Domestic Wars Redux: Obama, Digital Prohibition and the New ‘Reefer Madness’

Resetting Theory

Domestic Wars Redux: Obama, Digital Prohibition and the New ‘Reefer Madness’

January 2009: In a reflexive public gesture, the U.S.’s first African-American President-elect, the ectomorphic Barack Obama, retraced Abraham Lincoln’s Second Inaugural train route (1865) to the capitol, two hundred years after the birth of the similarly ectomorphic Lincoln. In another reflexive echo of a turbulent past, as the bloated and behemoth U.S. economy wobbled, cold-turkey, in withdrawal from its macro-economic drugs of choice, easy credit and unbridled consumption, Obama faced a dire economic and social configuration similar to that which confronted Franklin Roosevelt in March of 1933. Hemorrhaging jobs, personal and institutional debt while spewing endemic mortgages defaults, the U.S. faced its most severe legitimacy crisis since the late 1960s.

As a marker that the past sins of slavery and segregation could be jettisoned in favor of meritocratic ascension, there could be no better legitimation symbol than Barack Obama. Articulate, attractive, with an understated ironic tone, and often frank in discussing personal failings, Obama simultaneously signified the ultimate success of a new African-American class of elites while buttressing faltering cross-ethnic, cross-racial and cross-generational allegiances to the tattered tenets of the American Dream. Exemplified by street artist Shepard Fairey’s red, white and blue iconic poster of Obama’s upturned visage, the human heart’s desire for “Hope” (often embodied in ideological allegiances) became thoroughly conflated, through Fairey’s composition, with Obama’s message and image. [1] Fairey’s widely reproduced icon was a masterful and thoroughly intentional gesture in the aesthetics of politics, praised both by the original Associated Press photographer, and by Obama, himself.

Yet what has happened to Fairey, in the wake of this representational triumph, may be instructive. Two weeks after the Obama inauguration, Fairey was simultaneously threatened with a lawsuit by the Associated Press (which claimed a violation of their Intellectual Property rights) over how he appropriated some elements of a 2006 AP photo, just as he was arrested on graffiti charges, in Boston, on the opening night of his first major formal exhibit (“Supply and Demand”) at the Institute of Contemporary Art. [2] The AP’s legal threat, Fairey’s simultaneous arrest (combined with the non-starter drug-use revelations in Obama’s autobiographical Dreams From My Father [3] and the likely and significant reduction in the U.S.’s broad and expensive incarceration of non-violent drug users) arguably signifies a transition in the objects of Prohibition, as the portion of the generation-long War on Drugs that has targeted recreational users ratchets down. [4] This downshift occurs just as the Baby Boomers retire, en masse, accessing expensive entitlements, and as state governments find that they can no longer afford to house, feed, clothe and provide Federally-mandated medical services for aging inmates, many who were given long prison sentences for non-violent drug offenses. However, if past is prologue, the U.S. will not be without a new form of Prohibition for long, with a new set of targets constructed by a dominant demographic slipping from power; a new domestic “War” against a rival demographic, under the discursive cover of a newly fashioned political correctness. (It’s just what Americans “do.”) For example, after the passage of the Twenty First Amendment in 1933, it was not long before Prohibitionist impulses settled on a new target population, and a new set of cultural practices. In the 1930s, these impulses were instantiated in the Federal Bureau of Narcotics anti-Marijuana campaign, a campaign that demonized Mexicans and Mexican-Americans, and generated the perceptions that paved the way for the 1937 Marijuana Tax Act. In the second decade of the Twenty First century, the demonization geist will fall hard on those who remix and mash up digitized cultural icons and images. This uptick in a global “War on Pirates” is the contested site of an emergent generational “war,” the latest site in which post-Baby Boomer generations, already saddled with elephantine debt, crumbling infrastructure, and intensive responsibilization techniques that shift governmental functions onto their privatized collective backs (think “service learning” and “civic engagement” initiatives) [5] now face Boomer-based criminalization of their cultural practices of quotation and communication; [6] all in the service of indefinitely maintaining Boomer-era models of cultural production, circulation and profit, in a post-Boomer world. [7] It’s the latest and onerous manifestation of “low intensity conflict,” of a cultural guerrilla war that pits a subset of well-heeled and well-positioned Boomers against their children and grandchildren. The ramped up stakes are evident in recent high-level appointments in the Obama Administration’s Department of Justice, and in the deeds of U.S. Vice President Biden and his Congressional allies. The conceptual coherence and persistence of these efforts point to a demographically-defined, and increasingly probable period of Digital Prohibition. The politics of Prohibition are alive and well; the population and objects have changed, but the general game resembles that of 1930s America. A brief look backwards, as prologue, is instructive.

Roosevelt’s America as Prologue

During the thirteen-year life of the U.S. Eighteenth Amendment (1920-1933), which banned commercial manufacture or importing of alcohol, the U.S. had just been demographically transformed, from a predominately rural, White-Anglo Saxon Protestant country to an urban society, populated by Eastern and Southern European immigrants and their U.S.-born progeny. The restrictive immigration policies mandated by the eugenic language of the 1924 Johnson Act reduced the flow of foreign nationals to a relative trickle for the next forty years, stabilizing the domestic demographic composition of the population during the mid-20th Century. Alcohol Prohibition was a temporary victory of a once-dominant demographic in decline, the unstable end-point of a decades-long crusade by a coalition of cultural warriors and moral entrepreneurs, a coalition that included the Women’s Christian Temperance Union, suffragettes, the managerial interests of new industrial magnates, such as Henry Ford, traditional WASPs, the emergent public relations industry and fervent WWI-related anti-German sentiment. Less than a year after the finalization of the Treaty of Versailles, the U.S. ratified women’s suffrage and instituted Prohibition. Concurrently, the 1920 Census revealed, for the first time, that a majority population was urban.

