The escalating and increasingly symbolic conflict on the Net between music and movie fans and the entertainment industry seems to drive most people into one of two camps, Ro Sumner writes in response to last week's Slashdot discussion on the Digital Millenium Copyright Act and the free music wars.
The problem, Sumner says, is that discussion halts around two central ideas:
"This is theft! Theft is wrong!"
Or: "No, it's not theft, and so it can't be wrong!"
His analysis is accurate. The discussion certainly gets framed this way by media, politicians, lawyers and law enforcement. And the issue is important, because this conflict will surely shape ones to follow between rapidly expanding open-source models of information that allow files to propogate like virii, and historically proprietary institutions -- banking, Wall Street, law, medicine, education and politics, to name just a few.
The battles springing up around the way music, TV, movies and other so-called intellectual property are transmitted digitally -- and in what contexts their creators are entitled to be paid for their use -- are shaping up in the way issues emanating from Washington so often do. They calcify into two eternally warring sides that never seem to persuade one another, and are thus unable to move the discussion forward.
One fantasy is that the Net, especially open source models of communication, offers the promise of a more rational approach. It makes possible an unprecedented range of open and civilized discussion, feedback, ideas and potential solutions. This is said hopefully, but knowing full well that most innocuous Net discussions can be nastier and more brutish than ones that would be called "heated" on MSNBC.
But something about this issue seems to transcend the usual head-banging. The Net's potential for this kind of discussion was reinforced again last week by intelligent and well-informed e-mail from lawyers, programmers, musicians and consumers. Concerns about intellectual property seem to rise above the usual squabbling. Everybody apparently agrees that something is wrong, a new approach needed.
The fact is, culture is already being transmitted freely all over the Net; that isn't likely to stop. But both artists and corporations have rights too, along with consumers. The existing reality isn't making anyone happy.
Sumner suggests focusing on the unworkable nature of the economic model that currently governs marketing culture. "Bits aren't widgets," he says, "and we shouldn't try to sell them as if they are. There are other models. The service model, the shareware model, the freeware/donation model, etc. I think that's the main point -- we need to pay the bitmakers directly, or as directly as we can."
Ian Stoba pointed out in e-mail that the discussions of the Digital Millenium Copyright Act centered mostly on the consumers of digital music, not the producers.
"I don't know how well this is known outside the music industry, but no one hates the record companies as much as the artists. Giant record companies routinely write abusive contracts and just flat out steal from musicians," he noted. "The royalty musicians get for the sale of a CD is very small (like $15 per unit). The costs of producing the record, making the video, booking the tour, and marketing come out of the artists share, not the labels?" The artists do not see a dime of royalties until all the label's costs are repaid."
Stoba goes on to suggest that "the Net could be a radically more efficient distribution medium for the musicians as well as the people who buy music. A band could sell a CD over the Net for $1 and actually make more than they do selling it in a record store for $15."
Musician Matt Rose wrote that he was reminded of this quote from Bruce Sterling:
"This is the time to be thoughtful, be expressive, be generous. Be "taken advantage of." The channels exist now to give creativity away, at no cost, to millions. Never mind if you make large sums of money along the way. If you successfully seize attention, nothing is more likely. In a start-up society, huge sums can fall on innocent parties, almost by accident. That cannot be helped, so don't worry about it any more. Henceforth, artistic integrity should be judged, not by ones classic bohemian seclusion from satanic mills and the grasping bourgeoisie, but by what one creates and gives away. That is the only scale of noncommercial integrity that makes any sense now."
Sterling's idea of a "start-up society" -- as good a description of Net and Web culture as anyone has ever come up -- suggests patience, creativity, generousity and innovation. Nice ideas, but they don't seem to appeal either to lawmakers or large entertainment conglomerates.
Rose thinks that most musicians don't want to be millionaires; they'd rather have a lot of people hear their music. "A lot of them think that MP3's and the Internet are the distribution channels they've been waiting for. That's not going to happen if record companies don't let them do it. Every musician I know would be happier if MP3 distribution were an accepted way of getting people to listen to their music."
But some artists are understandably worried about releasing music on the Net; people may not want to pay for a CD at all when they can copy it for free. But Stoba says he's been thinking about a system that collects payment for playback, not for purchase, an echo of Sumner's idea.
