ABC’s of MP3: A Crash Course in the Digital Music Phenomenon
Berkman Center for Internet & Society
stands for “MPEG 1 (Moving Picture Experts Group 1), audio layer 3,” and is
a technique designed to compress bulky files of digitized music to facilitate
ease of download and storage for bandwidth- and disk space-starved music fans.
(While MP3 can be used for any digital audio, such as audiobooks, this paper
focuses on the controversies that have arisen to date involving its facilitation
of music transmission.)
Unlike its precursors, like RealAudio,
MP3 compression technology allows a user to download near-CD quality digitized
sound recordings quickly and to store them using minimal disk space. This
presents the possibility—a threat or opportunity, depending on your point
of view—of users being able to compile enormous libraries of pirated songs
and store them indefinitely, using only a small fraction of their hard drives.
The files can also be easily attached to an email and sent to any number of
friends or uploaded to other websites.
real threat to the recording industry, as the issue has been cast thus far,
is that each successive copy is identical to the original; there is no loss
in fidelity no matter the generation of the copy. It was precisely for this
reason that the recording industry so vehemently opposed the introduction
of DAT technology in the late 1980s, and succeeded in the passage of the Audio
Home Recording Act of 1992. Back in the days when the worst damage a wannabe
music pirate could do was to dub his Aerosmith cassette and make copies for
his friends, the industry did not worry as much about serial copying of copyrighted
music. The marginal cost of making copies was constricted by the price of
cassette tapes—not expensive, but enough to limit truly mass-scale copying
for all but the most dedicated—and each successive copy was of poorer quality
than the last. There was little market for a second-, third-, or fourth-generation
scratchy home recording.
With the advent of MP3 and related
technologies, that has all changed. According to a recent report by Jupiter
Communication, the Internet music industry is predicted to hit $1.6 billion
by 2002, and somewhere in the vicinity of 500,000 MP3s are out there on the
Web. Granted, making and listening to MP3s requires a computer and software,
but the requisite software is available for free download from the Internet,
along with simple instructions for its use. In addition, electronics hardware
manufacturers have been quick to introduce portable MP3 players, which can
be used to play the music anywhere, eliminating the need to listen to the
music while sitting at one's computer.
Largely due to this ease of transmission,
the underground movement in pirated MP3s has grown in spectacular fashion.
Some speculate that more than 90% of MP3s currently in circulation were obtained
without the copyright owner's permission. The industry, most notably through
the RIAA, has responded by waging an all-out war on MP3s, constantly monitoring
the web for signs of insurgence and sending cease and desist letters to the
operators of infringing sites. They are also trying to shut the system down
at the source, filing suit against manufacturers of MP3 players, considering
action against search engines that help find MP3s, lobbying for favorable
legislation, and working feverishly to develop a competing proprietary standard
which can be more easily managed. (See below, “The Future,” for a description
of the Secure Digital Music Initiative.)
This war has very much been cast
as a battle between the industry on one side and the artists and their fans
on the other. (For an insider’s account of this conflict, see below, Beau
Brashares, “15 MB of Fame.”) Artists claim that the current system, whereby
they receive only pennies on the dollar for CD sales, is archaic, and that
the Internet now provides a distribution medium which should allow them to
distribute their songs directly to their fans, cutting out the middleman.
fans insist that paying $17.99 for a CD which costs only a fraction of that
to make is a rip-off, and they cite the low royalties to artists as another
reason for their ire. In some convolution of logic akin to a shoplifter's
justification of only stealing from big businesses, they seem to be saying
that it's OK to take the music because the sellers are making too much money
from them. The backup argument when this one fails is that they would pay
for the MP3s if only the record companies would make more of them available
for purchase. Since they don't, the only way to get their favorite tracks
on MP3 is doing what the industry condemns as piracy.
