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Article

Neil W. Perry and Aram Sinnreich

Music has always been a public good, playing a central role in human society. Not merely a source of entertainment, it is also a medium for storytelling, news, and social bonding. Musicians began to professionalize during the Renaissance, and the rise of print publishing contributed to the formation of a nascent music industry. The book industry, which grew in economic and political strength after the widespread adoption of movable type, introduced the idea of legal monopoly—copyright—to reproduce works of authorship. In time, this was adopted by music publishers as well. In the two centuries since music was first copyrighted, music has become increasingly commoditized, and central to the adoption and sale of new communication technologies. Major technological shifts contributed to new legal and economic paradigms, from the mechanical reproduction of scores in the 19th century to piano rolls and recorded sound at the turn of the 20th century, to radio and television broadcasts a few decades later, to digital recording and network-based peer-to-peer (P2P) distribution at the turn of the present century. Rather than supplanting one another, emerging technologies worked symbiotically with previous ones, expanding the music industry ecology. Throughout this process, copyright law has continued to evolve and expand, serving as a central mechanism for industrial organization and economic exploitation. In the 1980s, new technologies, practices, and laws created the conditions for radical changes to the music industry. Digitization made music into a highly portable, easily distributable commodity, free from the sonic degradation inherent to copying analog media. Nondestructive editing, high-quality data compression, stable storage, relatively inexpensive production tools, and internet adoption helped to speed the creation and redistribution of digital music. Digital audio strained on the enforcement power of copyright owners; virtually overnight, a medium shaped by highly controlled distribution was recast as one in which control was practically impossible. In short order, the barriers to entry that had fortified the industry titans from competitors and freeloaders were disassembled and the lucrative economic model that had reigned for a century was disrupted. At the same time, new laws and treaties “harmonized” international copyright laws and enforcement—a development that exacerbated the tensions created by new digital communications platforms within media economies. Central to these disruptions were the commercial and noncommercial “piracy” that challenged copyright authority. Digital audio accelerated a new mode of composition—sampling—which grew rapidly in popularity and seemed tailored to problematize rights holders’ monopolies over recombinant uses of their work. Additionally, internet distribution gave recordings life outside the traditional industry structures. Finally, P2P file sharing enabled redistribution of music with virtually no technological barriers. This transformation coincided with a nosedive in music industry revenue. Despite numerous contributory factors, the industry placed responsibility squarely at the feet of music “piracy,” and spent the next two decades facilitating this narrative through draconian copyright enforcement, mass lawsuits against customers, and lobbying for stronger copyright.

Article

Bill D. Herman

The volume of information on the Internet is incomprehensible and growing exponentially. With such a vast ocean of information available, search engines have become an indispensible tool for virtually all users. Yet much of what is available online is potentially objectionable, controversial, or harmful. This leaves search engines in a potentially precarious position, simultaneously wanting to maximize the usefulness of results for end users while also minimizing political, regulatory, civil, and even criminal difficulties in the jurisdictions where they operate. Conversely, the substantial logistical and legal obstacles to regulating Internet content also leave policymakers in an unenviable position, and content that the public or policymakers may well want regulated—even that which is patently illegal—can remain virtually impossible to stamp out. The policies that may affect online search are incredibly varied, including contract law, laws that affect expression and media producers more generally, copyright, fraud, privacy, and antitrust. For the most part, the law that applies was developed in and will still apply to offline contexts as well. Internet search is still an area filled with its own vexing policy questions. In many cases, these are questions of secondary liability—addressing whether the search provider is liable for search results that link to websites that are beyond their control. In other areas, though, the behavior of search providers will endure specific scrutiny. While many of these questions could be or actually are asked in countries around the world, this article focuses primarily on the legal regimes in the United States and the European Union.

Article

Sara Bannerman

Copyright is a bundle of rights granted to the creators of literary, artistic, and scientific works such as books, music, films, or computer programs. Copyright, as one of the most controversial areas of communication law and policy, has always been the subject of political contention; however, debates surrounding the subject have reached new levels of controversy since the 1990s as a result of the new formats of creative works made possible by digital media, and as a result of the new practices of authorship, creativity, consumption, collaboration, and sharing that have arisen in light of networking and social media. Technological change has not been the only driving force of change; social and political change, including changing concepts of authorship, the recognition of the rights of women and indigenous peoples, and the changing structures of international relations and international civil society, have also been reflected in copyright law. Copyright policymaking has become an increasingly internationalized affair. Forum-shifting has contributed to the proliferation of regional and international copyright policymaking forums under the rubric of stand-alone intellectual property institutions such as the World Intellectual Property Organization (WIPO), as well as under institutions dedicated more broadly to international trade negotiations. Communication scholars and others have contributed extensively to the field of copyright and intellectual property law. Communication scholars have made significant contributions in examining the cultural significance, political economy, history, and rhetoric of copyright, drawing on diverse fields that include cultural studies and critical political economy. Communications scholars’ influence in the field of copyright scholarship has been significant.

