THE SONGS WE SHARE (AND the RECORDS WE STEAL): POPULAR MUSIC and SHOPLIFTING in an AGE of DIGITAL PIRACY a Thesis Submitted to T

Home , Anything in Return, A Camp, Been Caught Stealing, Bleep (store), Chaz Jankel, Copy of a

THE SONGS WE SHARE (AND THE RECORDS WE STEAL): POPULAR MUSIC AND SHOPLIFTING IN AN AGE OF DIGITAL PIRACY

A Thesis Submitted to the Committee on Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Master of Arts in the Faculty of Arts and Science

TRENT UNIVERSITY

Peterborough, Ontario, Canada

English (Public Texts) M.A. Program

January 2015 ii

ABSTRACT

The Songs We Share (and the Records We Steal): Popular Music and Shoplifting in an Age of Digital Piracy

Eric T. Lehman

This thesis explores the rhetoric of theft imposed on online music by comparing file sharing to shoplifting. Since the litigation between the music industry and Napster, file sharing has been perceived, both by the entertainment industry and by a music listening public, as a criminal act. However, file sharing has more in common with home taping and music archives than it does with music shoplifting. It differs from theft in terms of law, motivation and publicness. In reviewing three histories — a history of petty theft, a history of policing online music, and a history of shoplifting narratives in popular music culture — the implications for the cultural production of popular music and popular music identity become apparent. In the end, file sharing links itself more to parody and the concept of fairness than it does to youth rebellion and therefore is unsuitable for sustaining a traditional music industry and the values it has formed with its public.

Keywords:

Shoplifting, popular music, MP3, file sharing, music publics, Napster, RIAA, copyright law, policing music, Apple, counterculture, cultural production, nerd theory.

iii

ACKNOWLEDGEMENTS

Thank you to the following people for aiding and abetting in the completion of this thesis:

 My advisor Hugh Hodges for guidance and encouragement over java and suds.

 My committee Lewis MacLeod and Liam Mitchell.

 My mentors and friends in the English and Public Texts department particularly Sally

Chivers, Finis Dunaway, Michael Epp, Sara Humphreys and Kelly McGuire.

 My cohort and the members of TheSix — particularly Marilyn Burns, Sara Gallagher

and Deb Luchuk— for their ongoing support by the poolside and over lunch.

 My dear friend and colleague Michael Morse for our discussions on music and for

(trying) to keep me honest.

 Patricia Heffernan, for going beyond the call of a great administrator, and letting me

bounce ideas off of while I distracted her from her important work in the English

Department.

 My neighbour Joe Evelyn who mowed the lawn while I weeded through the research.

 Mom and Dad.

 Finally, my loving partner in crime Anne Showalter, and our three kids Alice, Clara

and Max for their love, support and patience through this process.

TABLE OF CONTENTS

ABSTRACT / ii ACKNOWLEDGEMENTS / iii TABLE OF CONTENTS / iv STEAL THIS THESIS: AN INTRODUCTION / 1 CHAPTER ONE — BAD APPLES: ON MUSICAL THEFT / 11 1.1 Apples and Oranges / 11 1.2 Forbidden Fruit in the Garden of Eden / 12 1.3 Golden Apples in the Garden of Hesperides / 19 1.4 What the Dickens is going on in the Land of Johnny Appleseed? / 25 1.5 Apple Records / 32 1.6 Enter Macintosh / 37 CHAPTER TWO — “PLEASE, DON’T DOWNLOAD THIS SONG”: POLICING THE MP3 / 44 2.1 Beep! Beep! Beep! / 44 2.2 Plugging the Dam / 51 2.3 Locking an Open Door / 56 2.4 Rhetorical Devices as Security Devices / 62 2.5 And Justice for All? / 69 CHAPTER THREE — IF YOU WANT FREE MUSIC, STEAL VINYL OR GO F**K YOURSELF: SHOPLIFTING, POPULAR MUSIC AND CULTURAL PRODUCTION / 77 3.1 Trent Reznor on the Field of Cultural Production / 77 3.2 Sex. Drugs. Shoplifting. Rock’n’Roll. / 83 3.3 Stories: We Stole. / 89 3.4 A Copy of A / 100 ROCK, PAPER, SCISSORS, RAPIDSHARE: A CONCLUSION / 104 WORKS CITED / 108 1

STEAL THIS THESIS: AN INTRODUCTION

I’d like to make a confession. I have never shoplifted anything in my life. The closest

I ever came was when I was about ten years old. I was given two bucks to go spend at the local convenience store in my hometown of Orleans, Ontario, which is just outside of

Canada’s capital. Instead of using the money I was so generously given to purchase a chocolate bar, an Archie comic and a bag of chips, I thought it would be a good idea to see how much sugar I could get for my bit of coin. As my little hands filled with five and ten cent candy, I stuffed the overflow into my pockets. The sales clerk behind the counter observed this and accused me of ripping off his store. I tried to explain to him that I had the money to buy the candy except I had only run out of space in my hands to hold it all. He did not believe me and then continued by asking me to empty my pockets and to get the hell out of his store. I did not return to that shop for another ten years. This early experience not only prevented me from desiring to return to that particular corner store; it also shaped my behaviour when shopping elsewhere in my pre-teens and adolescence. When in malls and retail stores, I always felt I was being watched. While shopping, I would never stick my hands in my pockets when entering a store and if the salesperson was around I made sure that they could see where my hands were, even if it meant sticking them up over my head like I was already under arrest.

My near-shoplifting experience also affected the way I consumed music. Stealing music from the record shop never even occurred to me, but being a teenager and a young adult of limited means, I relied on home taping from my friends’ personal collections or the public library. I also copied music from the radio. As CDs replaced vinyl collections, I found 2 myself scavenging through people’s garbage, visiting rummage sales and flea markets and frequenting the ‘Sally Anne’ to browse stacks of records looking for hidden gems.

Entering the new millennium, I only did a short stint of file sharing. I tried using an

FTP server in 2001 to download MP3s over a dial-up connection and waiting fifteen to twenty minutes for a single song to appear on my hard drive, which in my estimation, was an utter waste of time. It was another eight years before I tried to download music again, this time via an online file hosting service. I wanted to hear Dark Night of the Soul by Danger

Mouse, Sparklehorse and David Lynch, which due to a copyright dispute, EMI had refused to release even though the album had leaked over the internet. Danger Mouse responded by releasing Dark Night of the Soul independently without a recording — only a blank CD-R.

The packaging included the instructions, “For Legal Reasons, enclosed CD-R contains no music. Use it as you will” (Sisario). Although Danger Mouse did not own the rights to release his own music, he assumed correctly that the public would be able to easily fill the blank CD with pirated content online. If one wanted to hear Dark Night of the Soul, it could only be heard as a bootleg and the only way to obtain it was though file sharing. So, I downloaded it. Taking under seven minutes to download this album over a high-speed connection, I was amazed by the speed at which I could ‘get my hands on’ the album. This was faster than home taping and even CD-burning —which meant fumbling around with physical media. For me, this began a new habit of downloading free tracks of varying quality, and I zeroed in on albums yet to be released, box sets out of my budget and albums rare and out of circulation. At the same time, I stopped going into record stores which, for the most part, were closing their doors anyway. When I did step inside one, I felt as if I were walking into a museum of the way people used to listen to music. My rampant file 3 sharing did come to an end, however, because after three years of free online music my computer was hacked and I was hit with a computer virus. So, I decided to give up the practice and since then I have returned to my physical collection.

Reflecting on my shoplifting vs. file sharing experiences, I noticed a couple of things.

When I was mistaken for a shoplifter at ten, I was instantly found guilty as soon as my hands went into my pockets. I was treated as a criminal and banished from the premises which excluded my membership in a pre-teen hangout. By contrast, when I downloaded music, there were no accusations, no one physically looking over my shoulder, and no attention drawn to myself when ‘stealing’ from the “Easy Listening” section. The hand slap came in the form of a Trojan virus carrying along with it not criminality, but victimization and fear.

Secondly, out of my vast collection of over a thousand physical recordings, I can remember where, when and how I procured each one. As for the tens of thousands of MP3s I downloaded in three years, I would have to think long and hard to even name ten percent. In both of these observations, the way we engage with recorded music and with its ‘theft,’ online or in the physical world, is very different; not only from the perspective of an embodied experience, but also as a matter of discourse.

As Simon Reynolds notes in Retromania, “[it is] easier to form an attachment to music when it is a thing” (126). It is also in the commoditized materiality of the object where we find its exchange value, not in its use. Music dematerialized and transformed exclusively into content in the twenty-first century is perceived as free and is no longer bound by any direct commercial or economic value. Neither is it limited to the materiality of its commoditized format. Physical media in the shape of CDs, cassettes, eight tracks, and

LPs in their short history have quickly moved from popular to obsolete and, in some cases 4 after a period of time, resurged as a retro curiosity. In a brief history of 15 years, file sharing of MP3s has arguably dissolved the exchange value associated with the use and symbolic (or ironic) values of physical media. There is an abundance of easily accessible MP3 files which displace the desirability of physical carriers for recorded music. Recently, teenagers were invited to EMI Music headquarters to take whatever free CDs they wanted from a large table.

They snubbed the idea (Knopper 249). The compact disc, once an emblem of the future and highly sought after, has lost its luster.

If there is no value in owning something, there is no value in stealing it either. Yet the rhetoric surrounding file sharing is that refusing to pay for downloaded music constitutes an act of theft. Contrarily, advocates for file sharing, like Lawrence Lessig, argue music online is in the public domain and accessing it is fair use. But neither explanation is palatable. Physically and materially, theft represents taking something away and leaving a present and noticeable absence. Downloading songs does no such thing. In many ways, these services have more in common with home taping where the original is not removed or destroyed, but only copied. Perhaps because of this, shoplifting and file sharing are covered under different laws. Petty theft is a crime whose perpetrators are considered by the courts to be law-breakers the public needs protection from. A CD shoplifter can be arrested, charged, sentenced and imprisoned. File sharing falls under the blurry concept of copyright infringement. And although the music industry has at times policed file sharers as thieves, it has done so mainly through lawsuits, arbitration, and ultimately, settlements outside the courtroom. Shoplifting is a public act performed in public spaces and whether the event is witnessed or whether the only evidence that the crime was committed is the space it leaves behind, it is the publicness of the act that opens the doors for rebelling against authority or 5 contrarily, for causing shame. File sharing is a private act normally performed in domestic spaces or virtual spaces online. It does not leave empty spaces, but bloats them as it fills hard drives, MP3 players, and cloud servers with zillions of digital music files. Physically witnessing someone file sharing is indistinguishable from watching other online activities.

Due to the public nature of shoplifting, it is an act sometimes associated with youth, rebellion and rock’n’roll. Shoplifting is a petty crime and not a felony, and associates itself with public mischief more than public threat. File sharing, on the other hand, is aligned with domesticity. ‘Sharing’ is something parents teach toddlers to do so that they can grow up to be good citizens. Children’s artist Raffi sings about these values in “The Sharing Song”:

“It’s mine but you can have some / With you I’d like to share it / And if I share it with you /

You’ll have some too” (“The Sharing Song”). Sharing is not an act of rebellion, but one of compliance and conformity. It will always be seen to be infinitely more defiant to rip-off

Celine Dion’s 2007 album Taking Chances from the HMV than to download a FLAC file of

Pussy Riot’s “Death to Prison, Freedom to Protests.”

Recent debates as to whether online music was worth stealing arguably started with

Napster. On Charlie Rose, Metallica drummer Lars Ulrich and Public Enemy’s Chuck D debated the issue of file sharing as thievery. Ulrich argued, “Part of what we’re trying to do here is to make people understand that what they are doing here is illegal … it was theft of property, absolutely.” (“Lars Ulrich, Chuck D And Charlie Rose On Napster In 2000”) This statement was incorrect on point. File sharing is not theft of property in an “absolute” sense as Lars Ulrich or the Recording Industry Association of America (RIAA) have implied.

Napster was double edged. Indeed, Napster was distributing copyrighted music digitally to a public who in turn made copies of it and ‘shared’ it with others, but it also was used by artists 6 who owned the rights to their works as a vehicle to get their music out there to a larger public. It was a break in the traditional music business model of recording artists getting signed, making a record and distributing music. It was an act of disintermediation, a chance for independent and unsigned artists to cut the label off in terms of profiting from and controlling their work. New York city hip-hop artist Princess Superstar raps, “You get mad at Napster when nobody’s even heard of you / I did a search on your name and came up with one result / It was your computer, you’re a loser” (“You Get Mad At Napster”). The gist of the song is that anyone can be on Napster —popular or not, loser or not. The artistic freedom

Napster made possible encouraged bands to build a fan base on their own. It also saw an influx of amateur talent available internationally over the World Wide Web; replacing the flogging of dubbed cassettes or burned CD-Rs to only a localized community. This is perhaps what Chuck D was referring to when he responded to Ulrich by stating, “The industry over the last fifty or sixty years has been accountant and lawyer driven and hasn’t been about the artist. I look at Napster as a situation or the connection between file sharing

— which this is — and downloadable distribution as the power going back to the people.”

(“Lars Ulrich, Chuck D And Charlie Rose On Napster In 2000”). The public was taking commercial control away from the music industry whether they shared the music they created, bought, or recirculated. In a hybrid act of consumption and creation they were also uploading mash-ups, recontextualized interpretations of creative works. The music industry was losing its authority in what music was to be consumed by a listening public.

File sharing also disassociates itself from traditional piracy despite often being referred to as ‘online piracy’. Piracy, as we have come to know it to represent a copyright violation, was metaphorical at first. John Donne referred to poetic plagiarists as “wit pyrats” 7

(Johns 23) in 1611. It was not until the end of the seventeenth century that the term pirate was understood as a person who unjustly copied another person’s work (Johns 23). Yet piracy brings to mind another image: eye patches, peg legs, parrots, ships displaying the skull and crossbones insignia, walking planks and the colourful phrases of “shiver me timbers,”

“me matees” and “arrr.” This is a caricature of the condition, but the Canadian Criminal

Code only recognizes piracy in section 74 as follows: “Every one commits piracy who does any act that, by the law of nations, is piracy.” Piracy under international law still refers to robbery at sea. Even if we expand the definition of piracy to include the sea of online information waiting to be pillaged, the “pirate” is generally not profiteering from the copying, but only using downloaded music for personal use. In 2004, the Federal Court of

Canada ruled that file sharing music for personal use was permissible citing that they could not “see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service” (“CRIA (Canadian Recording Industry) V. Jane Doe (et al)” at para

27) Under this decision, piracy in terms of file sharing is as illegal as other common and unpoliced activities. By contrast, profiting from making unauthorized physical copies is still illegal. In 2013, Raj Sing Ramgotra of Winnipeg pled guilty on dozens of charges of criminal piracy. He was sentenced to pay over half a million dollars in fines and restitution for selling counterfeit CDs and DVDs over an online service to which he circulated 10,000 copies a month — a mere drop in the bucket when compared to downloaded MP3s . Piracy, as it turns out, is still a physical act much like shoplifting. But piracy diverges from physical theft as well. Cultural historian Adrian Johns asks: “What is piracy? An official study for the

European Union once defined it rather impishly as whatever knowledge industries said they 8 needed protection from. There is a certain logic to that . . . and in the end it may be the most adequate definition we can get” (6). Piracy is malleable in terms of the law and something that gets redefined to suit present day economic circumstances.

Theft, on the other hand, is something specific. It is the act of taking and leaving a present and noticeable absence. Theft, as applied to file sharing and the act of copying is, like piracy metaphorical. Also like piracy, this metaphor is so frequently and unknowingly used that it has become something to be taken at face value.

Although I am at times critical of the music industry and file sharers alike in this thesis, I attempt not to pass judgement on either side of the file sharing debate. Instead, I wish to examine how the rhetoric of theft has discursively changed the cultural production of music and public engagement with popular music in the last fifteen years. In doing so, I hope to review the following questions: If file sharing is not actually theft, why is it made to seem that it is? What are the implications of treating file sharing as theft to the cultural production of popular music? And finally, who benefits, if anyone, from policing downloaded music as if it were a crime?

The first chapter of this thesis offers a comparison study between shoplifting and file sharing. In examining a history of petty theft from plucking apples in the Garden of Eden to present day music shoplifting and iPhone muggings, noticeable differences become evident in how petty theft and file sharing are perceived. They deviate in terms of adolescent rebellion, personal growth, confronting authority, the letter of the law, and punishment.

These differences are linked back to the materiality of theft and the relationship between music and theft does not dissolve with the dematerialization of the commoditized musical 9 form. Instead, the desire for stealing physical commodities shifts from records and CDs to digital media players.

The second chapter examines the policing of file sharing. With conventional media, loss from shoplifting occurs and is prevented at the level of the retail store. With digital media, loss is experienced by a refusal to buy music as it can be obtained free online.

Despite this gaping difference in cause for loss, the music industry has treated file sharing as a crime and has adopted methods of loss prevention to stop their property from being

‘stolen.’ They have also pursued file sharers with the same dedication as the police who hunt common thieves by filing lawsuits against file hosting services and then moving to the public itself. In doing so the industry created a further rift between themselves and their customer base. Once seen as an institution that participated in and encouraged illegal behavior, the music industry changed roles to regulate how its products should be consumed, distributed and enjoyed.

The final chapter looks at the role of shoplifting in the cultural production of popular music and its narratives. Growing out of 1960s counterculture and revisited through the history of rock music, shoplifting is in good company with sex and drugs in terms of youth rebellion. The culture industry appropriates this and repackages these forms of youth deviance to sell back to the masses. The narratives result from the mass marketed songs themselves, but the experience is not disingenuous. Traditionally, there is a symbiotic relationship between the music industry and its public. This, in turn, contributes to the development of each other’s identity and history. However, in a post-Napster and post-9/11 reality, these narratives of rebellion are either no longer appropriate or no longer welcome.

File sharing, unfortunately, creates no lasting musical narratives. Unlike theft which has 10 linked itself to disobedience and carries with it a weight of perceived authenticity, file sharing is something that has been defended as permissible and fair.

Shoplifting has a long-standing history, and with it come fixed notions of what constitutes theft or infringement. File sharing and the discourse surrounding fair use represent something new and yet to be concretely defined. For a music industry developed under late capitalism, this represents a challenge, not only in how business is conducted, but also in terms of what culture ends up being produced. Shoplifting, like rock music culture in the late twentieth century, reflected an “I want it and I’ve got to have it” mentality. File sharing is about having it already, even before it has been officially released. Reynolds notes in that in erasing the rarity and scarcity of music, file sharing has created “[a] utopia that is not about wanting for nothing, but wanting nothing” (Retromania 128). In the digital age, a traditional music industry loses its authority over its public and the authenticity of the voice projected from the music it produced. What remains to be seen is if a culture of micro scenes emerging from the disintermediation of the music industry and shifting away from the desirability of the constructed and commoditized musical form will ever be able to produce an authoritative presence of its own.

CHAPTER ONE:

BAD APPLES: ON MUSICAL THEFT

1.1 Apples and Oranges

Beyond getting free music, is how we understand theft and how we apply the concept to file sharing. At the core of the issue is the underlying message that downloading ‘pirated’ music is theft. Plain and simple. One study compares shoplifting a CD to peer to peer (P2P) file sharing because “it is the best analog to digital music piracy” (Wingrove et al. 265).

Steve Knopper, in his book Appetite for Self-Destruction: The Spectacular Crash of the

Record Industry in the Digital Age consistently refers to file sharing as theft stating that

“Napster was enabling and encouraging theft, no matter what the internet’s ‘information wants to be free’ contingent was saying at the time” (142), and that another “way to succeed in online music was through theft — allowing people to download MP3s for free. This was illegal, and dangerous” (120). However, shoplifting music and file sharing is not on equal footing. When shoplifting is justified, it is usually done in cases where the means justify the ends as in stealing food or, as will later be explored, a nineteenth century widow stealing textiles to make clothing for her children. File sharing, on the other hand, is part of everyday life and normal routines so any ethical debate is an intellectual exercise and is rarely based on action. Shoplifting is a public act, performed in public spaces; file sharing is performed in our homes or on our private and personalized electronic devices. Shoplifting is punished by criminal law; file sharing is pursued with lawsuits and lobbying. Shoplifting leads to public shaming; file sharing for the most part remains anonymous. Shoplifting is about material possession; file sharing is about information access. In the end, shoplifting is indeed illegal and dangerous and stealing is a matter of right and wrong (with the notable exception of 12

Robin Hood); file sharing is relatively low risk and as it is not clear in terms of its morality, it also has become a debate in terms of its legal status.

Conventionally, to steal or not to steal has been a negotiation between the human being and the object of desire. The theft of music recordings, up until the introduction of file sharing, follows along an embodied, material experience and the value of music is rooted not only in its canned performance, but in the constructed commoditized thing itself and in the action of taking it. Uncannily, throughout history and its narratives, this object of desire has been represented by an apple: from Eve in the Garden of Eden, to Hercules in the Garden of

Hesperides, to Charles Dickens in the Garden State. It is no wonder that our eyes and desires have stayed consistently fixed on the forbidden fruit with The Beatles and Apple Records in the twentieth century and with Apple’s iPod in the twenty-first century. Oranges do indeed make for bad apples, not because they have spoiled or gone rotten, but simply because they are not apples.

1.2 Forbidden Fruit in the Garden of Eden

The Lord God took the man and put him in the Garden of Eden to work it and take care of it. And the Lord God commanded the man, ”You are free to eat from any tree in the garden; but you must not eat from the tree of the knowledge of good and evil, for when you eat from it you will certainly die.” (New International Version. Gen. 2:15-17).

Arguably, in the Judeo-Christian tradition, the first crime ever committed by human hands was not murder or slander, but pilfering. This transgression is what has come to define humanity as less than ideal. As one security specialist expressed, “[B]eing banned from the

Garden of Eden and cursed with mortality was not too severe of a punishment for petty theft.” (Shteir 13). And s/he makes a point. In eating the apple, innocence is lost, pain is experienced, and getting kicked out of your Dad’s home is a certainty. Stealing from God 13 represents the first act of human rebellion where it raised its middle fingers to the sky and said a big ‘fuck you’ to the highest authority it could find. The liberation of the apple from the tree of knowledge symbolizes freedom from parental control and protection embodied in one single act of disobedience. And although this action is usually interpreted as “The Fall” from grace, an alternate reading of the first three chapters of Genesis shows that this also represents an act of growing up.

Although the parent’s role is generally to nurture and protect, those actions sometimes get in the way of learning anything valuable. For that reason, many of life’s lessons are learned from external sources and interaction with others. The exchange between Eve and the serpent is perhaps the first documented case of youth giving into peer pressure. In Milton’s Paradise Lost, the serpent says to persuade Eve to pluck the fruit:

What fear I then? rather, what know to fear Under this ignorance of good and evil, Of God or death, of law or penalty? Here grows the cure of all, this fruit divine, Fair to the eye, inviting to the taste, Of virtue to make wise: What hinders then To reach, and feed at once both body and mind? (IX. 774-779).

For Milton, the “fruit divine” holds a balance between discourse and embodiment as it feeds both “the body and the mind.” On one hand, the serpent provides a sales pitch and encourages Eve to take from the tree by calling it “fair” and “inviting.” There is a ruse involved, and the apple is used by the serpent to tempt Eve into taking a risk. On the other hand, the act of taking the apple in itself represents a rejection of authority.

Eating the apple is like taking medicine to treat blindness, a ‘cure for all’ only experienced through eating the forbidden fruit. Eve learns in disobeying God the 14 difference between right and wrong, good and bad, life and death, captivity and freedom or lawful and unlawful.

Lavina Greenlaw in her fictional memoir The Importance of Music to Girls explains this condition as exuberance:

Recent neuroscience has shown that in puberty there is a surge of grey matter called an ‘exuberance’, an overload of capacity and possibility which enables us to grasp trigonometry in an afternoon or read a Russian novel in a day. It also makes us want to steal a car or save the world or, in my case, drink, cry, scream, sing or dance. And then there is another surge, but this time of myelin which insulates the brain’s electrical signals, ensuring they stick to the right path and increasing their speed. (103-04)

Exuberance, the instinct that compels youth to steal is counterbalanced with myelin, the second surge that engages wisdom, or as Greenlaw puts it, so “we think… less wildly but more clearly” (104). Rebellion and pushing against authority is what carves us ethically as adults and forms our value system later on.