the RIAA says differently, it's not incredibly easy to get pirated MP3s these
days. A threshold problem is one of bandwidth. Using a dial-up connection
and a 56K modem, it can take as much as half an hour to download a single
song. This can be enough to deter all but the most dedicated would-be pirates
from copying more than a song or two. (Of course, as high-speed connections
become more prevalent, this hurdle will come down.) Then there's the problem
of actually finding an MP3 you desire. As an interactive example, visit an
MP3 search engine like <http://oth.net> and enter the name of your favorite
band. After wading through the search results to find a page in English, you
will likely have trouble connecting to it. (A search site like AudioGalaxy
tells you what percentage chance there is of connecting to a given download
sites are "ratio sites," meaning you must first upload an MP3 song
before the site will allow you to download one. Other sites simply provide
links to places where particular songs may be downloaded. You'll find now
that most of those links lead nowhere—the sites have up and vanished. Chances
are that if you click on any of hundreds of site links you will receive a
notice from the ISP that the site you are looking for no longer exists. (If,
however, the song does begin to download, please click "cancel"
immediately or else you are in danger of copyright infringement, and I may
be in danger of contributing to your infringement.) Sometimes the URL still
points to a page, but the page no longer provides MP3s.
This is by no means to suggest
that pirated MP3s cannot be had, and that they aren't being had, but to show
some of the limitations of the actual process which must be followed. One
reason for the widespread disappearance of pirate sites is due to the efforts
of copyright owners and industry groups who inundate the owners of these sites
with cease and desist letters threatening further legal action. The letters
alone, and the implied or explicit threats they contain, are generally enough
to cause many site operators to close up shop. When cease and desist letters
don't work, legal action often can. In the case of A&M Records Inc.,
et. al. v. the Internet Site Known As Fresh Kutz, (District Court -Southern
District of California -Decided- June 9, 1997) Case No.: 97-CV-1099H (JFS),
the website operators were unknown and never even showed up to court, but
the site came down nonetheless.
does not mean that these disappearing sites have not reconstituted themselves
on other nodes of the web. It is possible, even likely, that the threat of
sanction has exacerbated the underground mentality that tends to find ways
to route around authority.
what does the law say? The law of music publishing on the Internet is still
in its infancy, and is extremely complex. This section will give an overview
of the relevant law, as well as links to commentators' views and interpretations.
It is beyond the scope of this effort to provide a comprehensive exposition
and interpretation of the law. Rather, the information and links below will
provide the knowledge and tools by which you may make an informed interpretation
of your own. As with any legal matter, each side states that the law clearly
supports its point of view. You decide.
[Note: This section addresses a
number of common legal questions that arise regarding the making, distributing,
or playing of MP3s based on the relevant U.S. legislation, statutes, and case
a threshold matter, the rights of artists, publishers, and record companies
(the copyright holders) are constitutionally protected in the U.S. under the
provisions of the Copyright Act of 1976, 17 U.S.C. §§ 101 et. seq. (The Act).
The Act provides protection for “original works of authorship fixed in any
tangible medium of expression, currently known or later developed, from which
the work can be perceived, reproduced or otherwise communicated, either directly
or indirectly, with the aid of a machine or device.” (17 U.S.C. § 102(a))
OWNS THE COPYRIGHT?
The Act vests ownership of the
copyright in the artist or artists (17 U.S.C. § 201(a)), although the artist
may freely transfer those rights, in which case the recipient of the transfer
may exercise all transferred rights and the artists retains only rights specifically
not transferred. (17 U.S.C. § 201) [Readers familiar with non-U.S. intellectual
property laws will note that this differs from the practice in many countries,
where certain rights are considered inalienable and remain forever with the
creator.] In the case of songs and recordings, artists often transfer their
exclusive interest in the copyrights to their creations to music publishers
and record companies. [In certain cases, these third parties can be considered
the original copyright holder of the creation, if the song as a work made
for hire (17 U.S.C. § 201(b)), created "by an employee within the scope
of his or her employment" (17 U.S.C. § 101).]
ownership in musical works is often a multilayered proposition, with several
entities negotiating different portions of ownership for differing consideration.
