No existing copyright law -- the Digital Millennium Copyright Act included -- has taken shape with the Net and the Web truly in mind. Traditional views of property have involved tangible products, and the DMCA seeks to uphold those traditional views, as manifested in laws designed for the real, not the virtual world.
These old laws have also had much to do with a society's willingness and ability to police itself. Theft is easy to understand, and easy to deal with, when stolen goods can be quantified, and the thief caught and prosecuted. But such concepts pre-date the Internet era. If you loan a CD to a friend who burns himself a copy, have you stolen from the music industry? What if your friend would never have purchased that particular CD anyhow?
Conceptions of property, ownership and value since the eruption of the accidental empire that is the Net, in ways few institutions have begun to consider rationally.
The Digital Millennium Copyright Act (DMCA), passed 16 months ago and now being used to shut down music-sharing Napster sites at colleges across the country, is a classic example of how irrelevant ideas about law and culture are being unthinkingly applied to a completely new reality.
The kids who download free music from a young age as a matter of course have little awareness that they are appropriating someone else's property. Most wouldn't dream of shoplifting in a store: they consider it stealing and they might face arrest, humiliation and punishment as a consequence. But acquiring movies, music, games or other intellectual property online is so simple, so ubiquitous, that it's become almost instinctive.
From early adolescence, kids lucky enough to be both savvy and connected pass around games, music and movies gathered online. These transactions are virtual, hence not traditionally associated with property. It's often irresistible -- how can one reasonably expect an adolescent (or older) music lover to refuse to acquire a 1,000-song playlist she couldn't possibly afford to buy in the manner the recording industry prefers to distribute it? Most important, and most troublesome about attempts to reign such informal trading in, is that it's also fun, and social.
Does American society (or the people running the music industry, for that matter) really want to criminalize the passion for diverse forms of music that new technology makes possible? In effect, laws like the DMCA make it a crime -- and a meaningless one at that -- for kids to love and use technology, to access information freely and to share a passion for a particular culture.
Certainly, notions of exposure and punishment no longer apply. No kid in America has been jailed (yet) for downloading free music, though millions have been doing it for years.
Unenforceable laws like traditional copyright restrictions don't promote morality or lawfulness; they undermine them. What kids learn isn't that it's wrong to steal, but that these kinds of laws are antiquated and toothless. Younger Net users have been able to acquire free music and other culture for so long they understandably view it as a right, not a sudden opportunity to steal. People tend to react most intensely to the loss of rights they already have.
They evolve into older kids, college students and adults for whom the personalization of culture - by no means just music - becomes an integral part of their lives, a right conferred by practice, not by law. Millions of younger Americans , online much of their lives, have acquired vast cultural archives, almost akin to individual libraries.
So the Congressional aide, part of an institution responsible for governing issues like this, is demonstrating that he lives in a completely different universe than he's supposedly helping to represent. For him and the lawmaker he works for, the downloading of music is simple theft, in the same way a bank robber commits a crime. But a generation of Net users will never view property that way again. A rational legislature grasping this will would seek laws that reflect the new reality, rather than an outdated one.
The growing number of powerful conglomerates that have increasingly come to dominate culture in recent years don't seem to grasp these new realities about culture and young.
These companies generate billions in revenue not just by selling content, but by controlling it. The notion of free music threatens the way they work -- which is why the DMCA was passed, and why the music industry is spending tens of millions to shut down free music sites on the Web. So we have the escalating spectacle of unthinking industries aggressively alienating and prosecuting their most important customers and future consumers - an inverted, nearly unbelievable reality possible perhaps only on the Internet.
"Piracy" isn't a very accurate term for what amounts to a bloodless file download, so the usual moral inhibitions apparently don't apply. Popular culture and its distribution are being defined so continuously and radically online that laws like the DMCA are almost instantly pointless. College kids who have lost their Napster sites, for example, are already using other software to strike back, with the help of increasingly politicized geeks. Dozens of sites are cropping up in messaging systems and elsewhere on the Web, say music lovers, most of whom are understandably coy about details.
But to see how immutable the spread of culture is, and how it's being constantly re-defined, go to www.strangecompany.org where an organization called Strange Company is creating a new film form called Machinima. Originally derived from modifications made to computer games like Quake, Machinima is a new animation technique that permits animators with little money to create films rich in special effects -- Hollywood-quality movies on college budgets. If the motion picture industry doesn't like open-source software to decrypt DVDs, wait'll they get a load of this.
"That sounds like the kind of thing the entertainment moguls aren't going to want," Hugh Hancock, Strange Company's CEO, messaged me, "for exactly the same reasons [that] they don't want people releasing their work on MP3. Do you think that Machinima could be next, or soon, against the chopping block?"
He can bet on it.
Empowerment is one of the words most over used to describe the effect of the Net, but it's also one of the most apt. Giving people the ability to access vast music archives, to make films, to download games and acquire other kinds of entertainment is a landmark of the Information Age.
Corporatists are the biggest modern menace to free speech and individualism, more powerful and predatory than most governments. If corporatism has an Achilles heel, it seems to be that it is astonishingly short-sighted, spewing legal warnings, lawsuits and copyright infringement claims and lobbying intensely for legislation to curb the open distribution of software and ideas. Like giant ocean liners, mega corporations and their captains can't maneuver quickly or accurately. They also have a tendency to mow down smaller craft in their path.
Still, it seems increasingly clear that conventional notions about ideas and ownership are doomed. The issue is no longer whether "piracy" is right or wrong, but how long our backwards-looking corporations and politicians will persist in believing they can stop it.
Thomas Jefferson saw this coming centuries ago:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening mine."
And that was written more than two centuries before the Net. Perhaps the geeks, nerds and kids fighting the culture wars online intuitively grasp more about law and freedom than many of the elders branding them thieves and pirates.
Even as more and more people ask the question "Who Owns Ideas?," the answer becomes obvious: We all do.