounds uncannily like Jacques Derrida’s definition of the “post” condition, since for it to arrive it begins by not arriving (Derrida 1987, 29). Lester is thinking like a poststructuralist. The oddness of the most singularly odd album out in Bangs’ greatest misses of the seventies had nothing to do with how ridiculous it was, but the fact that it even existed at all. (Bangs 1978) The album was entitled The Best of Marcel Marceao. Produced by Michael Viner the album contained four tracks, with two identical on both sides: “Silence,” which is nineteen minutes long and “Applause,” one minute. To underline how extraordinary this gramophone record is, John Cage’s Lecture on Nothing (1959) is cacophonous by comparison. While Bangs agrees with popular opinion that The Best of Marcel Marceao the “ultimate concept album,” he concluded that this is “one of those rare records that never dates” (Bangs, 1978). This tacet album is a good way to start thinking about the Classical Gas project, and the ironic semiotics at work in it (Tofts & Gye 2011). It too is about records that are silent and that never date. First, the album’s cover art, featuring a theatrically posed Marceau, implies the invitation to speak in the absence of speech; or, in our terms, it is asking to be re-written. Secondly, the French mime’s surname is spelled incorrectly, with an “o” rather than “u” as the final letter. As well as the caprice of an actual album by Marcel Marceau, the implicit presence and absence of the letters o and u is appropriately in excess of expectations, weird and unexpected like an early title in the Classical Gas catalogue, Ernesto Laclau’s and Chantal Mouffe’s Hegemony and Socialist Strategy. (classical-gas.com) Like a zootrope animation, it is impossible not to see the o and u flickering at one at the same time on the cover. In this duplicity it performs the conventional and logical permutation of English grammar. Silence invites difference, variation within a finite lexical set and the opportunity to choose individual items from it. Here is album cover art that speaks of presence and absence, of that which is anticipated and unexpected: a gramophone recoding without sound. In this the Marceau cover is one of Roland Barthes’ mythologies, something larger than life, structured like a language and structured out of language (Barthes 1982). This ambiguity is the perfidious grammar that underwrites Classical Gas. Images, we learned from structuralism, are codified, or rather, are code. Visual remix is a rhetorical gesture of recoding that interferes with the semiotic DNA of an image. The juxtaposition of text and image is interchangeable and requires our imagination of what we are looking at and what it might sound like. This persistent interplay of metaphor and metonymy has enabled us to take more than forty easy listening albums and republish them as mild-mannered recordings from the maverick history of ideas, from Marxism and psychoanalysis, to reception theory, poststructuralism and the writings of critical auteurs. Foucault à gogo, for instance, takes a 1965 James Last dance album and recodes it as the second volume of The History of Sexuality. In saying this, we are mindful of the ambivalence of the very possibility of this connection, to how and when the eureka moment of remix recognition occurs, if at all. Mix and remix are, after Jean Baudrillard, both precession and procession of simulacra (Baudrillard, 1983). The nature of remix is that it is always already elusive and anachronistic. Not everyone can be guaranteed to see the shadow of one text in dialogue with another, like a hi-fi palimpsest. Or another way of saying this, such an epiphany of déjà vu, of having seen this before, may happen after the fact of encounter. This anachrony is central to remix practices, from the films of Quentin Tarrantino and the “séance fictions” of Soda_Jerk, to obscure Flintstones/Goodfellas mashups on YouTube. It is also implicit in critical understandings of an improbable familiarity with the superabundance of cultural archives, the dizzying excess of an infinite record library straight out of Jorge Luis Borges’ ever-expanding imagination. Drifting through the stacks of such a repository over an entire lifetime any title found, for librarian and reader alike, is either original and remix, sometime. Metalanguages that seek to counter this ambivalence are forms of bad faith, like film spoilers Brodie’s Notes. Accordingly, this essay sets out to explain some of the generic conventions of Classical Gas, as a remix project in which an image’s semiotic DNA is rewired and recontextualised. While a fake, it is also completely real (Faith in fakes, as it happens, may well be a forthcoming Umberto Eco title in the series). While these album covers are hyperreal, realistic in excess of being real, the project does take some inspiration from an actual, rather than imaginary archive of album covers. In 2005, Jewish artist Dani Gal happened upon a 1968 LP that documented the events surrounding the Six Day War in Israel in 1967. To his surprise, he found a considerable number of similar LPs to do with significant twentieth century historical events, speeches and political debates. In the artist’s own words, the LPs collected in his Historical Record Archive (2005-ongoing) are in fact