This multi-tiered ownership is further complicated by the fact that the various
manifestations of a musical work each carry their own bundle of rights and
ownership. To get a better sense of who owns what, see the explanatory material
accompanying the descriptions of rights below.
RIGHTS ARE INCLUDED?
exclusive rights granted to the copyright holder are found in 17 U.S.C. §
106 (pertinent rights in boldface)
to sections 107 through 120, the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following:
to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works
based upon the copyrighted work;
(3) to distribute copies or phonorecords
of the copyrighted work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
in the case of literary, musical, dramatic, and choreographic works, pantomimes,
and motion pictures and other audiovisual works, to perform the copyrighted
in the case of literary, musical, dramatic, and choreographic works, pantomimes,
and pictorial, graphic, or sculptural works, including the individual images
of a motion picture or other audiovisual
work, to display the copyrighted work publicly; and
in the case of sound recordings, to perform the copyrighted work publicly
by means of a digital audio transmission.
that there is a distinction between "copies" and "phonorecords"
in the statutory language. According to the definitions of the Act (17 U.S.C.
§ 101), "copies" are "material objects, other than phonorecords,
in which a work is fixed by any method now known or later developed, and from
which the work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term ''copies'' includes
the material object, other than a phonorecord, in which the work is first
fixed." In the world of copyrighted music, this "copy" would
refer to the sheet music on which a song is based. It is at this level that
we speak of "musical compositions" which are owned by the composer
or lyricist who wrote the words.
"Phonorecords'' are "material
objects in which sounds, other than those accompanying a motion picture or
other audiovisual work, are fixed by any method now known or later developed,
and from which the sounds can be perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device. The term 'phonorecords'
includes the material object in which the sounds are first fixed." Phonorecords,
therefore, are physical objects, such as tapes, CDs, and albums. The law is
interpreted to include digital manifestations of phonorecords, such as a CD
compressed into MP3 format and distributed on the Web. Record companies who
fix sound recordings into CDs, tapes, etc. are usually the copyright owners
distinction is that of "sound recordings," which are defined as
"works that result from the fixation of a series of musical, spoken,
or other sounds, but not including the sounds accompanying a motion picture
or other audiovisual work, regardless of the nature of the material objects,
such as disks, tapes, or other phonorecords, in which they are embodied."
(17 U.S.C. § 101) The copyright holder in a sound recording is the performer
whose performance is fixed, or the record company that fixes the sounds in
the recording, or both.
distinctions are important, because they are associated with different rights.
For instance, the exclusive rights granted to copyright holders in a sound
recording are limited to clauses 1, 2, 3, and 6 of §106, and don't include
clause 4's right of public performance. (17 U.S.C. § 114(a)) Even among those
rights covered, there are further restrictions. (17 U.S.C. § 114(b))
You're in good company. This rights structure is perplexing to most people,
even the experts. To compound the issue even further are the various organizations
which exist to monitor use of musical works and to collect and distribute
the royalties to the entities discussed thus far. The music publishers and
writers derive a substantial portion of their income from licensing performance
rights. There are three mammoth groups that handle the majority of this licensing,
the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast
Music, Inc. (BMI), and SESAC. (Yes, just SESAC.) For a commission on the royalties,
these organizations lobby for favorable legislation, monitor for potential
copyright infringement (and send cease and desist letters or file suit against
infringers), and enter into licensing agreements on behalf of their members,
collecting and remitting royalties. Record companies, publishers, and performers
who rely on mechanical royalties (derived from the distribution right in phonorecords),
turn to the Harry Fox Agency to perform similar functions. And with the recent
grant of digital transmission performance rights to owners of sound recordings
(discussed more fully below), the RIAA has begun to handle much of the associated
who violates the bundle of exclusive rights associated with the copyright
is considered an infringer, and faces injunctive sanctions as well as potential
civil or criminal liability. (17 U.S.C. §§ 501 et. seq.) Although the copyright
owners have standing to file any suit or complaint, the previously mentioned
performers' rights organizations will often do this on their behalf.