By contrast, the act of digital copying circumvents exuberance and leaves youth with only the second surge of myelin. The discourse of file sharing is found not in an embodied experience such as plucking and consuming, but only in rhetoric which can be critically analysed and disavowed. Digital copying is an intellectual, not physical action (or at the very most a limited physical action). If Eve had not taken the apple, but had at her disposal the technologies to clone the apple and eat only a perfect copy of the apple, there would be no real theft, and thus no risk. This scenario can be compared in some ways to home taping, ripping and burning a CD. Technically speaking, Eve would not have disobeyed God as she would not have “eaten from the tree” (New International Version. Gen 2:11). She would have broken no laws, and likely not have been punished. Eve could have even made several copies of the apple 15 which she could have distributed and shared. Humanity would have broken no agreement with God and theoretically would continue to live an immortal life.

At some point, God must have noticed this little loophole, and Divine Law was amended with the Ten Commandments. This new law, brought down from Mount

Sinai by Moses, would place the mere coveting of an object on par with theft in bad deeds: “You shall not covet your neighbor’s house. You shall not covet your neighbor’s wife, or his male or female servant, his ox or donkey, or anything that belongs to your neighbor” (New International Version. Exod. 20:17). Comedian

George Carlin abridges the Ten Commandments to two in When will Jesus Bring the

Pork Chops. On coveting, he has the following to say: “Coveting your neighbour’s goods is what keeps the economy going: Your neighbour gets a vibrator that plays ‘O

Come All Ye Faithful,’ you want to get one, too. Coveting creates jobs. Leave it alone” (17). Yet coveting only holds up in a Divine court, and earthly courts tend to only punish the act of taking. Covetous behavior is what keeps us buying music, so the industry does not wish to condemn that. This was evident in the 1970s when the music industry lobbied to relax laws on non-commercial copying. After realizing that home tapers were not ‘freeloaders’ after all but “the industry’s most dependable customers,” private copying was not “to be treated as a transgression” (Johns 447). Economic motives, not ethical principles, are what drive the music industry. Therefore copying is permissible as long as profits are being made. Theodor Adorno and Max Horkheimer in their critique of the cultural industry note that under late capitalism, the consumer is caught in an endless cycle of consuming standardized products (95). Although, these cultural goods are no longer manufactured under a mechanism of supply and demand, 16 this is still beneficial to the music industry as it dupes the “defrauded masses” (Adorno and Horkheimer 106) who “succumb to whatever is proffered to them” (Adorno and

Horkheimer 106).

Yet cultural production is also dependant on a standardized mode of operations.

“What is new in the phase of mass culture compared to that of late liberalism is the exclusion of the new. The machine is rotating on the same spot. While it already determines consumption, it rejects anything untried as a risk” (Horkheimer and Adorno

106). Private copying, as in home taping, is not considered risk-taking as far as the music industry is concerned. It is a proven method of producing capital. File sharing on the other hand is something ‘new’ and throws a wrench in the machine. It is a means of distribution which takes the apple, or the cultural commodity and its marketplace, out of the equation altogether. In Dante’s Divine Comedy, the narrator observes the following upon revisiting Eden at the peak of Mount Purgatory and finding the tree of knowledge bare of leaves:

“Blessed art thou, O gryphon, that thy beak Does not break this tree whose fruit is sweet” For afterward the belly writhes in anguish.” Thus, round the sturdy tree, the others cried. To this the twofold animal responded: “Thus is the seed of righteousness preserved!” (Purg. XXXII. 43-48)

File sharing allows for the “seed of righteousness” to be “preserved” as it allows for the object of desire to be rejected completely. There is no need to physically copy the object, which in turn relies on a physical original to be copied and all negotiations and discourse surrounding the commodity (the apple) and the system of production (the tree of knowledge) would be nullified. Furthermore, there is no coveting and no capital exchange. If this technology had been available in Eden, Eve would be much like the gryphon in Dante’s tale. 17

Eve would be able to obtain the same knowledge from eating the apple without having to go to God’s forbidden tree to get it. As there is no theft and no coveting without the apple, there is no transgression, no exuberance and no growing up and what remains is a bounty of cloned songs which exist not on a tree of knowledge, but in a garden of information. Thanks be to the Internet.

Evidently, what gets lost in the exchange of digital music files is moral choice. Lev

Manovich examines variability as a principle of ‘new’ media. Manovich notes:

If the logic of old media corresponded to the logic of industrial mass society, the logic of new media fits the logic of the post-industrial society which values individuality over conformity. In industrial mass society everybody was supposed to enjoy the same goods -- and to have the same beliefs. This was also the logic of media technology. . . . In a post-industrial society, every citizen can construct her own custom lifestyle and "select" her ideology from a large (but not infinite) number of choices. Rather than pushing the same objects/information to a mass audience, marketing now tries to target each individual separately. The logic of new media technology reflects this new social logic. Every visitor to a Web site automatically gets her own custom version of the site created on the fly from a database. The language of the text, the contents, the ads displayed — all these can be customized by interpreting the information about where on the network the user is coming from; or, if the user previously registered with the site, her personal profile can be used for this customization (41-42).

What Manovich refers to as “variability,” “customization” and “choices” are more a matter of selection than real choice. Moral choice is normally a binary decision like Hamlet’s “To be or not to be” (Shakespeare 3.1.55); or Yoda’s “Do. Or do not. There is no try.” (Star Wars

V); or the Clash’s “Should I Stay or Should I Go.” Eve was faced with this binary choice when deciding whether or not to eat the forbidden fruit from the Tree of Knowledge.

Selection on the other hand, can be almost infinite, and yet offer no real choice. For example, iTunes shuffle offers lots of variability but no choice in what is heard as the technology randomly picks what you are going to hear next. Choice is deciding whether to 18 turn the shuffle function on or off. Simon Reynolds’ in Retromania examines the issue of overabundance that file sharing provides and how selections are made:

‘Either/or’ is the logic of difficult choices in an economy of scarcity. The extreme example is the folk myth of the person who skips a meal in order to buy the record they really, really have to have. ‘Plus/and’ is the logic of downloading. File-sharing culture — and the things that have enabled it, like increased bandwidth, ever-expanding computer memory, etc. — have removed music from the scarcity economy. If there’s no cost, and no issues to do with storage, there is no earthly reason to desist from the ‘and this… and this too’ imperative. ‘Plus/and’ is the logic of the all-you-can-eat salad bar (126-127).

File sharing and selection under the “plus/and” model have made decision making easy. It is no longer a question of ‘yes’ or ‘no’, but becomes a question of ‘yes’ and ‘more please.’

Although theft can fall under the ‘plus/and’ model of decision making — where the law abiding citizen may skip a meal to purchase a record, the shoplifter would choose to both eat and have the record too — it also falls under the logic of ‘either/or’ — either I shoplift the record or I buy it and don’t eat. Theft also requires the right elements for the act of shoplifting to happen. In other words, scarcity combined with coveting and anti-conformity motivates stealing.

If Manovich is correct when stating that digital media negates conformity through selection, it also eliminates the need to be an anti-conformist as digital media levels the need for that form of rebellion. However, it is more likely the internet does not liberate a public from a suburban mindset, but relocates it to a cyber-sprawl. As Pete Seeger once sang about suburban development, “There's a pink one and a green one / And a blue one and a yellow one / And they're all made out of ticky tacky / And they all look just the same” (“Little

Boxes”). Despite the colour or the trim, every Myspace page functions just like another

Myspace page, and they are all being accessed through little boxes in the forms of smartphones, tablets and laptops which look all the same. Online, all options are good and 19 plausible, but there is no clear sense of right or wrong. On the other hand, physical theft as experienced in the Garden of Eden to present day, is a choice to between right or wrong as set out by the laws of a given society. Theft rejects conformity, but selection through file sharing expands conformity and merely adds options to a standardized method of consuming music.

1.3 Golden Apples in the Garden of Hesperides

In Greek Mythology, Apollo sentences Hercules to twelve years hard labour for the murder of his wife and children. During this time, Hercules is made to perform twelve near impossible labours for Eurystheus, the king of Tiryns and Mycenae. The eleventh labour assigned to Hercules is to steal the golden apples from the Garden of Hesperides. To do so, he convinces Atlas, who was given the responsibility of carrying the world on his shoulder, to steal them on his behalf while he relieves his burden. Atlas, who thought this would be an easy way to get out of his appointed responsibility, agrees and when he returns with the apples, refuses to take the world back. As it turns out, Atlas is easily fooled. Hercules manages to trick Atlas into taking back the world by asking him to demonstrate properly how to hold it and when Atlas agrees, Hercules quickly snatches the apples and runs off (“Apples of the Hesperides”).

If stealing from the Garden of Eden can be seen as rebelling against conformity and allowing for growth, the Greek Mythological story of the golden apples from the Garden of

Hesperides is about the skill and wit required to complete these challenges. Rachel Shteir states, “[T]he Greeks invented myths in which clever heroes steal in order to create; sometimes they endure terrible fates, sometimes they escape discipline” (14). Yet stealing is not done only in order to create, but the act of stealing can be creative in itself. Outside of 20

Eden, where God is not watching over its inhabitants like an omnipotent security camera, there remains a good chance to get away with robbing the shops that hold the desired objects.

Jean Jacques Rousseau in his Confessions compares his own experiences with petty theft to the one that Hercules endured in the Garden of Hesperides. While serving an apprenticeship to a cruel engraver named M. Ducommon, “a rough and violent man, who in a short time succeeded in tarnishing all the brightness of my childhood” (25), Rousseau fumbled stealing some apples from a pantry:

One day, when I was alone in the house, I climbed upon the kneading-trough, in order to look at the precious fruit in the garden of Hesperides, which was out of my reach. I went to fetch the spit to see if I could touch the apples; it was too short. To make it longer, I tied on to it another little spit which was used for small game, for my master was very fond of sport. I thrust several times without success; at last, to my great delight, I felt that I had secured an apple. I pulled very gently; the apple was close to the grating; I was ready to catch hold of it. But who can describe my grief, when I found that it was too large to pass through the bars? How many expedients I tried, to get it through! I had to find supports to keep the spit in its place, a knife long enough to divide the apple, a lath to hold it up. At last I managed to divide it, and hoped to be able to pull the pieces towards me one after the other; but no sooner were they separated than they both fell into the store-room. (28)

Although he possessed the cleverness and imagination of Hercules to obtain the desired objects from the pantry, Rousseau’s attempts to steal his golden apples proved to be unsuccessful. Furthermore, they left behind evidence of his crime. In returning the following day to make a second stab at the apple, Rousseau was caught by his master and then beaten.

Rousseau may have increased his chances of success if he had at his disposal

Hoffman’s Steal This Book! which, in addition to being a manifesto on youth rebellion and on challenging capitalism through circumventing the commodity exchange, gives step-by- step instructions on how to shoplift. Hoffman gives advice on camouflaging oneself as the 21 average customer when going out to steal; on swiping during only the busy times like the

Christmas season; on circumventing electronic sensors and other security devices; on customizing clothing for stuffing stolen merchandise into; on partnering up where one performs skits of distraction while the other pilfers. Hoffman, like Rousseau and Hercules, uses his wit, dexterity (both physical and verbal) and dramatic abilities to pull of the heist.

Hoffman notes that “[b]eing a successful shoplifter requires the development of an outlaw mentality. When you enter a store you should already have cased the joint so don't browse around examining all sorts of items, staring over your shoulder and generally appearing like you're about to snatch something and are afraid of getting caught” (199). The ‘outlaw mentality’ that Hoffman refers to alludes to a way of carrying oneself in public. For

Hoffman, shoplifting requires a mind-over-matter approach and in taking the time to educate oneself and develop certain skills, one increases their chance of getting away with the heist.

However, if and when the shoplifter is caught, Hoffman also provides advice on escaping punishment:

Stores don't want to hassle going into court to press charges, so they usually let you go after you return the stuff. If you thought ahead, you'll have some cash ready to pay for the items you've pocketed, if caught. Leave your I.D. and phone book at home before going shopping. People rarely go to jail for shoplifting, most if caught never even see a real cop. Just lie like a fucker and the most you'll get is a lecture on law and order and a warning not to come back to that store or else. (201) Rousseau, also chose to ‘lie like a fucker’ when caught stealing a pink and silver ribbon off the dress of Mademoiselle Pontal on a later occasion. When discovered for his theft,

Rousseau blames a servant named Marion for giving it to him. Shteir notes that Rousseau’s position is that it is not sin, but society which creates thieves: “He did not consider thieving to be part of his authentic self. For example, he wondered whether, if he had been questioned 22 in private—as opposed to being publicly shamed—he would have confessed instead of blaming Marion” (26).

Sociologist Mary Owen Cameron confirms Hoffman’s perspective on no police action in stating that, “Occasionally the merchant sees someone steal an item. His reaction then depends on himself and the thief. There is no standardized way of meeting the situation, but the one thing the merchant seldom does is to call the police” (16). This negotiation between shoplifter and merchant becomes a new chapter in the shoplifting handbook. The climax of the story for the snagged pilferer is not the arrest. The apprehension signifies only the beginning of the story, and what develops in the questioning is the real development and tension. Where successful thieving requires an avoidance of meeting one’s public, unsuccessful thieving puts one in the position of having to address a public. A different set of skills and forethought are required like bringing money, leaving personal effects at home and lying effectively so that the caught shoplifter can successfully improvise their way out of their predicament.

On stealing music, Hoffman states, “[l]arger supermarkets sell records. You can sneak two good LP's into one of those large frozen pizza boxes “(9). There is neither human negotiation nor public discourse in file sharing since it remains a domestic activity. It does not allow one to publically deceive, and any deception is not actualized but only intellectualized and quantified. Shteir notes:

[I]f you believe music executives from the end of the last century, we are in the middle of a paradigm shift: Shoplifting may be an endangered species. Like everything else, it has migrated online. In 1999, honest citizens who would never dream of shoplifting a CD were downloading music illegally, which the adversaries of this practice called “electronic shoplifting.” Even after peer-to-peer (P2P) file-sharing sites replaced Napster, the phrase stuck. (Shteir 97-98)

For the very reason that ‘honest’ citizens participate in file sharing, it cannot be equated to shoplifting. As Rousseau’s tell-all and Hoffman’s how-to suggests, theft is a physical feat and file sharing behaves quite differently in terms of public perception and risk taking.

Even though the phrase ‘electronic shoplifter’ may be a catchy handle to lay on a file sharer, digital copyists do not make for shoplifters no matter how much the industry or the public incorporate synonyms for thieves into their lexicon. Shoplifting simply does not adequately describe file sharing. One study found that of forty-four university students who admittedly participated in file sharing, 96% of them would never engage in shoplifting a CD or a movie

(Moore and McMullan 444-45). Perhaps Shteir’s “electronic shoplifter” is better understood as a virtual shoplifter in the sense that it is done in virtual spaces but also that it is only virtually shoplifting, and not actually the real thing.

Where file sharing is done quietly, privately and without attention; a shoplifter like

Hoffman steals publicly and openly which in turn, is riskier. A study examining shoplifting and unethical consumer behaviour found that out of 114 shoppers recruited at a superstore warehouse, sixteen were actively shoplifting and “these persons were all male, and tended to be younger; such persons have greater bravado” (Egan and Taylor 882). But beyond risk and swagger, there is something about the public nature and physicality of theft that makes it off-putting to the average file sharer. Another study showed that although a high percentage showed file sharing practice (91.3%) only 23% of this group would steal a CD given a no- risk scenario (Robertson et al. 222). Shoplifting, unlike file sharing, is a true awareness of being in public and taking a chance of being noticed. It is this public presence — even risk of punishment is removed — which separates the two acts. 24

Yet there is a celebration in thievery and piracy adopted by individuals who participate in file sharing and they claim it without the risk of physical theft. In Don Tapscott’s book

Grown Up Digital, an interviewee and Marketing Manager named ‘Morris’ responds to the leading question “do you steal music?” (instead of perhaps “do you get music through file sharing?”) with:

Yes. I’m a thief. And so is everyone else I know. I do believe however that the definition of music ownership (and the transfer of ownership) is outdated. It just doesn’t fit for our generation. I guess when we come to power we’ll redefine what theft is. Hopefully we’ll also come up with a new model so songwriters, artists, and others that actually create some value get properly compensated. (87).

If file sharing changes how the ownership of music is understood, it is logical that it changes how the theft of music is perceived as well. However, Morris believes that the downloading practices of twenty-first century youth will come to redefine theft. But file sharing does not redefine theft; file sharing eliminates the need for theft. Furthermore, Morris openly admits to being a ‘thief’ as is ‘everyone else he knows,’ but it does not make him a criminal; it makes him a marketing manager. Marketing can be ethically questionable in its own right and involves a deception of its own, but it addresses its public in a different way and its deceptions are calculated and not improvised. File sharing, like marketing, is a controlled activity. It does not require an ‘outlaw mentality’ as Hoffman suggests, only a set of rules and statistics on how to coerce a normative society into coveting deceptions or purchasing commodities. Morris is no thief by virtue. Even though Morris’ methods of procuring music are dubious, his aspirations for the future are altruistic. In the end, Morris does not want to see artists ripped-off, but hopes for a way in which they can be fairly compensated.

1.4 What the Dickens is going on in the Land of Johnny Appleseed?

Charley Bates, pilferer of apples and jolly sidekick to the Artful Dodger in the Charles

Dickens’ novel Oliver Twist, is a redeemed shoplifter. “Charley Bates exhibited some very loose notions concerning the rights of property, by pilfering divers apples and onions from the stalls at the kennel sides, and thrusting them into pockets which were so surprisingly capacious, that they seemed to undermine his whole suit of clothes in every direction”

(Dickens, Oliver Twist, 97). Like the other young thieves and urchins under the employment of handkerchief snatcher Fagin, Charley has a great ability to liberate food from its merchants and perform other petty heists. But he turns out not to be all bad. At the end of the novel, Charley is also the only one of the gang of pickpockets to reform:

Master Charles Bates, appalled by Sikes's crime, fell into a train of reflection whether an honest life was not, after all, the best. Arriving at the conclusion that it certainly was, he turned his back upon the scenes of the past, resolved to amend it in some new sphere of action. He struggled hard, and suffered much, for some time; but, having a contented disposition, and a good purpose, succeeded in the end; and, from being a farmer's drudge, and a carrier's lad, he is now the merriest young grazier in all Northamptonshire (479-80).

In the end, he chooses not a life of delinquency but of husbandry. According to literary critic Amberyl Malkovich, Charley Bates is an imperfect child deemed so by society and required to choose a path of righteousness to be redeemed (91). To do so, Charley

Bates performs penitence not unlike the Eden dwellers. Adam and Eve were sentenced by God for pilfering from the tree of knowledge to a life of hard labour — both in the sense of childbirth and toil:

Cursed is the ground because of you; through painful toil you will eat food from it all the days of your life. It will produce thorns and thistles for you, and you will eat the plants of the field. By the sweat of your brow you will eat your food until you return to the ground, since from it you were taken; for dust you are and to dust you will return.”(New International Version. Gen. 3.17-19).

Bates, like the exiled twosome, makes good for his trespasses against society through constant hard work until one day he finds redemption.

In another novel, Barnaby Rudge, Dickens reinforces his position on petty theft.

This time however, it is not based on a fictional character, but on the actual events surrounding the hanging of a young widow named Mary Jones:

'Under this act,' the Shop-lifting Act, 'one Mary Jones was executed . . .’ The woman's husband was pressed, their goods seized for some debts of his, and she, with two small children, turned into the streets a-begging. It is a circumstance not to be forgotten, that she was very young (under nineteen), and most remarkably handsome. She went to a linen-draper's shop, took some coarse linen off the counter, and slipped it under her cloak; the shopman saw her, and she laid it down: for this she was hanged. Her defence was (I have the trial in my pocket), "that she had lived in credit, and wanted for nothing, till a press-gang came and stole her husband from her; but since then, she had no bed to lie on; nothing to give her children to eat; and they were almost naked; and perhaps she might have done something wrong, for she hardly knew what she did." The parish officers testified the truth of this story; but it seems, there had been a good deal of shoplifting about Ludgate; an example was thought necessary; and this woman was hanged for the comfort and satisfaction of shopkeepers in Ludgate Street. When brought to receive sentence, she behaved in such a frantic manner, as proved her mind to be in a distracted and desponding state; and the child was sucking at her breast when she set out for Tyburn.' (Dickens, Barnaby Rudge, xxv).

The Shoplifting Act to which Dickens refers explicitly stated that any theft over five shillings garnered a hanging sentence at the Tyburn tree (Shteir 18-19). It was one of over 150 theft laws introduced in England between 1688 and 1800 and part of what has become known as the Bloody Code where petty crimes were punished with death (Shteir 18-19). Dickens, struck by the example made of poor, starving Mary Jones, made an effigy of her in Barnaby

Rudge, perhaps because he supposed that capital punishment was too harsh a sentence for a crime of society and not against society. Like Rousseau, Dickens demonstrated that generally shoplifting was a matter of circumstance and did not stem from malice or greed. 27

Petty theft, like that performed by the Jones widow and the league of Fagin’s orphans, was an activity of victims and not villains and should allow for second chances.

If, as Dickens states, Mary Jones was hanged to satisfy and reassure the merchants of

Ludgate Street; it turned out to be ineffective. Jones may have been put to death to deter shoplifting but in reality, “[t]he Shoplifting Act did not stop shoplifting. Although the murder rate remained low, shoplifting flared, as did theft generally in London [and]

[s]hoplifting was the third most prevalent offense among transported women” (Shteir 19).

Ironically, the locale where many a convicted petty criminal once performed the “Tyburn jig”

(Shteir 19) in the nineteenth century is now the site of Marble Arch in Hyde Park, one of

London’s prime shopping districts (Shteir 19). What was once a place to punish shoplifters is now a place where shoplifters run rampant. Although shoplifters are no longer hanged in that location, they are not wanted hanging around either. In 2013, over sixty homeless

“Romanian Gypsies” were ousted by police from Hyde Park. Huffington Post reports, “A crackdown on homeless Eastern Europeans begging and stealing has stepped up in recent months. Last month, immigration officials raided a camp of Romanian squatters at the former

Hendon FC ground. More than 20 agreed to take up the offer of free flights home” (Elgot).

Exile from Eden, instead of capital punishment, seems to have become the latter day sentence for theft.

Despite the leniency shown to shoplifters in his writings, Dickens had a different stance on literary pirates. While visiting the United States, Dickens was appalled to learn that his novels were being reprinted by American publishing companies without paying any royalties or seeking permission from the author. Dickens lobbied for international copyright law stating that paying authors for their works was part of the “character of a great country” 28

(Hudson 1159). Furthermore, without an arrangement with the author, Dickens would go on to say that America “never [could] have, and keep, a literature of [its] own” (Hudson 1159).

Dickens called these publishing entrepreneurs “American robbers” and noted that “[o]f all men living, I am the greatest loser by it” (Hudson 1158). Piracy, not shoplifting, was for

Dickens the action deemed worthy of being labelled a true crime. Shoplifters steal to survive and shoplifting was part of a larger group of social problems. Contrarily, pirates were merely profit hungry and have little regard for creative labour. For Dickens, there was an imbalance in term of the law. Shoplifters, who steal handkerchiefs and textiles, were held accountable with their lives and pirates who stole the words right out of the mouths of others had no apparent accountability whatsoever.

In the twenty-first century, ‘piracy’ has become a household activity performed by children and grandparents alike. It has moved out of the hands of private enterprise and into the everyday life of the domestic sphere and file sharers. Yet much like the American literary pirates in the time of Dickens, file sharers are not generally held accountable for their actions. As explored in the introduction of this thesis, intellectual property law prohibits the copying and the distribution of creative works for commercial gain, however copying for personal use is a grey area. Many of the current justifications for file sharing come from the legal terminology of ‘fair use’ in the US and ‘fair dealing’ in Canada. ‘Fair’ is the acknowledgement that musical and other creative works are not produced at zero-cost, but that we have a right to use it as we see fit so long as we are not profiting from it. Some reasons for fair use are time-shifting (so one can listen to it at a different time); format shifting (from vinyl to audiocassette or CD to MP3); or space shifting (so media can be accessed from a number of different locations). Other reasons include library loaning and 29 educational use. Information studies expert Siva Vaidhyanathan acknowledges that “Fair use is not a good idea per se, but only a necessary flaw in what might otherwise be a perfectly efficient and rational market for cultural good. Fair use exists simply because the

‘transaction costs’ of restricting copying in the home and schools would be too high to justify enforcement” (157). ‘Fair’ is a loophole, and as was mentioned earlier, exploited by the music industry when they discovered that home taping produced their biggest customers.

The concept of fairness muddies the distinction between right and wrong; lawful and unlawful.