silent, since it is only their covers that are exhibited in installations of this work, signifying a potential sound that visitors must try to audition. As Gal has observed, the interactive contract of the work is derived from the audience’s instinct to “try to imagine the sounds” even though they cannot listen to them (Gal 2011, 182). Classical Gas deliberately plays with this potential yearning that Gal astutely instils in his viewer and aspiring auditor. While they can never be listened to, they can entice, after Gilles Deleuze, a “virtual co-existence” of imaginary sound that manifests itself as a contract between viewer and LP (Deleuze 1991, 63). The writer Jeffrey Sconce condensed this embrace of the virtual as something plausibly real when he pithily observed of the Classical Gas project that it is “the thrift-bin in my fantasy world. I want to play S/Z at 78 rpm” (Sconce 2011). In terms of Sconce’s spectral media interests the LPs are haunted by the trace of potential “other” sounds that have taken possession of and appropriated the covers for another use (Sconce 2000).Mimetic While most albums are elusive and metaphoric (such as Freud’s Totem and Taboo, or Luce Irigaray’s Ethics of Sexual Difference), some titles do make a concession to a tantalizing, mimetic literalness (such as Das Institut fur Sozialforschung). They display a trace of the haunting subject in terms of a tantalizing echo of fact or suggestion of verifiable biography. The motivation here is the recognition of a potential similarity, since most Classical Gas titles work by contrast. As with Roland Barthes’ analysis of the erotics of the fashion system, so with Gilles Deleuze’s Coldness and Cruelty: it is “where the garment gapes” that the tease begins. (Barthes 1994, 9) Or, in this instance, where the cigarette smokes. (classical-gas.com) A casual Max Bygraves, paused in mid-thought, looks askance while lighting up. Despite the temptation to read even more into this, a smoking related illness did not contribute to Bygraves’ death in 2012. However, dying of Alzheimer’s disease, his dementia is suggestive of the album’s intrinsic capacity to be a palimpsest of the co-presence of different memories, of confused identities, obscure realities that are virtual and real. Beginning with the album cover itself, it has to become an LP (Deleuze 1991, 63). First, it is a cardboard, planar sleeve measuring 310mm squared, that can be imprinted with a myriad of different images. Secondly, it is conventionally identified in terms of a title, such as Organ Highlights or Classics Up to Date. Thirdly it is inscribed by genre, which may be song, drama, spoken word, or novelty albums of industrial or instrumental sounds, such as Memories of Steam and Accelerated Accordians. A case in point is John Woodhouse And His Magic Accordion from 1969. (classical-gas.com) All aspects of its generic attributes as benign and wholesome accordion tunes are warped and re-interpreted in Classical Gas. Springtime for Kittler appeared not long after the death of its eponymous philosopher in 2011. Directed by Richard D. James, also known as Aphex Twin, it is a homage album to Friedrich Kittler by the PostProducers, a fictitious remix collective inspired by Mel Brooks whose personnel include Mark Amerika and Darren Tofts. The single from this album, yet to be released, is a paean to Kittler’s last words, “Alle Apparate auschalten.” Foucault à gogo (vol. 2), the first album remixed for this series, is also typical of this archaeological approach to the found object. (classical-gas.com) The erasure and replacement of pre-existing text in a similar font re-writes an iconic image of wooing that is indicative of romantic album covers of this period. This album is reflective of the overall project in that the actual James Last album (1968) preceded the publication of the Foucault text (1976) that haunts it. This is suggestive of how coding and recoding are in the eye of the beholder and the specific time in which the remixed album is encountered. It doesn’t take James Last, Michel Foucault or Theodor Holm Nelson to tell you that there is no such thing as a collective memory with linear recall. As the record producer Milt Gabler observes in the liner notes to this album, “whatever the title with this artist, the tune remains the same, that distinct and unique Foucault à gogo.” “This artist” in this instance is Last or Foucault, as well as Last and Foucault. Similarly Milt Gabler is an actual author of liner notes (though not on the James Last album) whose words from another album, another context and another time, are appropriated and deftly re-written with Last’s Hammond à gogo volume 2 and The History of Sexuality in mind as a palimpsest (this approach to sampling liner notes and re-writing them as if they speak for the new album is a trope at work in all the titles in the series). And after all is said and done with the real or remixed title, both artists, after Umberto Eco, will have spoken once more of love (Eco 1985, 68). Ambivalence Foucault à gogo is suggestive of the semiotic rewiring that underwrites Classical Gas as a whole. What is at stake in this is something that poststructuralism learned from its predecessor. Taking the tenuous conventionality of Ferdinand de Saussure’s signifier and signified as