It is this complex and carefully
refined system which MP3 pirates disregard and disrupt. While it seems clear
that the law prohibits copying and distributing copies of musical works without
first obtaining the permission of the owner (and making the appropriate licensing
arrangements), the technology and terminology that surrounds MP3 use holds
great potential for confusing the uninitiated about whether they are in fact
in violation of the existing legal rules. Because the law does not provide
a seamless web leading to inexorable conclusions, this document can at best
set forth the relevant legislation and commentary on which the future resolution,
whatever it may be, of the current legal debates will rely.
AUDIO HOME RECORDING ACT OF 1992
1992, Congress passed the Audio Home Recording Act (AHRA) (17 U.S.C. §§ 1001-1010).
This legislation was enacted at least partly in response to pressure from
the recording industry, which was concerned about the introduction of DAT
recording devices (the first commercial distribution of a device which allowed
for serial copying of music in digital form, i.e. without quality degradation
in successive copies). The new law also clarified the status of home audio
copying, an issue left unresolved by the Supreme Court's landmark decision
in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984),
which proclaimed the legality of home video copying for "time-shifting"
purposes (taping a broadcast program to watch at a later time, then erasing
the copy so as not to build a "library" of copyrighted works). Under
the AHRA, one is not liable for copyright infringement for making, importing,
or distributing a "digital audio recording device, a digital audio recording
medium, an analog recording device, or an analog recording medium" or
for using any of these devices or media to create personal, noncommercial
recordings. (17 U.S.C. § 1008)
compensate copyright holders for the copying that was expected to ensue, the
statute provides that manufacturers and distributors of digital audio recording
devices and blank digital tapes must pay a percentage-based royalty to the
Copyright Office to be pooled and shared among artists, music publishers,
and record companies. (17 U.S.C. § 1004) The AHRA also mandates that any digital
audio recording device or digital audio interface device must conform to the
Serial Copy Management System (SCMS) or some other approved system which prevents
copying of copies. (17 U.S.C. § 1002)
DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS ACT OF 1995
Act, which amended sections 106 and 114 of the Copyright Act (17 U.S.C. §§
106(6) and 114), represents the first time public performance rights in sound
recordings have been offered protection. Copyright holders in sound recordings
now have the exclusive right "to perform the copyrighted work publicly
by means of a digital audio transmission." This allows the record companies
who hold the rights in sound recordings to collect a royalty on digital "performances"
of the sound recording (according to ASCAP, this applies to digital "transmissions,"
which is interpreted to include downloading, uploading, and streaming).
Digital Millenium Copyright Act further amended section 114 to "allow
a nonexempt, eligible nonsubscription transmission services and a pre-existing
satellite digital audio radio service to perform publicly a sound recording
by means of certain digital audio transmissions, subject to notice and record
keeping requirements." Those notice and record keeping requirements,
however, took into account only the industry as it stood in 1995 when the
DPRSRA was passed, and provided only that the three eligible services then
in existence could file notice within 45 days from the enactment of the notice
rule. To rectify this, the Copyright Office promulgated an interim rule amending
37 CFR Part 201 on September 14, 1999 (64 FR 49671). This amendment extends
the notice filing period for newly-eligible nonsubscription transmission services
in service prior to the passage of the DMCA to October 15, 1999.
effect of the DPRSRA on the Internet music industry is that the compulsory
license for making and distributing phonorecords (17 U.S.C. § 115) now applies
to digital delivery of phonorecords.
What this means for operators of
websites who wish to provide their users with MP3 files, either by streaming
or downloading, is that they must first obtain a license by paying a fee to
the appropriate agency. A performing rights organization such as ASCAP can
issue a blanket license which will cover performances of all the music in
its collection. Recently, ASCAP signed a groundbreaking deal with MP3.com
that did precisely that. However, the implementation of this Act means, there
are now three potential tiers of licensing with which the hapless would-be
music distributor would do well to become familiar: the license for performing
the work (the same as in the non-Internet world, and handled by an organization
like ASCAP, BMI, or SESAC); the license for the digital performance right
in the sound recording (often being handled by RIAA now); and the license
for the distribution right in the phonorecord (a mechanical royalty like those
handled by the Harry Fox Agency). The industry catchphrase these days is "one-stop
shopping" and it doesn't exist. One must negotiate separate licenses
on all three levels or risk the possibility of suit.