With an estimated 50,000 speakeasies (illicit but widely tolerated bars) cropping up in New York City alone, by the mid-1920s, Alcohol Prohibition was a spectacular failure at achieving its stated goal. Part of the overall atmosphere of the “Roaring Twenties” characterized by Republican laissez-faire economic policies, the emergence of the Great Depression at the end of the 1920s, and President Hoover’s indifferent response to the events that began in October, 1929, led to the broad repudiation of many of the economic and social policies of that decade. This popular repudiation included Roosevelt’s election and the subsequent repeal of alcohol Prohibition; all these changes were markers of demographic succession and WASP political failure.

Concurrently, destructive macro-agricultural practices of the 1920s and 1930s (around the industrialization of wheat production) in the Great Plains states generated the ecological disaster of and demographic migrations from the “Great Dust Bowl,” adding new strains to the economic and political trials of Depression-era America. [8] In this cauldron of dislocation and discontent, the political staples of marginalization and Prohibition turned to different, less assimilated populations. As one round of Prohibition over the use of a cultural staple, alcohol, ended, another round of Prohibitionist politics began. For example, the same period also saw mass, organized illegal deportation of tens of thousands of U.S.-born Mexican-Americans families, in a South Texas action then known as “Operation Rio Grande.” [9]

Concurrently, Federal Bureau of Narcotics chief Harry J. Anslinger began a propaganda campaign to toughen criminal penalties around marijuana use, via public relations vehicles such as the well-known 1936 agit-prop film, “Reefer Madness,” [10] and the dissemination and updating of what became known as “Gore Files.” Below are typical entries from Anslinger’s “Gore Files” and their yellow journalism brethren:

Alamossa Daily Courier Colo. — [The Editor] Describing an attack by a Mexican-American allegedly under the influence of marihuana on a girl of his region. — Two weeks ago a sex-mad degenerate, named Lee Fernandez, brutally attacked a young Alamosa girl. He was convicted of assault with intent to rape and sentenced to ten to fourteen in the state penitentiary. Police officers here know definitely that Fernandez was under the influence of marihuana… [11]

TAMPA, FLA. October 1933. Victor Licata, while under the influence of marihuana, murdered his mother, father, sister and two brothers with an axe… [12]

Dec. 8, 1943 life imprisonment was decreed for Pablo Rodriguez of Laredo, Tex., when he was convicted of whipping to death his 10-year-old niece, Guadalupe Flores. She and another niece had been kept in the back yard of the Rodriguez residence in a doghouse-like shack where they were sometimes chained. When Rodriguez was arrested, marihuana cigarettes were found on his person. It was the opinion of officials that he had been a marihuana smoker. [13]

TEXAS – Sep 11, 1940. Del Rio, TEXAS. September 1940. Eleutero Gonzales, allegedly while under the influence of marihuana, shot to death two women and then committed suicide by literally slicing himself to bits about the abdomen, around the heart and throat, in a manner which indicated that he was bereft of all reasoning. Law enforcement officers believed that Gonzales was under the influence of marihuana at the time of the double murder and suicide, and that he had previously used marihuana. It was the opinion of the doctor who saw Gonzales just before he died that no one could so mutilate himself unless he was unable to feel “shock” and the only thing he knew that would produce such a condition, to such a degree, is marihuana. Gonzales had wandered around in the fields for hours after the killing and self-mutilation [14]

Although the tonality varies, because of the narrowcast to a target audience, the linkages and claims of damage are every bit as incredible in a contemporary version of such “Gore Files,” the 2007 video, “In Trial,” co-produced by the NDAA (National District Attorney’s Association) and the RIAA (the Recording Industry of America), for distribution to 6,000 prosecutors and assistant prosecutors, around the U.S. The video’s purpose was to convince public prosecutors to devote their limited time and public tax dollars to pursue music CD sellers and counterfeiters. Two ex-public law enforcement employees (Deborah Robinson, RIAA counsel, and ex-Philadelphia Assistant District Attorney) and Frank Walters (a former Maryland state trooper and current RIAA investigator) chat with Jim Dedman of the NDAA, (an ex-Memphis ADA) about the alleged national and regional security risks posed by these illicit CD manufacturers and street vendors:

Dedman:   What is it that you could bring to the D.A.’s Office that would make them appreciate what music piracy investigations can do for their regular criminal case load?

Robinson:   It has to be stressed that this is the type of crime that affects “quality of life” in the D.A.’s jurisdiction, in the cities in which they work and live. But the other thing is that it’s a link to a lot of other kinds of crime and I tell the prosecutors and … the police officers that I work with … to use this type of crime as a tool. It might lead you to a drug investigation. It might allow you to have probable cause for [securing a warrant to search] a drug house. You couldn’t get in before… doing [these] undercover purchases of CDs. So it has links to some terrorist organizations for those federal prosecutors “out there” [in the targeted audience of ADAs]. There’s a number of cases that we’re working on, right now. But what we see out there is a link to selling drugs with the CDs, and some “gun activity” as well.

