Netanel (1996) talks about the NIEP theory approach to copyright and the democratic paradigm. Explain the difference between these in your own words. Lessig (2008) talks about read-only (RO) and read/write (RW) culture. How can copyright facilitate both of these?

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ou are required to write 500 words in response to each of the following questions (no more than 1000 words in total). You will need to draw on the knowledge acquired in the first week.

Netanel (1996) talks about the NIEP theory approach to copyright and the democratic paradigm. Explain the difference between these in your own words.
Lessig (2008) talks about read-only (RO) and read/write (RW) culture. How can copyright facilitate both of these?
Marking Criteria:
– Demonstrated understanding of the question

– Demonstrated knowledge of lecture and reading materials

– Application of materials to set question

I will upload the 2 articles on Netanal and Lessig.

Please no more than 1000 words in total.FOUR RW, REVIVED O ne of my closest (if most complicated) friends at college was an English major. He was also a brilliant writer. Indeed, in every class in which writing was the measure, he did as well as one possibly could. In every other class, he, well, didn’t. Ben’s writing had a certain style. Were it music, we’d call it sampling. Were it painting, it would be called collage. Were it digital, we’d call it remix. Every paragraph was constructed through quotes. The essay might be about Hemingway or Proust. But he built the argument by clipping quotes from the authors he was discussing. Their words made his argument. And he was rewarded for it. Indeed, in the circles for which he was writing, the talent and care that his style evinced were a measure of his understanding. He succeeded not simply by stringing quotes together. He succeeded because the salience of the quotes, in context, made a point that his words alone would not. And his selection demonstrated knowledge beyond the message of the text. Only the most careful reader could construct from the text he read another text that explained it. Ben’s writing showed he was an 80706 i-xxiv 001-328 r4nk.indd 51 0706 i-xxiv 001-328 r4nk.indd 51 8/12/08 1:54:47 AM /12/08 1:54:47 AM 52 REMIX insanely careful reader. His intensely careful reading made him a beautiful writer. Ben’s style is rewarded not just in English seminars. It is the essence of good writing in the law. A great brief seems to say nothing on its own. Everything is drawn from cases that went before, presented as if the argument now presented is in fact nothing new. Here again, the words of others are used to make a point the others didn’t directly make. Old cases are remixed. The remix is meant to do something new. (Appropriately enough, Ben is now a lawyer.) In both instances, of course, citation is required. But the cite is always suffi cient payment. And no one who writes for a living actually believes that any permission beyond that simple payment should ever be required. Had Ben written the estate of Ernest Hemingway to ask for permission to quote For Whom the Bell Tolls in his college essays, lawyers at the estate would have been annoyed more than anything else. What weirdo, they would have wondered, thinks you need permission to quote in an essay? So here’s the question I want you to focus on as we begin this chapter: Why is it “weird” to think that you need permission to quote? Why would (or should) we be “outraged” if the law required us to ask Al Gore for permission when we wanted to include a quote from his book The Assault on Reason in an essay? Why is an author annoyed (rather than honored) when a high school student calls to ask for permission to quote? The answer, I suggest, has lots to do with the “nature” of writing. Writing, in the traditional sense of words placed on paper, is the ultimate form of democratic creativity, where, again, “democratic” doesn’t mean people vote, but instead means that everyone within a society has access to the means to write. We teach everyone 80706 i-xxiv 001-328 r4nk.indd 52 0706 i-xxiv 001-328 r4nk.indd 52 8/12/08 1:54:47 AM /12/08 1:54:47 AM RW, REVIVED 53 to write— in theory, if not in practice. We understand quoting is an essential part of that writing. It would be impossible to construct and support that practice if permission were required every time a quote was made. The freedom to quote, and to build upon, the words of others is taken for granted by everyone who writes. Or put differently, the freedom that Ben took for granted is perfectly natural in a world where everyone can write. Writing Beyond Words Words, obviously, are not the only form of expression that can be remixed in Ben’s way. If we can quote text from Hemingway’s For Whom the Bell Tolls in an essay, we can quote a section from Sam Wood’s fi lm of Hemingway’s For Whom the Bell Tolls in a fi lm. Or if we can quote lyrics from a Bob Dylan song in a piece about Vietnam, we can quote a recording of Bob Dylan singing those lyrics in a video about that war. The act is the same; only the source is different. And the measures of fairness could also be the same: Is it really just a quote? Is it properly attributed? And so on. Yet, however similar these acts of quoting may be, the norms governing them today are very different. Though I’ve not yet found anyone who can quite express why, any qualifi ed Hollywood lawyer would tell you there’s a fundamental difference between quoting Hemingway and quoting Sam Wood’s version of Hemingway. The same with music: in an opinion by perhaps one of the twentieth century’s worst federal judges, Judge Kevin Thomas Duffy, the court issued “stern” sanctions against rap artists who had sampled another musical recording. Wrote the judge, 80706 i-xxiv 001-328 r4nk.indd 53 0706 i-xxiv 001-328 r4nk.indd 53 8/12/08 1:54:47 AM /12/08 1:54:47 AM 54 REMIX “Thou shalt not steal” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.1 Whether justifi ed or not, the norms governing these forms of expression are far more restrictive than the norms governing text. They admit none of the freedoms that any writer takes for granted when writing a college essay, or even an essay for the New Yorker. Why? A complete answer to that question is beyond me, and therefore us, here. But we can make a start. There are obvious differences in these forms of expression. The most salient for our purposes is the democratic difference, historically, in these kinds of “writing.” While writing with text is the stuff that everyone is taught to do, fi lmmaking and record making were, for most of the twentieth century, the stuff that professionals did. That meant it was easier to imagine a regime that required permission to quote with fi lm and music. Such a regime was at least feasible, even if ineffi cient. But what happens when writing with fi lm (or music, or images, or every other form of “professional speech” from the twentieth century) becomes as democratic as writing with text? As Negativland’s Don Joyce described to me, what happens when technology “democratiz[es] the technique and the attitude and the method [of creating] in a way that we haven’t known before. . . . [I]n terms of collage, [what happens when] anybody can now be an artist”?2 80706 i-xxiv 001-328 r4nk.indd 54 0706 i-xxiv 001-328 r4nk.indd 54 8/12/08 1:54:48 AM /12/08 1:54:48 AM RW, REVIVED 55 What norms (and then law) will govern this kind of creativity? Should the