NO ELECTRONIC THEFT ACT
NET, enacted in December 1997, attempted to crack down on computer-based piracy
by instituting criminal penalties for copyright infringement by electronic
means under 18 U.S.C. § 2319. A trader in illegal MP3s could get up to 6 years
in prison (for a second offense—up to 3 years for a first) and/or pay a hefty
fine for distributing as little as $1000 worth of music. The law also amended
the Copyright Act's definition of "financial gain" (17 U.S.C. §
101) to include "receipt, or expectation of receipt, of anything of value,
including the receipt of other copyrighted works." This places under
the Act's ambit the MP3 "ratio sites" which require a user to upload
a file before being able to download one, as well as trading areas dealing
in authorized copies.
FEDERAL ANTI-BOOTLEG STATUTE
introduced in 1994, this statute (18 U.S.C. § 2319A) criminalizes the "unauthorized
fixation of and trafficking in sound recordings and music videos of live musical
performances"—what music fans have always referred to as "bootlegs,"
ostensibly after the practice of hiding a tape recorder somewhere on one's
person at a concert, to later copy and distribute the tape. The statute was
updated in 1997 as part of the No Electronic Theft Act to allow the offended
copyright holder to submit a victim's impact statement of economic harm prior
to sentencing the convicted infringer. The statute also authorizes U.S. Customs
to seize bootlegs at the border like any other contraband, to counteract importation
from countries with little or no protection for taping of live performances.
things are not as clear as they may seem from reading the law. Far from prohibiting
bootlegging of their performances, there are many bands that actually encourage
the practice as a promotional tool, a way of bonding with their fans. Included
in this category are popular groups such as the Grateful Dead, Blues Traveler,
and the Dave Mathews Band. If, however, you think it's OK to then encode your
"authorized" bootleg of one of these bands and distribute it over
the Web, think again. The RIAA, in its ever-present watchdog role, has worked
hard to shut down bootleg sites as quickly as they arise.
DIGITAL MILLENIUM COPYRIGHT ACT
October 1998, Congress passed the DMCA, an implementing legislation for the
WIPO treaties. This is a multi-part piece of legislation addressing many aspects
of copyright law.
is a provision in the Act that makes it illegal to so much as link to infringing
material. This has fueled the RIAA's efforts to prevent MP3 search engines
such as Lycos from operating. While the Act exempts search engines from liability
for linking to pirated material, the exemption applies only to those search
engines that do so unknowingly. Since the vast majority of MP3 files are still
unauthorized copies, it's unlikely that a court would accept that the linking
was done without substantial knowledge. Currently, RIAA and Lycos are discussing
significant points for online music are the Act's strong prohibition against
devices which circumvent copyright management technology (which was questioned
by some as being unnecessary after the No Electronic Theft Act), and its provisions
for liability of ISPs who host infringing material. Critics have said that
the language which limits ISP liability only upon compliance (by pulling the
user's account after being notified) chills protected speech as well as unprotected
speech by fostering a "guilty until they prove themselves innocent"
approach to shutting down sites.
control measures have also been criticized for interfering with legitimate
exemptions from infringement, discussed next.