Additionally, with instant access to music via the internet, perceptions that information is ‘free’, and therefore music or creative works as information are also free, has opened up a new level of debate. The slogan “Information wants to be free,” coined by

Whole Earth Catalogue editor Stewart Brand at a 1984 Hackers conference (Anderson 95-

98), has become the mantra for many file sharers and lobbyists for expanding the public domain where creative works are involved. Intellectual property expert Lawrence Lessig argues that:

[s]o deep is the rhetoric of control within our culture that whenever one says a resource is ‘free,’ most believe that a price is being quoted — free, that is, as in zero cost. But ‘free’ has a much more fundamental meaning . . . A resource is ‘free’ if (1) one can use it without the permission of anyone else; or (2) the permission needs to be granted neutrally. (12)

Yet Lessig’s argument is problematic, as it assumes that information is a resource which is open to being tapped into by the public. And although this is the case some of the time, this is not true of all information (consider personal banking information). Therefore, who has the right to decide which information is free to use and which warrants permissions?

Additionally, it assumes that music and other creative works are also resources and not a 30 form of property whether physical or intellectual. The distinction between resource and property is one of the main arguments in the information access vs. copyright debates. If music is not a resource as Lessig suggests, then shouldn’t permission and access be negotiated?

Regardless of one’s position in the free/fair debate, the mere suggestion that music is free goods or fair to use is enough to suggest that file sharing does not equate to theft. There is a perception that everything online is free to access because whether at zero-cost or fair to use, a commodity worth nothing is not worth stealing. Even when one pays for a song online, one pays for the service, and not the commodity. This is exemplified by the lawsuit pursued by Capitol Records against ReDigi; an online store which sells legally purchased

‘used’ MP3s. Judge Richard J. Sullivan ruled in Capitol Records favour stating:

. . . [T]he fact that a file has moved from one material object – the user’s computer – to another – the ReDigi server – means that a reproduction has occurred. Similarly, when a ReDigi user downloads a new purchase from the ReDigi website to her computer, yet another reproduction is created. It is beside the point that the original phonorecord no longer exists. It matters only that a new phonorecord has been created (Brown).

The judge ruled based on laws preventing physical piracy; notably in his references to the

‘phonorecord.’ This ruling also created a precedent. When music is copied from an online source and not purchased from a retail store, its exchange value is nullified. How then, can an

MP3 be worth stealing if you can’t pawn it off?

Because an MP3 has no exchange value, some view the exchange of MP3s as neutral behavior. Psychologists Wingrove, Korpas and Weisz examine why millions are not complying with laws on digital piracy. They conclude that: “The nature of music piracy, as an act, is quite different from other types of theft. Unlike traditional theft, there is no risk of physical harm to a victim and there is no physical object as a target, making it easier for a 31 person to conclude that an act of digital music theft is harming no one at all” (271). Another study cites the top neutralization techniques for file sharers are denial of injury, denial of victim and that everyone else is doing it (Moore and McMullan 445-447).

Some believe that shoplifting in many ways can be as neutralized as digital piracy.

Freeganism is an anti-consumerist movement which supports getting the commodities one needs to survive through alternative means such as swapping, dumpster diving, sharing and in some cases theft. Warren Oakes, ex-drummer of punk band Against Me! and active

Freegan states, “Shoplifting from a locally owned place was seen as a really shitty thing to do, but shoplifting a toothbrush from Walmart was harmless at worst. Some would say shoplifting from corporations you dislike was direct action sabotage against them. I wouldn’t go that far, but there was a time when I could morally defend the concept” (Shteir 65). There are rationalizations made by certain Freegans and music file sharers alike that no actual people are getting harmed and that the only victim is a greedy, power hungry corporation. In this worldview, someone’s motivation for file sharing an album released by a major label would not deter them from purchasing the tracks on BandCamp for an independent band.

Freegan activist Adam Weisman questions, “We shouldn’t ask, Is it ethical to shoplift?

Rather we should ask, Is it ethical to buy?” (Shteir 66). In the sense that two wrongs make a right, one could argue that file sharing or stealing a CD are ethically justifiable acts performed against a much maligned music industry. However, justifying physical music theft becomes much more difficult where the law is concerned and no longer remains an ethical debate with oneself, but a public trial, or in the time of Dickens, a public hanging.

The second part of Stewart Brand’s statement, which is often dropped from the argument is that “information wants to be expensive, because it‘s so valuable. The right 32 information in the right place just changes your life” (qtd. in Anderson 96). This is also true in the case of music. Exposure to a song at the right time and place can make you smile, make you cry, enhance your dining or sexual experiences, become your wedding song, make your top five desert island list or become a standard sung to your children. Chris Anderson notes that ‘free’ has brought an amazing bounty of stuff to the first world. “When I was a kid, hunger was one of the main problems of poverty in America. Today, it’s obesity” (45).

The Dickens argument that shoplifting can be a redeemable act and piracy is a crime is lost in a cornucopia of digital culture. Although commoditized music has become so widely plentiful to all, it has not changed the fact that it only takes one song to change your life or that an abundance of free online music does not make the physical stealing of a single album pardonable.

1.5 Apple Records

The short story “New York City” from the Stuart McLean compilation Stories from the

Vinyl Café is about a man named Ed, who upon learning that his favourite musician Big Al

Brown has died, decides to go to the Big Apple to find Al’s widow (Robin) and daughter

(Allison) in order to say ‘thank you.’ Ed is a pretty unassuming guy and is certainly no

Hercules, Rousseau or Hoffman. He is not the type of character to take chances. He works in personnel for Ontario Hydro (55) and has a daughter who plays in Little League (56). Even his first wife, Cheryl, left him without giving a reason – “Ed thought they had a good marriage” (45). When on a date with Carol, who was to become his second wife, “[t]hey talked for hours before Ed got up the nerve to pat her in — what was it? Reassurance?” (41-

42). As it happens, stalking Robin and Allison, the family of his late idol, may be Ed’s first act of risk-taking since he was caught for stealing records: 33

When he was sixteen he lost all these records at a party. Somebody stole them. It had to be someone he knew. He looked everywhere. Asked everyone. No one owned up. Years later he came to think of the theft as just. He himself had stolen many of the records in his collection. Not from other kids but from a place on Sherbrooke Street. It was an all-purpose store that sold groceries and paperback books and magazines and had a soda counter and a few booths. He would slip the records into his school bag. He was never caught. . . . When he was in college he was caught with the Beatles’ ‘Abbey Road’ album tucked under his arm. They took his name and two months later he was summoned to a lawyer’s office. They told him they would press charges if they ever caught him stealing again. He never did. (McLean 47-48)

In Ed’s case, rebellion gets crushed and shame sets in. Shame is the secret ingredient added to exuberance to change it to myelin. A 1964 anthropological study of shoplifting finds that people caught for petty-theft, expect no support. “Pilferers feel that if their family or friends learn about their arrest they will be thoroughly and utterly disgraced. The fear, shame and remorse expressed by arrested pilferers could not be other than genuine and a reflection of their appraisal of the attitudes they believe others will take toward them” (Cameron 163).

For Ed in “New York City,” memories of record shoplifting are subject not only to appraisal from others, but also from his older self. Only in being caught and shamed does Ed come to think of the theft of his own records as just, neutralizing any wrong-doing on his part.

Furthermore, after being apprehended by store detectives and set free on one’s own recognisances, there is little risk that the casual shoplifter will reoffend (Cameron 151). The publicity brought about by being caught is followed by the private state of feeling shame.

Being caught and shamed destroys any attempt at rebellion.

Shame, not jail time, is the actual sentence for being caught shoplifting. Michel

Foucault, in Discipline and Punish, observes the shift from the spectacle of public execution to the implementation of prison as a shift from public to private discipline. Theft is not punished by the taking of one’s possessions but by time spent in confinement. Punishment 34 thus is not a natural consequence but instead a “useless penalty” (109). Furthermore, under the penal system, thieves were no longer given a chance for reform at the moment of their death through confession or representation. In prison, there is no Mary Jones for Dickens to make an example of. The criminal becomes an object of study and reformation instead of becoming a useful method of “public instruction” (112). Where public execution serves as a warning to the public of what happens to offenders, prison sentences are carried out in secrecy. Under the penal system, shame which was once the public’s duty to observe and note is now completely placed on the criminal to endure in privacy and isolation.

Shoplifting is tied intrinsically to the body and not to reason. For this reason, it is more susceptible to shaming when being caught. As Shteir notes that “Bank robberies and jewel heists command daring, skill, and technical know-how. But shoplifting is a more exhibitionist and mediagenic theft. . . . Shoplifters use the body — since Genesis the site of shame — to hide shoplifted objects” (210). After having eaten the apple from the tree of knowledge, Adam and Eve were exposed: “Then the eyes of both of them were opened, and they realized they were naked; so they sewed fig leaves together and made coverings for themselves.” (New International Version, Gen. 3.7). Shoplifting, once exposed, is a crime in want of covering up; or hiding behind the proverbial fig leaf. For Michael Warner, “A child’s earliest education in shame . . . is an initiation into the prevailing meaning of public and private. . . . Clothing is a language of publicity, folding the body in what is felt as the body’s own privacy” (23). Shoplifted goods are also folded into the body, shoved up shirts and skirts and down pants, slipped into purses and rubbed against the wallets which hold every piece of private information (unless, of course, Hoffman’s advice was followed). 35

Shoplifting, where shame is felt privately, can be a secret and private pleasure like sexual pleasure. In the introduction of the part fiction / part autobiography The Thief’s

Journal, Jean Genet links his experiences as a thief with his sexual preference for criminal men:

I do not want to conceal in this journal the other reasons which made me a thief, the simplest being the need to eat, though revolt, bitterness, anger or any such similar sentiment never entered into my choice. With fanatical care, “jealous care", I prepared for my adventure as one arranges a couch or a room for love; I was hot for crime (13).

Kleptomania has been compared to “a forbidden secret such as masturbation” (Grant and

Kim 105). One fifty-seven year old female shoplifter claims to have experienced her first orgasm when she was first caught for shoplifting (Grant and Kim 107). Two aforementioned examples come from a psychology reference called Mental Disorders of the New

Millennium, acknowledging that these behaviours are outside the norms of society. As classification and scientific study, the embodied pleasurable experience of shoplifting cannot be completely separated from its discourse. Shoplifting is not a liberated act as Foucault sees the ars erotica in his History of Sexuality where “truth is drawn from pleasure itself” (57) but under a practice of scientia sexualis where the understanding of truth derives from a culture of confession under the microscope of scientific analysis. Shoplifting, like sexuality is subject to a “form of analysis, stocktaking, classification, and specification, of quantitative or causal studies” (Foucault 22-23) making the freedom of “telling, with the greatest precision, whatever is most difficult to tell” (Foucault 59) part of a discourse of documentation. File sharing, by contrast, is more similar to the ars erotica in that the pleasure is normally allowed to be without the feeling of overt surveillance and stocktaking. But there is a catch.

File sharing exists as only a representation of pleasure and not an act of pleasure. In the case 36 of downloaded music, we become eavesdroppers, and not active participants in a culture of theft. And while file sharing appears to open up the garden gates to Eden, it only allows a perceived private sanctuary for pleasure. Yet it remains a disembodied experience — outside of risk, outside of sex, outside of shame — and leaves the public only standing at the gates looking in at the paradise that is presented to them without ever really getting the chance to get their hands on the apple.

Shame attached to shoplifting is not static. It moves beyond the time of when the crime took place, and follows the shamed ones into the future. In 1971, a young black photojournalist named Edward Charles Davis (nineteen at the time) was apprehended for allegedly stealing eight-track cassettes from a local convenience store in Louisville,

Kentucky (Shteir 56-57). Around Christmastime of December of 1972, police officers circulated his name and photograph to 800 shops in the Louisville area to warn merchants of potential shoplifting threats (Mitnick 87). The pamphlet read: “This flyer is being distributed to you, the business man, so that you may inform your security personnel to watch for these subjects.” (Mitnick 87) Yet the ‘active shoplifters’ listed on the pamphlet were merely those who were arrested for, and not necessarily convicted of, shoplifting charges (Shteir 57). Ed

Davis brought legal action against Edgar Paul, the police chief of the Louisville expressing that:

[T]he "active shoplifter" designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. Accepting that such consequences may flow from the flyer in question, respondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se, and actionable without proof of special damages. (Paul v. Davis 424 U.S. 693)

Legal action went all the way to the Supreme Court. The court ruled that Davis’ civil rights had not been violated and the pamphlet was not defamatory in and of itself.

Any recognition in these cases of a secondary injury caused, or an additional right thwarted, beyond standalone reputational harm would merely have been incidental acknowledgment by the Court of the plaintiffs’ particular circumstances in the aftermath of stigmatic injury; it certainly was not a conscious part of the Court’s decided doctrine, if it was even mentioned at all (Mitnick 92).

The end result of this ruling is daunting. It allows for police to publicize the names before a trial is ever held, and although the alleged shoplifters may be innocent in a court of public law, they can still be found guilty in a court of public opinion, and sentenced to a lifetime of shame.

For Davis, who may or may not have ripped off some eight track cassettes, the stigma of being a shoplifter is attached to his identity for the rest of his life. As it turns out, he did need to leave his place of employment stating, “I suffered humiliation and ridicule. After six or seven months the pressures of the job and strain on my nerves got to the point where I felt the only way out was for me to resign in order to regain my full sanity and keep what little self-respect I had left.” (Mitnick 88). Due to the scarlet letter placed upon his name, and the publicity of the court case itself, Davis left his chosen career as a photojournalist to end up working a string of odd-jobs to make money. As of a recent report, he still struggled financially (Shteir 61).

1.6 Enter Macintosh

Where shoplifting albums shames those who are caught, file sharing floods the public with almost instant access to music at zero cost. Apple Inc. exploited in relatively little time the possibilities of free digital music even before Napster went online. In 1997, Apple introduced the iMac, a single component desktop computer to the public. It marketed the 38 new computer with the slogan “Rip. Mix. Burn.” At this point in history, Apple was referring to transferring digital tracks through CD burning as P2P file sharing had not yet been seeded in the minds of the public. Even though the digital capabilities of the iMac did not have the overwhelming impact on the music industry that digital file sharing would later have, it did raise red flags. “The [Apple iMac] ‘rip, mix, burn’ slogan instantly hit an entertainment industry hot spot. Although the term ‘rip’ technically means convert from another medium, the entertainment industry interpreted it as an invitation to ‘rip-off’ the music industry” (Gantz and Rochester 72-73). For the music industry, the “mix” part of the slogan was lost in the equation and the ripping and burning became the key components to a machine that not only has the capacities of performing digital piracy, but expresses explicitly in the make-up of the marketing campaign that this was what the machine was built for.

In 2001, the “Rip. Mix. Burn.” tagline reappeared when Apple introduced iTunes.

One particular video advertisement plugging the new piece of software opens with a suspicious looking youth folded into his black hooded jacket and carrying a knapsack. He heads down an alley to a staircase where he climbs and enters a building through the backdoor. On the other side of the entrance are a hallway and more stairs which eventually lead to an empty concert hall. He sits down and looks upon the stage and says ‘hi.’ On the stage are several popular artists of the time — Liz Phair, Smashmouth, Ziggy Marley, Iggy

Pop, L’il Kim, Amy Mann, Wilco, De La Soul, George Clinton and Barry White just to name a few — and they all say ‘hi’ back. There is an instant connection. The youth then continues by saying: “For this CD I’d like to start off with Liz: ‘Polyester Bride’” and continues to list off selected tracks for his customized mixed CD. The artists respond personally to him. For instance, George Clinton says “I’m gonna drop the ‘Funk Bomb’ on ya.” The ad ends with 39 the “Rip. Mix. Burn” slogan and a voiceover which instructs the viewer to “Burn it on a

Mac.” The whole interaction in the ad is friendly and casual, as if there were no tension between the developer of iTunes, the music industry and the music consuming public.

At the point of the ad’s release, the MP3 player had not taken hold and digital music was still being stored on computers or CD-Rs for listening consumption. All of that would change a year later with the introduction of the iPod. Although Apple encouraged a musical marketplace to copy with the iMac, the iPod not only secured the ability to transfer music from CDs but also was capable of housing a substantial library of ripped songs and made listening to MP3s convenient and transportable. As the twenty-first century progressed, digital music copying became the norm and replaced home taping. Yet unlike home taping, which needed to be done in real time, or slightly faster with high-speed dubbing, downloading and uploading music only took an instant. The portability of the iPod combined with the ease of file sharing replaced the need for leaving one’s home to obtain music making shopping or shoplifting from records stores an increasingly obsolete pastime.

Like in the 1920s when furniture stores were plugging the Victrola with the promise of free

78s (Anniston Star; Corsicana Daily Sun) free music was now a feature of the device and marketed that way.

iPod culture was taking over at a rapid speed. As Apple founder Steve Jobs himself quipped: ‘I was on Madison . . . and it was, like, on every block, there was someone with white headphones, and I thought, ‘Oh my god, it’s starting to happen’” (Jones 5). Apple’s invasion came on swiftly and surprisingly (even to Jobs himself) it is hard to pinpoint the exact moment when the mass consciousness shifted. However, in the end the influx of MP3 audio lead to the pending demise of the CD. Jack Finney’s protagonist Miles Burnell in 40

Invasion of the Body Snatchers observes of the earth invaders, “they weren't quite acting like a normal Saturday afternoon-shoppers crowd” (137). Similarly, much like the pod people invading the earth in Finney’s novel, Apple had taken over the music listening public and turned him/her into an iPod person; one who purchases an empty shell void of contents which only needs to be filled up with one’s personal preferences of music and mixed (by the user or the machine itself) to his/her liking. Media theorist Jonathan Sterne also views the

MP3 as a container: “In its conception, the MP3 holds only sound that can be heard; it discards the rest and attempts to hide its own excesses. But the MP3 is also a container for recordings — records, CDs and so forth. It is a container for containers for sound, and its codes the space within itself” (194). Yet the iMac and then the iPod were hardly only empty containers; they were warehouses that held a multitude of containers that housed other containers of sound. MP3 and iPod culture had shifted the fascination with the contents of the object to the superficial qualities of the packaging. In other words, Apple focused the consumer’s desires from the flesh of the apple to merely the peel.

The iPod also made isolation a possibility. “In iPod culture we are simultaneously connected and disconnected from the urban world that we inhabit. Connected through the use of our mobile technologies whilst simultaneously disconnected from the physical world through which we move” (Bull 13), The iPod also simultaneously disengaged the public from its need to pursue physical tangible music formats to listen to and keeps a public out of locales in which to consume them. As cultural theorist John David Ebert notes,

With the introduction of the iTunes Music Store in April of 2003, furthermore, which Jobs conceived as the first legal rival to illegal music download sites like Napster and Kazaa, and for which he received the blessing of the entire music industry, he further dematerialized, not just the CD, but the music store itself as a physical entity. . . . Music stores are now a thing of the past, for they have been translated and transformed by the Wonder Child’s wizardry into components 41

made out of light and shadow located not in any real physical three dimensional space, but in the subtle realm of the internet (123-24).

The internet becomes a haven for file sharing and file buying, and as there were no real shops left to target for shoplifting, record shoplifting becomes an activity of the past. Even Shteir’s ubiquitous ‘electronic shoplifter’ does not hit up the iTunes store but gets his files elsewhere through bit-torrents or file hosting services, so the ‘shop’ part of ‘shoplifting’ never materializes.

However, with the de-commoditization and devaluation that music online had created, the physical shoplifting of music did not come to a halt. File sharing did not end physical music theft, but merely displaced it. Albeit boxy instead of round, the iPod, instead of the record or the CD would become the new apple of the eye for the shoplifter. Dylan

Jones remarks that upon being introduced to the iPod, “The first time I saw one I wanted to steal it” (13). This impulse has been documented again in newspaper articles that have shown a rise in theft of mobile devices. The New York Post goes as far as to blame the electronics manufacturer for the rise of crime in the Big Apple for the year 2012 reporting:

“There have been 11,447 thefts of Apple products here since January — an increase of 3,280 such incidents over the same period last year. Meanwhile, the total number of crimes year to date is 79,335, an increase of 3,015.” (Schram). Also, with the iPod (and then the iPhone) instances of violent crime appeared. Not only were shifty eyed shoplifters willing to sneak an Apple product into their pocket as they would have a CD from the local indie record shop, but they were willing to kill for it. Huffington Post reported the shooting and mugging of 26 year old Hwangbum Yang in the Bronx. His wallet was left behind, and the only thing taken was his iPhone; the tell-tale sign that he had one was the exposed signature white ear-buds. 42

In 2003, Apple opened the iTunes store, making the need for the ‘legitimate’ consumer, not the file sharer who had already filled their iPods with free songs, an avenue to purchase music. As the Guns N’ Roses lyric goes, “I got some genuine imitation bad apples.

Free sample. For your peace o' mind only $9.95” (“Bad Apples”). File sharing, had made

MP3s for the case of this argument a ‘bad apple’ free to taste but also making the same merchandise available for purchase at a ten dollar price point. Not only that, but if the buyer did not want the whole album, they could purchase a single track for 99 cents. This allowed the customer to pick from the tree without needing to buy the whole orchard. As Robert

Pitman, co-founder of MTV remarked ‘Stealing music is not [what’s] killing music. . . .

When I talk to people in the music business, most of them will admit the problem is they’re selling songs and not albums. I mean, you do the math” (Knopper 181). In the end, it was not file sharing, or shoplifting, that was slaughtering the music industry, but the devastating effects of devaluing musical products from fifteen to twenty dollars a CD to 99 cents a song.

The major music recording industry depended on physical music sales to thrive.

Since file sharing, the Big Five — Universal, Sony, BMG, EMI and Warner — have been merged or swallowed up to form a Big Three. Apple’s success, on the other hand, has only continued to grow pushing stock prices to over $600 a share until the recent stock split on

June 9, 2014 (Solomon). The music industry made some miscalculations concerning the importance of MP3 and the devices that housed them. Only after it was too late, did it begin to take drastic measures to try and stop the circulation of ‘free’ music. The next chapter will examine some of these measures and how the music recording industry, failing to adopt traditional means of loss prevention for the digital music marketplace, proceeded to employ 43 unconventional means of securing their property which only further tarnished their already shady public image.

CHAPTER TWO:

“PLEASE, DON’T DOWNLOAD THIS SONG”: POLICING THE MP3

2.1 Beep! Beep! Beep!

Shoplifting and petty theft, as seen in the previous chapter, have a long history.

Merchants have also had a lot of time to learn by trial and error what works in terms of preventing theft. In England, under the Bloody Code, this meant making examples of shoplifters by hanging them at the Tyburn tree. In modern times, this includes the use of two-way mirrors, floor detectives (now called ‘loss prevention agents’), ink-filled security tags, magnetic strips and alarms, video surveillance and aggressive customer service. It may even include racial, gender and age profiling. Discriminatory profiling aside, loss prevention (LP) practice generally considers everyone who enters the store as a potential thief. Some LP agents adopt the “80-10-10” rule where 10% will steal no matter what, 10% will never steal and 80% will steal if they have the chance (Shteir 188). Loss prevention relies on the art of bluffing but it is not a poker game where cards are kept hidden from the next player; it is a game best played with all cards on the table. A pamphlet circulated by the

Retail Council of Canada (RCC) entitled “Loss Prevention Dos and Don’ts,” advises “Don’t let crooks feel anonymous and don’t hide your security. Let them know you’re watching them. If your store uses cameras, for example, post a polite message that informs customers their actions may be caught on tape” (Price). Potential shoplifters are informed that they are being watched by the signs that say “Smile! You’re on Camera!” and “Shoplifters will be prosecuted,” by the mirrors in the corners of the stores, by the cameras overhead which instantly display captured images of them on visible television screens and by well-trained salespeople. The beep! beep! beep! of the security alarm is not primarily meant to alert 45 security personnel to the front of the store or to catch criminals as most of the time it is sounded, it is a false alarm. The beeping is a present and audible reminder that the customer is under surveillance which deters the opportunistic 80% from considering stealing goods in the first place.

The well designed retail establishment is what Foucault calls a panopticon — where

“it reverses the principle of the dungeon; or rather of its three functions —to enclose, to deprive of light and to hide — it preserves only the first and eliminates the other two. Full lighting and the eye of a supervisor capture better than darkness, which ultimately protected.

Visibility is a trap” (Discipline and Punish 200). Foucault further notes that the panopticon is a principle of power. Security authority should be visible yet unverifiable and the subject

“must never know whether he is being looked at at any one moment; but he must be sure that he may always be so” (Discipline and Punish 201). The prevention of theft in a retail store relies on the open and observable scare tactic that one might be caught at any time, and on the underlying public belief that exposure and shaming will ensue if you are snagged.