norms we all take for granted from writing be applied to video? And music? Or should the norms from fi lm be applied to text? Put differently: Should the “ask permission” norms be extended from fi lm and music to text? Or should the norms of “quote freely, with attribution” spread from text to music and fi lm? At this point, some will resist the way I’ve carved up the choices. They will insist that the distinction is not between text on the one hand and fi lm/music/images on the other. Instead, the distinction is between commercial or public presentations of text/fi lm/music/ images on the one hand, and private or noncommercial use of text/ fi lm/music/images on the other. No one expects my friend Ben to ask the Hemingway estate for permission to quote in a college essay, because no one is publishing (yet, at least) Ben’s college essays. And in the same way, no one would expect Disney, for example, to have any problem with a father taking a clip from Superman and including it in a home movie, or with kids at a kindergarten painting Mickey Mouse on a wall. Yet however sensible that distinction might seem, it is in fact not how the rules are being enforced just now. Again, Ben’s freedom with text is the same whether it is a college essay or an article in the New Yorker (save perhaps if he’s writing about poetry). And in fact, Disney has complained about kids at a kindergarten painting Mickey on a wall.3 And in a setup by J. D. Lasica, every major studio except one insisted that a father has no right to include a clip of a major fi lm in a home movie— even if that movie is never shown to anyone except the family— without paying thousands of dollars to do so.4 However sensible, the freedom to quote is not universal in the 80706 i-xxiv 001-328 r4nk.indd 55 0706 i-xxiv 001-328 r4nk.indd 55 8/12/08 1:54:48 AM /12/08 1:54:48 AM 56 REMIX noncommercial sphere. Instead, those in thousand- dollar suits typically insist that “permission is vital, legally.” Nor do I believe the freedom to quote should reach universally only in the noncommercial sphere. In my view, it should reach much broader than that. But before I can hope to make that normative argument stick, we should think more carefully about why this right to quote— or as I will call it, to remix— is a critical expression of creative freedom that in a broad range of contexts, no free society should restrict. Remix is an essential act of RW creativity. It is the expression of a freedom to take “the songs of the day or the old songs” and create with them. In Sousa’s time, the creativity was performance. The selection and arrangement expressed the creative ability of the singers. In our time, the creativity reaches far beyond performance alone. But in both contexts, the critical point to recognize is that the RW creativity does not compete with or weaken the market for the creative work that gets remixed. These markets are complementary, not competitive. That fact alone, of course, does not show that both markets shouldn’t be regulated (that is, governed by rules of copyright). But as we’ll see in the next part of the book, there are important reasons why we should limit the regulation of copyright in the contexts in which RW creativity is likely to fl ourish most. These reasons refl ect more than the profi t of one, albeit important, industry; instead, they refl ect upon a capacity for a generation to speak. I start with a form of RW culture that is closest to our tradition of remixing texts. From that beginning, I will build to the more signifi cant forms of remix now emerging. In the end, my aim is to draw all these forms together to point to a kind of speech that will 80706 i-xxiv 001-328 r4nk.indd 56 0706 i-xxiv 001-328 r4nk.indd 56 8/12/08 1:54:49 AM /12/08 1:54:49 AM RW, REVIVED 57 seem natural and familiar. And a kind of freedom that will feel inevitable. Remixed: Text There is a thriving RW culture for texts on the Net just now. Its scope and reach and, most important, sophistication are far beyond what anyone imagined at the Internet’s birth. Through technologies not even conceived of when this system began, this RW culture for texts has built an ecology of content and an economy of reputation. There is a system now that makes an extraordinary range of initially unfi ltered content understandable, and that helps the reader recognize what he should trust, and what he should question. We can describe this system in three layers. The fi rst is the writing itself. This has evolved through two different lives. The fi rst of these is obscure to many; the second is the ubiquitous “blog.” The fi rst was something called Usenet. In 1979, two computer scientists at Duke, Tom Truscott and Jim Ellis, invented a distributed messaging system that enabled messages to be passed cheaply among thousands of computers worldwide. This was Usenet. Sometimes these messages were announcementy; sometimes they were simply informational. But soon they became the location of increasingly interactive RW culture. As individuals realized they could simply hit a single button and post a comment or reply to thousands of computers worldwide, the temptation to speak could not be resisted. Usenet grew quickly, and passion around it grew quickly as well. In 1994, a couple of lawyers changed all this. The fi rm Canter & 80706 i-xxiv 001-328 r4nk.indd 57 0706 i-xxiv 001-328 r4nk.indd 57 8/12/08 1:54:49 AM /12/08 1:54:49 AM 58 REMIX Siegel posted the fi rst cross- group commercial message— aka spam— advertising its services. Thousands responded in anger, fl aming the lawyers to get them to stop. But many others quickly copied Canter & Siegel. Other such scum quickly followed. Usenet became less and less a place where conversation could happen, and more and more a ghetto for gambling ads and other such scams (see also your e- mail in- box).5 Just about the time that Usenet was fading, the World Wide Web was rising. The Web’s inventor, Tim Berners- Lee, was keen that the Web be a RW medium— what Benkler calls “the writable Web.”6 He pushed people developing tools to implement Web protocols to design their tools in a way that would encourage both reading and writing.7 At fi rst, this effort failed. The real drive for the Web, its developers thought, would be businesses and other organizations that would want to publish content to the world. RO, not RW. But as tools to simplify HTML coding matured, Berners- Lee’s idea of a RW Internet became a reality. Web- logs, or blogs, soon started to proliferate at an explosive rate. In March 2003, the best known service for tracking blogs, Technorati, found just 100,000 blogs. Six months later, that number had grown to 1 million. A year later, more than 4 million were listed.8 Today there are more than 100 million blogs worldwide, with more than 15 added in the time it took you to read this sentence. According to Technorati, Japanese is now the number one blogging language. And Farsi has just entered the top ten.9 When blogs began (and you can still see these early blogs using Brewster Kahle’s “Wayback machine” at, while they expressed RW creativity (since the norm for this form of writing encouraged heavy linking and citation), their RW character was 80706 i-xxiv 001-328 r4nk.indd 58 0706 i-xxiv 001-328 r4nk.indd 58 8/12/08 1:54:49 AM /12/08 1:54:49 AM RW, REVIVED 59 limited. Many were little more than a public diary: people (and some very weird people) posting their thoughts into an apparently empty void. Most were commentary