Walters:   More often than not, we find that most of the defendants that we deal with are recidivists. They have spent time incarcerated on much more serious crimes. We’ve had situations where there are robberies [and with] homicide parolees. As Deborah stated, there are some sayings in certain parts of the jurisdiction that when you buy a CD, “would you like it with or without?” The “with” is enclosing a piece of crack or whatever the case may be. Ahh, we continually, in working with law enforcement that these locations have everything from handguns to large quantities of narcotics — cocaine, marijuana to counterfeit money. It really goes through the gamut as to what can be found during these investigations. [15]

This part of the RIAA’s campaign has been crudely propagandistic, claiming to link the illegal reproduction and street sale of an obsolete platform for digital music, CDs, with major forms of social disorganization, political terror, violence, and the moral decay of Western civilization. As laughable as its 1930s counterpart, “Reefer Madness,” a video that preceded the passage of the 1937 Marijuana Tax Act, the RIAA, under withering criticism for these efforts and for some terroristic “general deterrence” civil suits against old women and children accused of downloading music, has shifted its focus, tactics and rhetoric to legislation. With the passage of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act), which ports the language and the enforcement penalties of the failed Drug War directly onto the emerging “Intellectual Property Wars,” the campaign for Digital Prohibition has entered a new phase. The stakes have been raised in the polyfocal “low intensity conflict” between Boomers and Post-Boomers. Commodifying (and criminalizing) generationally-specific quotation and representation conventions spawns a new form of policing, along with a new politics of inclusion and exclusion, a new form of censorship, one with inevitably political and generationally-specific consequences, via the propagation of novel property rights. How the PRO-IP Act facilitates the escalation of generational low-intensity conflict is discussed below.

Porting Tactics and Strategies: From the War on Drugs to the Intellectual Property Wars

U.S. Public Law 110-403 [16] brought together, in sponsoring coalitions, such ideologically diverse players as Hollywood’s U.S. Representatives Dan Berman (D-CA) and Lamar Smith (R-TX) as well as, on the Senate side, between this legislation’s sponsor, Patrick Leahy (D-VT) and John Cornyn (R-TX): [17]

The PRO-IP Act (U.S. Public Law 110-403), signed on October 13, 2008 by George W. Bush, created the post of “Intellectual Property” or “Copyright” Czar (who reports to the Deputy Attorney General in the Justice Department), as a new cabinet-level post in the executive branch to coordinate anti-piracy and anti-intellectual property violations. The PRO-IP Act stiffens penalties for illegal reproduction and distribution of music and films. Some of the key points are as follows:

  • Minor, unintended and harmless errors in copyright registrations do not preclude civil lawsuits;
  • Expanded penalties for criminal copyright infringement by exponentially expanding categories of what constitutes infringement, with harsher penalties on recidivists, where a subsequent offense constitutes a felony;
  • Definitional Change: The statutory definition of a “computer crime” was revised to include copyright infringement over the Internet;
  • New Post: The creation of an “Intellectual Property Intellectual Coordinator” (IPEC), a position, subject to Senate confirmation, charged with creating an Intellectual Property Enforcement Commission (IPEC) The Commission along with its “IP Czar” will be responsible for generating a Joint Strategic Plan to enforce IP rights;
  • Increased monies for training, enforcement, prevention and prosecution of intellectual property theft and infringement, including beefing up the number of FBI agents assigned to investigate IP rights violations. [18]

In U.S. Public Law 110-403, accused copyright infringers confront more than the requirement to expunge offending data, and the payment of behemoth fines. In civil and criminal enforcement matters, equipment used or obtained, broadly defined, may be seized and forfeited, in addition to a statutory restitutive requirement:

Sec. 2323. Forfeiture, Destruction and Restitution

   (a) CIVIL FORFEITURE. —
(1) PROPERTY SUBJECT TO FORFEITURE — The following is subject to forfeiture to the United State Government:
(A) Any article, the making or trafficking of which is prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B or 2320, or chapter 90
(B) Any property used, in any manner or part to commit or facilitate the commission of an offense referred to subparagraph (A)
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A)…
   (b) CRIMINAL FORFEITURE —
(1) PROPERTY SUBJECT TO FORFEITURE — The court, in imposing sentence on a person convicted of … [such an] offense … shall order, in addition to any other sentence imposed, that the person forfeit to the United States Government any property subject to forfeiture … [19]

To be clear about who and what constitutes a legally legitimate target, and what the philosophical and procedural model this forfeiture is modeled after, consider these two points: First, under SEC. 102 of this law (and subsequent sections), the snare is set quite broadly:

(A) All copies or phonorecords made or used in violation…

(B) all plates, molds, matrices, masters, tapes, film negative or other articles by means of which such copies of phonorecords may be reproduced…

(C) of records documenting the manufacture, sale [etc. of any of the above] [20]

The term “other articles by means of which … matrices … may be reproduced” is a broad and vague category, and could be easily take the form of a multipurpose family computer, used for finances and/or the homework of several siblings or even a parent in college or university. That computer and its contents could be legally seized and then sold, even if the owner of the device had not infringed a corporate copyright. [21]

Secondly, under Section 2323, subsection (2) PROCEDURES, the direct connection of the PRO-IP Act to the Asset Forfeiture provisions associated with the Drug War is unmistakable:

(2) PROCEDURES —

(A) IN GENERAL — The forfeiture of property under paragraph (1), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853)…
(c) RESTITUTION — When a person is convicted of [such] an offense … the court … shall order the person to pay restitution to the victim [the RIAA or MPAA, presumably] as an offense against property. [22]

As such, this law mandates that forfeiture procedures in Intellectual Property cases conform to those used in asset forfeiture drug cases, with the addition of specified guidelines for financial restitution (which is how the moral discourse around restorative justice has come to be used, de facto and de jure, by the presumed corporate victims: The RIAA and the MPAA).