a starting point, Lacan, Derrida and others embraced the freedom of this arbitrariness as the convention or social contract that brings together a thing and a word that denotes it. This insight of liberation, or what Hélène Cixous and others, after Jacques Lacan, called jouissance (Lacan 1992), meant that texts were bristling with ambiguity and ambivalence, free play, promiscuity and, with a nod to Mikhail Bakhtin, carnival (Bakhtin 1984). A picture of a pipe was, after Foucault after Magritte, not a pipe (Foucault 1983). This po-faced sophistry is expressed in René Magritte’s “Treachery of Images” of 1948, which screamed out that the word pipe could mean anything. Foucault’s reprise of Magritte in “This is Not a Pipe” also speaks of Classical Gas’ embrace of the elasticity of sign and signifier, his “plastic elements” an inadvertent suggestion of vinyl (Foucault 1983, 53). (classical-gas.com) This uncanny association of structuralism and remixed vinyl LPs is intimated in Ferdinand de Saussure’s Cours de linguistique générale. Its original cover art is straight out of a structuralist text-book, with its paired icons and words of love, rain, honey, rose, etc. But this text as performed by Guy Lombardo and his Royal Canadians in New York in 1956 is no less plausible than Saussure’s lectures in Geneva in 1906. Cultural memory and cultural amnesia are one and the same thing. Out of all of the Classical Gas catalogue, this album is arguably the most suggestive of what Jeffrey Sconce would call “haunting” (Sconce, 2000), an ambivalent mixing of the “memory and desire” that T.S. Eliot wrote of in the allusive pages of The Waste Land (Eliot 1975, 27). Here we encounter the memory of a bookish study of signs from the early twentieth century and the desire for its vinyl equivalent on World Record Club in the 1960s. Memory and desire, either or, or both. This ambivalence was deftly articulated by Roland Barthes in his last book, Camera Lucida, as a kind of spectral haunting, a vision or act of double seeing in the perception of the photographic image. This flickering of perception is never static, predictable or repeatable. It is a way of seeing contingent upon who is doing the looking and when. Barthes famously conceptualised this interplay in perception of an between the conventions that culture has mandated, its studium, and the unexpected, idiosyncratic double vision that is unique to the observer, its punctum (Barthes 1982, 26-27). Accordingly, the Cours de linguistique générale is a record by Saussure as well as the posthumous publication in Paris and Lausanne of notes from his lectures in 1916. (Barthes 1982, 51) With the caption “Idiot children in an institution, New Jersey, 1924,” American photographer Lewis Hine’s anthropological study declares that this is a clinical image of pathological notions of monstrosity and aberration at the time. Barthes though, writing in a post-1968 Paris, only sees an outrageous Danton collar and a banal finger bandage (Barthes 1982, 51). With the radical, protestant cries of the fallout of the Paris riots in mind, as well as a nod to music writer Greil Marcus (1989), it is tempting to see Hine’s image as the warped cover of a Dead Kennedys album, perhaps Plastic Surgery Disasters. In terms of the Classical Gas approach to recoding, though, this would be far too predictable; for a start there is neither a pipe, a tan cardigan nor a chenille scarf to be seen. A more heart-warming, suitable title might be Ray Conniff’s 1965 Christmas Album: Here We Come A-Caroling. Irony (secretprehistory.net) Like our Secret Gestural Prehistory of Mobile Devices project (Tofts & Gye), Classical Gas approaches the idea of recoding and remixing with a relentless irony. The kind of records we collect and the covers which we use for this project are what you would expect to find in the hutch of an old gramophone player, rather than “what’s hot” in iTunes. The process of recoding the album covers seeks to realign expectations of what is being looked at, such that it becomes difficult to see it in any other way. In this an album’s recoded signification implies the recognition of the already seen, of album covers like this, that signal something other than what we are seeing; colours, fonts etc., belonging to a historical period, to its genres and its demographic. One of the more bucolic and duplicitous forms of rhetoric, irony wants it both ways, to be totally lounge and theoretically too-cool-for school, as in Rencontre Terrestre by Hélène Cixous and Frédéric-Yves Jeannet. (classical-gas.com) This image persuades through the subtle alteration of typography that it belongs to a style, a period and a vibe that would seem to be at odds with the title and content of the album, but as a totality of image and text is entirely plausible. The same is true of Roland Barthes’ S/Z. The radical semiologist invites us into his comfortable sitting room for a cup of coffee. A traditional Times font reinforces the image of Barthes as an avuncular, Sunday afternoon story-teller or crooner, more Alistair Cooke/Perry Como than French Marxist. (classical-gas.com) In some instances, like Histoire de Tel Quel, there is no text at all on the cover and the image has to do its signifying work iconographically. (classical-gas.com) Here a sixties collage of