TO EXCLUSIVE RIGHTS
of the foregoing details much about the rights of the various parties involved
in a music copyright on the Internet. However, in keeping with the purpose
of copyright law, which is to secure a limited monopoly as an incentive to
create, there are a few exceptions to the rights granted to copyright holders,
one of the most important of which is the fair use exception. (17 U.S.C. §
107) This section provides for a limited amount of copying for the purposes
of "criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research." There is no bright
line rule which can allow one to determine if an anticipated use is fair,
but courts use section 107's balancing test which looks at four factors:
the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relationto the copyrighted
work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted
like the DMCA, dealing with online copyright issues has been extensively criticized
as trampling upon this crucial exception. It has traditionally been a fair
use of a copyrighted work to reverse engineer a computer program for purposes
of interoperability, but no longer is under the DMCA if the computer program
contains any security measures intended to prevent such procedures. Also,
the fair use doctrine is the rock upon which much of the education community
is built. Legislation like the DMCA, which makes “hacking” lock-up technologies
illegal even if the use to which the locked-up material would be put is legal
provides no safe havens within which researchers may work without running
afoul of the law. While language was added to allow limited copying of programs
in order to make interoperability technically possible, the Act still prohibits
the manufacture of the type of equipment necessary to perform this function.
Critics point out that prohibiting hardware which has substantial non-infringing
uses undermines the Supreme Court's reasoning in Sony v. Universal Studios
because it effectively prohibits permitted actions. It remains to be seen
how this will play out in the courts. Stanford's Fair Use site, <http://fairuse.stanford.edu>,
provides extensive information on this and other issues related to this doctrine.
significant exception which may prove important in the case of downloaded
music is the First-Sale Doctrine (17 U.S.C. § 109), which allows a person
who has legally obtained a copy of a phonorecord to sell or dispose of it
without authorization from the copyright holder. Currently, if you buy a CD
from the store, you are free to give it to a friend or sell it to a used CD
store. You paid for it, you may dispose of it as you wish. However, the restrictions
of the DMCA, and the protections being built into MP3 copyright protection
mechanisms, will make such a transfer both illegal and impossible. Like the
fair use implications, it remains to be seen how this will end up. In the
meantime it is the subject of heated debate and merits attention.
is likely that MP3 is going to be around for a while. At least, that is, until
something bigger, better, or just different comes along and captures our attention.
Meanwhile, several organizations are working to make sure that they provide
that something different—in the form of an audio compression format which
incorporates copyright management characteristics. The best known of these
bodies is the Secure Digital Music Initiative, a group of more than 200 of
the industry's heaviest hitters sharing a common goal—to stop MP3 piracy.
The group, which began in December 1998 and has been the subject of much controversy
in its short life, recently announced that it has developed specifications
for a new download format which members believe will strike a balance between
their interest in protection with the fans' interest in high-quality, low-cost
some new standard is in place, copyright owners will continue to use existing
technology like watermarking to track unauthorized uses of their material.
approach, however, remains subject to the vagaries of the law. As we
have seen throughout this work, that law is complex and confusing. MP3
as a viable commercial medium is not likely to flourish until both the
technology and the law are addressed and brought into harmony with one
another. Lobbying efforts would be well directed at this point at clarifying
the existing law, rather than trying to create new ones. If copyright
owners are truly interested in ensuring compliance, they should do their
best to make sure that full information is easily accessible to all,
in a language that the average young person wanting to get an MP3 can
For additional materials regarding MP3 legal issues,
see MP3 , Prof. William T. Fisher, Intellectual
Property in Cyberspace.
Case: RIAA v. MP3.com
Chris Babbitt, HLS ’02
In the increasingly acrimonious
battle between the recording industry and MP3.com, the Recording Industry
Association of America (RIAA) filed suit against the online music provider
in a New York federal district court this past January, alleging massive copyright
infringement stemming from the company’s new service, My.MP3.com. The new
service allows subscribers to create a personal online jukebox from the company’s
database of 45,000 CDs, the copyrights to which are owned by the member companies
of RIAA (including Sony, Universal, BMG, Warner, EMI, and other major labels).
If the suit is successful, damages could run as high as $6.75 billion.
At the center of the dispute are
the two key features of My.MP3.com, Instant Listening and Beam-It. The former
gives consumers instant access to CDs purchased through any of MP3.com’s online
retail partners. Once the customer’s credit card is cleared and the purchase
complete, that CD’s songs are digitally transferred into the customer’s private
account on My.MP3.com, allowing the customer to listen to the new CD before
the physical version arrives in the mail. Beam-It allows similar access to
any already-owned CD; the customer need only insert a CD into the CD-ROM drive
and ‘beam’ it to MP3.com. The site reads the CD’s WAV files and places a
ready-made digital copy into the customer’s online collection. The service
does not require proof of ownership, only access to the CD—whether original
or copied (though the terms of the service agreement do require the customer
to attest that the CDs are her own). Once the files are in the individual’s
personalized online collection, a user can access them on demand without ever
again needing the physical CD.