Article

Intermediary liability is at the center of the debate over free expression, free speech, and an open Internet. The underlying policies form network regulation that governs the extent that websites, search engines, and Internet service providers that host user content are legally responsible for what their users post or upload. Levels of intermediary liability are commonly categorized as providing broad immunity, limited liability, or strict liability. In the United States, intermediaries are given broad immunity through Section 230 of the Communication Decency Act. In practice, this means that search engines cannot be held liable for the speech of individuals appearing in search results, or a news site is not responsible for what people are typing in its comment section. Immunity is important to the existence of free expression because it ensures that intermediaries do not have incentives to censor content out of fear of the law. The millions of users continuously generating content through Facebook and YouTube, for instance, would not be able to do so if those intermediaries were fearful of legal consequences due to the actions of any given user. Privacy policy online is most evidently showcased by the European Union’s Right to be Forgotten policy, which forces search engines to delist an individual’s information that is deemed harmful to reputation. Hateful and harmful speech is also regulated online through intermediary liability, although social media services often decide when and how to remove this type of content based on company policy.

Article

Copyright exceptions and limitations in the United States have experienced dynamic evolution in light of new technological developments. There has been significant legal debate in the courts and in the United States Congress about the scope of the defense of fair use. The copyright litigation over Google Books has been a landmark development in the modern history of copyright law. The victory by Google, Inc., over the Authors Guild in the decade-long copyright dispute is an important milestone for copyright law. The ruling of Leval J emphasizes that the defense of fair use in the United States plays a critical role in promoting transformative creativity, freedom of speech, and innovation. The Supreme Court of the United States was decisive in its rejection of the Authors Guild’s efforts to challenge the decision of Leval J. There has been significant debate in the United States Copyright Office and United States Congress over the development of “the Next Great Copyright Act.” Hearings have taken place within the United States Congressional system about the history, nature, and future of the defense of fair use under United States copyright law. There remains much debate about the internationalization of the defense of fair use, and the need for the trading partners of the United States to enjoy similar flexibilities with respect to copyright exceptions. There has been concern about the impact of mega-regional trade agreements—such as the Trans-Pacific Partnership—upon copyright exceptions, such as the defense of fair use.

Article

There is no immediate or absolute relationship between the media and democracy in the sense that, without media, there could be no democracy. Similarly, it does not follow that with the (modern) media comes democracy. Autocracies exist wherein the media supports a political system, and likewise, democracies exist wherein the media works to undermine a political system. However, most often the media and democracy are viewed as supporting each other. This connection is the product of a long historical development, one peculiar to European (and North American) societies, involving not only institutions and practices directly linked to the media-based and democratic processes, but numerous other institutions (such as education, the political system, religion, etc.) as well. The media are not the only institutions that promote (or do not promote) democratic legitimacy. Other major institutions of such influence include education, religion, public authority, cultural institutions, and political systems, among others. From a wider societal viewpoint, the role of the media is rather reduced in influence. If, for example, an education system is based on ethnic or other forms of segregation, or if there is widespread religious intolerance, or if public authority suffers from corruption, it is obvious that the media has only so many resources to encourage systemic legitimacy. The fundamental interrelatedness of different social institutions makes it difficult, or even impossible, to study the media as a phenomenon isolated from the rest of society. For this reason, we should be careful when making comparisons between the media in different countries, even the media outlets within liberal democracies. In addition, there is no consensus as to the right balance of media and other social institutions in a democracy. Throughout the history of democracy, the relations between institutions (the political system, economy, media, and civil society) have undergone renegotiations and adjustments during times of crisis. Over the past few decades, this relationship appears to have reached a new crisis, one that continues to this day and still lacks a clear solution. In many countries, civil society–based media reform movements have been established with clear goals to further democratize media systems. One of the key arguments of these movements has centered on the contradiction between the constitutional obligations of democratic countries and the reality that, in practice, these rights do not apply equally to all. There remain major differences today between different social groups in terms of open access to and the unrestricted availability of information, the ability to utilize information according to one’s needs, having a voice represented by decision-makers, and respect for privacy and personal integrity.

Article

Brian L. Massey and Cindy Elmore

The profession of journalism can hardly be explored today without recognizing the large number of journalists who work as freelancers rather than as organizational media direct employees. While this type of work is not new, the number of freelancers is growing as a share of all journalists as legacy media organizations lose audiences, trim workforces, and outsource labor in the context of an industrywide digital revolution. The increase in freelance journalists also comes amid a larger, postindustrial capitalist desire for flexibility and dexterity in staffing, with the resulting structural benefits for organizations. Yet there are all manner of so-called freelance journalists, and they are not easily located or defined. The most successful find opportunities and freedom in being their own boss and choosing their work. Many, however, find themselves thrust into pay-reducing competition, which engenders economic uncertainty and work volatility, the need to supplement journalism with other work, and unpaid time spent to market themselves and their work, or to get assignments (or even paid). Some freelancers find that it is not worthwhile to do time-consuming projects for which they will not receive pay commensurate with the time required. Freelancers are used in all manner of journalism work today, throughout the world where they have been studied, and involving every media platform. Some entire content models are based mostly or entirely on freelance labor. This has implications for journalism educators, who have traditionally trained students for organizational news media jobs; and for researchers, who have not considered the freelancer in their scholarship into journalism production, culture, or journalist practices, routines, and attitudes.