on other public events. So the writing itself was RW, but the writing was experienced by an audience as RO. Soon, however, in what Benkler calls the “second critical innovation of the writable Web,”10 bloggers added a way for their audience to talk back. Comments became an integral part of blogging. Some of these comments were insightful, some were silly, some were designed simply to incite. But by adding a way to talk back, blogs changed how they were read. This was the fi rst layer of the Net’s RW culture for text. Alone, however, this layer would be worth very little. How could you fi nd anything of interest in this vast, undifferentiated sea of content? If you knew someone you trusted, maybe you’d read her blog. But why would you waste your time reading some random person’s thoughts about anything at all? The next two layers helped solve this problem. The fi rst added some order to the blogosphere. It did so by adding not a taxonomy but, as Thomas Vander Wal puts it, a “folksonomy to this RW culture.”11 Tags and ranking systems, such as, Reddit, and Digg, enabled readers of a blog or news article to mark it for others to fi nd or ignore. These marks added meaning to the post or story. They would help it get organized among the millions of others that were out there. Together these tools added a metalayer to the blogosphere, by providing, as Wired cofounder Kevin Kelly puts it, “a public annotation— like a keyword or category name that you hang on a fi le, Web page or picture.”12 And as readers explore the Web, users leave marks that help others understand or fi nd the same stuff. 80706 i-xxiv 001-328 r4nk.indd 59 0706 i-xxiv 001-328 r4nk.indd 59 8/12/08 1:54:50 AM /12/08 1:54:50 AM 60 REMIX So, for example, if you read an article about Barack Obama, you can tag it with a short description: “Obama” or “Obama_environment.” As millions of readers do the same, the system of tagging begins to impose order on the stuff tagged— even though no one has drafted a table of tags, and no one imposes any rules about the tags. You could just as well tag the Obama article “petunias,” and some few petunia lovers will be disappointed as they follow the sign to this nonpetunia site. But as more and more users push the arrows in other ways, more and more follow more faithful taggers. Tagging thus added a layer of meaning to RW content. The more tags, the more useful and signifi cant they become. Importantly, this signifi cance is created directly by the viewers or consumers of that culture— not by advertisers, or by any other intentional efforts at commercial promotion. This reputation and word- of mouth technology create a competing set of meanings that get associated with any content. The tools become “powerful forces that marketers must harness,” though as Don Tapscott and Anthony Williams point out, this is a force that can “just as easily spin out of control in unpredictable ways.”13 As they add meaning to content, these tools also enable collaboration. Signifi cance and salience are a self- conscious community activity.14 Sites such as reinforce this community power by allowing users to share bookmarks, enabling “links [to] become . . . the basis for learning new things and making connections to new people.”15 They also change the relative power of the reader. As the reader “writes” with tags or votes, the importance of the original writing changes. A major national newspaper could have the highest- paid technology writer in the world. But what happens to that writer when it turns out that the columns read by more, and recommended by most, are written by eighteen- year- old 80706 i-xxiv 001-328 r4nk.indd 60 0706 i-xxiv 001-328 r4nk.indd 60 8/12/08 1:54:50 AM /12/08 1:54:50 AM RW, REVIVED 61 bloggers? The New York Times used to have the power to say who was the most signifi cant. A much more democratic force does that now. The third layer of this RW culture for text is much less direct. These are tools that try to measure the signifi cance of a conversation by counting the links that others make to the conversations. Technorati is the leader in this area so far. Its (ro)bots crawl the world of blogs, counting who links to whom or what. The company then publishes up- to- the- minute rankings and link reports, so you can post a blog entry and, minutes later, begin watching everyone who links back to that entry. Technorati says it updates its index every ten minutes.16 With over 100 million blogs indexed, that’s a very fast update. Indices like this show the revealed preferences of the blogosphere. In almost real time, we can see who is wielding infl uence. And as the space matures, most interestingly, we can see that the infl uence of blogs is increasingly outstripping mainstream media. In the Q4 report for 2006, Technorati reported that in the 51–100 range of most popular sites on the Web, 25 percent were blogs.17 Ten years before, 0 percent of nonprofessional content would have been among the most popular of any popular media. These three layers, then, work together. There would be nothing without the content. But there would be too much to be useful were there only the content. So, in addition to content, content about content— tags, and recommendations—combined with tools to measure the infl uence of content. The whole becomes an ecosystem of reputation. Those trying to interact with culture now recognize this space as critical to delivering or understanding a message. Many worry about this blogosphere. Some worry it is just a fad— but what fad has ever caught 100 million users before? Charlene Li 80706 i-xxiv 001-328 r4nk.indd 61 0706 i-xxiv 001-328 r4nk.indd 61 8/12/08 1:54:50 AM /12/08 1:54:50 AM 62 REMIX reports that 33 percent of teenagers make a blog entry weekly, and 41 percent visit a social networking site daily.18 And absolutely every major publication devotes a substantial amount of resources to making this presence as important as any. Others worry about quality; how can bloggers match the New York Times? What bloggers will spend the effort necessary to get their stories right? If the question is asked about blogs on average, then no doubt the skepticism is merited. But if the same question were asked of newspapers on average, then great skepticism about newspapers would be merited as well. The point with both is that we have effective tools for assessing quality. And more important, we have increasingly famous examples of blogs outdoing traditional media in delivering both quality and truth. Yochai Benkler catalogs a host of cases where bloggers did better than mainstream media in ferreting out the truth, such as uncovering the truth about Trent Lott’s affection for racist statements, or the lack of veracity in Diebold’s claims about its voting machines.19 And even a cursory review of key political blogs— Instapundit or Michelle Malkin on the Right, the Daily Kos or the Huffi ngton Post on the Left— reveals a depth and an understanding that are rare in even the best of mainstream media. The point is there’s good and bad on both sides. But perhaps in the blogosphere, there are better mechanisms for determining what is good and what is bad. The point was driven home to me in the 2004 election. That election, of course, had created public awareness about blogs, since the early front- runner, Vermont governor Howard Dean, had been created by blog culture. But as I watched the returns from that election on national television, I began to feel sorry for the “correspondents” who had to report on this pivotal election on television. In 80706 i-xxiv 001-328 r4nk.indd 62 0706 i-xxiv 001-328 r4nk.indd 62 8/12/08 1:54:51 AM /12/08 1:54:51 AM RW, REVIVED 63 one example, one of our nation’s most prominent correspondents was asked to give, as the segment was advertised, an “ in- depth analysis of” voters in one particular state. When the segment began, the national desk switched to this correspondent, and he began with a question to three “average voters” from the state. He then had about thirty seconds to add his own witty insight on top of their totally inane blather about why they had voted as they did. And that was it. One minute, and zero substance, broadcast to millions across the country. It so happened that at the same time, I was reading an “ in- depth analysis” of the same state, posted on a blog. The post had been written within the previous three hours. It was chock-full of substance and insight. Timely, smart, and comprehensive— much better than the “human angle” news that is national news today, and much more refl ective of the talent of a great journalist. The television reporter no doubt thought he was a journalist. But with TV tuned to the attention span of an increasingly ADD public, who can afford to be a journalist? There’s one more important dimension to the RW culture of text on the Internet: the power of advertising. In this realm, the editorial power of advertisers is radically smaller than in traditional media. An advertiser can choose whether and where to advertise. But advertising is still a small part of the economy of blogging, and where it is relevant, many different content sources compete, so the ability of an advertiser indirectly to control content is radically diminished.20 The RW Internet is an ecosystem. Many will remain skeptical. If the quality of the average blog is so bad, what good could this RW creativity be doing? But here we need to focus upon a second aspect of RW creativity— not so much 80706 i-xxiv 001-328 r4nk.indd 63 0706 i-xxiv 001-328 r4nk.indd 63 8/12/08 1:54:51 AM /12/08 1:54:51 AM 64 REMIX the quality of the speech it produces, but the effect it has upon the person producing the speech. I’ve felt one aspect of this effect personally. I’m a law professor. For the fi rst decade of my law professor life, I wrote with the blissful understanding that no one was reading what I wrote. That knowledge gave me great freedom. More important, whatever the three readers of my writing thought remained their own private thoughts. Law professors write for law journals. Law journals don’t attach comments to the articles they publish. Blog space is different. You can see people read your writing; if you allow, you can see their comments. The consequence of both is something you can’t quite understand until you’ve endured it. Like eating spinach or working out, I force myself to suffer it because I know it’s good for me. I’ve written a blog since 2002. Each entry has a link for comments. I don’t screen or fi lter comments (save for spam). I don’t require people to give their real name. The forum is open for anyone to say whatever he or she wants. And people do. Some of the comments are quite brilliant. Many add important facts I’ve omitted or clarify what I’ve misunderstood. Some commentators become regulars. One character, “Three Blind Mice,” has been a regular for a long time, rarely agreeing with anything I say. But many of the comments are as rude and abusive as language allows. There are fi gures— they’re called “trolls”— who live for the fi ghts they can gin up in these spaces. They behave awfully. Their arguments are (in the main) ridiculous, and they generally make comment spaces deeply unpleasant. Other commentators fi nd ways around these trolls. Norms like “don’t feed the troll” are invoked whenever anyone takes a troll on. But there’s only so much that can be done, at least so long as the 80706 i-xxiv 001-328 r4nk.indd 64 0706 i-xxiv 001-328 r4nk.indd 64 8/12/08 1:54:52 AM /12/08 1:54:52 AM RW, REVIVED 65 forum owner (me) doesn’t block certain people or force everyone to use his or her real name. I fi nd it insanely diffi cult to read these comments. Not because they’re bad or mistaken, but mainly because I have very thin skin. There’s a direct correlation between what I read and pain in my gut. Even unfair and mistaken criticism cuts me in ways that are just silly. If I read a bad comment before bed, I don’t sleep. If I trip upon one when I’m trying to write, I can be distracted for hours. I fantasize about creating an alter ego who responds on my behalf. But I don’t have the courage for even that deception. So instead, my weakness manifests itself through the practice (extraordinarily unfair to the comment writer) of sometimes not reading what others have said. So then why do I blog all? Well, much of the time, I have no idea why I do it. But when I do, it has something to do with an ethic I believe that we all should live by. I fi rst learned it from a judge I clerked for, Judge Richard Posner. Posner is without a doubt the most signifi cant legal academic and federal judge of our time, and perhaps of the last hundred years. He was also the perfect judge to clerk for. Unlike the vast majority of appeals court judges, Posner writes his own opinions. The job of the clerk was simply to argue. He would give us a draft opinion, and we’d write a long memo in critique. He’d use that to redraft the opinion. I gave Posner comments on much more than his opinions. In particular, soon after I began teaching he sent me a draft of a book, which would eventually become Sex and Reason. Much of the book was brilliant. But there was one part I thought ridiculous. And in a series of faxes (I was teaching in Budapest, and this was long before e- mail was generally available), I sent him increasingly outrageous comments, arguing about this section of the book. 80706 i-xxiv 001-328 r4nk.indd 65 0706 i-xxiv 001-328 r4nk.indd 65 8/12/08 1:54:52 AM /12/08 1:54:52 AM 66 REMIX The morning after I sent one such missive, I reread it, and was shocked by its abusive tone. I wrote a sheepish follow- up, apologizing, and saying that of course, I had endless respect for Posner, blah, blah, and blah. All that was true. So too was it true that I thought my comments were unfair. But Posner responded not by accepting my apology, but by scolding me. And not by scolding me for my abusive fax, but for my apology. “I’m surrounded by sycophants,” he wrote. “The last thing in the world I need is you to fi lter your comments by reference to my feelings.” I was astonished by the rebuke. But from that moment on, I divided the world into those who would follow (or even recommend) Posner’s practice, and those who wouldn’t. And however attractive the anti- Posner pose was, I wanted to believe I could follow his ethic: Never allow, or encourage, the sycophants. Reward the critics. Not because I’d ever become a judge, or a public fi gure as important as Posner. But because in following his example, I would avoid the worst effects of the protected life (as a tenured professor) that I would lead. Until the Internet, there was no good way to do this, at least if you were as insignifi cant as I. It’s not like I could go to my local Starbucks and hold a public forum. There are people who do that in my neighborhood. Most of them have not showered for weeks. Famous people could do this, in principle. But the ethic of public appearances today, at