"What about if consumers paid a very small fee (say .l cent per song played) every time they played a song?" Then a central distribution site (like MP3.com or iuma.com) could collect the usage stats and pay the appropriate royalties directly to artists. Program your player to skip the song you hate on a disc and you'll never pay for it. Play a cut 20 times in a row and the band will get paid accordingly. Stoba's even come up with a collection method: debit accounts established with sites that allow the MP3 player to automatically deduct money as songs are played. Some colleges and universities -- if the record industry wants to be generous and smart -- could collect revenue from music distribution on their sites, instead of dodging lawsuits.
Mikko Hanninen wrote to suggest that there are alternatives to the current copyright system -- like the "Street Performer Protocol" written by J. Kelsey and B.Schneier -- that could ensure that people who are responsible for creative work get paid, while digital information remains freely shareable online.
The SPP is an "electronic-commerce mechanism" designed to make it easier to privately finance public works. Under this protocol, people would put money aside, to be released to authors/artists/musicians in the event that their work enters the public domain. The protocol initially referred to marginal or alternative works, but it has some promise as a new economic model for dealing with Net copyright, in no small part because the Net changes the very meanings of "marginal" and "alternative."
People could pay a single, modest, single fee to an entertainment Web site, which could keep track of the music or movies consumers use and pay small royalties to the company, thus the artist. Like Sumner's debit account, this approach raises a number of privacy and technical issues.But the notion of setting aside some payment for artists is preferable to the cat-and-mouse-game now being played by the entertainment industry and millions of computer users.
That model also gives artists an initial payment, but recognizes that ideas and culture become free -- like it or not -- once they are distributed virtually. This is precisely the point where existing ownership debates tend to break down: there comes a point where content on the Net for practical purposes simply becomes public domain. Payment has to come before that, or not at all.
The first step in approaching issues like who owns ideas online is recognizing that total control over ideas is no longer possible. And it might not even be a good idea economically. The political aspects of the open source impulse driving at least some of the conflict over "free" music -- simple greed and desire are others -- argue that broad distribution of content makes it and the artists and creators of it more, not less valuable.
Their work is seen or heard by many millions of people, they have the opportunity to try out opinions, works and directions in front of their audiences, and they ultimately might be able to turn that reach into economic gain. Nobody's really certain yet. Commercial applications for open source software are becoming lucrative; perhaps there are implications there for other businesses as well.
Despite corporate warnings, "I don't think the current economic model for selling creative works such as books or music albums will collapse under the piracy and copyright theft on the Net," Hanninen writes, "but the fight about copyright censorship and enforcing will get ugly, and having an alternative would be nice."
The copyright fights have already gotten ugly; an alternative would be nice. It would also be nice if real alternatives emerged to the roadblocks currently in place.
Another post came from Spurius (Rei) via earthlink. "The critical issue that keeps surfacing is artist compensation," he writes. The answer he once advocated was a regular fee charged to gain access to all music. Though the fee would be small, it could add up to a substantial amount.
The problem, as Spurius himself acknowledges, is launching a comprehensive system. "Just neglecting the fact that most musicians currently are signed to long-term record contracts, even new musicians would be unlikely to be swayed to join some new system which can't guarantee anything, seems non-standard, technological, etc., unless they were extreme fans of open media."
Gaming models might offer some ideas for dealing with intellectual content, since that's another industry where the same issues press, Spurius suggests. A company that releases a game, instead of selling it, could offer membership to a service that permits consumers to download any game they choose from the server any time.
Instead of offering only its own games, a company could allow all companies to put their games on its server, including people who have already released non-commercial games.
Spurius's idea is to sell culture, beginning with smaller games and projects, and building towards bigger, more commercial products.
From Timothy Lord, Slashdot's managing editor: "A question that arises when it comes to alternate means of paying for content: 'If prices were lower, would revenues be higher?' If it only cost, say, $3.00 instead of $15 to grab the content of a CD, would enough people buy the CD from music companies or designated agents to justify the move? (From the point of view of the producer, I mean.)