Article

Mark Coddington

News aggregation—or the process of taking news from published sources, reshaping it, and republishing it in an abbreviated form within a single place—has become one of the most prominent journalistic practices in the current digital news environment. It has long been an important part of journalism, predating reporting as a form of newsgathering and distribution. But it has often been a poorly, or at best incompletely, understood practice. Aggregation was widespread in the 18th and 19th centuries through copying and republishing of newspaper articles in ways that sometimes showed little regard for copyright or individual authorship. But in recent decades, more sophisticated forms of aggregation have proliferated, both automated and manual, and on virtually every digital platform on which news is disseminated. Aggregation draws from the norms and values of both modern professional journalism and Internet culture and writing. That amalgam of standards and practices shapes aggregation as a hybrid practice that is built on professional journalism yet marginal within it. News aggregators’ economic effect on the online news marketplace has been intensely debated, but research has shown them to be generally helpful to the news sites they aggregate from, expanding the news ecosystem and sending readers through hyperlinks. Their legal legitimacy has also come under scrutiny, though they have encountered significantly more restrictions in Europe than in the United States or elsewhere. Professionally, aggregation is built on the practices of reporting and relies on reporting as both the predominant source of its information and the blueprint for its methods of verification. But its defining characteristic is its secondary status relative to reporting, which shapes its methods of gathering evidence as well as its professional identity and values. Overall, news aggregation plays a growing role in the contemporary news environment, though its influence is complex, multifaceted, and ambiguous.

Article

Charles Ess

Since the early 2000s, Digital Media Ethics (DME) has emerged as a relatively stable subdomain of applied ethics. DME seeks nothing less than to address the ethical issues evoked by computing technologies and digital media more broadly, such as cameras, mobile and smartphones, GPS navigation systems, biometric health monitoring devices, and, eventually, “the Internet of things,” as these have developed and diffused into more or less every corner of our lives in the (so-called) developed countries. DME can be characterized as demotic—of the people—in three important ways. One, in contrast with specialist domains such as Information and Computing Ethics (ICE), it is intended as an ethics for the rest of us—namely, all of us who use digital media technologies in our everyday lives. Two, these manifold contexts of use dramatically expand the range of ethical issues computing technologies evoke, well beyond the comparatively narrow circle of issues confronting professionals working in ICE. Three, while drawing on the expertise of philosophers and applied ethics, DME likewise relies on the ethical insights and sensibilities of additional communities, including (a), the multiple communities of those whose technical expertise comes into play in the design, development, and deployment of information and communication technology (ICT); and (b), the people and communities who use digital media in their everyday lives. DME further employs both ancient ethical philosophies, such as virtue ethics, and modern frameworks of utilitarianism and deontology, as well as feminist ethics and ethics of care: DME may also take, for example, Confucian and Buddhist approaches, as well as norms and customs from relevant indigenous traditions where appropriate. The global distribution and interconnection of these devices means, finally, that DME must also take on board often profound differences between basic ethical norms, practices, and related assumptions as these shift from culture to culture. What counts as “privacy” or “pornography,” to begin with, varies widely—as do the more fundamental assumptions regarding the nature of the person that we take up as a moral agent and patient, rights-holder, and so on. Of first importance here is how far we emphasize the more individual vis-à-vis the more relational dimensions of selfhood—with the further complication that these emphases appear to be changing locally and globally. Nonetheless, DME can now map out clear approaches to early concerns with privacy, copyright, and pornography that help establish a relatively stable and accepted set of ethical responses and practices. By comparison, violent content (e.g., in games) and violent behavior (cyber-bullying, hate speech) are less well resolved. Nonetheless, as with the somewhat more recent issues of online friendship and citizen journalism, an emerging body of literature and analysis points to initial guidelines and resolutions that may become relatively stable. Such resolutions must be pluralistic, allowing for diverse application and interpretations in different cultural settings, so as to preserve and foster cultural identity and difference. Of course, still more recent issues and challenges are in the earliest stages of analysis and efforts at forging resolutions. Primary issues include “death online” (including suicide web-sites and online memorial sites, evoking questions of censorship, the right to be forgotten, and so on); “Big Data” issues such as pre-emptive policing and “ethical hacking” as counter-responses; and autonomous vehicles and robots, ranging from Lethal Autonomous Weapons to carebots and sexbots. Clearly, not every ethical issue will be quickly or easily resolved. But the emergence of relatively stable and widespread resolutions to the early challenges of privacy, copyright, and pornography, coupled with developing analyses and emerging resolutions vis-à-vis more recent topics, can ground cautious optimism that, in the long run, DME will be able to take up the ethical challenges of digital media in ways reasonably accessible and applicable for the rest of us.