French-ness on the original Victor Sylvester album from 1963 precedes and anticipates the re-written album it has been waiting for. That said, the original title In France is rather bland compared to Histoire de Tel Quel. A chic blond, the Eiffel Tower and intellectual obscurity vamp synaesthetically, conjuring the smell of Gauloises, espresso and agitated discussions of Communism on the Boulevard St. Germain. With Marcel Marceao with an “o” in mind, this example of a cover without text ironically demonstrates how Classical Gas, like The Secret Gestural Prehistory of Mobile Devices, is ostensibly a writing project. Just as the images are taken hostage from other contexts, text from the liner notes is sampled from other records and re-written in an act of ghost-writing to complete the remixed album. Without the liner notes, Classical Gas would make a capable Photoshop project, but lacks any force as critical remix. The redesigned and re-titled covers certainly re-code the album, transform it into something else; something else that obviously or obliquely reflects the theme, ideas or content of the title, whether it’s Louis Althusser’s Philosophy as a Revolutionary Weapon or Luce Irigaray’s An Ethics of Sexual Difference. If you don’t hear the ruggedness of Leslie Fiedler’s essays in No! In Thunder then the writing hasn’t worked. The liner notes are the albums’ conscience, the rubric that speaks the tunes, the words and elusive ideas that are implied but can never be heard. The Histoire de Tel Quel notes illustrate this suggestiveness: You may well think as is. Philippe Forest doesn’t, not in this Éditions du Seuil classic. The titles included on this recording have been chosen with a dual purpose: for those who wish to think and those who wish to listen. What Forest captures in this album is distinctive, fresh and daring. For what country has said it like it is, has produced more robustesse than France? Here is some of that country’s most famous talent swinging from silk stockings, the can-can, to amour, presented with the full spectrum of stereo sound. (classical-gas.com) The writing accurately imitates the inflection and rhythm of liner notes of the period, so on the one hand it sounds plausibly like a toe-tapping dance album. On the other, and at the same time, it gestures knowingly to the written texts upon which it is based, invoking its rigours as a philosophical text. The dithering suggestiveness of both – is it music or text – is like a scrambled moving image always coming into focus, never quite resolving into one or the other. But either is plausible. The Tel Quel theorists were interested in popular culture like the can-can, they were fascinated with the topic of love and if instead of books they produced albums, their thinking would be auditioned in full stereo sound. With irony in mind, then, it’s hardly surprising to know that the implicit title of the project, that is neither seen nor heard but always imminent, is Classical Gasbags. (classical-gas.com) Liner notes elaborate and complete an implicit narrative in the title and image, making something compellingly realistic that is a composite of reality and fabulation. Consider Adrian Martin’s Surrealism (A Quite Special Frivolity): France is the undeniable capital of today’s contemporary sound. For Adrian Martin, this is home ground. His French soul glows and expands in the lovely Mediterranean warmth of this old favourite, released for the first time on Project 3 Total Sound Stereo. But don’t be deceived by the tonal and melodic caprices that carry you along in flutter-free sound. As Martin hits his groove, there will be revolution by night. Watch out for new Adrian Martin releases soon, including La nuit expérimentale and, his first title in English in many years, One more Bullet in the Head (produced by Bucky Pizzarelli). (classical-gas.com) Referring to Martin’s famous essay of the same name, these notes allusively skirt around his actual biography (he regularly spends time in France), his professional writing on surrealism (“revolution by night” was the sub-title of a catalogue for the Surrealism exhibition at the National Gallery of Australia in Canberra and the Art Gallery of New South Wales in 1993 to which he contributed an essay) (Martin 1993), as well as “One more bullet in the head,” the rejected title of an essay that was published in World Art magazine in New York in the mid-1990s. While the cover evokes the cool vibe of nouvelle vague Paris, it is actually from a 1968 album, Roma Oggi by the American guitarist Tony Mottola (a real person who actually sounds like a fictional character from Sergio Leone’s Once Upon A Time in America, a film on which Martin has written a book for the British Film Institute). Plausibility, in terms of Martin’s Surrealism album, has to be as compellingly real as the sincerity of Sandy Scott’s Here’s Sandy. And it should be no surprise to see the cover art of Scott’s album return as Georges Bataille’s Erotism. Gramophone The history of the gramophone represents the technological desire to write sound. In this the gramophone record is a ligature of sound and text, a form of phonographic writing. With this history in mind it’s hardly surprising that theorists such as Derrida and Kittler included the gramophone under the conceptual framework