STACKING THE ENFORCEMENT DECK: The Obama-Biden Team at the Department of Justice

The PRO-IP Statute (110-403) became Federal law in the waning days of the Bush Administration. Because of the proximity of the November 2008 elections, and simultaneous cascade of financial failures and governmental bailouts which sent much of the global economy into a deep tailspin, the dramatic speed and scope of events obscured the significance of the PRO-IP Act. With the Obama Administration’s staffing of major posts, a cast of unusually motivated and well-placed allies of the RIAA and MPAA now occupy the three top posts at the U.S. Justice Department, under Attorney General Eric Holder. Arguably, they stand ready to gear up enforcement of Public Law 110-403 (2008), the PRO-IP Act, in concert with enabling sister legislation (such as the Digital Millennium Copyright Act) of the last decade. Here are the backgrounds of the relevant top players at the DOJ:

The new number three man is Thomas Perilli. According to Declan McCullagh, senior law and politics writer for CNET.com, Perrelli is “the RIAA’s favorite lawyer.” He represented the RIAA in dozens of cases, often against college students, as well as against ISPs, and for, most prominently, SoundExchange (which coerced a 250 percent increase in broadcast royalties for the RIAA, against nascent Internet radio stations and larger Internet players, such as Yahoo and AOL). Perrelli is the new chief of the DOJ’s civil, antitrust and civil rights divisions. [23]

Second in command at the DOJ is Deputy Attorney General David Ogden. In an earlier stint at the DOJ, Ogden spearheaded the defense of the Child Online Protection Act (COPA), a very broadly written anti-pornography law, a law whose status is still under litigation, vigorously and successfully challenged by the ACLU. On the other hand, Odgen was part of the legal team defending the Sonny Bono Copyright Term Extension Act, in Eldred v. Ashcroft (arguing against Larry Lessig) before the Supreme Court. Not surprisingly, Odgen has lucrative clients and powerful friends in the entertainment and broadcasting industries. [24]

Joining these two appointees is the new Deputy Attorney General, Donald Verrilli. Verrilli was the lead attorney for Viacom when it sued YouTube and Google for a billion dollars. Verrilli has been the lead attorney in the Joel Tennenbaum case, brought by the Berkman Center (and Professor Charlie Nesson) at Harvard, charging the RIAA with criminal racketeering (the shakedown of citizens for alleged copyright violations). [25] Additionally, Verrilli served as the RIAA lawyer for an infamous case, RIAA v. Jammie Thomas, in which a single mother, Thomas, was found liable for file sharing damages in the hundreds of thousands of dollars, even though there was no evidence she shared a single music file illegally. [26] Verrilli was also the zealous and fantastically successful lead attorney in MGM v. Grokster, representing MGM’s claim that Grokster and other peer-to-peer networks could be held liable for copyright infringement. [27]

Arguably, behind all of these (and related) picks is the Vice President, Joe Biden. According to Declan McCullagh, Biden has a long alliance with the purveyors of old formats and forms, such as entertainment companies:

In 2002, [Biden sponsored] a bill that would have make it a federal felony to trick certain types of devices into playing unauthorized music or executing unapproved computer programs. Biden’s bill was backed by content companies…but [it] died after Verizon, Microsoft, Apple, eBay, and Yahoo lobbied against it.

Biden [also] signed a letter [urging] the Justice Department “to prosecute individuals who intentionally allow mass copying… over peer-to-peer networks.” [Biden’s] critics … said that the MPAA and RIAA, and not taxpayers, should pay for their own lawsuits.

Biden sponsored an RIAA-backed bill, the Perform Act, aimed at restricting Americans’ ability to record and play back individual songs from satellite and Internet radio services.

[Not surprisingly, then] … Biden was one of only four U.S. senators invited to a champagne reception in celebration of the DMCA hosted by the MPAA, the RIAA, and the Business Software Alliance. [28]

Biden’s three decades of anti-drug crusading bleeds into his approach to intellectual property issues, from telemedicine to his disdain for a formal Net Neutrality doctrine:

The [self-promoted] Biden Crime Bill of 2007 expands electronic surveillance law to permit police wiretaps in “crimes dangerous to the life, limb, and well-being of minor children.” Another takes aim at Internet-based telemedicine and online pharmacies, saying that physicians must have conducted “at least one in-person medical evaluation of the patient” to prescribe medicine…

Another [section of this proposed law] prohibits selling a product containing dextromethorphan — including Robitussin, Sucrets, Dayquil, and Vicks — “to an individual under the age of 18 years, including any such sale using the Internet.” (Biden is a longtime drug warrior; he authored the Illicit Drug Anti-Proliferation Act used by the Bush administration used to shutter benefit concerts). [29]

Biden at the Cultural and Legal Juncture

On March 11, 2009 Biden (who has been also credited with coining the term “Drug Czar”) ceremonially introduced Seattle Police Chief Gil Kerlikowske as the new Director of the Office of National Drug Control Police. [30]. Biden’s announcement was replete with tropes that reframed the drug issue as a disease, rather than as moral failing. As such, the event also served notice to the press that the position had been formally downgraded, and was no longer a Cabinet-level post. Under Biden’s sphere of policy management, Kerlikowske, who had been active in promoting Seattle’s needle exchange and medicalization programs for drug addicts, will work directly for Biden. Put another way, as the Drug Wars ratchet down, Biden’s notion of a Cabinet-level Drug Czar exits, stage left . But the impulse to create Czars still remains, albeit it attached, these days, to a different kind of interdiction and criminalization. Still to enter, stage right, the Copyright Czar, the creature of the PRO-IP Act.