However, catching a thief is much more difficult enterprise. It requires the accumulation of evidence to prosecute, and ideally, a confession. There are costly repercussions to retailers, both in terms of economics and publicity, who have suffered lawsuits from loss prevention agents using undue force in apprehending suspects, for making false arrests or even causing death. Shteir reports that since 2001 in the US, “at least thirty shoplifters have died in the parking lots of Walmarts and in the alleys behind CVSes, in the aisles of Kmarts and in Price Chopper and Family Dollar stores” (180). Canadians adopt a much more civil approach. The RCC recommends that, under the Petty Trespass Act, the retailer consider this: “If you are inside your store and you witness someone acting in a 46 suspicious manner, under the Act you have the right to ban them from your property” (Price).

This means the retailer can simply ask the perpetrator not to return to the premises and by law, they are required to oblige. As flimsy as this tactic seems, in theory it should work if one is to assume that the best way to prevent shoplifting is to deter it instead of prosecute it.

For the retailer selling music, protecting against the theft of their stock was obvious.

They simply adopted tried and true methods of loss prevention that were already in place. A chain record store like HMV had the same security alarms, mirrors, cameras and floor personnel that were found in a department store. The musical mass commodity, which began with the sale of sheet music in the late nineteenth century and with recording formats from the 78 and cylinder to the compact disc in the twentieth century, was growing in demand and became the target of shoplifters. In a recent 2003 study from the Centre for

Retail Research, CDs and DVDs came in at six on a list of top ten hot items to be shoplifted

(Shteir 94). These objects were easy to conceal in an article of clothing or a book bag.

Cameron notes in her 1960s research:

The trade journals of camera and phonographic supply organizations report that shoplifters are ‘taking everything that isn’t nailed down.’ Transistor radios, tape recorders, and small TV sets as well as cameras, film, audio tape, and records can ‘be kissed goodbye’ if they are unattended for a moment. The trend toward miniaturization of equipment for audio and visual recording is of great help to the thief (19).

As technology progressed, miniaturization became a concern to loss prevention as LPs shrank in size with the introduction of cassettes and CDs. When the CD was introduced, it was manufactured in an environmentally wasteful, six-by-twelve-inch cardboard package called a longbox and later with a removable long plastic CD holder. It was the hope of retailers and producers alike, by maximizing the size of the CD, theft of the physical media would be reduced (Knopper 36). MP3 would change the game. Although media theorist 47

Jonathan Stern argues that MP3s still have materiality and take up space, he also acknowledges that “hard drives are designed to hide their process of magnetic encryption from user’s sight, and the result is that invisibility has been conflated with immateriality” (7).

The musical commodity would bypass miniaturization and become invisible to the naked eye. It also became easier to ‘take.’ More effective to take than slipping a CD or an LP into an overcoat or knapsack, digital file format music could be tucked away on a USB stick or an iPod. This new booster box concealed its contents, which just by looking at, could contain anything in terms of paid or pirated content or no content at all. This cloaked immateriality would pose several challenges to the music industry in terms of losses.

First, loss prevention, which had always been an issue for the music merchant, was now being downloaded onto the music producer. Historically, the act of theft was attached to the materiality of an object. After all, it was objects in the forms of physical formats, and not the music contained on those objects, that the record industry really sold. In the physicality of the commodity, the music recording industry felt a certain stability and security in its products but for the first time since Disco Sucked in the seventies1, the record labels began to incur losses at a drastic rate. In 2002, the year after Napster had folded, US album sales were down 17 percent (Knopper 203). Once digital music could be easily duplicated with CD ripping and burning technologies, and distributed online, less and less people had any use for

CDs. After file sharing was popularized with Napster, the ‘shrinkage’ of physical recorded format sales did not occur because people were stealing CDs from record stores, but rather

1 As Steve Knopper notes in Appetite For Destruction, “disco sucks” references an event at Comisky Park, the Chicago White Sox baseball stadium, where rock DJ Steve Dahl promoted that anyone who brought in a disco record to be destroyed could get into the game for 98 cents. A riot ensued. Fifty-nine thousand fans showed up carrying stacks of disco records and another fifteen thousand filled the street all chanting “Disco sucks!” and flinging and blowing up disco records. The recording industry felt this as a reduction in sales which dropped by almost 11% and disco labels began to fold. The next few years would see the introduction of MTV, the release of the CD and Michael Jackson’s hit record Thriller, which would instill again the public’s love for popular music and a return to consuming music (1-14). 48 because no one wanted to buy them anymore. Yet the music recording industry had limited expertise in the arena of loss prevention, and in creating a rhetoric of theft around file sharing and in adopting traditional methods of surveillance and punishment, the music industry would pursue a file sharers like shoplifters.

Secondly, policing the media itself proved more difficult than policing how that media circulated. Stores could be locked and security alarms put in place, but CD media itself was designed without any real copy protection. As Kevin James in the role of mall security expert states in the trailer for Paul Blart: Mall Cop, “our security is fine, but mostly we rely on the hope that our security never goes down” (sonypictureshomeent). This is the same credo that the music industry silently held when it developed the CD which was originally intended for playback only. After fifteen years in the marketplace, the CD became inexpensive and accessible to copy. In reaction to the digital copying and circulation of the musical recordings being ripped and shared, the music industry needed to develop technological means of locking their media. In the end, they would opt for choices that would not only limit the functionality — in intended and in not intended ways — but also create privacy and security concerns for its customers.

Finally, and perhaps most importantly, policing downloaded music would mean monitoring spaces where the public felt they had privacy. Shoplifting occurs in public spaces and is monitored there. File sharing, on the other hand, happens in non-public spaces whether that is the intimate space of the family home or on one’s wireless personal electronic device in the form of a laptop, cellphone or tablet. Because file sharing takes place in quasi- private spaces, any wrongdoing is neutralized through the protection of what Jürgen

Habermas calls the intimate sphere. “In the intimate sphere of the conjugal family privatized 49 individuals [view] themselves as independent even from the private sphere of their economic activity-as persons capable of entering into ‘purely human’ relations with one another”

(Habermas 48). In this sense, file sharing is independent from the privatized, economically driven intentions of an entertainment industry. Sharing, is more than a basic human right, it is what we have come to expect in the domestic sphere. Convincing the public that the intimate activities of sharing constituted a crime would be difficult for the music industry to overcome. Yet Habermas notes that the family home as a private space is a bit of a public construction. “Thin walls guaranteed, if need be, a freedom of movement protected from sight but not from hearing; they too assumed functions of social communications difficult to distinguish from social control” (157). The music industry would proceed by putting its glass up against the wall and listening in. What it could not witness from visual surveillance, it would monitor online to launch its takedown of a file sharing public.

To monitor, the music industry would attempt to transform the family home into a closet. The closet represents a lie or distortion which prohibits gay men and lesbians from addressing themselves honestly and openly in public. “The closet may seem to be a kind of protection. Indeed, the feeling of protection is one of the hallmarks of modern privacy. But in fact the closet is riddled with fear and shame. So is publicity under the conditions of the closet” (Warner 52). Although the hegemonic powers that control file sharing practices are not of a sexual nature, the analogy of the closet holds true. File sharing done in the privacy of one’s own home, in one’s bedroom, on one’s own computer, using one’s own personal login name can feel protective, but is carefully monitored by public and commercial interests who do not necessarily reflect the private interests of the individual online. The industry, in filing lawsuits against a file sharing public by monitoring their online activity, generated a 50 fear that the file sharer could be ‘outed’ at any time; carrying with it a similar shameful experience as someone who commits an act shoplifting.

For Foucault, publically constructed private spaces come in the form of confessionals and prisons. Judicial torture on the scaffold allowed for public utterance of confession which was both “a way of obtaining evidence” (Discipline and Punish 41) and also a “victory of one adversary over the other, that ‘produced’ truth according to a ritual” (Discipline and

Punish 41). When the penal system was introduced, there was a power shift from punishing the body through public torture to disciplining the soul through the isolation of prison

(Discipline and Punish 16-18). This shift in punitive action exercised its power in order to rehabilitate; for “the individual to be corrected” (Discipline and Punish 129). A combination of interrogating shoplifters in order to produce a confession and the threat of punitive action privately shames petty thieves into conforming to the law. Yet, in policing file sharers, the music industry would choose to return to the scaffold by removing a handful of citizens from their quasi-private spaces of online activity and expose them to public trials and public media.

In the end, the music recording industry may have been a good executioner but failed to be a good mall cop. After failing to implement successful ways of deterring consumers to file share through the construction of a panopticon, the industry proceeded with the much riskier game of catching thieves and then hanging them at the metaphorical Tyburn tree. The hanging of many petty thieves never curbed the rampant shoplifting in England. Likewise, record labels in trying to prosecute file sharing lost anyway — in both terms of profits and public face — for which there was no way to recover.

2.2 Plugging the Dam

With the quick succession of the iMac, the iPod and the iPhone, digital online music did not trickle into the public consciousness a drop at a time, it broke all the levies and flooded the music community, both the industry and fans, like a tsunami. Napster enabled this by opening the locks allowing for the flood to happen in the first place. Although I am illustrating my point by mixing metaphors here, the point is not without merit. The music industry may have previously filed lawsuits pertaining to copyright infringement and digital music against the MP3 player Rio and MP3.com (Garofalo, “I Want My MP3” 93-94), however Napster will be the company remembered for introducing the public to file sharing and initiating the battle of online music as something that is ‘fair’ to use and ‘free’.

Today, it is hard to imagine that the music industry’s emergency alert systems did not go into full alarm with Napster. After all, the compact disc was good to the music industry.

At the time that Napster was launched in the summer of 1999, music sales were skyrocketing

(Knopper 80-82). The music industry had found success with an influx of Lou Pearlman’s

New-Kids-on-the-Block-type boy bands (Backstreet Boys, NSYNC) and sexed-up adolescent

Mouseketeers (Christina Aguilera, Britney Spears). Eminem, the seeming voice of opposition, would rap in “The Real Slim Shady”: “I'm sick of you little girl and boy groups, all you do is annoy me / So I have been sent here to destroy you” — and from the industry’s perspective, he did too. Eminem’s debut album The Slim Shady LP went triple platinum, selling enough records to help make Universal the top record label (Knopper 138).

Still, some concern must have been alerted at the Recording Industry Association of

America (RIAA) offices. In December of 1999 A&M Records Inc. v. Napster Inc. was filed where eighteen record labels under the Universal, Sony, EMI, and Warner umbrellas sued

Napster for “contributory and vicarious copyright infringement” (Ku 21). Napster’s defence 52 was that file sharing under its service was not an infringement as it fell under “fair use” (Ku

287). After over a year of litigation, Napster lost its case. One of the reasons for ruling in favour of A&M and company was that the music recording industry produced evidence that although overall CD sales were going up (18% in three years), that sales near college campuses were in decline (by 11-12%) (Ku 289). “The court accepted the recording industry’s common sense argument that the availability of free downloading reduced the market for competing commercial downloading, and that this downloading would deprive copyright owners of royalties for downloading even if it enhanced CD sales” (Ku 289).

Knopper observed that the real turning point in the case was when RIAA lawyers pressed

Napster co-founder Shawn Parker over an email he had written which stated, “Users will understand that they are improving their experience by providing information about their tastes without linking that information to a name or address or other sensitive data that might endanger them (especially since they are exchanging pirated music)” (Knopper 137). In his email, Parker had overtly expressed that the file sharing of music was not a matter of ‘fair use’ as Napster had claimed, but of ‘piracy.’ Also, Napster service kept users ‘private,’ and would allow them to continue to participate in illicit activity without being personally tracked.

Yet lawsuits were brought against Napster users and music fans through the recording artists themselves. Where certain recording artists such as Christina Aguilera, Aimee Mann,

Alanis Morrissette, Blink-182, Garth Brooks and Sarah McLachlan appealed to fans to buy their music in the Artists Against Piracy campaign (Borland, “Musicians Launch National

Anti-Napster Campaign), other artists, like Metallica and Dr. Dre sued. In Metallica’s lawsuit against Napster over the leaked Mission Impossible II soundtrack song (ironically 53 called) “I Disappear,” Metallica requested that Napster remove over 330,000 users who downloaded 1.4 million Metallica songs from the file sharing site. Napster complied, but also issued a disclaimer noting that if anyone felt they had been maligned and removed unjustly, they could petition to be reinstated. About 10% of Napster users who were removed responded and were reinstated. This put Metallica in the uncomfortable position of having to file individual lawsuits against 30,000 of its biggest fans (Garofalo 95). Metallica did not sue all 30,000 Napster users but chose to make an example of twenty in their lawsuit.

Metallica’s actions triggered a backlash inviting “profanity-laden criticisms of the band’s policies” (Simon). PayLars.com was set up by August Nelson’s Mark Erickson, which invited the public to donate a dollar per song downloaded to make up for any lost revenues caused by Napster (Simon). Johnny Crass responded in a Weird-Al-Yankovic-esque parody of Metallica’s Enter Sandman:

Now I lay Lars down to sleep, Pray his copyrights to keep, If he gets poor before he wakes, He'll have to sell fries and shakes. Hush little Ulrich, don't say a word, And never mind that noise you heard, It's just a fan making bootleg tapes, I hope you choke on your sour grapes! We're in debt, From the Internet. Screw the fans. We're in debt, From the Internet. Sue the fans, We're off to Napster-Napster land (Edman).

The criticism of Metallica went on. In an interview with Huffington Post in September of

2013, Lars Ulrich states that although he did not regret filing the Napster suit, that Metallica:

“. . . was not prepared for the shitstorm that we became engulfed in. . . . The Napster people 54 were really smart in that they made the whole fight about, you know, about money and about

Metallica sort of being technologically inept and they don’t want to give stuff away for free.

And we were like, hang on it’s not about money. It’s about control” (Buxton). Ulrich was partially correct. The lawsuit was about money but not necessarily directly. It was about being able to control who has access to the music and under what conditions. Like the suit filed by the RIAA, Metallica’s suit was about stopping the service in its tracks so it could control how, when, and where its songs could be heard, bought and sold. In the end,

Metallica may have won their legal battles against Napster, but their success did not plug the dam and leaks continued.

Furthermore, the music industry did not win in the arena of public opinion. Napster may have lost its case, but it gained publicity and as Ku notes, “[T]he millions of individuals who share files through Napster, or copy music they have purchased so they can listen to it while in their home, car, or office do not consider personal copying piracy or inconsistent with intellectual property laws” (4). As far as the general public was concerned copying did not equal thieving, no matter how the court of law ruled. Additionally, Napster was beating the music industry at its own game. The music industry used publicity to promote its artists and generate albums sales. Napster’s Shawn Fanning and Sean Parker, the two youngest developers in the company, became much like rock stars themselves and became public icons. Hilary Rosen, CEO of the RIAA during Napster, noted on Shawn Fanning’s publicity:

Yes, Napster users were engaging in theft, But their stick-it-to-the-man righteousness drew much of the public to their side, and major labels were taking the biggest public relations hits they’d ever absorbed. ‘It just grew and grew. Shawn becomes a cultural phenomenon. Presidential candidates are asked about it in debates . . . The intensity with which the industry was under siege was huge’ (Knopper 133).

In September 2000, Shawn Fanning while making an appearance at MTV’s Video Music

Awards wore a Metallica T-shirt and joked that a friend was sharing it with him (Knopper

135). Napster, through the lawsuit, had become famous and edgier and more appealing than the offerings the music industry was producing at the time. File sharing was now a household activity but also, like the rock music of a previous generation, deemed rebellious; caught on by college kids, spread by word of mouth, and infecting the masses.

Kittyhead, the Napster logo of a cat wearing headphones personifies the company.

As Jonathan Sterne notes, “[W]ho really can tell a cat what to do, anyway? . . . Here is a picture of a cat connected to a sound system that is supposed to be a mark of agency (for both company and consumer) and rebellion” (89). Napster, filed for bankruptcy in July of 2001, and unsurprisingly a myriad of copycat services — such as Kazaa, Gnutella, LimeWire,

Grokster and Morpheus —popped up and took its place. One-click hosting such as

Rapidshare and Megaupload followed and Bit-torrent software were not far behind. Where all of the copycats who trailed in Napster’s paw-steps could not compete was in symbolic capital. Here, Napster was top cat. Robert Levine acknowledges that “Shawn Fanning sincerely wanted to find a better way to distribute music” (37) and uses the term ‘parasite’ to describe the companies that followed Napster: “The term ‘parasite’ comes from the Greek work parasitos, used to refer to someone who ate at someone else’s table without providing anything in return. It’s a useful way to think of . . . search engines that specialize in finding illegal downloads of copyrighted content” (6). Napster had tempted the public like a snake, and after its head was crushed by the music industry, others came to take a bite at the exposed heel. In losing, Napster became the music industry’s roguish anti-hero, embodying the ethics of the shoplifters that came before. Napster, not Eminem, was really the answer to 56 the music industry’s Britney Spears, and the services that followed were merely a copy of a copying enterprise.

2.3 Locking an Open Door

Law professor Ian Kerr compared digital locks to the Gordian knot; the complex knot which Midas used to tie his ox cart to a post which no one could untie. After several attempts to solve the puzzle and release the cart, Alexander the Great arrived with a solution; to use his sword to sever the rope.

Like the Gordian knot, digital locks are, in part designed as a restraint on the use of property. . . . Digital locks can be wrapped around music, movies, books, newspapers and other digital content to prevent or limit access to those works, or to control the number of copies made. . . . Like the Gordian knot, digital locks can be hacked.” (Kerr 249)

Failing to stop the rampant sharing that Napster enabled, the recording industry decided to secure the CD with a Gordian knot of its own. But first, they had a puzzle of their own to solve: how were they going to lock all of these CDs that were being ripped and converted into MP3s and then shared online?

On its release in 1982, the compact disc was sold to the public on average for two and a half times the cost of a vinyl LP or audiocassette and was heralded as “indestructable”

(Sorrel). The durability of the CD was demonstrated on the television show Tomorrow’s

World, where host Judith Hann spread jam on one of these new plastic silver discs and wiped it clean to demonstrate that it would play like new (Sorrel). In the fifteen years that followed, it turned out the CD could be destroyed; both as a technology when disc rot began to appear on the aluminum layer of the CD which housed the music (Svensson) and also as a format that could produce perfect digital copies with or without the disc. Much like the vinyl record, the CD was intended for playback only. Also like vinyl, it was not cheaply 57 reproduced, or at least in its beginnings. When the CD burner was released in 1990, it retailed for $35,000 and did not afford itself to the general public; however it took a short five years for CD-R ripping and burning technologies to retail below a thousand dollars and become a tantalizing prospect to the average consumer (Starret).

The RIAA stated when Napster emerged, “It was as if vandals had broken the locks on all the record stores and were looting merchandise in bulk” (Knopper 120). However, it was not like that at all. When the CD was created, it was done so without an encryption code which meant, there were no locks on the media itself to prevent break-ins. In developing the

CD without building in copy protection, the music recording industry was actually begging for the CD to be copied, and it was only a matter of time before this became an actuality.

The only potentiality for protection it housed was a copyright bit, which held no real defence at all. As Sterne notes, “[t]he copyright bit does not hold any copyright information but simply indicates whether it is permissible to copy the file, according to the people who created the file: set to zero, the audio is copyrighted; set to one, the audio is not” (196-97).

This information served as a sign stating that the door was locked, when the door itself was not even equipped with a locking mechanism. Also, the copyright bit was invisible to the average consumer, so it was like putting the notice up on the back of the door. Since the technology did not come equipped with security, the recording industry needed to build a lock to keep the content from being ripped, or ripped-off, from the CD.

In 2001, an early method of locking the CD was deployed where the manufacturer intentionally added an error to the Table of Contents (TOC). This in turn prevented the computer from reading the music on CD-ROMs/CD burner drives. However, this passive means of copy protection was easily circumvented by covering the outer region on the CD 58 with tape or a smudge from felt tip pen. Shortly after the pen trick was discovered, new drivers for ROM and burner drives were released and which simply corrected the error placed on the CDs by the music industry. Furthermore, these passively protected CDs would not play on all conventional CD players and many of them were returned to the store, and eventually the manufacturer, for a full refund (La Belle 88; Mulligan and Perzanowski 1192-

94).

When passive protection proved ineffectual in ending the ripping and burning of CDs,

Sony/BMG hired two software companies, SunnComm and First4Internet, to develop an active form of Digital Rights Management (DRM). They introduced MediaMax and XCP where the figurative Gordian knot was tied to the CD, but the digital lock was not stored on the physical media itself, but would execute itself on the music listener’s computer system.

These applications limited the user’s ability to access or download the music on the purchased CD in hopes that this initiative would prevent physical copies from being illicitly made or MP3s created to be uploaded online.

In addition to the explicit purpose of protecting copyrights, the software was tracking buying habits of consumers in the background. MediaMax came equipped with ‘phone home’ capabilities which served as a one-way transmission back to Sony/BMG with the information on the listener’s Internet Protocol (IP) address, operating system, internet browser, and the CD loaded into the computer (LaBelle 91-92; Mulligan and Perzanowski

1167). This information could potentially be used by Sony/BMG “to lock users into a particular family of products” (Samuelson and Schulz 65). In No Logo, Naomi Klein labelled this type of corporate behavior as “copyright bullying” (180) where “an airtight protective seal [is formed] around the brand, allowing it to brand us, but prohibiting us from 59 so much as scuffing it” (176). Securing information about specific listeners in specific geographic locations would allow Sony/BMG to tailor and homogenize a market in regards to music listening and, as Klein so rightly puts, “brand us.”

The public also did not know to what extent they were being watched. Other than the record label blocking access to music and having open access to private information, there was another even more invasive issue. XCP was not clean. Mark Russinovich, a computer writer, informed the public through a series of blog posts that XCP contained a rootkit which installed itself on the hard drives of the public who purchased and played the CDs on their desktops or laptops. He had discovered the vulnerability of the Digital Rights Management tool (DRM) while testing a rootkit detection application called RootkitRevealer. Although a rootkit is normally associated with a computer virus, it actually performs more like a computer autoimmune disorder. As Russinovich explains in his post, “Rootkits are cloaking technologies that hide files, Registry keys, and other system objects from diagnostic and security software, and they are usually employed by malware attempting to keep their implementation hidden.” A rootkit breaks down the immunity the computer system and leaves a backdoor for viruses and hackers to enter in by, thus compromising personal information not only to the corporation in which one has already agreed to the terms and conditions of a EULA, but potentially to anyone.

The copy protection functionality of the DRM impeded fair use and could block the user from freely engaging with the work. According to Kerr:

[A] DRM is a virtual surveillance system. The technological components of most full-blown DRMs are linked to a database, which enables the automated collection and exchange of various kinds of information among rights owners and distributors, about the particular people who use their products. This includes users’ identities, their habits, and their particular uses of the digital material subject to copyright. The information collected can be employed in a number of 60

ways that go well beyond ensuring access and use that is authorized by copyright laws. . . . Consequently, and perhaps more importantly, DRM can be used not only to enforce the rights accorded to content owners pursuant to copyright statutes but can also be used to set entirely new ground rules, giving even more rights to property owners in accordance with the rules that they have set for themselves in the terms and conditions of the licensing arrangement accompanying the DRM, usually on a take-it-or-leave-it basis (273).

XCP and MediaMax not only prevented CDs from being copied, but also did not allow the purchased CDs to be played on a computer without first accepting its End User Licensing

Agreement (EULA). Nothing in the EULA or anywhere on the physical CD fully revealed the limitations, security vulnerabilities, or privacy concerns that the installed DRM would impose upon the consumer (Mulligan and Perzanowski 1168). If the EULA was not accepted, XCP would simply eject the CD. MediaMax was somewhat more dubious in its execution. It would install the software before presenting the EULA, and the consumer who declined would still saddled “with all of the security and privacy vulnerabilities but providing no access to the music they purchased” (Mulligan and Perzanowski 1195). These security vulnerabilities would alert not only advocates for fair use, but the defence department of the

United States of America.

The Department of Homeland Security issued the following statement to Sony/BMG,

“It's very important to remember that it's your intellectual property, it's not your computer.

And in the pursuit of protection of intellectual property, it's important not to defeat or undermine the security measures that people need to adopt in these days." (Bridis;

“Homeland Security Warns Against Anti-Piracy”). Homeland security was ultimately concerned about the possibility of opening the doors to US secrets from infected hard drives hijacked and converted into “zombie computers” capable of masking the communications and activities of professional criminal and terrorist organizations (Mulligan and Perzanowski 61

1173). The DRM software was no longer merely a lock to the intellectual property contained on the CD, but it was also a key into the private lives and finances of anyone who had executed the DRM software on their computer and also possibly a threat to national security. Keys, as Kerr observes, “[G]ive us the power to open or close, to turn on or turn off, to grant or deny, to allow or forbid” (261). With the presence of the rootkit, the power of the keyholder was no longer exclusive to the record label or the computer user, but opened the door to hackers, terrorists and criminals.