of a general grammatology (Derrida 1992, 253 & Kittler 1997, 28). (classical-gas.com) Jacques Derrida’s Of Grammatology is the avatar of Classical Gas in its re-writing of a previous writing. Re-inscribing the picaresque Pal Joey soundtrack as a foundation text of post-structuralism is appropriate in terms of the gramme or literate principle of Western metaphysics as well as the echolalia of remix. As Derrida observes in Of Grammatology, history and knowledge “have always been determined (and not only etymologically or philosophically) as detours for the purpose of the reappropriation of presence” (Derrida 1976, 10). A gas way to finish, you might say. But in retrospect the ur-text that drives the poetics of Classical Gas is not Of Grammatology but the errant Marcel Marceau album described previously. Far from being an oddity, an aberration or a “novelty” album, it is a classic gramophone recording, the quintessential writing of an absent speech, offbeat and untimely. References Bahktin, Mikhail. Rabelais and His World. Trans. Hélène Iswolsky. Bloomington: Indiana University Press, 1985. Bangs, Lester. “The Ten Most Ridiculous Albums of the Seventies”. Phonograph Record Magazine, March, 1978. Reproduced at http://rateyourmusic.com/list/dacapo/the_ten_most_ridiculous_records_of_the_seventies__by_lester_bangs. Barthes, Roland. Camera Lucida: Reflections on Photography. Trans. Richard Howard. London: Flamingo, 1982. ---. Mythologies. Trans. Annette Lavers. London: Granada, 1982. ---. The Pleasure of the Text. Trans. Richard Miller. Oxford: Blackwell, 1994. Baudrillard, Jean. Simulations. Trans. Paul Foss, Paul Patton and Philip Beitchman. New York: Semiotext[e], 1983. Deleuze, Gilles. Bergsonism. Trans. Hugh Tomlinson and Barbara Habberjam. New York: Zone Books, 2000. Derrida, Jacques. Of Grammatology. Trans. Gayatri Chakravorty Spivak. Baltimore: Johns Hopkins University Press, 1976. ---. The Post Card: From Socrates to Freud and Beyond. Trans. Alan Bass. Chicago: Chicago University Press, 1987. ---. “Ulysses Gramophone: Hear Say Yes in Joyce,” in Acts of Literature. Ed. Derek Attridge. New York: Routledge, 1992. Eco, Umberto. Reflections on The Name of the Rose. Trans. William Weaver. London: Secker & Warburg, 1985. Eliot, T.S. The Waste Land and Other Poems. London: Faber & Faber, 1975. Foucault, Michel. This Is Not a Pipe. Trans. James Harkness. Berkeley: University of California Press, 1983. ---. The Use of Pleasure: The History of Sexuality Volume 2. Trans. Robert Hurley. New York: Random House, 1985. Gal, Dani. Interview with Jens Hoffmann, Istanbul Biennale Companion. Istanbul Foundation for Culture and the Arts, 2011. Kittler, Friedrich. “Gramophone, Film, Typewriter,” in Literature, Media, Information Systems. Ed. John Johnston. Amsterdam: Overseas Publishers Association, 1997. Lacan, Jacques. The Ethics of Psychoanalysis (1959–1960): The Seminar of Jacques Lacan. Trans. Dennis Porter. London: Routledge, 1992. Marcus, Greil. Lipstick Traces: A Secret History of the Twentieth Century. London: Secker & Warburg, 1989. Martin, Adrian. “The Artificial Night: Surrealism and Cinema,” in Surrealism: Revolution by Night. Canberra: National Gallery of Australia, 1993. Sconce, Jeffrey. Haunted Media: Electronic Presence from Telegraphy to Television. Durham: Duke University Press, 2000. ---. Online communication with authors, June 2011. Tofts, Darren and Lisa Gye. The Secret Gestural Prehistory of Mobile Devices. 2010-ongoing. http://www.secretprehistory.net/. ---. Classical Gas. 2011-ongoing. http://www.classical-gas.com/.

IntroductionThe Internet (especially in the so-called Web 2.0 phase), digital media and file-sharing networks have thrust copyright law under public scrutiny, provoking discourses questioning what is fair in the digital age. Accessible hardware and software has led to prosumerism – creativity blending media consumption with media production to create new works that are freely disseminated online via popular video-sharing Web sites such as YouTube or genre specific music sites like GYBO (“Get Your Bootleg On”) amongst many others. The term “prosumer” is older than the Web, and the conceptual convergence of producer and consumer roles is certainly not new, for “at electric speeds the consumer becomes producer as the public becomes participant role player” (McLuhan 4). Similarly, Toffler’s “Third Wave” challenges “old power relationships” and promises to “heal the historic breach between producer and consumer, giving rise to the ‘prosumer’ economics” (27). Prosumption blurs the traditionally separate consumer and producer creating a new creative era of mass customisation of artefacts culled from the (copyrighted) media landscape (Tapscott 62-3). Simultaneously, corporate interests dependent upon the protections provided by copyright law lobby for augmented rights and actively defend their intellectual property through law suits, takedown notices and technological reinforcement. Despite a lack demonstrable economic harm in many cases, the propertarian approach is winning and frequently leading to absurd results (Collins).The balance between private and public interests in creative works is facilitated by the doctrine of fair use (as codified in the United States Copyright Act 1976, section 107). The majority of copyright laws