Meanwhile, states also usher out some aspects of the Drug War, in favor of taxing recreational use, as a form of fiscal revenue enhancement. Strapped for cash, and constitutionally mandated to balance budgets, some state legislators have filed proposals to allow the growth of medical marijuana in their state, subject to state control and taxes. For example, in Oregon, bill H.R. 3247, co-sponsored by two Republicans and two Democrats, would require that the state of Oregon cultivate, harvest and dispense medical marijuana, charging authorized “tokers” a $98 per ounce medical marijuana state tax. [31] In California, a bill introduced in February 2009, in the California State House, would legalize pot for those 21 and older, and sell commercial growers’ licenses at $5,000, while collecting a fifty dollar per ounce tax (roughly equivalent to a dollar a joint) as it simultaneously empties state prisons of petty drug offenders, thereby complying with a Federal Court order to reduce the state’s prison population. [32] All-in-all, these processes represent the systolic (new forms of IP criminalization) and the diastolic (decriminalization legalization of recreational/medical marijuana use) heart of contemporary Prohibition processes.

In sum, then, the two tables below encapsulate some of the major taxonomic points of this essay. Table One compares some of the isomorphisms between the decline of Alcohol Prohibition and the rise of Marijuana Prohibition with the early 21st Century decline of Drug Prohibition and the rise of Digital Prohibition:

Table One: The Rise and Fall and Rise of U.S. Prohibition Movements
The Decline of Alcohol Prohibition*
The Rise of Marijuana Prohibition
The Decline of Drug Prohibition*
The Rise of Digital Prohibition
Failure of Republican Laissez-Faire economics(Harding, Coolidge, Hoover)

The need to tax the consumption of illegal but popular commodities for governmental functions.

Failure of Republican Laissez-Faire economics
[Neo-Liberalism 1.0](Reagan, Bush 41 Clinton, Bush 43)

The need to tax the consumption of illegal but popular commodities for governmental functions.

Demographic Transition – (1880-1920)
Targeted Populations before Assimilation – Southern and Eastern EuropeansIcons of Assimilation/New Elites – Al Smith, LaGuardia, Cermak, etc.
Demographic Transition – (1980-2020)
Targeted Populations before Assimilation – Blacks, Latinos, Southeast AsiansIcons of Assimilation/New Elites – Obama, Rice, Powell, Patrick, Steele, Villaragosa, Jindhal.
New Demographic group subject to “Low Intensity Conflict”
Mexicans, Mexican-Americans
New Demographic group subject to “Low Intensity Conflict”
Millennial Generation, particularly those engaged in new forms of digital creativity and quotation
Ecological crises – The Great Dust Bowl Ecological crises – Global Warming
Demographic Migration to Central/Eastern U.S. Industrial Hubs – U.S. becomes an urban society Demographic Migration from suburbia to “Super Hub” urban centers such as Chicago, in the wake of structural economic changes.
Dissolving Coalitions: Suffragettes, eugenicists, WASP groups such as the Women’s Christian Temperance Union and the Prohibition Party, industrial magnates (Henry Ford, etc.), anti-German immigrant sentiment. Dissolving Coalitions: Victims’ Rights groups, Correctional Officers’ Unions, “Reagan Democrats” (Southern and Western), retiring hordes of Baby Boomers now unwilling to sacrifice entitlements.
New Media: Film, radio, television, mass market broadcasting. New Media: Internet-based media, mobile media, narrowcasting, niche digital media.
Declining Empires: the U.K., French Declining Empires: U.S.
* Note that in each case, the decline of Prohibition cannot be equated with the end of governmental interdiction efforts against Organized Crime (whether these elements be the Mafia or terroristic Mexican drug cartels).

Table Two compares similarities between the late 20th Century “War on Drugs” and the ramping up of the early 21st Century “War on Intellectual Piracy.”

Table Two: Characteristics of U.S. Cross-Generational Demographic Wars on Culture
Elements of the U.S. Drug War (1980s) Elements of the Emerging IP War (2007-present)
Changes (1970-present) to the post-U.S. Civil War Posse Commitatus Act allowing direct federal assistance to local enforcement; Extension of roles for Federal Assistance to local enforcement, ported from expanded powers and functions developed in the “War on Drugs.”
Drug War-related Civil Asset Forfeiture provisions enacted (1970) Civil Asset Forfeiture provisions enacted, directly imported from Drug War statutes (2008)
Severe penalties for relatively lower-level infractions (small amounts of crack and pot) Potentially severe penalties for lower-level infractions (small amounts of unauthorized IP audio and video) ported directly from Drug War legislation.
Ethnic, Racial and Class “Low Intensity Conflict,” Black, Latino, migrant, immigrant, the young. Generational-specific “Low Intensity Conflict” between Boomer and post-Boomer populations
Creation of a Federal “Drug Czar” Creation of a Federal “IP-Copyright Czar”

In the section below, I’ll sketch out a series of theoretical frames that could well be applied to how we think about this “low intensity conflict,” which may become the fulcrum of cultural and political conflict, in the coming decades.