Despite Sony/BMG executive Thomas Hesse retort, “Most people, I think, don’t even know what a rootkit is, so why should they care about it?” (qtd. in Mulligan and Perzanowski

116) the public shut a door of their own, and loudly. They stopped purchasing Sony/BMG albums. After Russinovich’s announcement of the rootkit in Sony/BMGs DRM, Van Zant’s album Get Right with the Man plummeted from the position of 887 in Amazon music sales on November 2nd, the day consumers started advising the public through the customer reviews that the CD contained a rootkit, to 25,802 by American Thanksgiving just a short three weeks later (Mulligan and Perzanowski 1169). Guitarist Tim Foreman from the band

Switchfoot whose album Nothing is Sound also contained the rootkit quipped, “We were horrified when we first heard about the new copy protection policy that is being implemented by most major labels . . . It is heartbreaking to see our blood, sweat, and tears over the past 2 years blurred by the confusion and frustration surrounding this new technology” (qtd. in

Mulligan and Perzanowski 1170). The blackballing effects hit not only the label themselves, but the artists as well.

Executed correctly, XCP might have been a surveillance dream for the record label, but Sony/BMG tripped up on legalities and disclosure which eventually opened the doors for 62 class action lawsuits. After criticism from the public and the state, Sony/BMG stopped producing CDs with DRM and recalled millions of XCP and MediaMax CDs at great expense and paid out millions of dollars in civil lawsuit settlements (Mulligan and

Perzanowski 1168-69). In the end, the music recording industry abandoned attempts to lock the CD using copy protection software. It remains to this day an open source platform, ready to be tapped, copied and manipulated as the user with the right technologies at hand sees fit.

2.4 Rhetorical Devices as Security Devices

After failing to secure their property with digital locks, the music recording industry tried to use the technique of rhetoric to convince the public that if they were participating in downloading music for free via P2P networks that they were stealing. Although FBI anti- piracy warnings began to appear on the backs of CDs, one of the most popular instances of magically transforming file sharing into theft did not come from the music industry, but the movie industry. In a short fifty second video announcement by the Motion Picture

Association of America (MPAA) played at the beginning of DVDs or mixed in with the previews and ads before the feature presentation at the cinema, file sharing would be presented as a crime. This clip shows a man in a leather coat boosting a car, a man in a suit swiping a purse off a bistro chair, a couple of thugs performing a B&E by passing a big and boxy T.V. set (at least by today’s standards) through an apartment window, a guy shoplifting a DVD from the local video store and a teenage girl downloading creative content onto her computer. Amidst the cuts, and under a score of high speed chase music, the video interjects the following text:

You wouldn't steal a car. You wouldn't steal a handbag. 63

You wouldn't steal a television. You wouldn't steal a movie. Downloading pirated films is stealing. Stealing is against the law. Piracy. It's a crime. (haxorcat)

The clip equates all of these acts; those of actual theft with those of perceived theft. As intellectual property law expert Peter K. Yu states: “The motion picture industry tells people they should not steal movies just as they should not steal cars, but has anybody ever downloaded a car?” (882). As the first chapter in this thesis explores, the discourse of theft follows a negotiation with a physical object whether an apple, a record, or an MP3 player.

Physically and materially, in file sharing nothing is actually taken. The downloaded movie or song is only a digital representation of the work, and the original remains intact on a server somewhere. So, if nothing ever goes missing, is it actually stealing?

Yu further notes: “the advertisement conflated intangible property with tangible property. While linking intellectual property to tangible property has its rhetorical advantages, especially on the Capitol Hill, making well-reasoned arguments for stronger copyright protection and enforcement is not one of them” (891-92). The rhetoric of the

MPAA anti-piracy ad is overtly problematic because copying intellectual property is not the same as stealing tangible, material property and in attempting to criminalize the actions of copying, the MPAA leaves itself open to challenge. For instance, if copying is theft, why were scriveners not jailed for copying books hundreds of years ago? Although this last remark may appear to be a sleight of hand, I am not the first to make one like it. The MPAA video has been mocked numerous times over YouTube. In one version, video-maker Cody

Rapol broadcasts:

[T]hey follow it up with this bullshit banter about how downloading movies is illegal and how it’s stealing. They’re comparing watching a bootleg movie to 64

jacking a car or ripping off an old lady. I just spent twenty dollars on tickets, six dollars on a bucket of popcorn, seven-fifty on two sodas, and five bucks in gas to get there. . . . If I’m gonna spend forty dollars on a film that I might not even like, then I deserve to pass go every once in a while. (“Anti Movie Piracy”)

This parody turns the tables on the MPAA and questions who the criminal really is in this relationship. In Rapol’s satire, the criminal is not the kid at home in front of their computer sharing a zip file containing Tron: Legacy or the Daft Punk soundtrack but rather a movie industry that charges overinflated prices to see its films at the box office. In the documentary

I Need That Record! The Death (Or Possible Survival) of the Independent Record Store, composer and guitarist Glenn Branca echoes Rapol’s sentiment about the music recording industry in stating, “I don’t want to say a whole lot of negative shit but [the music industry is] a bad scene. And I can tell you that in a many cases a lot of the people that are involved in that scene are bad people because the moment you start talking about money, you’re talking about — I mean — to be brutally honest — crime. Criminals, thieves, bastards are attracted to money.” Music industry expert Reebee Garofalo suggests that the music industry may have been saturating the public sphere with the terms ‘piracy’ and ‘theft’ to hide their own less than ethical behaviour for launching minimum advertising price programs (MAPS).

MAPS was a price-fixing scheme where the recording industry paid retailers to keep CDs from being advertising below a minimum price (“I Want My MP3” 98). As Branca notes, criminals are not interested in music or art; only the profit. One needs to ask, are the motives of the file sharer and record shoplifter as dubious and profit-oriented as that of the industry?

Socrates states in Plato’s The Republic, “If the just man is good at keeping money, he is good at stealing it” (qtd in Shteir 14). Who then, if not the industry itself, is interested in making money from music and art? Who then, is most likely to steal it? 65

Another YouTube spoof challenges whether or not piracy can be equated ethically to theft at all by replacing the concept of ‘stealing’ with ‘sharing’. This parody notes “you wouldn’t jail a man for sharing his car?” (freedomfraud). By substituting ‘downloading pirated films is stealing’ with ‘movie downloading “piracy” is sharing,’ negates the impact of the entire anti-piracy campaign. Even if it were possible, a person would be unlikely go to jail for downloading a car as piracy goes largely unnoticed by police. Gantz and Rochester note:

According to statistics kept by the U.S. Department of Justice (DOJ), the federal government gets leads on about 200 criminal cases on intellectual property a year, files 100 cases or so, and gets a guilty plea or verdict about 75 percent of the time. But only a third or so of the perpetrators ever do jail time, and when they do, it’s usually a year or less. . . . [Yet t]here are a million or so cases of shoplifting reported a year, and at least 100,000 arrests. It’s hard to believe only 75 people commit intellectual property crimes. Does anyone in blue take this seriously? (207-208)

Under this logic, a shoplifter is much more likely to go to jail over pinching a fifty cent chocolate bar than a college student is for ripping and sharing a thousand movies or albums.

It is not that downloaders go completely under the radar, but that there is no means of criminally prosecuting file sharers. Criminal cases of piracy include an element of profiteering; not simply downloading for personal use. Criminal laws do not cover personal file sharing and regulating infringement, as we will see later in this chapter, is a matter for the private courts. Therefore, owning an iPod full of free MP3s is not the same as fencing stolen goods. Theft, on the other hand, provides fewer grey areas. It is an illegal and prisonable offence to fence stolen iPods filled with free MP3s (or without MP3s for that matter).

Even the FBI website has the following to say about intellectual property theft:

“Preventing intellectual property theft is a priority of the FBI’s criminal investigative 66 program. We specifically focus on the theft of trade secrets and infringements on products that can impact consumers’ health and safety, such as counterfeit aircraft, car, and electronic parts.”

The FBI makes its position quite clear. Public safety and classified information is their number one priority, not the private interests of a creative industry whose priority is not to keep secrets, but to publicize. Furthermore, where the FBI acknowledges that it is illegal to

‘distribute’ creative works, it does not openly condemn file sharing: “[w]hile the FBI supports and encourages the development of new technologies, we also recognize that technology can be misused for illicit and, in some cases, criminal purposes.” The key term here is ‘in some cases.’ Not all acts of downloading are criminal. As seen in the introduction to this thesis, some artists use file sharing to distribute their music and even personal downloading is permissible in Canada under ‘fair dealing.’ Because of the fuzziness of the law, file sharing is difficult to police because it is not absolutely criminal.

The rhetoric of theft when applied to ‘illegal’ downloading as a crime and the suggestion of an ongoing stalking of the public for their actions is meant to shame the public into doing ‘the right thing’ which — from the estimation of the entertainment industry — is to pay for the content they acquire. Ironically, the industry behind the MPAA announcement was not doing the right thing either. In 2012, Melchior Rietveldt won a lawsuit against the

Dutch music rights organization BRIEN for using his music in the MPAA advertisement without permission or paying royalties. The music was commissioned for an anti-piracy ad to be used at a local film festival however in 2006. However, Rietveldt noticed that it was being used in the MPAA video at the beginning of a Harry Potter DVD. In the outcome of

Rietveldt v. BRIEN, the music rights organization was ordered to pay the outstanding 67 royalties in a sum of €164,974 (Solon). While the rhetoric of theft may have worked earlier on, the public and hypocritical practices of the industry did not make their position feasible, and provided further fodder for parody.

The MPAA also constructs gendered differences in its narrative in terms of private and public discourse. Although the purpose of the ad it to equate the theft and file sharing, the only female ‘criminal’ in the clip is the young girl downloading at her computer in the comfort of her own bedroom. The ‘real’ thieves in the MPAA video are all male and taking risks out in the open. As such, traditional theft is constructed both culturally and historically as a masculinized and dangerous action. Theft — whether shoplifting, pickpocketing, breaking and entering, or grand-theft auto — is an act of taking and taking chances; not one of sharing. It is perpetrated publically and with the intent of not getting caught by the public.

‘Sharing’ with our siblings is something we are taught to do at a very early age within the domestic sphere, whereas ‘taking’ toys away from our siblings is frowned upon. ‘Sharing’ is perceived as civic mindedness and ‘taking’ is not.

In trying to spin music buying as civic mindedness, The Canadian Recording Industry

Association (CRIA) in 2003 reversed the rhetoric of “don’t steal” with their “Keep Music

Coming” campaign to try and encourage youth to purchase their music instead of obtaining it through file sharing sites by slipping leaflets inside CD jewel cases which lead youth to a website. Although stealing music is never mentioned in the campaign, the implication is that if you don’t pay for the music you listen to, it will no longer be produced. In an article in

NOW Magazine, keepmusiccoming.com is described as “Using a mix of hectoring (artists starve while you burn!), hysteria (file-sharing sites can infect your computer with noxious viruses!) and fear-mongering (chat rooms on file-sharing sites are dangerous!), the site 68 hammers away at the point that music costs something and downloading is bad” (Galloway).

Although it never brought up theft, the CRIA position is clear in that music is a commodity and downloading it for nothing is wrong.

But for the music recording industry, it was too late to put the ‘Smile, You’re On

Camera’ signs up. The tactic of equating file sharing to theft came too late in the game and proved ineffective. Telling the public that what they were doing was wrong and letting them know that they were being watched just was not going to work. By this point, the public had been locked out of the content they had rightfully purchased and exposed to security breaches and lawsuits were being brought against the institutions that let them share their passions.

The music and entertainment had failed in their attempt to deter the public from file sharing.

Napster had opened the doors and others followed making downloading free music faster, easier and more convenient than purchasing music legally. Also, as Sterne notes, “More recordings exist and circulate in MP3 format than in all other audio formats combined” (1).

Digital files were becoming the preferred format over physical recordings through the popularization of MP3 players like the iPod. Unlike physical media, they took up virtually no space and were easily accessed and organized. Finally, there was little credibility the messenger. The music and movie industries, by action and by reputation, were not clean as far as their own legal practices were concerned and their indiscretions were made very public by the news media. Ultimately, it was easier to sympathize with a person who is being marginally naughty downloading free MP3s in the front of her own home computer than an industry who has been publically exposed time and time again for being rip-off artists.

2.5 And Justice for All?

When shaming from rhetoric alone did not produce the desired results, the music recording industry went a step further and plotted a takedown of ‘illegal downloaders.’ As file sharing was not really criminal behavior and file sharers would not go to jail for their infractions, the only course of action for the industry to take was to follow Metallica and sue a cross section of the public for copyright infringement. However, these lawsuits would not stop at privileged college students. It would target anyone: children to grandparents alike, and not only the wealthy, but the poor and unemployed as well. From 2003 onward, thousands of lawsuits worth hundreds of thousands of dollars each were filed against illegal downloaders for breach of intellectual property laws in the United States. These lawsuits would for the most part, be settled out of courts for a few thousand dollars and the settlements would later be known publicly as ‘fines’ to be paid for breaking copyright laws.

The music industry would pursue the public as criminals, adopting copyright law as criminal law in punishing transgressions made in the new garden of information. For all intents and purposes, there was new sheriff in town; the Recording Industry Association of America. Up until these lawsuits against file sharers, all of the intellectual property litigation seemed to the public a lot of in-fighting between the industry and itself. File sharing not only opened the doors for accessing free music, but also on policing a public’s activities where listening and procuring music were concerned.

One of the more publicized cases of the original 261 lawsuits filed in 2003 was that of Brianna LaHara, a twelve year old bespectacled female honour roll student who lived in a

New York City Housing authority complex. She was sued for $150,000 for each of the more than a thousand songs she had downloaded (Gantz & Rochester 65). LaHara obtained music 70 through the file sharing site Kazaa for which her mother had paid a $29.99 service charge to use. The case did not go to trial, and mother and daughter settled with the RIAA for $2000 in total — less than two dollars a song and a drastic decrease from the original amount being sued for. As a condition of her settlement, she was asked to make a public apology. LaHara queried, "I thought it was OK to download music because my mom paid a service fee for it.

Out of all people, why did they pick me" (Mongelli)? Her mother also issued the following statement to the public: "We understand now that file sharing the music was illegal. . . . You can be sure Brianna won't be doing it anymore" (Borland, “RIAA Settles with 12-Year-Old

Girl”). The RIAA was not going after criminal pirates, but making an example of those ignorant to the law. The RIAA comments on the file sharing lawsuits on a webpage dedicated to FAQ “For Students Doing Reports”:

The program was designed to educate fans about the law, the consequences of breaking the law, and raise awareness about all the great legal sites in the music marketplace. Like any tough decision, there are trade offs. On balance, the legal marketplace is far better off because of the program. Prior to the lawsuits, only 35 percent of people knew file-sharing was illegal, but after the initiation of the end-user legal campaign, that number quickly rocketed to more than 70 percent. In 2003 and 2004, we saw double digit growth in the numbers of people using peer-to-peer to download music illegally. If awareness of the copyright laws and an appreciation of the consequences of getting caught for breaking the law had not had an effect, p2p growth rates would likely have continued unabated, and would have seriously undermined the potential for a legal digital marketplace.

The RIAA chose a strange way of educating the public. Where one could argue that the

Artists Against Piracy campaign or even the MPAA anti-piracy video could be used for educational purposes, it was problematic to say that the RIAA lawsuits were in the spirit of

‘raising awareness.’ Lawsuits are not crash courses in law and suing the public was far from a nurturing education. Furthermore, although the campaign may have produced some results, it does not mention the expense of getting those results. What cost — economically, publicly 71 and culturally — did the recording industry pay to teach an additional 35% of the population that file sharing was ‘illegal?’ If there was a lesson being taught here, it was not one of lawful obedience but about shame.

In many ways, the music industry was effective in closeting the masses who were file sharing, by censoring the way file sharing was talked about. The Weird Al Yankovic parody

“Don’t Download This Song” was censored by MTV and Yankovic was made to bleep out the names of file sharing sites Morpheus, Grokster, Limewire and Kazaa for the video to air

(Reagan). As Warner states, “Common mythology understands the closet as an individual’s lie about him- or herself. We blame people for being closeted. But the closet is better understood as the culture’s problem, not the individuals” (52). The public had been informed by the music and entertainment industries through the Napster lawsuit and notices that file sharing was theft and by launching lawsuits against only select members of the public, it was also making it an individual’s — or at least that individual’s —problem. The music industry was essentially outing the file sharers, moving them from the publically constructed privacy of the closet and into the public sphere. A culture of outing may have worked with college students using Napster who could rationalize their behavior, but how could LaHara have been closeted? LaHara did not lie. She was twelve years old and did not know that what she was doing was wrong. In her own public testimony she thought the music had been paid for and even her own mother mentioned that she did not understand the legalities behind the lawsuit. Still, the money from the settlement was not the prize. The public apology was necessary to create the shame required to make the loss prevention measure work. “I am sorry for what I have done, I love music and don’t want to hurt the artists that I love,” LaHara said in an RIAA released statement (Teather). She had been 72 forced into the public sphere to tell America what she was doing and how naughty she was being online. LaHara was ordered to come clean about her indiscretions.

Alongside the original lawsuits, the RIAA initiated the Clean Slate Program which promised the file sharer ‘amnesty’ for confessing to their crime. They were invited “to come forward, identify themselves, delete all their downloaded music, and sign an affidavit promising to stop any unauthorized music sharing. In exchange, the RIAA promised not to sue the repentant filesharer” (“RIAA v. The People” 4). As previously observed, downloading music as a private activity was meant for file sharers to be a representation of

Foucault’s understanding of ars erotica where “truth is drawn from pleasure itself” (The

History of Sexuality 57). Although they promised to free, the confessions made under the

Clean Slate Program were no ars erotica. In adopting a rhetoric of theft surrounding file sharing, the punished file sharer experiences a similar shaming to the shoplifter. There is no open and free confession made but all the same power imbalances of Foucault’s confessional society where “Confession frees, but power reduces one to silence” (History of Sexuality 60).

A confessor may have averted punishment from the RIAA, but to so do would have had to trade in the liberties of their online activity. The freedom of confession also depends on who one is confessing to. By confessing to the music industry, confession did not free the confessor, it potentially bound them to punishment. As it turned out, the Clean Slate

Program offered less than it promised and the RIAA did not have the authority to absolve file sharers since the RIAA did not own the copyrights on the music. Although the RIAA may not have pursued lawsuits against the individuals who came out, it did not close the doors on the copyright holders from pursuing cases against the individuals and even “reserved the right to turn over the information it gathered in response to any valid subpoena from a 73 copyright owner” (“RIAA v. The People” 4). In the case of the Clean Slate Program, confession did not exonerate the public but gave the industry a potential list of file sharers to sue.

In December 2008, when Wired Magazine reported the end of the RIAA lawsuit program, they noted that “despite all this time and money spent suing file sharers, the RIAA has never successfully sued a single alleged file sharer whose the (sic) case went to trial”

(Van Buskirk). While as of 2008, all of the lawsuits filed were settled or withdrawn, two lawsuits actually went to trial jury, but only after the lawsuit program had been killed. In

Sony/BMG v. Tenenbaum, Joel Tenenbaum went to trial in July 2009 for downloading and distributing thirty songs for which he violated copyright and the RIAA was initially awarded

$675,000 in damages. In Capitol Records Inc. v. Thomas-Rasset, Jammie Thomas-Rasset went to court in October 2007 lost her suit where the RIAA was awarded $222,000 for the willful infringement and distribution of twenty-four copyrighted works through file sharing service Kazaa. “In September 2008, however, the judge threw out the verdict, citing an erroneous jury instruction that stated that Ms. Thomas could be liable for distribution whether or not anyone ever downloaded any of the 24 songs from her computer” (“RIAA v.

The People” 7). In both of these cases, although eventually the RIAA was awarded restitution, the amounts were greatly reduced. In the Tenenbaum case, it was reduced to

$67,500 on constitutional grounds. In the Thomas-Rasset case, it was reduced to $54,000 in granting a remittitur in a second trial for due process. And again, in both of these cases, the recording industry appealed these reductions: in June 2012 for the Thomas-Rasset suit and in

June 2013 for the Tenenbaum suit. After appellate court, in both of these cases, the RIAA was awarded their original amounts of $675,000 and $222,000 (“Sony/BMG Entertainment 74 et al. v. Tenenbaum”; “Capitol Records Inc. et al. v. Thomas-Rasset”). As appellate circuit

Judge Howard writes in his judgement on the Sony/BMG v. Tenenbaum case:

On appeal, Tenenbaum invites us to assume that he is ‘the most heinous of noncommercial copyright infringers.’ We need not go so far as to accept his offer. The evidence of Tenenbaum's copyright infringement easily justifies the conclusion that his conduct was egregious. Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act. Therefore, we do not hesitate to conclude that an award of $22,500 per song, an amount representing 15% of the maximum award for willful violations and less than the maximum award for non-willful violations, comports with due process.

Most heinous or not, Tenenbaum received the largest fine to date to arise from the industries lawsuits against the file sharing public. In 2008, the RIAA “replace[d] its ‘subpoena, settle or sue’ process” (Van Buskirk) with cutting file sharers off at their Internet Service Provider

(ISP). As far as disciplinary action goes, this is a much more passive and private method of punishment when compared to pushing hundreds of thousands of files sharers through the appellate courts. One has to wonder why, four to five years after backing off the individual lawsuits program, the RIAA kept on these two lawsuits? If these cases were to serve as a warning, it was too late. By now, the alarms had already been silenced years ago and their gibbeting of these two individuals would not ward further pirates since the lawsuit action program had come to an end.

Foucault observes, “We punish, but this is a way of saying we wish to obtain a cure”

(Discipline and Punish 22). In prison, penal reform is introduced in hopes that the convict is

‘cured’ of his or her delinquencies. Yet, Foucault is critical by of the prison by stating it also produces delinquents (Discipline and Punish 268). It is curious then, that if the music industry’s goal was to reform file sharers, it returned to punishment on the scaffold. Through 75 the use of public media and rhetoric around file sharing as theft, the music industry re- instates the scaffold, and with it allows for redemption and glory of the criminal being persecuted. Foucault noted that the punishment of the criminal was “thought to be equal, if not exceed, in savagery to the crime itself” (Discipline and Punish 9) so much so that to hide behind executioner mask to veil itself from public hatred. These court proceedings were seen by the public to also be unjust and ended up criminalizing the music industry.

By the end of the lawsuits, as many as 35,000 US citizens had been indicted by the

RIAA for file sharing (Van Buskirk). But even the music industry was unsure if this was the way to proceed. As one music industry insider remarked:

Everyone felt like it was too bad that it had to happen and we didn’t want it to be our only plan. We didn’t want to be suing, but there weren’t a lot of alternatives. It’s one thing when you’re looking from the outside and saying how stupid this is, but it’s another thing when you’re seeing half your company laid off (Knopper 186).

The RIAA lawsuits did not stop the layoffs and did not stop the losses. It was a desperate measure carried out without the verve of solid plan. Cary Sherman, president of the RIAA in

September 2003 stated, “We knew that the press would find poster children as a result of this program . . . [b]ut you have to choose between your wish to be loved and your wish to survive. The purpose is to get the message out” (qtd. in Knopper 184). The message was out alright, and the press did create victims of children, low income families, and the elderly. As

Yankovic sang in “Don’t Download This Song,” Oh you don't want to mess / With the R I

Double A / They'll sue you if you burn that CD-R / It doesn't matter if you're a grandma / Or a seven year old girl / They'll treat you like the evil, hard-bitten criminal scum you are.”

What Sherman did not realize was that it was not a choice between love and survival but that the industry required love to survive. 76

After failing to be a good mall cop by trying to reduce its losses, the RIAA promoted itself to the real thing; a police force dedicated to taking down offenders. The lawsuits against file sharers were a cultural affront by the music industry. “Although the policing of popular music is usually understood in terms of attempts to censor or otherwise regulate its content, these anti-‘piracy’ actions can be seen as policing of another sort — the attempt to control and regulate the form and use of popular music” (Garofalo, “I Want My MP3” 88).