least for Americans, militates against this sort of directness. It’s rude to be critical. Indeed, if you’re too critical, you’re likely to be removed from the forum by men with badges. This is not the way it is everywhere. In perhaps the most dramatic experience of democracy I’ve witnessed, I watched Brazil’s minister of culture, Gilberto Gil, argue with a loving but critical 80706 i-xxiv 001-328 r4nk.indd 66 0706 i-xxiv 001-328 r4nk.indd 66 8/12/08 1:54:52 AM /12/08 1:54:52 AM RW, REVIVED 67 crowd (loving his music and most of his policies, except the part that protected incumbent radio stations).21 The forum was packed. There was no stage that separated Gil from the hundreds who huddled around to hear him. People argued directly with him. He argued back, equal to equal. The exchange was so honest that it even embarrassed John Perry Barlow, Gil’s friend and fan, who stood to defend Gil against the critics. But Gil loved the exchange. He was not embarrassed by the harshness of the criticism. His manner encouraged it. He was a democratic leader in a real (as opposed to hierarchical) democracy. He was Posner in Brazil. For those of us who are not Posner and not Gil, the Internet is the one context that encourages the ethic of democracy that they exemplify. It is the place where all writing gets to be RW. To write in this medium is to know that anything one writes is open to debate. I used to love the conceit of a law review article— presenting its arguments as if they were proven, with little or no space provided for disagreement. I now feel guilty about participating in such a form. All this openness is the product of a kind of democracy made real with writing. If trends continue, we’re about to see this democracy made real with all writing. The publishers are going to fi ght the Googlezation of books. But as authors see that the most signifi – cant writing is that which is RW, they’ll begin to insist that their publishers relax. In ten years, everything written that is read will be accessible on the Net— meaning not that people will be able to download copies to read on their DRM- encumbered reader but accessible in an open- access way, so that others will be able to comment on, and rate, and criticize the writing they read. This write/ read is the essence of RW. 80706 i-xxiv 001-328 r4nk.indd 67 0706 i-xxiv 001-328 r4nk.indd 67 8/12/08 1:54:53 AM /12/08 1:54:53 AM 68 REMIX Text is just a small part of the RW culture that the Internet is. Consider now its big, and ultimately much more signifi cant, sister. Remixed: Media For most of the Middle Ages in Europe, the elite spoke and wrote in Latin. The masses did not. They spoke local, or vernacular, languages— what we now call French, German, and English. What was important to the elites was thus inaccessible to the masses. The most “important” texts were understood by only a few. Text is today’s Latin. It is through text that we elites communicate (look at you, reading this book). For the masses, however, most information is gathered through other forms of media: TV, fi lm, music, and music video. These forms of “writing” are the vernacular of today. They are the kinds of “writing” that matters most to most. Nielsen Media Research, for example, reports that the average TV is left on for 8.25 hours a day, “more than an hour longer than a decade ago.”22 The average American watches that average TV about 4.5 hours a day.23 If you count other forms of media— including radio, the Web, and cell phones— the number doubles.24 In 2006, the U.S. Bureau of the Census estimated that “American adults and teens will spend nearly fi ve months” in 2007 consuming media.25 These statistics compare with falling numbers for text. Everything is captured in this snapshot of generations: Individuals age 75 and over averaged 1.4 hours of reading per weekend day and 0.2 hour (12 minutes) playing games or using a 80706 i-xxiv 001-328 r4nk.indd 68 0706 i-xxiv 001-328 r4nk.indd 68 8/12/08 1:54:53 AM /12/08 1:54:53 AM RW, REVIVED 69 computer for leisure. Conversely, individuals ages 15 to 19 read for an average of 0.1 hour (7 minutes) per weekend day and spent 1.0 hour playing games or using a computer for leisure.26 It is no surprise, then, that these other forms of “creating” are becoming an increasingly dominant form of “writing.” The Internet didn’t make these other forms of “writing” (what I will call simply “media”) signifi cant. But the Internet and digital technologies opened these media to the masses. Using the tools of digital technology— even the simplest tools, bundled into the most innovative modern operating systems— anyone can begin to “write” using images, or music, or video. And using the facilities of a free digital network, anyone can share that writing with anyone else. As with RW text, an ecology of RW media is developing. It is younger than the ecology of RW texts. But it is growing more quickly, and its appeal is much broader.27 These RW media look very much like Ben’s writing with text. They remix, or quote, a wide range of “texts” to produce something new. These quotes, however, happen at different layers. Unlike text, where the quotes follow in a single line— such as here, where the sentence explains, “and then a quote gets added”— remixed media may quote sounds over images, or video over text, or text over sounds. The quotes thus get mixed together. The mix produces the new creative work— the “remix.” These remixes can be simple or they can be insanely complex. At one end, think about a home movie, splicing a scene from Superman into the middle. At the other end, there are new forms of art being generated by virtuosic remixing of images and video with found and remade audio. Think again about Girl Talk, remixing 80706 i-xxiv 001-328 r4nk.indd 69 0706 i-xxiv 001-328 r4nk.indd 69 8/12/08 1:54:53 AM /12/08 1:54:53 AM 70 REMIX between 200 and 250 samples from 167 artists in a single CD. This is not simply copying. Sounds are being used like paint on a palette. But all the paint has been scratched off of other paintings. So how should we think about it? What does it mean, exactly? However complex, in its essence remix is, as Negativland’s Don Joyce described to me, “just collage.” Collage, as he explained, [e]merged with the invention of photography. Very shortly after it was invented . . . you started seeing these sort of joking postcards that were photo composites. There would be a horse- drawn wagon with a cucumber in the back the size of a house. Things like that. Just little joking composite photograph things. That impressed painters at the time right away. But collage with physical objects is diffi cult to do well and expensive to spread broadly. Those barriers either kept many away from this form of expression, or channeled collage into media that could be remixed cheaply. As Mark Hosler of Negativland described to me, explaining his choice to work with audio, I realized that you could get a hold of some four- track reel- to reel for not that much money and have it at home and actually play around with it and experiment and try out stuff. But with fi lm, you couldn’t do that. It was too expensive. . . . So that . . . drove me . . . to pick a medium where we could actually control what we were doing with a small number of people, to pull something off and make some fi nished thing to get it out there.28 With digital objects, however, the opportunity for wide- scale collage is very different. “Now,” as fi lmmaker Johan Söderberg 80706 i-xxiv 001-328 r4nk.indd 70 0706 i-xxiv 001-328 r4nk.indd 70 8/12/08 1:54:54 AM /12/08 1:54:54 AM RW, REVIVED 71 explained, “you can do