Theoretical Considerations

In addition to forming constitutive ground for ominous intergenerational politics, recent and in-process contests over the construction and emergent policing of Intellectual Property represents a broad, deep and active nexus of economic, cultural, and political issues at play. In Creating Selves: Intellectual Property and the Narration of Culture, Johanna Gibson analyses a variety of key socio-cultural and legal issues that are profoundly implicated in such contests. She describes the general problematic below:

Creativity relationships can[not] be bound by the traditional models of producer and consumer, or sender and receiver, … The creativity complex is a diverse interplay and network of arguably uncertain categories of industry, creator and users … beyond the “creator” and the “text” … complicat[ing] the relationship of producer and consumer … recuperat[ing] the positive contribution of the user beyond that of mere appreciative spectator. This networking of creativity is manifest in counter-cultural appropriations of the dominant models (as in blogs and other examples of the “many-to-many” model of creativity); however, intellectual property discourse [and its embodiment in law and propaganda] continues to … [obscure] this network and a simplification of the traditional creator and user roles … This [mythologizes] … the “creator” [as] the output simply commodified in terms of economic value … [created by marketeers] [33]

Utilizing a wide variety of concepts from Bahktin, Barthes, Castells, de Certeau, Deleuze and Guattari, Bourdieu, Lyotard, Mouffe, Fish, Latour and others, Gibson interrogates reductive corporatist legal and cultural constructions of discursive and legal artifacts such as property rights, creativity, attribution, as well as the conflation of the terms intellectual property with innovation, which Gibson condemns as “a misrepresentation of not only the creative process but also creative use.” [34]

In terms of the thesis of this essay (intellectual property policing as a constitutive political ground for low-intensity generational conflict), Gibson’s repositioning of Castells’ notion of informationalism offers up some insights. Castells describes informationalism as follows:

Informationalism is the technological paradigm that constitutes the material basis of early 21st Century societies … It replaced and subsumed industrialism as the dominant technological paradigm … [based on] … self-expanding processing and communication capacity … recombining abilit[ies] … their distributing flexibility through interactive, digitizing networks … [35]

For Gibson, there’s a debatable techno-determinism at the center of Castells’ notion that technologically-inflected changes in the relations of production will spawn new, positive, congruent and irrepressible forms of social interaction, social control and social change. For while conceding Castells’ point that some of these forms have emerged, Gibson asserts that “informationalism nevertheless is coordinated through the [command and control] production models of a persistent industrialism,” even given the fact (or maybe because of the fact) that industrialism’s notions of property and production, derived from standard economic theories and institutional practices, for example, often retard the polyproductive potentialities of digital networks. [36]

While an in-depth discussion of Gibson’s analyses is beyond the scope of this essay, Gibson’s meta-thesis is this: As embodied in law and culture, a penumbra of industrialism’s assumptions ported into national and international policies and practices around digital networks, from notions of property rights, scarcity, authority, attribution, and the linkage of “brands” with “officially sanctioned” creativity and authorized distribution networks; all of these conceptual, economic and legal ports threaten the viability of healthy political expression, creative cultural production, and economic stability, even as alternative models emerge, in the early 21st Century.

The PRO-IP Act became law during a de facto state-of-emergency, during the first critical phase of the 2008 financial meltdown, in the Fall of 2008. A reckless disregard for systemic risks was amplified through complex mortgage default swaps enabled via digitized, globalized, finely fragmented, and geometrically amplified transactions, nearly all of it unaudited. Not surprisingly, then, given the frantic destruction of wealth via networks that was occurring, it was relatively easy to rhetorically and legally conflate (and, in doing so, to offer an ersatz conserving gesture in the midst of a period of wealth destruction) the preservation of an industrial-era notion of intellectual property in a network of society. And, as the bill worked its way through the U.S. Senate in late September, 2008, that is just what the bill’s author, Senator Patrick Leahy, did:

We are a Nation in the midst of an unprecedented financial crisis. It is not just our financial enterprises that are shaken, but our confidence in our own economic strength. [We must] take extraordinary steps to contain the explosions on Wall Street. We must not, as we try to repair the structure of our financial institutions, neglect the very sources of our economic power. Intellectual property — copyrights, patents, trademarks, and trade secrets — is an ever-growing sector of our economy. We are the envy of the world for the quality, and the quantity, of our innovative and creative goods and services. If we want to continue to lead the world in producing intellectual property, we need to protect our citizens’ rights in that property.

Leahy goes on to layer on both pastoral and industrial narratives, conflating the imperatives of those economic worlds with the current crisis:

Long ago, I was the Chittenden County States’ Attorney in Vermont. There is crime everywhere, even in Vermont, and I prosecuted every kind of case. I will never forget how much successful prosecutions depend on whether the investigators and lawyers charged with protecting the public from crime have the right tools to do so…

These individuals and industries are essential to restoring and building our fiscal health. In a time of such frightening economic malaise, we should redouble our efforts to make sure that the productive and valuable sectors of our economy are freed from the debilitating effects of theft and misappropriation. [37]

In the transmogrification of demons, the target of criminalization moves from Wall Street risk pirates to, overwhelming, a domestic war on the country’s young citizens. Across all the changes, the urge to criminalize competing, if subordinate, demographic groups remains. If the specifics of the 2008 PRO-IP Act, and the cozy RIAA appointments at the top of the Department of Justice are any indicators, there’s a new target for stigmatization, criminalization and incarceration: Now, it’s the turn of the artists, the creators, the mashup masters and radical remixers, the visual quotation artists. Are they to be recoded, in law and culture, as criminals, as a contemporary equivalent of demonized crack users of the 1980s? Are they but thieves and moral degenerates who must be taught to respect official property, accept personal responsibility for their actions, or otherwise be incapacitated or disqualified, as cultural and political subjects? In the financial and moral panic that accompanies this massive moment of moral hazard, have the elders in the U.S. Congress made the same mistake as to objects to punish, conflated the wrong subjects and objects, and in the name of protecting wealth, impoverished the cultural, creative and economic lives of their children? Whether this impulse represents the economic avarice of a portion of the Baby Boomer generation, and/or the sheer ignorance of how authorship, creativity and quotation function in a networked world, and/or the maintenance of an analog form of authority in a world whose modes of representation and creativity have collectively passed the Boomers by, there is a nexus of troubling questions that remain.