contain “fair” exceptions to claims of infringement, but fair use is characterised by a flexible, open-ended approach that allows the law to flex with the times. Until recently the defence was unique to the U.S., but on 2 January Israel amended its copyright laws to include a fair use defence. (For an overview of the new Israeli fair use exception, see Efroni.) Despite its flexibility, fair use has been systematically eroded by ever encroaching copyrights. This paper argues that copyright enforcement has spun out of control and the raison d’être of the law has shifted from being “an engine of free expression” (Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985)) towards a “legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seeks out and punish virtually any use of an intellectual property right by another” (Lemley 1032). Although the copyright landscape appears bleak, two recent cases suggest that fair use has not fallen by the wayside and may well recover. This paper situates fair use as an essential legal and cultural mechanism for optimising creative expression.A Brief History of CopyrightThe law of copyright extends back to eighteenth century England when the Statute of Anne (1710) was enacted. Whilst the length of this paper precludes an in depth analysis of the law and its export to the U.S., it is important to stress the goals of copyright. “Copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (Vaidhyanathan 11). Copyright was designed as a right limited in scope and duration to ensure that culturally important creative works were not the victims of monopolies and were free (as later mandated in the U.S. Constitution) “to promote the progress.” During the 18th century English copyright discourse Lord Camden warned against propertarian approaches lest “all our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are” (Donaldson v. Becket 17 Cobbett Parliamentary History, col. 1000). Camden’s sentiments found favour in subsequent years with members of the North American judiciary reiterating that copyright was a limited right in the interests of society—the law’s primary beneficiary (see for example, Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994]). Putting the “Fair” in Fair UseIn Folsom v. Marsh 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) Justice Storey formulated the modern shape of fair use from a wealth of case law extending back to 1740 and across the Atlantic. Over the course of one hundred years the English judiciary developed a relatively cohesive set of principles governing the use of a first author’s work by a subsequent author without consent. Storey’s synthesis of these principles proved so comprehensive that later English courts would look to his decision for guidance (Scott v. Stanford L.R. 3 Eq. 718, 722 (1867)). Patry explains fair use as integral to the social utility of copyright to “encourage. . . learned men to compose and write useful books” by allowing a second author to use, under certain circumstances, a portion of a prior author’s work, where the second author would himself produce a work promoting the goals of copyright (Patry 4-5).Fair use is a safety valve on copyright law to prevent oppressive monopolies, but some scholars suggest that fair use is less a defence and more a right that subordinates copyrights. Lange and Lange Anderson argue that the doctrine is not fundamentally about copyright or a system of property, but is rather concerned with the recognition of the public domain and its preservation from the ever encroaching advances of copyright (2001). Fair use should not be understood as subordinate to the exclusive rights of copyright owners. Rather, as Lange and Lange Anderson claim, the doctrine should stand in the superior position: the complete spectrum of ownership through copyright can only be determined pursuant to a consideration of what is required by fair use (Lange and Lange Anderson 19). The language of section 107 suggests that fair use is not subordinate to the bundle of rights enjoyed by copyright ownership: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright” (Copyright Act 1976, s.107). Fair use is not merely about the marketplace for copyright works; it is concerned with what Weinreb refers to as “a community’s established practices and understandings” (1151-2). This argument boldly suggests that judicial application of fair use has consistently erred through subordinating the doctrine to copyright and considering simply the effect of the appropriation on the market place for the original work.The emphasis on economic factors has led courts to sympathise with copyright owners leading to a propertarian or Blackstonian approach to copyright (Collins; Travis) propagating the myth that any use of copyrighted materials must be licensed. Law and media reports alike are potted with examples. For example, in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004) a Sixth Circuit Court of Appeals held that the transformative use of a three-note guitar sample infringed copyrights and that musicians must obtain licence from copyright owners for every appropriated audio fragment regardless of duration or recognisability. Similarly, in 2006 Christopher Knight self-produced a one-minute television advertisement to support his campaign to be elected to the board