Rock music culture was meant to push boundaries, break rules and fight censorship. It was not supposed to be about imposing control and regulation. It was not about civil obedience and doing the right thing. If it were, then Pat Boone would have been the King of rock’n’roll instead of Elvis, and Ray Charles would never have secularized gospel music. Furthermore, the music industry had forgotten which side of the law they were supposed to be on. Like

Ice-T — who went from a gangsta rap star whose song about killing cops with his metal side project Body Count created controversy with police groups (Morris 1) to portraying a detective on television show Law and Order: Special Victims Unit — the music industry had become a turncoat. It had left the lawlessness and rebellion rock’n’roll had afforded them for the last half of the twentieth century to police its biggest supporters. These supporters fought back leaving them with potentially a bigger loss economically and loss in terms of public respect. In the end, all security measures failed for the music police, leaving them with to deal with a huge doughnut when it came to sales and public image.

CHAPTER THREE:

IF YOU WANT FREE MUSIC, STEAL VINYL OR GO F**K YOURSELF:

SHOPLIFTING, POPULAR MUSIC AND CULTURAL PRODUCTION

3.1 Trent Reznor and the Field of Cultural Production.

Simon Reynolds responds to the rehashing and revisiting of music in the twenty-first century by stating “Rock (and rock writing) was always energized and focused by being against” (Retromania 7). Reynolds feels that this act of musical recycling is partly due to the influx of digital media, and how digital media shapes the way we produce culture. He further notes, “Once, rock’n’roll was a commentary on adolescent experience; over time, rock itself became the experience, overlapping with it and at times substituting it”

(Retromania 135). In how we engage with new media, we no longer create a reflection of rebellion, but a curation of rebellion. Public acts of rebellion, once experienced as publicly instigated mischief, are in the digital age reduced to leaving a biting comment on a YouTube video or a particularly nasty tweet. File sharing, which has eliminated the need for shoplifting from record stores to obtain free music, has also displaced the attitudes that went along with this petty crime. The initial excitement about file sharing brought about by

Napster has become normalized or even passé with the emergence of music streaming services such as Grooveshark and Soundcloud. Free music is everywhere, and with it comes not a desire to push back, but to consume, organize and archive. With these changes, shoplifting music or musical narratives about shoplifting no longer represent a rock music public, but are adopted in a bric-a-brac fashion or relived only through re-accessing the past.

Where the recording artist is concerned, this also means for some a return to major record labels for distributing their music. In 2007, industrial-rock icon and frontman for

Nine Inch Nails, Trent Reznor, dropped Universal owned Interscope Records to distribute his 78 music independently under his own label, the Null Corporation. In 2013, Reznor abandoned independent distribution to return to a major label deal with Columbia Records for the Nine

Inch Nails album Hesitation Marks. Reznor cites the outsourcing of administrative responsibilities as one of the reasons for this agreement. “Instead of me and Rob Sheridan

[co-founder of the Null Corporation] trying to figure things out, there's an extra 15 people and the sense that someone in France was aware of what we were doing — instead of us hoping we'd remembered that France existed” (Marchese). For Reznor, struggling with the business end left less time for creative pursuits and the Columbia agreement would alleviate some time from his busy schedule to concentrate on the recording and production of music.

While promoting Hesitation Marks to Spin magazine, Reznor comments on the new business models for selling music versus the old:

I know that what we're doing flies in the face of the Kickstarter Amanda-Palmer- Start-a-Revolution thing, which is fine for her, but I'm not super-comfortable with the idea of Ziggy Stardust shaking his cup for scraps. I'm not saying offering things for free or pay-what-you-can is wrong. I'm saying my personal feeling is that my album's not a dime. It's not a buck. I made it as well as I could, and it costs 10 bucks, or go fuck yourself (Marchese).

The above statement made by Reznor has two important elements. The first is where he states that his new album “costs 10 bucks.” By setting a price for the music, it once again enters a commoditized marketplace. In a Marxist sense, his music does not only have a use value which involves listening through streaming or downloading online, but also an exchange value. Marx states, that although exchange value appears at first to be an abstraction of use value — or an accidental or relative quantitative value given to an object

— it is actually tied to its use value through labour:

[T]he labour of the private individual manifests itself as an element of the total labour of society only through the relations which the act of exchange establishes between the products, and, through their mediation, between the producers . . . 79

[Products] do not appear as direct social relations between persons in their work, but rather as material [dinglich] relations between persons and social relations between things (Marx 165-66).

This labour is obfuscated through the commodity, and does not necessarily become apparent to the consumer. Reznor links the commodity back to labour when he states that he ‘made it as well as [he] could” and has estimated that the labour behind the commodity costs ten dollars per unit. Moreover, by stating that there is a fixed monetary value, Reznor sets up the possibility that if you were to take his album without paying for it, whether digitally or physically, you would be picking his pockets.

The second, and perhaps more contentious part of Reznor’s statement is not the economic angle, but the part where he says “or go fuck yourself.” This statement can be further deconstructed. The first part — the ‘or’ — presents the challenge; are you going to pay for the music, or steal it; are you going to support the music industry or weasel off and download it for free somewhere; are you going to ‘do the right thing’ or not. The second part, ‘go fuck yourself’ aligns itself with youth and popular music culture. After all, isn’t

“fucking oneself” or “fucking the system” or “fucking off” brought about by “not giving a fuck” really what rock music is about? Isn’t “fuck” as in “punk as fuck” or “drunk as fuck” or “bored as fuck” not the embodiment of the rock’n’roll ethos?

In one sense, Reznor — though claiming earlier in the Spin article that he is no

“major-label apologist” (Marchese) — aligns himself with Columbia Records who for the past decade and a half have been aggressively confronting the public on their downloading habits. After declaring his position on the issue, he effectively asks his audience ‘which side are you on?’ The side of the major labels who subscribes to the commoditized exchange of cultural goods? Or the side of the post-Napster file sharer who says, ‘Fuck it, I’ll download 80 it instead.’ Yet Reznor is no stranger to ‘free’ or ‘pay-what-you-can’ models for distributing online recorded music. In 2008, Nine Inch Nails gave away their record The Slip to thank fans for purchasing their online and physical release of Ghosts I-IV. Reznor estimates that the band made five times the amount in profits compared to if this release had been distributed by a major label (Knopper 246). Despite this amazing success story, Reznor has also had his share of online distribution hardships. In 2007, Reznor produced and released

Saul Williams’ album The Inevitable Rise and Liberation of Niggy Tardust. Reznor opted this time for a pay-what-you-can method of compensation mimicking the Radiohead model for In Rainbows which allowed people to set their own price for what they thought the album was worth — including nothing. According to Radiohead vocalist Thom Yorke, In

Rainbows garnered more income for the band than all other major released Radiohead album combined (Byrne). However, for Niggy Tardust only 18% of downloaders paid for the album. Reznor said of his marketing experiment: “I thought if you offered the whole record free at reasonable quality — no strings attached — and offered a hassle free way to show support that clearly goes straight to the artists who made it at an unquestionably low price, people would do the right thing" (Harding). ‘Doing the right thing’ in this context means paying for the content you download; even when free is an open option. But since when was

‘doing the right thing’ ever a preoccupation of rock music?

One could argue that the music industry plays an active role in condemning civic mindedness by producing delinquency. Foucault observes that the carceral system produces delinquency even though it was created to control it. “Although it is true that the prison punishes delinquency, delinquency is for the most part produced in and by an incarceration which, ultimately, prison perpetuates in its turn. The prison is merely the natural 81 consequence, no more than a higher degree, of hierarchy laid down step by step. The delinquent is an institutional product” (Discipline and Punish 301). In this sense, the popular music industry has in the past very much behaved like a prison. It too was an institution that not only punishes delinquents but produces delinquents as well (as will be examined in the previous chapter of this thesis with the policing of online music). Traditionally, the popular music industry has relied on the cultural production of rebellion and bad behaviour to sell albums. Shoplifting has been part of that discourse and is celebrated in both the identity of rock culture and in the narration which occurs in its songs and stories.

In another sense, perhaps the public is ‘fucking itself’ by not engaging with a capital exchange of the physical commodity, even if that means bypassing that exchange through shoplifting. If under fair use / dealing, all uploaded recordings are seen as free to access and copy for personal use, how does that influence rock music culture? The music industry has seldom promoted civil obedience except in the policing of the unauthorized copying of its merchandise. It has, however, interwoven the use value of music with an exchange value and a symbolic value to the recorded commodity. Physical theft has been historically constructed to be seen as consuming without capital as it circumvents the capitalist monetary exchange of goods and is to the cultural industry, like most commercial industries, marked as a loss. Yet there is a quid pro quo here. Cult movie director John Waters indicated slyly how a beneficial exchange can be made from shoplifting records. “I had a special jacket for stealing LPs . . . I don’t feel bad because today I have to pay $25,000 to use some of these songs in my films, so it’s all worked out in the end” (Shteir 127). Although, most exchanges do not have such a direct cause and effect outcome, shoplifting is part of the rock music industry’s symbolic capital. For Bourdieu, symbolic capital represents an “economic or 82 political capital that is disavowed, misrecognized and thereby recognized, hence legitimate, a

‘credit’ which, under certain conditions, and always in the long run, guarantees economic profits” (75). The rock music industry has something to gain from the occasional pinched

CD and shoplifted goods act more as a loss leader than a direct loss. Shoplifting feeds the delinquent image of rock music, and the stolen album feeds back into that culture by promoting the sale of more albums, concert tickets and additional merchandise. Naomi

Klein in her book No Logo sees shoplifting in this type of symbolic exchange as a method of branding:

Designers like Stussy, Hilfiger, Polo, DKMY and Nike have refused to crack down on the pirating of their logos for T-shirts and baseball hats in the inner cities and several of them have clearly backed away from serious attempts to curb rampant shoplifting. By now the big brands know that profits from logowear do not just flow from the purchase of the garment but also from people seeing your logo on "the right people" (74).

In fashion, as Klein later states in her chapter on cool hunting, “the right people” is code for black people. In rock culture, ‘the right person’ is anyone who adopts, promotes and propagates the rock’n’roll ethic — and rarely in rock culture do “the right people” do “the right thing.” As this chapter will explore, shoplifting deemed illegal in terms of the law, immoral in religious doctrine, and threatening to capitalist enterprises is adopted by the music industry and used to generate capital by enfolding it into its narratives and identity. Beyond that, the narratives which come in the form of book fiction, movies and song, also shape a rock public in their identity. Regardless of any actual differences in ideology or agenda, the popular music industry and their public were unified when it came to their consumption of delinquency and rebellion as a commodity. 83

However, file sharing has behaved quite differently in terms of cultural production. It has launched a culture of retention, and halted production. The result is that few new narratives of rebellion have been introduced about file sharing culture.

Instead of creating a rhetoric of theft surrounding the illicit downloading of music and policing the economic losses of its existing catalogue, they should have focused on how to harness this new wave of ‘bad behavior’ that was rampant online and make it palatable to a mass public. To stay relevant, the recording industry should have been saying what it had always been saying — “go fuck yourself” — and not placating some dedication to capitalist sentimentality by shouting at the top of their lungs, “hey, it costs ten bucks.”

3.2 Sex. Drugs. Shoplifting. Rock’n’Roll.

Simon Reynolds cites novelist J.G. Ballard in Retromania. “Everything happened during the Sixties. . . . There is no point in writing about the future — the future’s here”

(411). Reynolds, and Ballard for that matter, understand the Sixties as a significant period in history for rock music and also observes that the decade which “set the bar impossibly high” (Reynolds, Retromania 411) for all popular culture that would proceed. The 60s also personified that spirit of being “against” which Reynolds explores. As Marshall Berman, editor for Dissent, notes, “The clichés that our mass media used to describe [the 60s]—‘the counterculture,’ ‘sex, drugs, rock-and-roll,’ ‘the greening of America’ — for once conveyed something real” (5). The 60s certainly embodied the phrase “sex, drugs, rock’n’roll,” however it is surprising that the mantra does not include a reference to petty crime.

Rock’n’roll rebellion, arguably up until file sharing, included vandalism, joyriding, graffiti, public nudity, disorderly conduct and shoplifting as well as sex and drugs. In 1971, the New 84

York Times published an article entitled “Ripping Off: The New Lifestyle” about Steal This

Book author Abbie Hoffman:

Ripping off — stealing to the uninitiated — is rapidly become as much a part of the counterculture as drugs and rock music.... [H]undreds of young people live solely off goods they are able to liberate from private enterprise and funds they manage to extract from the Government. Thousands more supplement conventional income with frequent forays, as often for the sheer joy of bilking hated institutions as for the plunder itself. (Drosnin SM13).

Shoplifting was a way to get something for nothing, but also like sex, drugs and rock music, challenged capitalism and public authority.

1960s countercultural figure Jerry Rubin states, in the chapter ““Money Is Shit—

Burning Money, Looting and Shoplifting Can Get You High” of his manifesto Do It!

Scenarios of the Revolution, “Money is violence. Money is not so dramatic a killer as napalm, but Amerika kills far more people with her dollar than she does with her bombs”

(123). At the turn of the millennium, this sentiment is echoed in the anarchist manuscript

Days of War, Nights of Love: Crimethink for Beginners containing an article called “Why I

Love Shoplifting from Big Corporations” by Um Anonymous:

When I pay for something, I’m making a trade; I’m offering the money that I bought with my labour, my time, and my creativity for a product or service that the corporation wouldn’t share with me under any circumstances. In a sense, we have a relationship based on violence: we negotiate an exchange not according to our respect or concern for each other, but according to the forces that we can bring to bear on each other. . . . Everything changes when I shoplift. I’m no longer negotiating with faceless, inhuman entities that have no concern for my welfare; instead, I’m taking what I need without giving anything up (236).

Shoplifting is not committed solely as an act of social justice and protest, but out of self- preservation and self-respect. The ‘violence’ the authors speak of is hidden and based on a lack of concern for human welfare when setting exchange value to commodities. No longer is time spent on meaningless labour which provides an individual with a method of payment 85 for meaningless and essential commodities. Instead, these objects are liberated from a corporate entity which professes to care but is really narcissistic. By removing money from the equation when it comes to a commodity exchange, both the anarchist movement and 60s counterculture expose the link not between the money and the commodity which is made explicit by capitalists, but between money and the individual and his/her labour.

Simon Frith observes in his 1978 article “Youth and Music” the following about the hippie movement , “a contempt for commerce and commercial leisure is essential to their mode of rebellion and differentiates it sharply from the mainstream youth use of music, whatever deviant styles the latter may adopt” (20). In rock culture, authenticity relies not only on the cultural product itself, but the actions which surround that product. “Ripping off”, whether in the literal sense of theft or symbolically in the sense of adapting and remolding the commodities of a mass culture to fuel a counterculture, is what lends credence to the authenticity of youth rebellion. Simon Frith further states in his essay “Youth and

Music”:

[The] contrast, between music as the focus of leisure and music as the accompaniment of leisure, can be made equally by looking at another kind of leisure ‘deviant’ — people who are deviant not in the way they value music, but in the way they consume it. . . .[T]here are the people who share their peers tastes but take them to extremes, for whom membership of a commercially provided fan club is not enough, but whose life revolves around their idol to the extent of imitation (20).

What Frith refers to here is an imitation of style — the example Frith gives is dying one’s hair to mimic David Bowie — but it can also be understood as an imitation of action. There is an irony built in here. If rock culture embraces shoplifting as part of its identity, then those who subscribe to that culture would also prove their membership by mimicking that behaviour. Shoplifting, like sex and drugs, is a type of initiation into rock culture and 86 membership is granted through an imitation of action. As mentioned previously, shoplifting as identity offers a form of symbolic capital which creates a great irony. Although counterculture may give the finger to capitalism with one hand, it pledges allegiance to it with the other.

Theft, by its nature of address and circulation, meets the conditions of a public discourse: “Public discourse, in the nature of its address, abandons the security of its positive, given audience. It promises to address anybody. It commits itself in principle to the possible participation of any stranger. It therefore puts at risk the concrete world that is its given condition of possibility. This is its fruitful perversity.” (Warner 113). By stealing from commercial enterprises, Hoffman’s idea of shoplifting or ‘ripping off’ is intended to be more than a sidestepping of monetary exchange, but a means of protest against the capitalist regime. However, theft addresses a larger public than its intended audience of capitalists. As seen in the Klein example of cool hunting, it becomes coopted through the publishing of countercultural literature and the marketing of countercultural ideology. It thus provides the cultural industry with an image to shape their products. By following this cycle of cultural production, the instigators of theft end up as targeted as the commercial enterprises they rip- off.

Besides, these counter-cultures are not as antiestablishment as they seem. Although they dismiss public law surrounding theft, they create their own rules and guidelines around shoplifting. The common rule through all of these youth subcultures is that they do not steal from each other. Hoffman notes in Steal this Book, “Our moral dictionary says no heisting from each other. To steal from a brother or sister is evil. To not steal from the institutions that are the pillars of the Pig Empire is equally immoral” (xxii). And while Anonymous is 87 not so overt on this matter, s/he does target “big corporations” and not ‘other anarchists’ or

‘the poor’ in her title. Adam Weissman, eco-activist and freeganist, proposes an even longer list of considerations:

Food was okay, even organic food. Fur coats and iPods were not okay, because they were luxury products. “Fur coats should be burned,” . . . Reselling shoplifted merchandise was not okay. “We don’t want anyone to make a profit.” . . . he added that shoplifting from thrift stores was not okay unless the owners exploited their salespeople or mislabelled the store “vintage.” Coca-Cola, coffee, and chocolate could be shoplifted anytime because the companies manufacturing them exploit their workers.” (Shteir 66)

The laws set up by the hippie, anarchist and freegan movements are put in place to form solidarity between members of these subcultures. But in publicising this credo, they also present the music industry with a branding idea that they could and would adopt to shape a fan-base for their commoditized images and sounds of rebellion.

After all, the ‘revolution’ began not with the action against capitalist practices, but with the mass commodity itself. Do It! cites rock’n’roll as the beginning of the 1960s counterculture movement: “Affluent culture, by producing a car and car radio for every middle-class home, gave Elvis a base for recruiting” (19). In other words, hippies were using the tools of ‘the man’ — mass commodities produced by capitalist enterprise and meant for consumption by the masses — to enable the creation its counterculture. Yet, it also gave new products to a capitalist enterprise to adopt, market and distribute to that counterculture’s constituents. Rubin continues, “Desperate parents used permission to drive the car as a power play in the home: ‘If you don’t obey, you can’t have the car Saturday night.’ / It was a cruel weapon, attacking our gonads and our means of getting together. / The back seat became the first battleground in the war between generations” (19). Rubin sets up an us 88

(youth) versus them (the parents) model, but the rebellion can only be unlocked if parental control is released through the loan for the car keys, or if someone steals the car.

Youth is short-lived and youth-fuelled revolution ends quickly. As Warner observes about publics, “A public can only act in the temporality of the circulation that gives it existence” (96). As it turns out, this is also true of counterpublic. The public address of a counterpublic is also a for-a-limited-time-offer. Eventually, machine of cultural production picks up on these nuances and repackages them so they are safe for mass public consumption. Klein notes that Generation X’s stand against patriarchal practices is absorbed by a marketing culture and sold back to them as cultural goods:

The backlash that identity politics inspired did a pretty good job of masking for us the fact that many of our demands for better representation were quickly accommodated by marketers, media makers and pop-culture producers alike — though perhaps not for the reasons we had hoped. . . . Once we’d embarked on a search for new wells of cutting-edge imagery, our insistence on extreme sexual and racial identities made for great brand-content and niche-marketing strategies. If diversity is what we wanted . . . then diversity was exactly what we would get. And with that, the marketers and media makers swooped down, airbrushes in hand, to touch up the colors and images of our culture (110-111).

For youth in the 1990s, this meant an influx of multicultural advertising in the form of United

Colours of Benetton ads and “Taste the Rainbow” Skittle campaigns. For subcultures against capitalism, it meant a counterculture marketplace where not only their style was appropriated and made into commoditized fashions, but their philosophies were usurped and made into t- shirt slogans.

In the end shoplifting as protest did not denounce capitalism, but reaffirmed it.

Hoffman said of the success of Steal This Book in 1971, "It’s embarrassing, you try to overthrow the government and you wind up on a best sellers list” (“The Sixties: The Years

That Shaped a Generation”). Jerry Rubin moved from an anti-capitalist to embrace 89 capitalism and become a multimillionaire and was also one of the first investors in the Apple computer which eventually enabled a global public to circulate MP3s (Kurtagic). The

Crimethinc: Ex-Worker’s Collective website who published Days of Love, Nights of War, despite its propaganda on anti-capitalism and anarchy, has an online store where you can purchase books as well as merchandise though a mail order service. It is only a matter of time until local markets pop up inviting the public to “Buy Freegan.”

3.3 Stories: We Stole.

Sarah Polley’s film Stories We Tell communicates the story of her mother’s affair with producer Harry Gulkin and her family’s memory of the events surrounding the affair.

The documentary is not illuminating for the story it tells about their lives, but in its examination on how we construct stories and what is the truth within these stories. At one point in the film, Polley reads the following segment of a letter she wrote to Harry about why she wished to document their story:

I am interested in the way we tell stories about our lives; about the fact that truth about the past is often ephemeral and difficult to pin down. And many of our stories when we don’t take proper time to do research about our past, which is almost always the case, end up with shifts and fictions in them, mostly unintended.

It is not the factual memory of the events themselves that are important in the storytelling of her mother’s relationships with family and lovers, but how these stories come to represent how we understand her identity. Similarly, there is no one singular truth as to what shoplifting means to rock culture, despite being documented in its songs, novels and films.

However, it is possible to reconstruct an experience of shoplifting from these fictions and truths we tell about shoplifting. 90

In a role-reversal, the Smith’s frontman Morrissey while interviewing playwright

Shaun Duggan in 1987 was questioned about their latest single “Shoplifters of the World

Unite.” Although Morrissey confessed, “I’m ashamed to say that I haven’t [shoplifted],” he remarked about the lyrics of the song, “I don’t mean literally picking up a loaf of bread or a watch and sticking it in your coat pocket, it’s more or less spiritual shoplifting and cultural shoplifting and taking things and using them to your own advantage” (ThePrivilegeIsMine).

The concept of cultural or spiritual shoplifting works well in terms of popular music culture.

Although actual acts of shoplifting are limited in their efficacy in terms of youth protest, they find poignancy in storytelling and present rebellion through narrative. Simon Frith observes in his essay on “Music and Identity”:

[T]he issue is not how a particular piece of music or a performance reflects the people, but how it produces them, how it creates and constructs an experience . . . Music, like identity, is both performance and story, describes the social in the individual and the individual in the social, the mind in the body and the body in the mind; identity, like music, is a matter of both ethics and aesthetics (294).

The same can be said for shoplifting. Shoplifting too is a performance and a story. It is not necessarily the act of shoplifting which is so appealing, but how the concept of ‘shoplifter’ embodies itself on a discourse of rock rebellion and weaves its way into the cultural production of its wares. These products in turn are adopted by a popular music public and in part constructs their identity. In other words, it is how we understand shoplifting as a mode of rebellion against the backdrop of capitalism and perceived normality that is significant, and how shoplifting in turn comes to influence a mass music culture in their stories, style and performance.

In rock culture, heroes are born out of shoplifting. At the end of Empire Records, shoplifter ‘Warren Beatty’ is given a job at the record store after holding it up with a gun. He 91 asks rhetorically “Why should anyone give me a job?” The answer is obvious. A rock public consists of risk-takers who are not afraid to push the limits of what they believe in; even if it means sticking up a record store with a gun, or in the case of night manager Lucas, stealing and gambling away a day’s worth of sales at a roulette table in hopes of generating enough money to save Empire Records from being taken over by heartless music store chain

Music Town. After the Empire Records’ staff talks him down, the police come to take

Warren away for his attempted robbery. Lucas, who up until this point in the film has been heckling Warren, shows his allegiance by stating, “Don’t let the man get you down.”

Warren, as it turns out, has a lot in common with the misfits who work at the indie record store. In Empire Records it is not Warren’s misplaced violence that is a threat to the staff at

Empire Records and to rock culture, but the conformity and capitalist culture that Music

Town plans to bring in with their takeover.

Similarly, in the film High Fidelity, Rob Gordon played by John Cusack offers Vince and Justin, those “two little skatefuckers” who shoplift from his store, a record deal after listening to a demo of their band The Kinky Wizards. Barry (Jack Black) is an employee at

Rob’s Championship Vinyl and gets upset upon learning that Rob is going to start a label with the two juvenile delinquents instead of signing his band, Sonic Death Monkey. Barry says, “Well it just seems that you think it would be wiser to start a record label by putting out a record with business crippling Nazi youth shoplifters than with someone you know in your bitter, jealous heart is a musical visionary.” Musical skill is unimportant. The shoplifters in the store close the record deal not because they are ‘good’ (as in they play well, which the entire staff of Championship Vinyl admits that they do), but because they behave badly. In 92 terms of a narrative based on rebellious youth, Vince and Justin find success not in spite of their shoplifting habits, but because of them.

