Shifts in technology can dramatically alter both the forms that performance and publication take, and the relative role each plays. The rise of book technologies in the 15th century brought publication to the fore. The rise of mass media in the 20th century led to a new form of performance, in some ways more like publication, in that it could reach a wide audience and leave a permanent record. However, unlike publication, it did not give much control to the consumer. Now, as we turn into the 21st century, we see information technology giving rise to yet another variant of performance, which I term the “peep show” model: on-demand private access to works, subject to restrictions established by the provider. If obtaining access to the peep show displaces obtaining copies of a publication, we could lose the producer-independent archival record.
Information technology has been a double-edged disruptive force, both facilitating access and facilitating access control. As such, it is inevitable that a legal rebalancing would accompany its introduction. However, we need to be cautious not to ascribe too much of the evolution currently underway to technical stimuli. After all, this same time period has also seen the passage of the Sonny Bono Copyright Term Extension Act, with its retroactive effect. Clearly, rebalancing is shaped as much by lobbying power as it is by technological change.
Copyright is quite limited. Although no one may publish my book without my consent, my control does not extend much further. I may not bind buyers of my book to conditions, such as that they not archive the book, or that they may only read it in specific locations, or that they may not skip ahead to the good parts without reading the boring introduction first. In fact, a buyer may even do my book the ultimate indignity of cutting it into tiny pieces and pasting a random selection of those pieces into a collage.
Today, however, restrictions just like those have become possible, through technical access control measures. Worse, they have become legally sanctioned. While many in academia were not paying attention, Congress criminalized the means to circumvent such access controls, even where they go far beyond copyright. Some of the examples I just gave, which sounded laughable in the context of a book, are not so strange transposed into the context of a DVD, playable only in select locations, without the ability to skip over introductory material, and with barriers to artistic sampling.
What can we look forward to when the same principles are applied more widely? What too, of the move away from any tangible artifact, such as the DVD, to purely on-demand peeping at content streamed over the internet? Some of my colleagues have told me this does not worry them: anything they access, they can store a permanent copy of, even print out. That may be possible today, but it may not remain so, unless we make that a priority. Already Microsoft, Intel, and other industry heavyweights are at work on creating bedrock technical infrastructure for content providers to use in making material that is only peepable, not preservable. The time has come when we must push back and clearly assert that our cultural record is of higher value than a revenue stream.
At the same time as I sound this warning, I also want to provide a note of excitement. The technology of digital access is extraordinarily flexible, and is still at a relatively early stage of development. As such, we find ourselves in the exciting position of being the generation that will decide how we want to use this technology. Some of the questions we face do not have easy, one-sided answers.
Take the case of Henry Ford, who published a horrible book on the “international Jew,” and then, under intense pressure, did his best to withdraw it from circulation. Of course, many copies remained at large. What should we think of a technology that would have made it possible for Ford to completely rescind all access? Bad as the publication was, keeping a record of it was good, to show future generations that anti-Semitism was not some uniquely German aberration. Do we want to privilege the historical record over all other considerations, even over an author’s second thoughts? We now squarely face this choice, thanks to the emergence of digital peep-show technologies. As I say, we live in an exciting time.