of education for Rockingham County, North Carolina. As a fan of Star Wars, Knight used a makeshift Death Star and lightsaber in his clip, capitalising on the imagery of the Jedi Knight opposing the oppressive regime of the Empire to protect the people. According to an interview in The Register the advertisement was well received by local audiences prompting Knight to upload it to his YouTube channel. Several months later, Knight’s clip appeared on Web Junk 2.0, a cable show broadcast by VH1, a channel owned by media conglomerate Viacom. Although his permission was not sought, Knight was pleased with the exposure, after all “how often does a local school board ad wind up on VH1?” (Metz). Uploading the segment of Web Junk 2.0 featuring the advertisement to YouTube, however, led Viacom to quickly issue a take-down notice citing copyright infringement. Knight expressed his confusion at the apparent unfairness of the situation: “Viacom says that I can’t use my clip showing my commercial, claiming copy infringement? As we say in the South, that’s ass-backwards” (Metz).The current state of copyright law is, as Patry says, “depressing”:We are well past the healthy dose stage and into the serious illness stage ... things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together.The erosion of fair use by encroaching private interests represented by copyrights has led to strong critiques leveled at the judiciary and legislators by Lessig, McLeod and Vaidhyanathan. “Free culture” proponents warn that an overly strict copyright regime unbalanced by an equally prevalent fair use doctrine is dangerous to creativity, innovation, culture and democracy. After all, “few, if any, things ... are strictly original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others” (Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), qted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994)). The rise of the Web 2.0 phase with its emphasis on end-user created content has led to an unrelenting wave of creativity, and much of it incorporates or “mashes up” copyright material. As Negativland observes, free appropriation is “inevitable when a population bombarded with electronic media meets the hardware [and software] that encourages them to capture it” and creatively express themselves through appropriated media forms (251). The current state of copyright and fair use is bleak, but not beyond recovery. Two recent cases suggest a resurgence of the ideology underpinning the doctrine of fair use and the role played by copyright.Let’s Go CrazyIn “Let’s Go Crazy #1” on YouTube, Holden Lenz (then eighteen months old) is caught bopping to a barely recognizable recording of Prince’s “Let’s Go Crazy” in his mother’s Pennsylvanian kitchen. The twenty-nine second long video was viewed a mere twenty-eight times by family and friends before Stephanie Lenz received an email from YouTube informing her of its compliance with a Digital Millennium Copyright Act (DMCA) take-down notice issued by Universal, copyright owners of Prince’s recording (McDonald). Lenz has since filed a counterclaim against Universal and YouTube has reinstated the video. Ironically, the media exposure surrounding Lenz’s situation has led to the video being viewed 633,560 times at the time of writing. Comments associated with the video indicate a less than reverential opinion of Prince and Universal and support the fairness of using the song. On 8 Aug. 2008 a Californian District Court denied Universal’s motion to dismiss Lenz’s counterclaim. The question at the centre of the court judgment was whether copyright owners should consider “the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court ultimately found in favour of Lenz and also reaffirmed the position of fair use in relation to copyright. Universal rested its argument on two key points. First, that copyright owners cannot be expected to consider fair use prior to issuing takedown notices because fair use is a defence, invoked after the act rather than a use authorized by the copyright owner or the law. Second, because the DMCA does not mention fair use, then there should be no requirement to consider it, or at the very least, it should not be considered until it is raised in legal defence.In rejecting both arguments the court accepted Lenz’s argument that fair use is an authorised use of copyrighted materials because the doctrine of fair use is embedded into the Copyright Act 1976. The court substantiated the point by emphasising the language of section 107. Although fair use is absent from the DMCA, the court reiterated that it is part of the Copyright Act and that “notwithstanding the provisions of sections 106 and 106A” a fair use “is not an infringement of copyright” (s.107, Copyright Act 1976). Overzealous rights holders frequently abuse the DMCA as a means to quash all use of copyrighted materials without considering fair use. This decision reaffirms that fair use “should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design” but something that it is integral to the constitution of copyright law and essential in ensuring that copyright’s goals can be fulfilled (Leval 1100). Unlicensed musical sampling has never fared well in the courtroom. Three decades of rejection and admonishment by judges culminated