However, in Nick Hornby’s UK novel High Fidelity on which the movie is based, the shoplifting superstars do not exist. Hornsby only mentions shoplifting once in his book after the protagonist Rob Fleming (his name in the novel) gets dumped by college girlfriend

Charlie. He recalls doing “a spot of shoplifting, the precise motivation for which escapes me now” amongst a list of other nihilistic responses to the breakup including overdosing on

Valium, writing endless love letters and scripting plots where the relationship works out (23-

24). At the pinnacle of his depression, he recalls getting a job at a record store. Much time has passed, and it is no wonder he cannot remember why shoplifting did not allow for an outlet of escape. The main character Rob in his present state becomes paralyzed in his hobbies of making mixed tapes and top 5 lists, in his role as disgruntled owner of a record store, and in the recent breakup with his long-time girlfriend, Laura. Shoplifting is a preoccupation of the young and the exuberant, not for the adult he has become.

Off the silver screen, shoplifting is a rite of passage shared by many rock musicians, and has become part of their stories and identity. Guns N’ Roses’ guitarist Slash was once photographed at Tower Records begging his folks to buy music for him. A couple years later, he was arrested at the same store for stealing cassette tapes (Knopper 213). Similarly

Mike Squires, the guitarist for Guns N’ Roses’ ex-bassist Duff McKagan’s band Loaded, was asked about his first record purchase in Record Store Day: The Documentary. He responded, “Although I did ‘appropriate’ some 8-tracks from my Uncle Chris . . . he had all kinds of killer 8-tracks Foghat, AC/DC, Thin Lizzy and KISS, of course, but the first record I ever bought was KISS Destroyer.” Slash moved from parental support of his music buying 93 habits to shoplifting and Squires pilfered music from his uncle before he ever bought his first album. Guitarist Steve Jones, from the Sex Pistols, went beyond swiping recorded performances and stole music equipment from rock performers to record and perform with.

Jones stole two guitars from Rod Stewart’s home and a PA system and microphones from the

Hammersmith Odeon entertainment venue the night before David Bowie was scheduled to play (Segal). No one should be surprised that these three guitarists stole music or musical equipment in their youth. In fact, these stories coincide with the bad-boy public image these two lead guitarists have constructed for themselves or had constructed for them.

Sometimes shoplifting enters the field of cultural production not as a narrative, but as a stylistic choice. However, shoplifting as a style can also produce its own stories. In 2001,

Winona Ryder was arrested and tried for boosting $6000 worth of designer clothing from the

New York high-end retailer Saks Fifth Avenue (Shteir 143). The publicity garnered from the shoplifting case against Ryder would also prove beneficial for Saks, the ‘victim’ of the theft. Mark Geragos, Ryder’s defence attorney would note that “for Saks to cast itself as victim was to make a mockery of real victims” (Shteir 152). During the court proceedings, a fashion company named Y-Que produced a t-shirt with a caricature of Ryder on it and the slogan “Free Winona.” In a 2002 article in Blender, up and coming star Avril Lavigne would don the “Free Winona” t-shirt. This fashion choice was used to separate her from the Britney

Spears / Christina Aguilera mainstream of the time. “Not a pop star . . . A Rock star”

(Duerden) Lavigne would articulate. Lavigne’s bratty image would work for her, and her album Let Go! would make her an international star.

Shoplifting as an expression of youth rebellion finds its way into the lyrics of rock, punk, alternative, hip hop and metal songs. Mott the Hoople’s glam hit “All The Young 94

Dudes” makes mention of “Wendy’s stealing clothes from Mark’s and Sparks.”2 Lead singer, Ian Hunter, recalls that when the band moved to Columbia Records, “the lawyers heard the line 'Stealing clothes from Marks and Sparks,' they freaked" (Black). The band was made to rerecord the verse replacing ‘Marks and Sparks’ with ‘unparked cars.’ It turned out that the change was necessary for it to be heard on the radio, not because of any ethical or moral quandary with theft, but because BBC Radio One, the UKs only pop station at the time, would refuse to play the song if it considered it to be an advertisement for the store

(Black).

70/80s post-punk outfit The Slits transformed petty theft from a passing fashion in a glam hit to political protest in their song “Shoplifting.” The song embraces the anti-capitalist spirit of Hoffman, Rubin and Anonymous when lead vocalist Ari Up sings, “Ten quid for the lot / We pay fuck all / Babylonian won't lose much / And we'll have dinner tonight.” On their 1979 debut album Cut, “Shoplifting” ironically follows “Spend, Spend, Spend”; a track about shopping addiction. Reynolds notes of the two songs back to back that, “The first song’s woman-as-consumerist dupe is transformed in the second’s petty-thief-as-feminist rebel.” (Rip it Up 45). In following up “Spend, Spend, Spend” with “Shoplifting,” the Slits, like Um Anonymous, are making a statement that they will only steal what they have been already conditioned to buy.

On the surface, the 1990 song “Been Caught Stealing” may seem to echo the sentiment of “Shoplifting” in its encouragement to participate in theft. Where the Slits chant

“Do a runner!”, Jane’s Addiction eggs on with “And we did it just like that. / When we want something and we don't want to pay for it. / We walk right through the door. / Walk right

2 ‘Marks and Sparks’ is a colloquialism for the UK department store chain Marks and Spencer. 95 through the door. / Hey, all right! If I get by, it's mine. / Mine all mine.” But if the Slits song is a protest against capitalism, “Been Caught Stealing” is no such thing. In “Shoplifting,” food gets stolen from the store (they mention Cheddar) so they can eat. In “Been Caught

Stealing,” the take is clothes (a skirt) and grooming accessories (a razor). The narrator in the song also does not steal under the pretense of feeding oneself but freely admits to ‘enjoy[ing] stealing’ despite being caught when he was five. His girlfriend is a thief too and steals with him. And after a successful day of looting, the couple sit around the pile, laugh and wave triumphantly their freshly procured possessions in the air. Where the Slits present an Us vs. the Babylonians scenario, Jane’s Addiction song embraces Babylonianism in the worship of stolen goods or the joy of stealing in itself.

Jane’s Addiction has also linked shoplifting and pleasure also to romance. In live audience exchange preceding a demo version of “Been Caught Stealing” on Kettle Whistle, lead vocalist Perry Farrell rants:

You guys like stealing? How ‘bout stealing another man’s girl, do you like that? You like that, hunh? That’s fair to you, hunh? How ‘bout a good friend; would you steal a good friend’s girl? You would hunh, wouldn’t ya? Don’t fuck me! Don’t blame ‘cause you got no honour in your life. Don’t blame me because you have no chivalry in your soul. How insecure are you, pal? Do you need to steal your friend’s woman or can’t you get one for yourself?

The rhetoric of ‘stealing one’s girls’ or ‘stealing one’s man’ is part of a long-standing discourse of popular music. For the romanticized kleptomaniac, love is simply another object to pocket. Just as the outlaw is romanticized in song through the shoplifting narrative, shoplifting can be used as a device to invite romance. In the 1994 Barenaked Ladies song

“Jane”, the muse Jane St. Clair is a salesgirl whose “smile dazzled” while the narrator shops or shoplifts at the store, depending on the verse. Shoplifting is not the main reason the narrator enters the store, but merely an excuse to peek in his real object of one’s desire. 96

Sometimes romance and shoplifting is not found in the flesh but in the pages of a dirty magazine. Ian Dury and the Blockheads, in their 1977 song “Razzle in my Pocket (A

True Story)” sing about getting caught shoplifting pornography from a “shopping arcade.”

After already copping one nudie mag, the narrator goes in to have a second go at it. “Instead of being sneaky I strolled inside / I put my thieving hand on something rude / I walked right out with a silhouette of nudes / 'Hold on sonny' said a voice at my side / 'I think you've taken one of my books' / Passersby gave me dirty looks / 'Not me mister' I bravely lied.” This negotiation between the shoplifter and the merchant is what shapes the narrative for this song. The story continues with the shopkeeper threatening the shoplifter with a trip “Round to the station” to “tell the cops.” The shopkeeper tells him, “Crime doesn't pay, you've got honest eyes / If we go to the law another thief is born.” This marks the turning point and the shoplifter gives back the second magazine he stole and promises never to do it again and the shopkeeper lets him go. But the shoplifter does not leave empty handed, he still has the initial magazine he stole as “second prize.” This song’s experience finds obsolescence to a file sharing generation. Much like the glut of free online music, pornography is abundant as well. As Wang mentions in his Steal This File Sharing Book, “Today, pornography is so pervasive on the Internet that most people don't want to steal it as much as they want to get rid of it” (171).

Shoplifting narratives are not always about the objects of desire whether of a sexual or material nature. Sometimes they are about the authority that stealing bestows on the thief.

Coolio raps in “Sticky Fingers” “I never had a grip, so I learn how to shoplift / My trenchcoat is long and now I got some fresh shit . . . They follow me round the store because they know that I'm a booster / Tell me what you want and I'll be the stealer / Call me Coolio, or call me 97

Sticky Fingers.” Coolio establishes his credibility as hardcore rapper through his noted shoplifting habits and, by being the go-to man for getting the goods, he “Gets much props and respect from the hood.” Unlike other hip-hop artists, Coolio’s lyrics are not a glorification of gang culture, but refer to a past life of crime noting “Before I was a rap singer, they called me Sticky Fingers.“ Allmusic reviewer Jason Lymangrover notes that

Coolio’s 1994 debut album It Takes A Thief — on which the track “Sticky Fingers” appears

— that although the lyrics are about either:

gang-banging and robbing in the ghettos while trying to make ends meet, or about hard times as a crack addict on the streets . . . the content of the album is pretty similar to Marvin Gaye's What's Going On, if you can believe that, with Coolio wondering why society is so messed up and trying to find a way to make ends meet. . . . [H]is lyrics are justifications and apologies for living the thug life in an era when most popular rappers glorified the hardcore lifestyle. (Lymangrover)

Shoplifting for Coolio — although a minor misdemeanor compared to pimping, drug dealing and murder — becomes an expression of his gang life and much like Charley

Bates in Oliver Twist, something he wants to disassociate himself from. Also like

Bates, he atones for his past crimes by gardening, although not literally. Coolio plants his roots in the creative industry and shares his experiences with gang culture to a mass public.

However, not all references to shoplifting or theft in hip-hop are meant to authenticate, glorify or reflect on gang culture. Rolling Stone reviewer David Handleman notes, “[The Beastie Boys’] Paul's Boutique is littered with bullshit tough-guy bravado, but it's clever and hilarious bullshit.” The song “High Plains Drifter” from their 1988 Paul’s

Boutique, makes two references to shoplifting. One reference, “I'm a kleptomaniac K-mart shoplifter / Cash flow gettin' low so I had to pull a job /Found a nice place to visit but a better 98 place to rob” follows the narrative of the modern day outlaw who holds up stores, speeds and boozes, and spends the extra five bucks to get the porno flicks when he sleeps at the Motel 6.

The second reference is a bit craftier: “'Cause I'm the high plains drifter the best that you can get / A strapped shoplifter a pirate on cassette.” This line possibly refers back to the rap culture technique of music sampling where a hook is lifted from another song and rapped over. In May 2012, a day before the death of Beastie Boy member Adam Yauch,

TufAmerica launched a lawsuit against the Beastie Boys for infringing on the copyrights of

Trouble Funk songs “Say What” and “Let’s Get Small” on Paul’s Boutique (Grow). The

Beastie Boys also recently have found themselves on the other side of the legal fence in filing and winning lawsuits against toy company GoldieBlox and Monster Energy Drink for unauthorized use of their music in advertising (Blistein). Yet whether playing cop or robber, by managing to weave the thematic elements of theft into their brat-boy public image whether ‘shoplifting’ from other recording artists or fantasizing of stealing from a department store, the Beastie Boys foreshadow the narrative of their career.

Metallica, who filed lawsuits against Napster, also reference shoplifting in their song

“Where the Wild Things Are” on ReLoad: “Steal dreams and give to you / Shoplift a thought or two / All you children touch the sun / Burn fingers one by one by one.” Although these lyrics may seem a warning to the public who were downloading Metallica tracks instead of buying the album, the song was released in 1997 two years before Napster went online.

According to Spin, the song is inspired by the Maurice Sendak children’s book with the same name and “uses Sendak's story as a springboard for more bedtime boogeymen” (“Five

Ways”). The protagonist in the Sendak tale, Max, also embodies rock’n’roll rebellion. Max, the boy who “wore his wolf suit and made mischief of one kind” (Sendak) rebelled against 99 his mother and was sent to his room. From there, he escaped into the night to the fantastical place of where the wild things are. After being named King of the Wild Things and instigating a party with the line “Let the wild rumpus start” (Sendak), Max grows weary of being wild and wants to be somewhere he is loved so he says goodbye to his new friends.

Max returns to his room to find his supper waiting for him “and it was still hot” (Sendak).

Yet the Metallica song is not the Sendak fantasy. Where Sendak’s tale tells of the prodigal son’s rebellion and return home, Metallica’s seven minute track is a nightmarish call to battle and endless rebellion which struggles to find resolve.

In the past decade, there have been few narratives about shoplifting in American popular music, and while it is tempting to pin this exclusively on file sharing, the reason narratives surrounding shoplifting as rebellion ended at around this time was also due to the events surrounding the destruction of the World Trade Centre on September 11, 2001. Erika

Doss, in her research on American memorials, notes that in remembering certain events we also erase others. Certain events, are deemed more memorable than others, and “who counts in the national imaginary is largely determined by presentist understandings of their national historical significance” (96). The war between the record labels and the public was trumped by the war on terror and instead of policing the theft of intellectual property, another form of policing took over in terms of censorship. Clear Channel Communications, the broadcasting company which owns the largest number of radio stations in the US, issued a list of suggested songs not to be played on the radio (Garofalo, “Pop Goes to War” 13). “If popular music had previously been associated with rebellion, defiance, protest, opposition, and resistance, it would now be used in the service of mourning, healing, patriotism, and nation building” (Garofalo, “Pop Goes to War” 4). After 9/11, Metallica’s “Search and Destroy” 100 and Carol King’s “I Feel the Earth Move” would be pulled from the air as to not offend the masses. They would be replaced with John Lennon’s “Imagine” and Bob Marley’s “One

Love” which reflected the national sentiment of the time (Garofalo, “Pop Goes to War” 15-

16).

One of the few songs released about petty theft post 9-11 is ‘Shoplifter’, an outtake from Green Day’s 2004 punk-rock opera American Idiot, but it hardly embraces the punk ethic of the past. Green Day’s song does not revel in shoplifting as the Slits, the Smiths, or

Jane’s Addiction did before, but denounces it. “Shoplifter, you'll never learn / What lies behind your back / Not a burglar or a bank robber / just a kleptomaniac.” Shoplifting which used to embody youth rebellion in rock culture, after the attack on America, may take on a type of sickness. Dr. Will Cupchik asserts in “Stress, Feeling of Unfairness Encourage

Shoplifting” that trauma, stress and financial pressures surrounding the September 11, 2001 attack on the World Trade Centre would spark a spike in shoplifting in the US stating,

“[w]hen some people are highly stressed they may be inclined to steal, whereas under more normal circumstances, they would not.” Under trauma, America enters a period of erasure or forgetting under George Bush’s conservative government; a period where there is no room for anti-capitalist sentimentality or rebellion against the American way of life. Shoplifting, in a post-9/11 world is no longer an appropriate means of rebellion for America who stand not in opposition to capitalism, but in solidarity to it.

3.4 A Copy of A

In 1903, the silent film The Great Train Robbery was released. Since then there have been a myriad of films just on robbing trains alone, let alone other forms of theft. Yet it is unlikely there will ever be produced a fictional film called The Great MP3 Download 101 because, file sharing makes for a lousy narrative. Even though file sharing is sometimes referred to as theft, the rhetoric of theft in file sharing is used as a weapon against it instead of a reflection of rebellion. A culture of sharing does not compete with a culture of stealing in terms of denouement, symbolism or conflict. There is no climax or resolve in file sharing as the online digital exchange of music is constantly under a legal negotiation and a dispute over contractual terms. When compared to the shoplifting narrative, intellectual property law makes for boring stories.

The shift in American ideology after September 11, 2001 has also tamed how the public perceives file sharing. Napster, which was shut down just before the attack on New

York, perhaps remains the only story that remotely embodies the rock’n’roll ethic of rebelling against authority; but it does so in losing the fight. Had they won their legal battles and become a legitimate file sharing service, they would have moved from being an underdog to being a kingpin, and with that would have lost their nonconformist image.

Napster, once hip, might have enmeshed itself with the conventional music recording industry and eventually be seen to the public not as one of ‘us’ but one of ‘them.’ After 9/11 and after Napster, file sharers were still not paying for their music, but this was done privately in one’s own home and with a notable few exceptions, never come out publicly. In the end, little public discourse ever rose out of file sharing, yet the news media continues to circulate articles about theft which fuel new narratives.

Whether because of post-9/11 or post-Napster sentiment, the rock music industry did not embrace a narrative of theft in popular music. File sharing and MP3 are not linked to the rebellion of rock culture, but more in line with its antithesis, nerd culture. Kevin Kelly, editor and journalist for Wired noted: 102

[T]he way to settle the question of how the mind works is to build a working mind. Scientists would measure and test a mind; artists would contemplate and abstract it. Nerds would manufacture one. Creation, rather than creativity, is the preferred mode of action. . . . In the emerging nerd culture a question is framed so that the answer will usually be a new technology. (Kelly).

Technology, not storytelling, becomes the new discourse. Public debate is not over how the lyrics or music present themselves, but over how many MP3s can be jammed onto a two terabyte hard drive. As such, any songs that have been written about downloading have been more in the line of parody and linked to nerd culture.

Kingston, Ontario’s The Arrogant Worms sing “We rarely get a date or get talked to by a girl / Unless they're having trouble with their algebra homework / We're emotionally bereft and we're sexually frustrated / But we can download photographs of Agent

Scully naked” (“Great to be a Nerd”). Similarly, Weird Al Yankovic sings in a live bootlegged parody of the Beatles “Free as a Bird”: “I love my new PC / It means the world to me / So many things to download / Gee, I'm a nerd / All the jocks and muscle heads flip me the bird / ‘Cause I'm a nerd.” (“Gee, I’m a Nerd”). Finally, Loudon

Wainwright III addresses the nerdiness of file sharing music directly: “You can pull one of my songs right out of thin air / Go ahead and download me, see if I care / In love, war and cyberspace, everything's fair / And it's okay to steal 'cause it's so nice to share.” (“Something for Nothing”). These three songs suggest a relationship, not with a collective music experience, but with a machine. It is a romance with the technology expressed in loving one’s computer and downloading fantasies whether musical or sexual in nature.

So what’s left after theft? Although file sharing technologies have failed to produce new stories, they have excelled at circulating existing ones. In the twenty-first century, 103 popular music fans no longer consider themselves anarchists, but archivists. File sharing has made record collectors of us all, as we cull the MP3s in our databases and organize our iTunes libraries. But one has to ask, is record collecting the organic way of enjoying popular music? A recent study of popular music and youth identity notes:

[Teenage music fans] complained that the contemporary music landscape was populated by untalented performers and profit-hungry executives . . . They lamented the passing of (what they commonly perceived as) a golden age of recorded music: a time when artists released albums containing important statements, unfettered by the interference of record labels (Hayes 51).

Twenty-first century youth miss the cultural production of innovative music in their time, and technologies that enable file sharing allows not for producing new music, but only an easy way of accessing and compiling of the old. George Crumb, American artist and 78 collector, notes that collecting music is creepy: “Picking up chicks? Forget it! It never gets them hot, they don’t give a shit about collectors. I wouldn’t say that collectors are anti-social

— that would imply that they want to do something harmful to society — but it’s not very social either” (Milano 72). Shoplifting popular music and shoplifting in popular music, on the other hand was anti-social, and for all intents and purposes, it was a living cultural phenomenon. Files that are shared, despite rhetoric around sharing, are not really meant to be shared in any meaningful way at all. They are only consumed by the individual and for the individual. As Trent Reznor sings in the first single off Hesitation Marks, “Look what you gone and done / Well that doesn't sound like fun / See I'm not the only one / A copy of a copy of a" (“A Copy of A”). File sharing has displaced ‘the fun’ in rock culture, and halted the mass production of new narratives to be collectively experienced. Furthermore, it has changed the public’s engagement with the musical object as obtaining free music by taking it is much different act than by copying it. 104

ROCK, PAPER, SCISSORS, RAPIDSHARE: A CONCLUSION

In 2002, when nu-metal outfit System of a Down released Steal This Album, their third full-length album with Columbia Records, it was unplanned. Most of the songs on the album were unpolished demos leaked through peer-2-peer networks and the band remixed, rerecorded and remastered the songs that had already found a following for commercial release. The album was released without cover art and the artwork is designed to look like a burned CD-R. Serj Tankian told Billboard magazine about the leaked songs, “[w]e planned to hold them for soundtracks or our next album . . . but with the Internet you can’t hold things anymore” (Martens 12). In an era online digital music trading, the physical musical commodity is hard to hold onto. It disappears from twentieth century music industry moguls and slips past official release dates. Tankian also comments on the ironic title for the album, an homage to Hoffman’s work, stating “if people take the title at face value . . . then we have far more problems in this world than Internet downloading” (Martens 12). As Tankian suggests, and I have explored through this thesis, file sharing is not the same problem as stealing. Where theft of the physical commodity can be managed, monitored and controlled; file sharing rejects the music commodity on face value and the public engages with it not as a product to buy, but as information to access.

In many ways, file sharing is much like playing ‘dynamite’ in a game of ‘Rock,

Paper, Scissors.’ In the conventional game of hand gestures, rock beats scissors (as it can smash it), scissors beats paper (as it can cut it) and paper beats rock (as it can cover it).

When I was young, you could opt for a wild card. By sticking your thumb up, and calling

‘dynamite’ you could beat any of the three objects you were presented with (dynamite destroys everything!). File sharing, like dynamite, blows the whole game apart. 105

File sharing beats paper. Digital online music replaces the physicality of the commoditized form of music. Although MP3s exist on a server in a warehouse somewhere, our physical engagement and desire with the object is no longer there. File sharing offers selection without moral choice and the public copy by clicking instead of taking and running.

In acquiring free music, the public no longer needs to engage with theft which is illegal, immoral, and a challenge to the system. Instead, it is obtained under the supposition that it is fair to use and free to distribute. In fact, file sharing does not replace shoplifting from record stores but merely displaces it. File sharing, exists outside of theft and is an act of copying, with or without permission. It takes and gives nothing and replicates everything.

File sharing circumvents scissors. With wireless connections, digital access to music is no longer tied to dial-up modems or LAN lines. File sharing, participated in mobilized spaces and is much more difficult to monitor. But it is also cuts ties with intellectual property laws. By becoming a popular pastime, it becomes less and less understood by the public as a crime. Any attempts to police file sharing through lawsuits; rhetoric and DRM have made the music industry losers in the court of public opinion even when they have won in a court of law.

File sharing kills rock… or at least our traditional engagement with rock music. Petty theft has been interwoven into popular music identities. File sharing, because it is seen as doing nothing wrong, has failed to establish itself as thematic device used in the songs and stories of rock culture. It links itself less in a living culture of physical participation with the music and its commodities, than with the practices of archival and library sciences. Rock music, through file sharing, remains perfectly preserved in an open jar of formaldehyde which can be accessed and studied at any point. 106

Playing dynamite is a cheat, but more than that, it is a refusal to play the game. Yet, quitting also has discourse. File sharing trumped shoplifting records as the obvious choice when obtaining free music, but it also put an end to the visceral, personal and physical experience of copying. Michel Foucault once confided in his friend, Claude Mauriac, while working in the ‘hemicycle’ of the Bibliotheque Nationale in the rue Richelieu “copying out quotations by hand was both a 'banal and strange exercise' and 'painstaking and obsessional occupation', whereas photocopying destroyed the charm of the text 'which becomes almost lifeless when you no longer have the printed page before your eyes and in your hands.'"

(Macey 66-67). Mixed tape culture is similar to scribing as it is also an obsessional and painstaking. For protagonist Rob Fleming / Gordon of High Fidelity, making a tape is like writing a love letter, so much so that after he gets back together with Laura, he offers to make a tape for journalist student who is doing an article on him. “I also know that when I am peeling the wrapper off the cassette box and press the pause button, it will feel like betrayal.”