Finally, consider these questions: Was the February 2009 arrest of Shepard Fairey, in the parking lot of the Institute of Contemporary Art, in Boston, on the opening night of his exhibition, a contingent signifier of what creative artists may expect, in the years to come? [38] Will this year be remembered, not just for the Obama Presidency, or the travails of an economic collapse, but also for ramping up of the asset forfeiture provisions of the PRO-IP Act, the establishment of a Cabinet-level Copyright Czar, and the installation of top-drawer IP enforcement personnel, at the highest level of the government? Camouflaged by economic ruin, a legitimacy crisis, the ongoing Iraqi occupation and the symbolic import of Obama’s ascendance, I ask this: Has the new war already begun, hidden in plain sight?

Notes

[1] A Google Images search on “Hope” and “Fairey” turns up 65,000 online images of Fairey’s “Hope” poster. See, on Fairey’s site, a variant produced for Obama’s Inauguration, the “Inauguration Print, at this URL: http://obeygiant.com/prints/inauguration-print See this Wikipedia URL for the original poster: http://en.wikipedia.org/wiki/File:Obamaposter.jpg

[2] The media coverage around the intersection between the Obama poster, Fairey’s career, Fairey’s lawsuit, and the AP counter lawsuit, has been dense and ongoing. For a sampling, see these New York Times postings: “Artist Sues the A.P. Over the Obama Image,” in the February 9, 2009 online edition of The New York Times, Randy Kennedy, byline: http://www.nytimes.com/2009/02/10/arts/design/10fair. html “Associated Press Files Countersuit over Obama Poster,” in the March 11, 2009 online edition of The New York Times, David Itzkoff, byline: http://artsbeat.blogs.nytimes.com/2009/03/11/associated-press-files-countersuit-over-obama -poster/?scp=6&sq=%22shepard%20fairey%22&st=cse “Boston Vandalism Charges Stir Debate on Art’s Place,” in the March 11, 2009 online edition of The New York Times, Abby Goodnough, byline. http://www. nytimes.com/2009/03/12/arts/design/12boston.html?scp=1&sq=%22shepard%20fairey%22&st=cse

[3] Obama’s drug use was not unusual for young Boomers (1945-64). The quote in Dreams From My Father, as cited by NORML, is this: “I had learned not to care,” he wrote. “I blew a few smoke rings, remembering those years. Pot had helped, and booze; maybe a little blow when you could afford it … Junkie. Pothead. That’s where I’d been headed: the final, fatal role of the young would-be black man …” From the NORML link: http://www.mapinc.org/newsnorml/v03/n1786/a06.html

[4] Probably the most significant single gesture (apart from recent decriminalization referendums, such as the successful 2008 Massachusetts decriminalization effort) is the Obama Administration’s statement, from Attorney General Eric Holder, that the U.S. Justice Department would no longer raid medical marijuana dispensaries in states where such dispensaries are legal, under state law. See the following link, with video: http:// stopthedrugwar.org/chronicle/574/attorney_general_holder_no_more_ DEA_medical_marijuana_raids

[5] For the argument that college and university-based service learning and civic engagement initiatives represent a new iteration of Neoliberalism, Neoliberalism 2.0, see Dion Dennis, Forthcoming: “The Shepherd, The Marketer, and The Actuary: Education-Based Service Learning and Civic Engagement Initiatives as Neoliberal Governmentalities,” in Foucault for the 21st Century, Sam Binkley, editor. Cambridge, UK. Cambridge Scholars’ Press, 2009.

[6] This is an argument made in Lawrence Lessig’s Remix: Making Art and Commerce Thrive in the Hybrid Economy, New York: Penguin Press, 2008.

[7] The Electronic Frontier Foundation attorney, Fred von Lohmann, offers up a succinct analysis, in this video: http://footage.stealthisfilm.com/video/16

[8] A U.S. Government documentary, from 1936, does a good job detailing the devastation of Southern Plains. “The Plow That Broke the Prairie,” Available at http://www.archive.org/details/PlowThatBrokethePlains1

[9] See Timothy J. Dunn, The Militarization of the U.S.-Mexico Border: 1978-1992: Low Intensity Conflict Comes Home, Austin, Texas: CMAS Books, 1996. Parenthetically, the Dunn text has an excellent historical and bureaucratic discussion of the genesis of strategies, tactics and terminologies around “low intensity conflict” doctrine.

[10] Directed by Louis J. Gasnier: Writing credits Lawrence Meade (story) Arthur Hoerl (screenplay), Reefer Madness, 1936, this sixty-six minute film can be viewed on YouTube and Google Video: http://video.google.com/videoplay?docid=- 6696582420128930236 or http://www.youtube.com/watch?v=QZdhcNegZgU&feature= related

[11] From The Online Reefer Madness Teaching Museum at http://www.reefermadnessteachingmuseum.org /ReeferMadness/gorefiles.htm

[12] Anslinger’s Gore Files at http://reefermadnessmuseum.org/chap10/GorePart-1.htm

[13] Ibid, at http://www.reefermadnessteachingmuseum. org/ReeferMadness/gorefiles2.htm

[14] Ibid, at http://reefermadnessmuseum.org/chap10/GorePart-7.htm

[15] For a while, clips were available on YouTube, although those have been taken down with a DMCA notice. For a good write-up of the video, see Ryan Paul’s “Reviewing the RIAA’s Reefer Madness for a Digital Age,” 2008, at arstechnica: http:// arstechnica.com/old/content/2008/02/reviewing-the-riaas-reefer-madness-for-the-digital-age.ars