in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004): “Get a license or do not sample. We do not see this stifling creativity in any significant way” was the ruling on an action brought against an unlicensed use of a three-note guitar sample under section 114, an audio piracy provision. The Bridgeport decision sounded a death knell for unlicensed sampling, ensuring that only artists with sufficient capital to pay the piper could legitimately be creative with the wealth of recorded music available. The cost of licensing samples can often outweigh the creative merit of the act itself as discussed by McLeod (86) and Beaujon (25). In August 2008 the Supreme Court of New York heard EMI v. Premise Media in which EMI sought an injunction against an unlicensed fifteen second excerpt of John Lennon’s “Imagine” featured in Expelled: No Intelligence Allowed, a controversial documentary canvassing alleged chilling of intelligent design proponents in academic circles. (The family of John Lennon and EMI had previously failed to persuade a Manhattan federal court in a similar action.) The court upheld Premise Media’s arguments for fair use and rejected the Bridgeport approach on which EMI had rested its entire complaint. Justice Lowe criticised the Bridgeport court for its failure to examine the legislative intent of section 114 suggesting that courts should look to the black letter of the law rather than blindly accept propertarian arguments. This decision is of particular importance because it establishes that fair use applies to unlicensed use of sound recordings and re-establishes de minimis use.ConclusionThis paper was partly inspired by the final entry on eminent copyright scholar William Patry’s personal copyright law blog (1 Aug. 2008). A copyright lawyer for over 25 years, Patry articulated his belief that copyright law has swung too far away from its initial objectives and that balance could never be restored. The two cases presented in this paper demonstrate that fair use – and therefore balance – can be recovered in copyright. The federal Supreme Court and lower courts have stressed that copyright was intended to promote creativity and have upheld the fair doctrine, but in order for the balance to exist in copyright law, cases must come before the courts; copyright myth must be challenged. As McLeod states, “the real-world problems occur when institutions that actually have the resources to defend themselves against unwarranted or frivolous lawsuits choose to take the safe route, thus eroding fair use”(146-7). ReferencesBeaujon, Andrew. “It’s Not the Beat, It’s the Mocean.” CMJ New Music Monthly. April 1999.Collins, Steve. “Good Copy, Bad Copy: Covers, Sampling and Copyright.” M/C Journal 8.3 (2005). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0507/02-collins.php›.———. “‘Property Talk’ and the Revival of Blackstonian Copyright.” M/C Journal 9.4 (2006). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0609/5-collins.php›.Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953.Efroni, Zohar. “Israel’s Fair Use.” The Center for Internet and Society (2008). 26 Aug. 2008 ‹http://cyberlaw.stanford.edu/node/5670›.Lange, David, and Jennifer Lange Anderson. “Copyright, Fair Use and Transformative Critical Appropriation.” Conference on the Public Domain, Duke Law School. 2001. 26 Aug. 2008 ‹http://www.law.duke.edu/pd/papers/langeand.pdf›.Lemley, Mark. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031.Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001.———. Free Culture. New York: Penguin, 2004.Leval, Pierre. “Toward a Fair Use Standard.” Harvard Law Review 103 (1990): 1105.McDonald, Heather. “Holden Lenz, 18 Months, versus Prince and Universal Music Group.” About.com: Music Careers 2007. 26 Aug. 2008 ‹http://musicians.about.com/b/2007/10/27/holden-lenz-18-months-versus-prince-and-universal-music-group.htm›.McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002. 26 Aug. 2008 ‹http://www.stayfreemagazine.org/archives/20/public_enemy.html›.———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday, 2005.McLuhan, Marshall, and Barrington Nevitt. Take Today: The Executive as Dropout. Ontario: Longman Canada, 1972.Metz, Cade. “Viacom Slaps YouTuber for Behaving like Viacom.” The Register 2007. 26 Aug. 2008 ‹http://www.theregister.co.uk/2007/08/30/viacom_slaps_pol/›.Negativland, ed. Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 1995.Patry, William. The Fair Use Privilege in Copyright Law. Washington DC: Bureau of National Affairs, 1985.———. “End of the Blog.” The Patry Copyright Blog. 1 Aug. 2008. 27 Aug. 2008 ‹http://williampatry.blogspot.com/2008/08/end-of-blog.html›.Tapscott, Don. The Digital Economy: Promise and Peril in the Age of Networked Intelligence. New York: McGraw Hill, 1996.Toffler, Alvin. The Third Wave. London, Glasgow, Sydney, Auckland. Toronto, Johannesburg: William Collins, 1980.Travis, Hannibal. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal, Vol. 15 (2000), No. 777.Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York; London: New York UP, 2003.

Thesis (Ph. D.)--University of Nevada, Reno, 2005.
"August, 2005." Includes bibliographical references. Online version available on the World Wide Web. Library also has microfilm. Ann Arbor, Mich. : ProQuest Information and Learning Company, [2005]. 1 microfilm reel ; 35 mm.