almost for free on your own computer.”29 This means more people can create in this way, which means that many more do. The images or sounds are taken from the tokens of culture, whether digital or analog. The tokens are “blaring at us all the time,” as Don Joyce put it to me: “We are barraged” by expression intended originally as simply RO. Negativland’s Mark Hosler: When you turn around 360 degrees, how many different ads or logos will you see somewhere in your space? [O]n your car, on your wristwatch, on a billboard. If you walk into any grocery store or restaurant or anywhere to shop, there’s always a soundtrack playing. There’s always . . . media. There’s ads. There’s magazines everywhere. . . . [I]t’s the world we live in. It’s the landscape around us. This “barrage” thus becomes a source.30 As Johan Söderberg says, “To me, it is just like cooking. In your cupboard in your kitchen you have lots of different things and you try to connect different tastes together to create something interesting.” The remix artist does the same thing with bits of culture found in his digital cupboard. My favorites among the remixes I’ve seen are all cases in which the mix delivers a message more powerfully than any original alone could, and certainly more than words alone could. For example, a remix by Jonathan McIntosh begins with a scene from The Matrix, in which Agent Smith asks, “Do you ever get the feeling you’re living in a virtual reality dream world? Fabricated to enslave your mind?” The scene then fades to a series of unbelievable war images from the Fox News Channel— a news organization that arguably makes people less aware of the facts 80706 i-xxiv 001-328 r4nk.indd 71 0706 i-xxiv 001-328 r4nk.indd 71 8/12/08 1:54:54 AM /12/08 1:54:54 AM 72 REMIX than they were before watching it.31 Toward the end, the standard announcer voice says, “But there is another sound: the sound of good will.” On the screen is an image of Geraldo Rivera, somewhere in Afghanistan. For about four seconds, he stands there silently, with the wind rushing in the background. (I can always measure the quickness of my audience by how long it takes for people to get the joke: “the sound of good will” = silence). The clip closes with a fast series of cuts to more Fox images, and then a fi nal clip from an ad for the fi lm that opened McIntosh’s remix: “The Matrix Has You.” Or consider the work of Sim Sadler, video artist and fi lmmaker. My favorite of his is called “Hard Working George.” It builds exclusively from a video of George Bush in one of his 2004 debates with John Kerry. Again and again, Sadler clips places where Bush says, essentially, “it’s hard work.” Here’s the transcript: Sir, in answer to your question I just know how this world works. I see on TV screens how hard it is. We’re making progress; it is hard work. You know, it’s hard work. It’s hard work. A lot of really great people working hard, they can do the hard work. That’s what distinguishes us from the enemy. And it’s hard work, but it’s necessary work and that’s essential, but again I want to tell the American people it’s hard work. It is hard work. It’s hard work. There is no doubt in my mind that it is necessary work. I understand how hard it is, that’s my job. No doubt about it, it’s tough. It’s hard work which I really want to do, but I would hope I never have to— nothing wrong with that. But again I repeat to my fellow citizens, we’re making progress. We’re making progress there. I reject this notion. It’s ludicrous. It is hard work. It’s hard 80706 i-xxiv 001-328 r4nk.indd 72 0706 i-xxiv 001-328 r4nk.indd 72 8/12/08 1:54:54 AM /12/08 1:54:54 AM RW, REVIVED 73 work. That’s the plan for victory and that is the best way. What I said was it’s hard work and I made that very clear. Usually, the audience breaks into uncontrolled laughter at “I would hope I never have to— nothing wrong with that,” so people don’t hear the rest of the clip. But by the end, the fi lter Sadler has imposed lets us understand Bush’s message better. Some look at this clip and say, “See, this shows anything can be remixed to make a false impression of the target.” But in fact, the “not working hard” works as well as it does precisely because it is well known that at least before 9/11, Bush was an extremely remote president, on vacation 42 percent of his fi rst eight months in offi ce.32 The success of the clip thus comes from building upon what we already know. It is powerful because it makes Bush himself say what we know is true about him. The same line wouldn’t have worked with Clinton, or Bill Gates. Whatever you want to say about them, no one thinks they don’t work hard. My favorite of all these favorites, however, is still a clip in a series called “Read My Lips,” created by Söderberg. Söderberg is an artist, director, and professional video editor. He has edited music videos for Robbie Williams and Madonna and, as he put it, “all kinds of pop stars.” He also has an Internet TV site—— that carries all his own work. That work stretches back almost twenty years. “Read My Lips” is a series Söderberg made for a Swedish company called Atmo, in which famous people are lip- synched with music or other people’s words. They all are extraordinarily funny (though you can’t see all of them anymore because one, which mixed Hitler with the song “Born to Be Alive,” resulted in a lawsuit). The best of these (in my view at least) is a love song with Tony 80706 i-xxiv 001-328 r4nk.indd 73 0706 i-xxiv 001-328 r4nk.indd 73 8/12/08 1:54:55 AM /12/08 1:54:55 AM 74 REMIX Blair and George Bush. The sound track for the video is Lionel Richie’s “Endless Love.” Remember the words “My love, there’s only you in my life.” The visuals are images of Bush and Blair. Through careful editing, Söderberg lip- synchs Bush singing the male part and Blair singing the female part. The execution is almost perfect. The message couldn’t be more powerful: an emasculated Britain, as captured in the puppy love of its leader for Bush. The obvious point is that a remix like this can’t help but make its argument, at least in our culture, far more effectively than could words. (By “effectively,” I mean that it delivers its message successfully to a wide range of viewers.) For anyone who has lived in our era, a mix of images and sounds makes its point far more powerfully than any eight- hundred- word essay in the New York Times could. No one can deny the power of this clip, even Bush and Blair supporters, again in part because it trades upon a truth we all— including Bush and Blair supporters— recognize as true. It doesn’t assert the truth. It shows it. And once it is shown, no one can escape its mimetic effect. This video is a virus; once it enters your brain, you can’t think about Bush and Blair in the same way again. But why, as I’m asked over and over again, can’t the remixer simply make his own content? Why is it important to select a drumbeat from a certain Beatles recording? Or a Warhol image? Why not simply record your own drumbeat? Or paint your own painting? The answer to these questions is not hard if we focus again upon why these tokens have meaning. Their meaning comes not from the content of what they say; it comes from the reference, which is expressible only if it is the original that gets used. Images or sounds collected from real- world examples become “paint on a palette.” 