[16] 122 STAT 4256, Public Law 110-403 — OCT. 13, 2008. Prioritizing Resources and Organization for Intellectual Property Act of 2008. Available at http:// frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ403.110.pdf

[17] Leahy chronicles the diversity and unanimity of his coalition for S.3325/110-403 on one of his official web pages: http://leahy.senate.gov/press/200809/092608b.html

[18] This list is adapted from the “Background Points on S. 3325” on Senator Leahy’s Senate web site: http://leahy.senate.gov/press/200809/092608b.html

[19] Ibid at http:// frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ403.110.pdf

[20] Ibid at http:// frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ403.110.pdf

[21] In effect, the legislation responsibilizes parents to police their children for possible Internet-based copyright infringement, even if the parents are not present (at work, school, looking for work, at their second of third job, etc.). This is the kind of “offloading” characteristic of neoliberal social control policies.

[22] Ibid at http:// frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ403.110.pdf

[23] McCullagh, Declan. “Obama picks RIAA’s favorite lawyer for a top Justice post,” CNET News, January 6, 2009. Available at http://news.cnet.com/8301-13578_3-10133425-38.html Perrelli was confirmed by the Senate on March 12, 2009. See the announcement on Senator Leahy’s web site: http://leahy.senate.gov/press/200903/031209g.html

[24] Ibid, at http://news.cnet.com/8301-13578_3-10133425-38.html Parenthetically, the Sonny Bono Copyright Extension Act allowed for retroactive extension of copyrights.

[25] See the following press release from the Cyberone Defense Project at the Harvard Law School, for details: http://blogs.law.harvard.edu/cyberone/files/2008/11/deterrence-act-unconstitutional-press-release-final-amended.pdf Also see this Cyberone page for a comprehensive list of press coverage of this case: http://blogs.law.harvard.edu/cyberone/riaa/press/

[26] A brief summary of Capitol Records v. Thomas, along with links, is available at http://en.wikipedia.org/wiki/Capitol_v._Thomas

[27] McCullagh, Declan. “Obama DOJ pick: RIAA lawyer who killed Grokster,” CNET News, February 5, 2009. Available at http://news.cnet.com/8301-13578_3-10157381-38.html

[28] McCullagh, Declan. “Joe Biden’s pro-RIAA, pro-FBI tech voting record,” CNET News, August 23, 2008. Available at http://news.cnet.com/8301-13578_3-10024163-38.html

[29] Ibid, at http://news.cnet.com/8301-13578_3-10024163-38.html

[30] See the video of Biden’s March 11, 2009 announcement on CSPAN: http://cspan.org/Watch/watch.aspx?MediaId=HP-A-16271

[31] Kgw.org: “Bill proposes that Oregon grow, sell pot to medical users,” Eric Adams, byline, posted on March 13, 2009 on MSNBC.com. Available at http://www.msnbc.msn.com/id/29642758/

[32] “Ammiano wants to make marijuana legal in state,” from the online edition of the San Francisco Chronicle, Wyatt Buchanan, byline, February 24, 2009. Available at http://www.sfgate. com/cgi-bin/article.cgif=/c/a/2009/02/23/BAO416354C.DTL&type=politics&tsp=1

[33] Johanna Gibson, Creating Selves: Intellectual Property and the Narration of Culture. Aldershot: Ashgate Publishing Limited. 2006. This excerpt is culled from pages 6-8.

[34] Ibid, page 4. In this regard, Gibson’s arguments parallel those of Lawrence Lessig, in his 2008 book, Remix.

[35] Manuel Castells, Informationalism, Networks, and the Network Society: A Theoretical Blueprint. 2004. Available at http:// annenberg.usc.edu/Faculty/Communication/~/media/ Faculty/Facpdfs/Informationalism%20pdf.ashx

[36] Ibid, 30.

[37] See Leahy, ibid, http://leahy.senate.gov/press/200809/092608b.html

[38] “Defense Lawyer: Police Seeking 31 More Charges Against Shepard Fairey,” March 10, 2009 article in the Boston Globe, Brian R. Ballou and Andrew Ryan, byline. This treatment parallels the absurdist activities of the local authorities in January, 2007, against the artists initially charged in the “Aqua Teen Hunger Force” LED scare. Available at http://www.boston.com/news/local/ breaking_news/2009/03/shepard_fairey.html

There are conflicting accounts of Shepard Fairey’s arrest. One explanation is offered up by a local artist’s collective: “Was Shepard Fairey arrested to Embarrass the Mayor of Boston?” Available at http://www. woostercollective.com/2009/02/shepard_faireys_arrest_in_boston_a_first.html

Here’s a March 17 2009 review of the ICA exhibit in The New York Times, “Can A Rebel Stay a Rebel Without the Claws,” Ken Johnson, byline: http://www.nytimes.com/2009/03/18/arts/design/ 18fair.html?_r=1

Dion Dennis is Associate Professor of Criminal Justice at Bridgewater State College (MA). He teaches courses on emerging technology, new forms of property and equally new forms of social control; neo-liberalism and 21st Century policing and corrections; and justice, media and crime. Dennis’ essays have regularly appeared in CTheory. His essays and reviews have also appeared in Postmodern Culture, The Education Policy Analysis Archives, the Academic Exchange Quarterly, Rhizomes, Culture and Agriculture, Fast Capitalism, and First Monday, as well as in new and reprinted form in several print anthologies.