Since there is no mechanism through
which the consumer can upload or copy her own CDs onto My.MP3.com, the digital
music files transferred into individual accounts come from copies in the company’s
massive database, not from customer-owned recordings. This tension between
ownership of form and reproduction of content is certain to be the heart of
the litigation. The Copyright Act of 1971 prohibits the copying of a recording
by anyone but the holder of the copyright, and although an exception created
by the Audio Home Recording Act of 1992 allows consumers to copy music for
personal use, that exception is specifically limited to individual consumers.
Legal analysts disagree on likely
defense strategies for MP3.com. Andrew Bridges, the attorney who successfully
defended Diamond Multimedia against a similar suit by RIAA in 1999, suggests
that MP3.com portray its case in terms of online consumers’ rights to innovative
technologies. In a comment to The Industry Standard, Bridges explained,
“The question is, is it fair for consumers to find ways of listening to music
that they have already paid for, in a different format, without having to
pay for it again?” An alternative defense strategy
relies on the doctrine of fair use, a narrow exception to copyright laws,
which allows for the unauthorized reproduction of copyrighted material under
certain circumstances. Whether those circumstances are present here is unclear.
Nevertheless, MP3.com CEO Michael Robertson hinted at a blend of the two defenses:
“[T]o whom does the music belong? When a consumer buys a CD, does the industry
get to tell the consumer where she can listen to her music? The type of technology
that she can use to play the CD? What about the fair use rights of the consumer…?
Is it all about forcing consumers to use out-dated technologies to induce
yet another CD sale?”
Whether MP3.com stands a chance
is another question. “I don’t know what MP3.com was thinking,” comments Entertainment
Law Reporter editor Lon Sobel. “I couldn’t imagine how they thought that what
it was doing was legal.” Bob Cohn, chairman of Emusic.com,
was equally pessimistic about MP3.com’s chances: “It’s a textbook case of
mass copyright infringement. You can’t do this, it’s silly.” Ironically, one of the most charitable assessments
of MP3.com’s new service came from someone in the recording industry. Jeremy
Silver, VP of new media for EMI Music, referred to the personal online library
as a “genius idea…It fulfills our aspirations that we’ve had for a long time.”
However, Silver also noted that in the absence of permission from the copyright
owners, My.MP3.com involved “clear copyright infringements.”
The battle between RIAA and MP3.com
is not limited to the courts. In an open letter to MP3.com CEO Michael Robertson,
RIAA CEO Hilary Rosen wrote, “[Y]our company’s violation of the copyright
law is brazen on its face. Simply put, it is not legal to compile a vast
database of our member’s sound recordings with no permission and no license.
And whatever the individual’s right to use their own music, you cannot exploit
that for your company’s commercial gain.”
But that may be just the point. In response, Robertson wrote, “Our service
is nothing more than a virtual CD player. It is a new and innovative technology
that lets people listen to their music. We have every intention of fighting
your efforts to dictate the way people can use their music. . . . Only the
person who buys the CD is entitled to listen to that music through our service.
That’s it. Your argument is that technology companies cannot facilitate that
use. Why? Because you apparently believe that you have the right to control
the content even after the user buys it. We disagree.”
Perhaps out of tenacity or desperation,
MP3.com has filed its own suit against RIAA in a California Superior Court,
seeking unspecified damages for what it alleges amount to unfair business
practices, defamation, trade libel, and interference with prospective economic
advantage. The complaint alleges that Rosen, RIAA, and 20 unnamed “co-conspirators”
made disparaging statements to MP3.com’s financial partners, investment bankers,
and advertising clients, as well as to managers, agents, and artists in the
music industry, warning them that MP3.com commits “theft and exploitation”
and advising them, “[d]on’t get ripped off.”