80706 i-xxiv 001-328 r4nk.indd 74 0706 i-xxiv 001-328 r4nk.indd 74 8/12/08 1:54:55 AM /12/08 1:54:55 AM RW, REVIVED 75 And it is this “cultural reference,” as coder and remix artist Victor Stone explained, that “has emotional meaning to people. . . . When you hear four notes of the Beatles’ ‘Revolution,’ it means something.”33 When you “mix these symbolic things together” with something new, you create, as Söderberg put it, “something new that didn’t exist before.” The band Negativland has been making remixes using “found culture”— collected recordings of RO culture— for more than twenty- fi ve years. As I described at the start, they fi rst became (in)famous when they were the target of legal action brought by Casey Kasem and the band U2 after Negativland released a mash up of Casey Kasem’s introduction of U2 on his Top 40 show. So why couldn’t Negativland simply have used something original? Why couldn’t they re record the clip with an actor? Hosler explained: We could have taken these tapes we got of Casey Kasem and hired someone who imitated Casey Kasem, you know, and had him do a dramatic re- creation. Why did we have to use the actual original . . . the actual thing? Well, it’s because the actual thing has a power about it. It has an aura. It has a magic to it. And that’s what inspires the work. Likewise with their remarkable, if remarkably irreverent, fi lm, The Mashin’ of the Christ. This fi ve- minute movie is made from remixing the scores of movies made throughout history about Jesus’ crucifi xion. The audio behind these images is a revivalist preacher who repeatedly says (during the fi rst minute), “Christianity is stupid.” The fi lm then transitions at about a min80706 i-xxiv 001-328 r4nk.indd 75 0706 i-xxiv 001-328 r4nk.indd 75 8/12/08 1:54:56 AM /12/08 1:54:56 AM 76 REMIX ute and a half when the preacher says, “Communism is good.” The fi rst quote aligns Christians, at least, against the fi lm. But the second then reverses that feeling, as the fi lm might also be seen as a criticism of Communism. As Hosler explained the work: The Mashin’ of the Christ just came out of an idle thought that crossed my mind one day when I was fl ipping around on Amazon .com. I thought, “How many movies have been made about the life of Jesus, anyway?” I came up with thirty or forty of them and I started thinking about [how] every one of those fi lms has similar sequences of Jesus being beaten, fl ogged, whipped, abused. There’s always a shot where he’s carrying the cross and he stumbles and he falls. And it just occurred to me . . . I thought that would make an interesting montage of stuff. This montage’s point could not have been made by simply shooting crucifi xion fi lm number forty- one. The Significance of Remix I’ve described what I mean by remix by describing a bit of its practice. Whether text or beyond text, remix is collage; it comes from combining elements of RO culture; it succeeds by leveraging the meaning created by the reference to build something new. But why should anyone care about whether remix fl ourishes, or even exists? What does anyone gain, beyond a cheap laugh? What does a society gain, beyond angry famous people? There are two goods that remix creates, at least for us, or for 80706 i-xxiv 001-328 r4nk.indd 76 0706 i-xxiv 001-328 r4nk.indd 76 8/12/08 1:54:56 AM /12/08 1:54:56 AM RW, REVIVED 77 our kids, at least now. One is the good of community. The other is education. Community Remixes happen within a community of remixers. In the digital age, that community can be spread around the world. Members of that community create in part for one another. They are showing one another how they can create, as kids on a skateboard are showing their friends how they can create. That showing is valuable, even when the stuff produced is not. Consider, for example, the community creating anime music videos (AMV). Anime are the Japanese cartoons that swept America a few years ago. AMVs are (typically) created by remixing images from these cartoons with a music track or the track from a movie trailer. Each video can take between fi fty and four hundred hours to create. There are literally thousands that are shared noncommercially at the leading site, The aim of these creators is in part to learn. It is in part to show off. It is in part to create works that are strikingly beautiful. The work is extremely diffi cult to do well. Anyone who does it well also has the talent to do well in the creative industries. This fact has not been lost on industry, or universities training kids for industry. After I described AMVs at one talk, a father approached me with tears in his eyes. “You don’t know how important this stuff is,” he told me. “My kid couldn’t get into any university. He then showed them his AMVs, and now he’s at one of the best design schools in America.” AMVs are peculiarly American— or, though they build upon 80706 i-xxiv 001-328 r4nk.indd 77 0706 i-xxiv 001-328 r4nk.indd 77 8/12/08 1:54:56 AM /12/08 1:54:56 AM 78 REMIX Japanese anime, they are not particularly Japanese. This is not because Japanese kids are not remixers. To the contrary, Japanese culture encourages this remixing from a much younger age, and much more broadly. According to cultural anthropologist Mimi Ito, Japanese media have really been at the forefront of pushing recombinant and user- driven content starting with very young children. If you consider things like Pokémon and Yu- Gi- Oh! as examples of these kinds of more fannish forms of media engagement, the base of it is very broad in Japan, probably much broader than in the U.S. Something like Pokémon or Yu- Gi- Oh! reached a saturation point of nearly 100 percent within kids’ cultures in Japan.34 But the difference between cultures is not just about saturation. Henry Jenkins quotes education professors David Buckingham and Julia Sefton- Green, “Pokémon is something you do, not just something you read or watch or consume,” and continues: There are several hundred different Pokémon, each with multiple evolutionary forms and a complex set of rivalries and attachments. There is no one text where one can go to get the information about these various species; rather, the child assembles what they know about the Pokémon from various media with the result that each child knows something his or her friends do not and thus has a chance to share this expertise with others.35 “Every person,” Ito explains, thus “has a personalized set of Poké- mon. That is very different from [American media, which are] asking kids to identify with a single character.” Pokémon is just a single example of a common practice in Japan. 