"How about if middlin' quality files were freely available," Lord suggested, "and everyone was allowed to play, trade, store, collect them -- but the companies more jealously guarded high-quality transfers? Like a lot of people, I'd be much happier to pay $8 for 8 songs I like than $10 for eight I like and another four I never want to hear."
Lord's idea is interesting for several reasons. As hinted at before, corporations and copyright law don't distinguish between "popular" and "marginal" intellectual property. (Imagine the brawls among artists over which category they'd get put into). But cost could be tied to sales, either in the way Lord suggests, or inversely: the more people who buy a hit CD, the lower its costs. A number of websites already encourage consumers to mass - purchase products with the understanding that the greater the number sold, the lower the price. Given the size of the Net, that could result in cheaper music than ever before. But it would also require more imagination and daring than any record company has yet shown.
A lot of people wrote suggesting the creation of a commercial entity of some sort that would allow users to choose their own custom CD's, and to pay only for the music that they want. A number of sites have tried to provide this kind of service, including www.cductive.com/ ( now http://www.emusic.com/). But these sites are somewhat limited in that record labels determine the range of available songs as well as their cost.
A theme running through many of these suggestions is the single fee for aggregated downloads. Instead of paying separately for individual titles, for $50 or $100, consumers could download all the music and movies they want up to a certain number -- say 1,000. The potential volume is enormous. But the industry continuously overlooks the potential behind a vast new audience online.
This instinct to move the discussion past name-calling is significant. But the major problem with the Digital Millenium Copyright Act is that it is not merely a point of discussion; it's the law that now covers intellectual property online. Only in recent months has it become apparent how noxious and one-sized a law it is. The DMCA is a statutory embodiment of the problem that stems from corporations becoming the primary contributors to the political process. Whose ideas are members of Congress going to support and protect? The people who fund their increasingly expensive campaigns? Or free music lovers on the Net, many of whom are disgusted by Washington politics?
The DMCA suggests that corporate pressure can reverse the way lawmaking ought to work: the law seems to have come before the discussion, as is clear from messages like this one from Brad Zimmerman:
"This week I've 'pirated' 1GB of MP3's via my 512K ADSL line. What I also know is that wholly because of MP3's I've bought three Aphex Twin CD's, a Apoptygma Berzerk CD, a Cleen CD, several Beastie Boys CDs, a Juno Reactor CD, etc. Later this month, I'll be buying a bunch of CDs (six, online) and they will mostly be stuff I've heard of via MP3s. What I do is still illegal, though. I know it. I do it anyway. I highly doubt I will ever be caught because I honestly believe there is no money in prosecuting me -- and the music industry, though blisteringly short-sighted, knows what makes money and what will lose money."
Zimmerman believes that most people involved in the free music discussion agree that "something" has to change and, in fact, a surprising number of people e-mailing me last week wrote that they would happily pay for music and movies -- providing that the amounts were small, the access substantial, and that the result was greater options and choices.
One reality moralists clucking about "piracy" don't quite grasp is that millions of people all over the world have amassed vast music archives in recent years, and are understandably loathe to give them up. This isn't about stealing a few songs -- it's about codifying the evolution of an entirely new kind of cultural system.
"Hey wait a minute," e-mailed Mike from St. Paul, "I've been downloading music for free since I was in middle school. I've acquired a rich love of different forms of music online -- jazz, folk, hip-hop, techno ... Now all of a sudden I'm a pirate? Give me a break. I could never afford to buy this. I love music and support a lot of musicians, believe me."
Many bristle at the idea that they can only buy music in the expensive, often mixed-quality form in which the record companies sell it.
Since this issue gets shrouded in moral chatter -- "theft," "piracy," "immorality" -- it seems only fair to point out that music industry works much the way drug cartels do, monopolizing music and its distribution, and exploiting dependence.
The hypocrisy involved in this industry yowling about "piracy" is almost too much to take(the record industry earned a record $15 billion in l999, despite its claims of huge losses exacted by "pirates"), and it obscures the plight of artists whose work circulates widely without payment.
"It is not OK for you to let teenagers (or anyone else) pretend that the 'piracy' of movies or music is morally OK," Zimmerman writes. "If we don't agree with the law, let's change it."
Well said. Until reasonable systems of compensation and distribution are in place, the music-industry / listener schism will only deepen, to the benefit of neither.