(Hornby 312) Artist and writer Matias Viegener notes that the mix tape is a type of folk art stating:

[P]redigested cultural artifacts combined with homespun technology and magic markers turn the mix tape to a message in a bottle. I am no mere consumer of pop culture, it says, but also a producer of it. Mix tapes mark the moment of consumer culture in which listeners attained control over what they heard, in what order and at what cost. It liberated us from music stores and radios in the same way that radios and recordings liberated generations earlier from the need to be present at the performance of live music (ed. Moore 35).

The Bow Wow Wow song see it, much like the initial file sharers, as a way of circumventing the commodity exchange of the conventional music industry, “C30 C60 C90 Go / Off the radio, I get a constant flow / Hit it, pause it, record it and play / Turn it, rewind and rub it away” (“C30 C60 C90 Go!” ). Yet unlike scribing or creating mixed tapes, the bricolage in a 107 drag-and-drop playlist is not done by human hands either directly or indirectly. File sharing is the product of machines assembling bits and bytes over a multitude of servers. Copying is not accomplished in ‘real time’ but in a compressed amount of time and one does not have to play the song in order to copy it. In file sharing, any human participation in the act of copying is nullified.

Fifteen years after Napster, technology has progressed and file sharing is also on the verge of obsolescence. We are shifting as we once did from sharing instead of stealing to streaming instead of sharing. The intellectualized debates over whether file sharing equals theft continue to cycle through the hands of policy makers but have little effect on practice.

The public no longer chooses to stick up its thumbs to call ‘dynamite.’ And because of this, no dialogue of ‘hey, that’s cheating’ or ‘you’ll pay for that’ arises and the principles of ‘fair’ and ‘free’ brought about by file sharing are quickly becoming forgotten. Open access to steaming services such as Grooveshark suppresses the attachment and fetishization of the commodity and the need to procure it or to share it. In the twenty-first century, music is no longer a luxury that can be locked up or held back. Music is no longer an apple; an object of our desire. Instead it is a godlike voice ever-present, streaming from our devices and trickling into our ears.

108

WORKS CITED

1. Books and Articles

Adorno, Theodor & Horkheimer, Max. Dialectic of Enlightenment: Philosophical Fragment. Trans. Edmond Jephcott. Redwood City, CA: Stanford University Press, 2002. Print.

Alighieri, Dante. The Divine Comedy of Dante Aligheri. Trans. Lawrence Grant White. New York: Pantheon, 1943. Print.

Anderson, Chris. Free: The future of a radical price. New York: Hyperion, 2009. Print.

Anonymous, Um. “Why I Love Shoplifting from Big Corporations.” Ed. CrimethInc. Ex- Workers’ Collective. Days of War, Nights of Love: Crimethink for Beginners. Atlanta, GA: CrimethInc., 2000. Web. 2008 October 27.

“Apples of the Hesperides, The.” Perseus Project. Medford, MA: Classics Department, Tufts University. 2 September 2008. Web. 14 August 2014.

Berman, Marshall. "1968: Lessons Learned." Dissent 55.2 (2008): 5-7. Web. 31 Aug. 2014.

“Big reduction in prices and free records with phonograph.” Corsicana Daily Sun. 30 January 1924. Newspapers.com. Web. 7 April 2014.

Black, Johnny. “The Greatest Songs Ever! All The Young Dudes: David Bowie saved Mott the Hoople from Extinction with this Glam-Rock Anthem.” Blender. October 2004. Bowiewonderworld.com. Web. 3 July 2014.

Blistein, Jon. “Beastie Boys Settle Lawsuit Over 'Girls' Toy Commercial.” Rolling Stone. 18 March 2014. Web. 3 July 2014.

Borland, John. “Musicians Launch National Anti-Napster Campaign.” CNET News. 11 July 2000. Web. 16 June 2014.

---. “RIAA Settles with 12-Year-Old Girl.” CNET News. 9 September 2003. Web. 18 April 2014.

Bourdieu, Pierre. The Field of Cultural Production. New York: University of Columbia Press, 1993. Print.

Bridis, Ted. “Sony To Suspend Making Antipiracy CDs.” Washington Post. 11 November 2005. Web. 4 April 2013.

Brown, Jesse. “An MP3 is just like a CD — until you try to sell it.” Maclean’s. 2013 April 2. Web. 2014 August 14. 109

Bull, Michael. Sound Moves: iPod Culture and the Urban Experience. Abingdon, UK: Routledge. 2008. Print.

Byrne, David. “David Byrne and Thom Yorke on the Real Value of Music.” Wired. 18 December 2007. Web. 10 September 2014.

Cameron, Mary Owen. The booster and the snitch: Department store shoplifting. London: Free Press of Glencoe, 1964. Print.

Captiol Records Inc. et al. v. Thomas-Rasset. No 11-2858. United States Court of Appeals for the Eighth Circuit. 11 September 2012. Web. 23 June 2014. PDF.

Carlin, George. When Will Jesus Bring the Pork Chops? New York: Hyperon, 2004. Print.

Classics Devotional Bible. Ed. Gary Knapp. New York: Zondervan, 1997. Print.

CRIA (Canadian Recording Industry) V. Jane Doe (et al). T-292-04. 2004 FC 488. Federal Court of Canada. IPJustice.org. Web. 14 August 2014.

Criminal Code, RSC 1985, c C-46 s 74. Web.

Dickens, Charles. Barnaby Rudge. London: Oxford, 1961. Print.

---. Oliver Twist. New York: Signet Classics,1980. Print.

Doss, Erika. Memorial mania: Public feeling in America. Chicago: University of Chicago Press, 2010. Print.

Drosnin, Michael. “Ripping Off: The New Lifestyle.” New York Times. 8 August 1971: SM12-13, 47, 52. Print.

Duerden, Nick. “Avril Lavigne: Seventeen-Year-Old Skate Punk Wants to Become Angsty Heir To Fellow Canadian Alanis Morissette’s Brat-Pop Throne.” Blender. August 2002: 34. Print.

Ebert, John David. The New Media Invasion: Digital Technologies and the World They Unmake. Jefferson, NC: McFarland & Co., 2011. Print.

Egan, Vincent, and David Taylor. "Shoplifting, unethical consumer behaviour, and personality." Personality and Individual Differences 48.8 (2010): 878-883. Print.

Elgot, Jessica. “Romanian Gypsies Driven From London's West End In Dawn Raid.” Huffington Post UK. 19 July 2013. Web. 22 August 2014.

Finney, Jack. The Invasion of the Body Snatchers. New York: Award Books, 1954. Print. 110

“Five Ways 'Wild Things' Author Maurice Sendak Influenced Music.” Spin. 8 May 2012. Web. 3 July 2014.

“For Students Doing Reports.” Recording Industry Association of America. n.d. Web. 18 April 2014.

Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage, 1979. Print.

---. The History of Sexuality: An Introduction Volume 1. Trans. Robert Hurley. New York: Vintage Books, 1990. Print.

“Free Records with Phonograph.” Anniston Star 23 March 1928: 5. Genealogy Bank. Web. 7 April 2014.

Frith, Simon. Taking popular music seriously: selected essays. Burlington, VT: Ashgate Publishing, Ltd., 2007. Print.

Galloway, Matt. “Music biz’s sour note: Labels launch weak response to downloading.” NOW. 13-20 March 2003. Web. 17 April 2014. Gantz, John, and Jack B. Rochester. Pirates of the digital millennium: How the intellectual property wars damage our personal freedoms, our jobs, and the world economy. Upper Saddle River, NJ: Prentice Hall, 2004. Print. Garofalo, Reebee. "I want my MP3: who owns Internet music?." Popular Music: Critical Concepts in Media and Cultural Studies. Ed. Simon Frith. Abingdon: Routledge, 2004. 87-104. Print.

---. "Pop Goes to War, 2001-2004: US Popular Music after 9/11." Music in the Post-9/11 World (2013): 3-26.

Genet, Jean. The Thief’s Journal. Trans. Bernard Frechtman. New York: Grove, 1964. Print.

Grant, Jon and Daniel Kim. “Kleptomania.” Mental Disorders of the New Millenium: Behavioral Issues. Ed. Thomas G. Plante. Vol.1. Westport, CT: Greenwood, 2006. Print.

Greenlaw, Lavinia. The Importance of Music to Girls. London: Faber and Faber, 2007. Print.

Grow, Kory. “Beastie Boys Could Win Infringement Lawsuit, Court Documents Suggest.” Rolling Stone. 12 June 2014. Web. 3 July 2014.

Habermas, Jürgen. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Cambridge: MIT Press, 1991. Print. 111

Handleman, David. “Paul’s Boutique (review).” Rolling Stone. 25 July 1989. Web. 3 July 2014.

Harding, Cortney. “Reznor: Only 18% Paid For 'Niggy Tardust.'” Billboard. 4 January 2008. Web. 28 June 2014.

Hayes, David. “‘‘Take Those Old Records off the Shelf’’: Youth and Music Consumption in the Postmodern Age.” Popular Music and Society 29.1 (2006): 51–68. Print.

Hoffman, Abbie. Steal This Book. New York: Four Walls Eight Mirrors, 1996. Print.

“Homeland Security Warns Against Anti-Piracy.” Washington Post. 11 November 2005. Web. 4 April 2013.

Hornby, Nick. High Fidelity. New York: Riverhead, 1996.

Hudson, Edward G. “Literary Piracy, Charles Dickens and the American Copyright Law.” American Bar Association Journal. Vol 50 (Dec 1964). 1157-60. Print.

“It’s an age-old crime: stealing.” The Federal Bureau of Investigation. n.d. Web. 17 April 2014.

Johns, Adrian. Piracy: The Intellectual Property Wars from Gutenberg to Gates. Chicago: University of Chicago Press, 2011. Print.

Jones, Dylan. iPod Therefore I Am: A Personal Journey Through Music. London: Weidenfeld & Nicolson, 2005. Print.

Kelly, Kevin “The Third Culture.” Edge. 27 February 1998. Web. 24 March 2014.

Kerr, Ian. "Digital locks and the automation of virtue." Canadian Copyright and the Digital Agenda: From Radical Extremism to Balanced Copyright. Ed. Michael Geist. Toronto: Irwin Law, 2010. 247-303. Print.

Klein, Naomi. No Logo. London: Flamingo, 2001. Print.

Knopper, Steve. Appetite for Self-Destruction: The Spectacular Crash of the Record Industry in the Digital Age. New York: Free Press, 2009. Print.

Ku, Ray, and Raymond Shih. "The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology,” The University of Chicago Law Review 69.1 (Winter, 2002. 263-324. Print.

Kurtagic, Alex. “Forgetting Herbert Marcuse (19 July 1898 - 29 July 1979).” Wermod & Wermod. 29 July 2014. Web. 10 September 2014. 112

La Belle, Megan M. “The ‘Rootkit Debacle’: The Latest Chapter in the Story of the Recording Industry and the War on Music Piracy.” Denver University Law Review. 84.1 (2006). 79-134. Web. March 6, 2013.

Lessig, Lawrence. The future of ideas: The fate of the commons in a connected world. NewYork: Vintage, 2002. Print.

Levine, Robert. Free ride: how digital parasites are destroying the culture business, and how the culture business can fight back. New York: Doubleday, 2011. Print.

Lymangrover, Jason. “Coolio: It Takes a Thief (review)” Allmusic. n.d. Web. 3 July 2014.

Macey, David. Michel Foucault. London: Reaktion, 2004. Print.

Malkovich, Amberyl. Charles Dickens and the Victorian child: Romanticizing and socializing the imperfect child. Routledge, 2012.

Manovich, Lev. The Language of New Media. Cambridge: MIT Press, 2001. Print.

Marchese, David. “Trent Reznor’s Upward Spiral.” Spin. 25 August 2013. Web. 28 June 2014.

Martens, Todd. "Online leaks force system of a down's hand: planned to eventually see release, unused cuts issued to combat piracy. (Artists & Music)." Billboard. 21 Dec. 2002: 12. Academic OneFile. Web. 2 Apr. 2014.

Marx, Karl. Capital: Volume One. Trans. Ben Fowkes. New York: Vintage, 1977. Print.

McLean, Stuart. Stories from the Vinyl Café – 10th Anniversary Edition. Toronto: Penguin, 2005. Print.

Milano, Brett. Vinyl Junkies: Adventures in Record Collecting. New York: St. Martin’s Press, 2003. Print.

Milton, John. Paradise Lost. Ed. Scott Elledge. New York: Norton, 1993. Print.

Mitnick, Eric J. "Procedural Due Process and Reputational Harm: Liberty as Self-Invention." UC Davis Law Review 43.1 (2009): 79-142. Print.

Mongelli, Lorena. “Music Pirate: N.Y. Girl, 12, Sued for Web Songs Theft.” New York Post. 9 September 2003. Web. 23 August 2014. 113

Moore, Robert, and Elizabeth C. McMullan. "Neutralizations and Rationalizations of Digital Piracy: A Qualitative Analysis of University Students." International Journal of Cyber Criminology 3.1 (2009): 441-451. Print.

Moore, Thurston, ed. Mix Tape: The Art of Cassette Culture. New York, NY: Universe, 2004. Print.

Morris, Chris. "Police, Time Warner face off over 'Cop Killer.' (rock song)." Billboard 25 July 1992: 1+. Academic OneFile. Web. 31 Aug. 2014.

Mulligan, Deirdre K. and Aaron K. Perzanowski. “The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident.” Berkley Technology Law Journal. 22 (2008). 1157-1231. Web. March 6, 2013.

Paul v. Davis. 424 U.S. 693. Supreme Court of the US. 1976. Justia.co. n.d. Web. 14 August 2014.

Price, Robert. “Loss Prevention Dos and Don’ts.” Retailer’s Guide 3.5 (n.d). Web. 15 June 2014.

Reagan, Gillian. “Weird Al Explains MTV’s Censorship of ‘Don’t Download This Song.’” New York Observer. 11 March 2008. Web. 7 July 2014.

Reynolds, Simon. Retromania: Pop Cultures Addiction to Its Own Past. New York: Faber and Faber, 2011. Print.

Reynolds, Simon. Rip it Up and Start Again: Postpunk 1978-1984. London: Faber and Faber, 2005. Print

“RIAA v. The People: Five Years Later.” Electronic Frontiers Foundation. N.d Web. 18 May 2014.

Robertson, Kirsten, et al. "Illegal downloading, ethical concern, and illegal behavior." Journal of business ethics 108.2 (2012): 215-227. Print.

Rousseau, Jean Jacques. Confessions: Volume 1. Trans. Anonymous. New York: Everyman, 1964. Print.

Rubin, Jerry. Do It! Scenarios of the Revolution. New York: Simon and Schuster: 1970. Print.

Russinovich, Mark. “Sony, Rootkits and Digital Rights Management Gone Too Far.” Mark Russinovich’s Blog. 31 October 2005. Web. 4 April 2013. 114

Samuelson, Pamela and Jason Schultz. “Should Copyright Owners Have to Give Notice of Their Use of Technical Protection Measures.” J. on Telecomm & High Tech L. 41 (2007). Web. March 6, 2013.

Schram, Jamie. “Blame Apple for NYC’s crime spike.” New York Post. 25 September 2012. Web. 11 June 2014.

Segal, David. “Still a Pistol: A Punk Pioneer Mixes It Up On the Radio.” Washington Post. 2004 May 13. Web. 14 August 2014.

Sendak, Maurice. Where the Wild Things Are. New York: Harper Collins, 1963. N. Pag. Print.

Shakespeare, William. The Complete Works of William Shakespeare. London: Abbey Library, 1974. Print.

Shteir, Rachel. The Steal: A Cultural History of Shoplifting. New York: Penguin, 2011. Print.

Simon, Richard B. "Metallica’s Anti-Napster Crusade Inspires Backlash." MTVNews. 1 June 2000. Web. 18 June 2014.

Sisario, Ben. “A New CD That Has No Music, but Lots of Pictures.” The New York Times. 10 June 2009. Web. 14 Aug. 2014

“Sixties: The Years that Shaped a Generation — Abbott (Abbie) Hoffman, The.” PBS.org. Oregon: Oregon Public Broadcasting, 2005. Web. 1 July 2014.

Smith, Gerry. “Apple Picking: How The iPhone Became An Object Worth Killing For.” Huffington Post. 7 June 2013. Web. 11 June 2014.

Solomon, Jesse. “Apple stock now costs $94. Fans love it.” CNN Money. 2014 June 9. Web. 11 June 2014.

Solon, Olivia. “Rights group fined for not paying artist royalties on anti-piracy ad.” Wired.co.uk. 18 July 2012. Web. 17 April 2014.

Sony/BMG Entertainment et al. v. Tenenbaum. No 12-2146. First Court of Appeals. 25 June 2013. Web. 23 June 2014. PDF.

Sorrel, Charlie. “Indestructible CDs and Other Tech Promises That Were Never Kept.” Wired. 12 October 2008. Web. 16 June 2014.

Stanley, Timothy. “The Long Haired Conservatives: the Children of '68 Reconsidered .” The Wayback Machine. 14 May 2008. Web. 31 August 2014. 115

Starret, Bob. “The History of CD-R.” Roxio Newsletter. 17 January 2000. Web. 16 June 2014.

Sterne, Jonathan. MP3: the meaning of a format. Duke University Press, 2012. Print.

Svensson, Peter. “CD and DVD Owners Finding Techno-Rot.” The Washington Post. 11 May 2004. Web. 16 June 2014.

Tapscott, Don. Grown Up Digital: How the Net Generation is Changing your World. New York: McGraw Hill, 2009. Print.

Teather, David. “Mother Settles Piracy Case.” The Guardian. 11 September 2003. Web. 12 September 2014.

Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. New York: New York University Press, 2003. Print.

Van Buskirk, Eliot. “RIAA to Stop Suing Music Fans, Cut Them Off Instead.” Wired. 19 December 2008. Web. 18 May 2014.

Wang, Wally. Steal this file sharing book: what they won't tell you about file sharing. San Francisco: No Starch Press, 2004. Print.

Warner, Michael. Publics and Counterpublics. New York: Zone Books, 2002. Print.

Wingrove, Twila, Angela L. Korpas, and Victoria Weisz. "Why were millions of people not obeying the law? Motivational influences on non-compliance with the law in the case of music piracy." Psychology, Crime & Law 17.3 (2011): 261-276. Print.

Yu Peter, K. "Digital Copyright and Confuzzling Rhetoric.” Vanderbilt J Entertainment & Technology Law 13:4 (2011). Print. 881-939.

Zalud, Bill. "Stress, Feeling of Unfairness Encourage Shoplifting." Security 39.2 (2002): 54. Print.

2. Songs and Records

Arrogant Worms, The. “Great to be a Nerd.” By Trevor Strong, Mike McCormick, John Whytock. Dirt! Arrogant Worms Records, 1999. CD.

Barenaked Ladies. “Jane.” By Stephen Duffy and Steven Page. Maybe You Should Drive. Reprise, 1994. CD. 116

Beastie Boys. “High Plains Drifter.” By Michael Diamond, Adam Horovitz, Adam Yauch, et al. Paul’s Boutique. Capitol, 1989. CD.

Bow Wow Wow. “C30 C60 C90 Go!” By Matthew Ashman, Dave Barbarosa, Leigh Gorman, et al. The Best of Bow Wow Wow. Reciever Records, 1989. CD.

Clash, The. “Should I Stay or Should I Go.” By Michael Jones and John Mellor. The Singles. Sony, 1999. CD.

Coolio. “Sticky Fingers.” By Clifton Chase, DJ Charlie Chase, Brian Dobbs, et al. It Takes a Thief. Warner, 1994. CD.

Daft Punk. Tron: The Legacy (soundtrack). Walt Disney Records, 2010. CD.

Dangermouse, Sparklehorse and David Lynch. The Dark Night of the Soul. Parlophone, 2010. CD.

Eminem. “The Real Slim Shady.” By Marshall Mathers et al. The Marshall Mathers LP. Aftermath, 2000.

Green Day. “Shoplifter.” American Idiot (Single). Warner, 2004. MP3.

Guns N’ Roses. “Bad Apples.” By Duff McKagan, Matthew McKagan, Axl Rose, et. al. Use Your Illusion I. Geffen, 1991. CD.

Ian Dury and the Blockheads. “Razzle in my Pocket.” By Ian Dury and Chaz Jankel. New Boots and Panties!! Universal, 2012. CD.

Jane’s Addiction. “Been Caught Stealing.” By Eric Avery, Perry Farrell, David Navarro, et al. Kettle Whistle. Warner, 1997. CD.

Metallica. “Where the Wild Things Are.” By Kirk Hammett, James Hetfield and Lars Ulrich. Reload. Elecktra, 1997. CD.

Mott the Hoople. “All the Young Dudes.” By David Bowie. All the Young Dudes. Columbia, 2001. CD.

Nine Inch Nails. “Copy of A.” By Trent Reznor. Hesitation Marks. Columbia, 2013. CD.

Raffi. “The Sharing Song.” By Raffi Cavoukian et al. Singable Songs for the Very Young. Troubadour Records, 1976. LP.

Princess Superstar. “You Get Mad at Napster.” By Suzanne Kirschner and Philip Palm. Is. Rapster, 2002. CD. 117

Pussy Riot. “Smert' tyur'me, svobodu protestu (Death of Prison, Freedom to Protests!).” By Pussy Riot. 2011. MP3.

Seeger, Pete. “Little Boxes.” By Malvina Reynolds. Little Boxes & Other Broadsides. Verve Folkways, 1965. LP.

Slits, The. “Shoplifting.” By Viviane Albertine, et al. Cut. Island, 2008. CD.

Wainwright III, Loudon. “Something for Nothing.” So Damn Happy. Sanctuary, 2003. CD.

Yankovic, “Weird Al.” “Don’t Download This Song.” By Weird Al Yankovic. Straight Outta Lynwood. Sony/BMG, 2006. CD.

---. “Gee, I’m a Nerd.” By Weird Al Yankovic, John Lennon and Paul McCartney. Unreleased Live Bootleg. MP3.

3. Film and Video boywoolner. “'Rip. Mix. Burn.' Apple iTunes advert.” Online video clip. YouTube. 23 May 2007. Web. 14 August 2014.

Buxton, Ryan. “Metallica Drummer Lars Ulrich Recalls Battle With Napster: 'They F--ked With Us, We'll F--k With Them' (VIDEO)” Huffington Post. 24 September 2013. Web. 16 June 2014.

Edman. “Johnny Crass - Internet Sandman (Better than Enter Sandman).” Online video clip. YouTube. 14 June 2009. Web. 23 June 2014.

Empire Records. Dir. Allan Moyle. Warner, 2008. DVD.

F3RA78. "Lars Ulrich, Chuck D And Charlie Rose On Napster In 2000." Online video clip. YouTube. 17 Apr. 2011. Web. 10 March 2014. freedomfraud. “MPAA Anti-Piracy Spoof.” Online video clip. YouTube. 23 January 2008. Web. 11 April 2014. haxorcat. “Piracy it's a crime.” Online video clip. YouTube. 4 December 2007. Web. 11 April 2014.

High Fidelity. Dir. Stephen Frears. Touchstone, 2000. VHS.

I Need That Record! The Death (Or Possible Survival) of the Independent Record Store. Dir. Brendan Toller. Brendan Toller Productions, 2010. SnagFilms. Web. 17 April 2014.

InterPathe. The Great Train Robbery. Dir Edwin S. Porter. Edison, 1903. Online video clip. YouTube. 13 May 2013. Web. 3 July 2014. 118

Paul Blart: Mall Cop. Dir. Steve Carr. Columbia Pictures, 2009. Netflix. Web. 23 June 2014.

Rapol, Cody. “Anti Movie Piracy.” Online video clip. YouTube. 23 November 2006. Web. 11 April 2014.

Record Store Day: The Documentary. Dir. Jason Wilder Evans. Independent, 2011. SnagFilms. Web. 31 March 2014. sonypictureshomeent. “Paul Blart: Mall Cop” (trailer). Online video clip. YouTube. 5 April 2013. Web. 23 June 2014.

Star Wars V: The Empire Strikes Back. Dir. George Lucas. Fox, 2006. DVD.

Stories We Tell. Dir. Sarah Polley. NFB, 2012. DVD.

ThePrivilegeIsMine. “Morrissey Interviews Playwright Shaun Duggan (The Tube) (1987).” Online video clip. YouTube. 20 Novemberf 2012. Web. 3 July 2014.

Tron: The Legacy. Dir. Joseph Kosinski. Disney, 2010. DVD.