Last Friday, TechCrunch posted an article provocatively titled, Did Last.fm Just Hand Over User Listening Data To the RIAA?. Based on a friend-of-a-friend tip, the piece alleged that Last.fm had “handed over” user data to facilitate the identification of U2 fans with leaked copies of the band’s forthcoming album, No Line on the Horizon. (This was before Universal Music Group copped to leaking the album and U2 started streaming it voluntarily.)

Within an hour and a half – midnight for the London-based Last.fm – the allegations were debunked. Employees responded to concerned readers directly,

“[Last.fm would] never personally identify our users to a third party.”

Last.fm’s reputation is saved, TechCrunch are lying liars, the RIAA still sucks, and then I found five dollars. Right?

Not quite. Last.fm, purchased by CBS Interactive in 2007, represents the tension driving this era in computing culture, a constant negotiation of value and privacy. I’ll enrich your database by telling you how many times I’ve rewound Las Mulas De Moreno today (five and counting) and you tell me about similar artists to obsess over tomorrow.

Billboard and Soundscan look like halfblind guesswork in comparison with the charts made possible by this kind of deep data collection. Last.fm’s revenue may draw largely from advertising but if they were to start selling custom data packages to interested corporations, would anyone stop scrobbling?

Like many FCers, I was initially so alarmed at the notion that Last.fm would “hand over” user data that I ignored the fact that Last.fm’s core operations are basically in a constant state of dry snitching on its users. Want to know who is listening to “Las Mulas”? Click the Listeners tab, and start crawling profiles for identifying information.

For some of us, this is reason enough to cease participation. In fact, several FC members have already begun brainstorming a non-commercial, decentralized alternative. Others propose ruining the data reported to Last.fm by deliberately spoofing the scrobbler software with falsified metadata.

But what about those FCers who use Last.fm, enjoy the services it provides, and accept its exchange of privacy for value? Do we demand they sacrifice this pleasure? To what end?

Rather than struggle against enjoyment of Last.fm, what if we were to maximize it? What would an enthusiastic embrace and exploration of a service like Last.fm reveal? Would we find its boundaries and be inspired to develop a successor with even greater capacity? Would it reveal new entrepreneurial opportunities that better protect user privacy without sacrificing the potential benefits of an enormous dataset?

Is this a positive, proactive, fanatic activism? Or surrender to an uncritical consumption?

BOOMBOX from Ely Kim on Vimeo.

Consider the case of YouTube, where thousands of people have been recently burned by spurious copyright claims. Every day YouTube users create and upload videos like the one above that incidentally infringe one or more copyrights. Quite often the videos – again, like the one above – are disabled because of a DMCA takedown notice. If the email we receive at YouTomb is any indication, these users rarely intended to flaunt the law or make a stand for free culture. Rather, they come to us confused at being disciplined for behaving in a way that felt ethically appropriate.

When large copyright holding organizations attempt to withdraw from popular web services, as Warner Music Group has done with both Last.fm and YouTube, they can no longer paint the users of those services as pirates, outsiders, or radicals as they once did with Napster and now do with the Pirate Bay. Instead, their withdrawal brands them perverse, confused, and out of step with widely accepted social practice.

What implications might this reversal have for the free culture activist?

Do we want those YouTube users to familiarize themselves with the arcane constraints of copyright law and the numerous variations we’ve made available? Or should the users be left alone and the regulatory institutions be compelled to struggle with a set of laws and expectations ill-suited to contemporary media ethics?

Imagine a free culture pro-activism that consistently supports, encourages, defends, and extends the everyday practices of users of services like Last.fm and YouTube. What might we gain through such radical participation?

Ray Beckerman, the tireless attorney behind the Recording Industry vs. the People blog, has noted that the Obama Department of Justice has filed paperwork indicating that it may intervene to defend the Constitutionality of the huge statutory copyright damages being tested in the case (Sony BMG Entertainment Media v. Cloud).

Ray writes,

Procedurally, this will test whether President Obama’s announced policies against members of his administration participating in matters in which they were previously involved will be applied, since partners from Jenner and Block — the architects of the RIAA’s mass litigation campaign — now occupy the second and third highest positions in the new administration’s Department of Justice. According to the President’s announced policies, they should be recused from this case.

Substantively, this will also be an interesting test of whether the Obama administration is going to live up to the President’s pledge to stand up for the people, rather than for the big corporations.

Ray encourages everyone to contact President Obama urging him not to intervene in the case. The White House contact information is here and below is the quick note I submitted. Please do the same!

President Obama’s Department of Justice recent filed papers indicating that it may intervene in a current private dispute in Pennsylvania (Sony BMG Entertainment Media vs. Cloud). The case involved the Constitutionality of the statutory damages awarded in copyright infringment cases (which are thousands of times the size of the actual damage).

This development is worrying because two of the top officials in the Department of Justice (Thomas Perrelli and Don Verrilli), were previously employed as private attorneys for Song BMG and the Recording Industry Association of America (RIAA). As you know, President Obama has promised to prohibit members of his administration from participating in matters in which they previously participated. I am writing to discourage the DoJ from intervening in the case and to inquire as to how Mr. Perrelli and Mr. Verrilli will recuse themselves from a decisions involving the RIAA and this particular case.

Thank you and I look forward to your response.