80706 i-xxiv 001-328 r4nk.indd 78 0706 i-xxiv 001-328 r4nk.indd 78 8/12/08 1:54:57 AM /12/08 1:54:57 AM RW, REVIVED 79 This more common practice pushes “kids to develop more persona lives, and remix-oriented pathways to the content.” Kids in the second and third grades, for example, will all carry around just a little sketchbook . . . with drawings of manga [cartoon] characters in them. That’s what [Japanese] kids do. Then by fourth or fi fth grade there are certain kids that get known to be good at drawing and then they actually start making their original stories. Then at some point there needs to be an induction into the whole doujinshi scene, which is its own subculture. That usually happens through knowing an older kid who’s involved in that. American kids have it different. The focus is not: “Here’s something, do something with it.” The focus is instead: “Here’s something, buy it.” “The U.S. has a stronger cultural investment in the idea of childhood innocence,” Ito explains, “and it also has a more protectionist view with respect to media content.” And this “protectionism” extends into schooling as well. “Entertainment” is separate from “education.” So any skill learned in this “remix culture” is “constructed oppositionally to academic achievement.” Thus, while “remix culture” fl ourishes with adult- oriented media in the United States, “there’s still a lot of resistance to media that are coded as children’s media being really fully [integrated] into that space.” Yet the passion for remix is growing in American kids, and AMVs are one important example. Ito has been studying these AMV creators, getting a “sense of their trajectories” as creators. At what moment, she is trying to understand, does “a fan see [himself] as a media producer and not just a consumer”? And what was the experience (given it was certainly not formal education) that led them to this form of expression? 80706 i-xxiv 001-328 r4nk.indd 79 0706 i-xxiv 001-328 r4nk.indd 79 8/12/08 1:54:57 AM /12/08 1:54:57 AM 80 REMIX Ito’s results are not complete, but certain patterns are clear. “A very high proportion of kids who engage in remix culture,” for example, “have had experience with interactive gaming formats.” “The AMV scene is dominated by middle- class white men”— in contrast to the most famous remixers in recent Japanese history, the “ working- class girls” who produced doujinshi. Most “have a day job or are full- time students but . . . have an incredibly active amateur life. . . . [They] see themselves as producers and participants in a culture and not just recipients of it.” That participation happens with others. They form the community. That community supports itself. Education A second value in remix extends beyond the value of a community. Remix is also and often, as Mimi Ito describes, a strategy to excite “ interest- based learning.” As the name suggests, interest- based learning is the learning driven by found interests. When kids get to do work that they feel passionate about, kids (and, for that matter, adults) learn more and learn more effectively. I wrote about this in an earlier book, Free Culture. There I described the work of Elizabeth Daley and Stephanie Barish, both of whom were working with kids in inner- city schools. By giving these kids basic media literacy, they saw classes of students who before could not retain their focus for a single period now spending every free moment of every hour the school was open editing and perfecting video about their lives, or about stories they wanted to tell. Others have seen the same success grow from using remix media to teach. At the University of Houston— a school where a high percentage of the students don’t speak English as their fi rst 80706 i-xxiv 001-328 r4nk.indd 80 0706 i-xxiv 001-328 r4nk.indd 80 8/12/08 1:54:58 AM /12/08 1:54:58 AM RW, REVIVED 81 language— the Digital Storytelling project has produced an extraordinary range of historical videos, created by students who research the story carefully, and select from archives of images and sounds the mix that best conveys the argument they want their video to make. As Henry Jenkins notes, “[M]any adults worry that these kids are ‘copying’ preexisting media content rather than creating their own original works.”36 But as Jenkins rightly responds, “More and more literacy experts are recognizing that enacting, reciting, and appropriating elements from preexisting stories is a valuable and organic part of the process by which children develop cultural literacy.”37 Parents should instead, Jenkins argues, “think about their [kids’] appropriations as a kind of apprenticeship.”38 They learn by remixing. Indeed, they learn more about the form of expression they remix than if they simply made that expression directly. This is not to say, of course, that however they do this remix, they’re doing something good. There’s good and bad remix, as there’s good and bad writing. But just as bad writing is not an argument against writing, bad remix is not an argument against remix. Instead, in both cases, poor work is an argument for better education. As Hosler put it to me: Every high school in America needs to have a course in media literacy. We’re buried in this stuff. We’re breathing it. We’re drinking it constantly. It’s 24/7 news and information and pop culture. . . . If you’re trying to educate kids to think critically about history and society and culture, you’ve got to be encouraging them to be thoughtful and critical about media and information and advertising. 80706 i-xxiv 001-328 r4nk.indd 81 0706 i-xxiv 001-328 r4nk.indd 81 8/12/08 1:54:58 AM /12/08 1:54:58 AM 82 REMIX Doing something with the culture, remixing it, is one way to learn. The Old in the New To many, my description of remix will sound like something very new. In one sense it is. But in a different, perhaps more fundamental sense, we also need to see that there’s nothing essentially new in remix. Or put differently, the interesting part of remix isn’t something new. All that’s new is the technique and the ease with which the product of that technique can be shared. That ease invites a wider community to participate; it makes participation more compelling. But the creative act that is being engaged in is not signifi cantly different from the act Sousa described when he recalled the “young people together singing the songs of the day or the old songs.” For as I’ve argued, remix with “media” is just the same sort of stuff that we’ve always done with words. It is how Ben wrote. It is how lawyers argue. It is how we all talk all the time. We don’t notice it as such, because this text- based remix, whether in writing or conversation, is as common as dust. We take its freedoms for granted. We all expect that we can quote, or incorporate, other people’s words into what we write or say. And so we do quote, or incorporate, or remix what others have said. The same with “media.” Remixed media succeed when they show others something new; they fail when they are trite or derivative. Like a great essay or a funny joke, a remix draws upon the work of others in order to do new work. It is great writing without words. It is creativity supported by a new technology. 80706 i-xxiv 001-328 r4nk.indd 82 0706 i-xxiv 001-328 r4nk.indd 82 8/12/08 1:54:58 AM /12/08 1:54:58 AM RW, REVIVED 83 Yet though this remix is not new, for most of our history it was silenced. Not by a censor, or by evil capitalists, or even by good capitalists. It was silenced because the economics of speaking in this different way made this speaking impossible, at least for most. If in 1968 you wanted to capture the latest Walter Cronkite news program and remix it with the Beatles, and then share it with your ten thousand best friends, what blocked you was not the law. What blocked you was that the production costs alone would have been in the tens of thousands of dollars. Digital technologies have now removed that economic censor. The ways and reach of speech are now greater. More people can use a wider set of tools to express ideas and emotions differently. More can, and so more will, at least until the law effectively blocks it. 80706 i-xxiv 001-328 r4nk.indd 83 0706 i-xxiv 001-328 r4nk.indd 83 8/12/08 1:54:59 AM /12/08 1:54:59 AM

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