More seriously, the complaint alleges that Rosen, RIAA, and the unnamed co-conspirators
“used their influence and the implied threat of adverse commercial consequences
to persuade or induce these individuals and businesses to discontinue or not
to engage in business relationships with MP3.com.” A trial date has not been set.
With all the major labels poised
to enter the online music market this year, both suits will have a significant
impact on the future relationship between the music industry and services
such as My.MP3.com. A finding of copyright infringement would likely spell
the end for the online company. Its eight million registered users might
just have to turn back to the major labels themselves, change their musical
tastes, or else take matters into their own hands. In any event, both suits
are sure to be closely watched by consumers’ rights advocates and copyright
advocates alike. For more information and continuing coverage, visit www.MP3.com
Great 8 Controversies
That Are Shaping the Online Media World
Alon Neches, HLS ’01
The explosion in online music has
sent shockwaves throughout the music and film industries. Online music sales,
including both sales of conventional media and digital downloads, are projected
to hit $2.6 billion by 2003, or 14 percent of the U.S. market.
However, only $147 million of this
is expected to come from downloaded music.
Piracy has made a tremendous body of music available for free over the Internet.
The recording industry estimates that pirated music in the form of counterfeit
CD's and downloaded music already costs it $4.5 billion in lost revenue every
year. The corresponding figure for lost revenue due to piracy by the motion
picture industry stands at $3 billion per year.
These dizzying figures have already
made important impacts in the media industries In business, many industry
insiders saw the Time-Warner/AOL merger as largely driven by Time-Warner's
realization that it needed an online distribution channel and method for its
media content to compete in the Information Age. The legal cases
and controversies below also promise to play an important role in shaping
the music industry of the 21st century.
Industry Association of America v. Diamond Multimedia Systems, 180 F.3d 1072
(9th Cir. 1999)
Originally filed in October 1998,
the Diamond Multimedia case was the first major case surrounding online music
filed by the Recording Industry Association of America (RIAA). The RIAA claimed
that Diamond's Rio MP3 player violated the Audio Home Recording Act (AHRA),
17 U.S.C.A. §100,1 because it was a "digital audio recording device"
which did not have any system for preventing copying of copies, and thus of
protecting the copyrights of the music that it reproduced. Both the District
Court and the Ninth Circuit Court of Appeals ruled that the Rio MP3 player
did not fall under the AHRA because it recorded music from a computer hard
drive, which unlike an audio compact disc typically contained more than just
Instead of appealing to the Supreme
Court, the parties reached an amicable settlement in August 1999. Although
terms of the settlement were not disclosed, both parties stipulated an earnest
desire to turn digital distribution of music into a viable business.
The Diamond Multimedia dispute
is notable just as much for its resolution as for any copyright issues it
presented. Both parties represent business interests looking to use the Internet
as a viable distribution channel from which to garner revenue. Also, both
realized that cooperation in working toward a technology that could help protect
copyrights online was much more profitable than pursuing adversarial litigation
against one another.
In December 1999, the RIAA sued
Napster, a fledgling company that distributes software that allows an ever-growing
community of music enthusiasts to search for and download music from one another's
computers. Napster claims that because it does not host any content nor tracks
any of the exchanges made by Napster music community members, it does not
violate any copyright laws. Napster also asserts that its software was developed
as a tool for up and coming artists to find listeners and vice-versa.
The RIAA contends that Napster's
software is a "burglar's tool" that allows Net users to download
songs by top-selling artists freely, thus making copies without paying legally
mandated royalties and costing the recording industry tremendous revenue losses.
The RIAA's case faces some important legal hurdles. First, the Digital Millennium
Copyright Act (DMCA) creates a safe harbor for online sites and services that
desist from copyright-infringing acts upon notice. Furthermore, the Telecommunications
Act of 1996 protects Internet Service Providers from liability for any legal
improprieties committed by third parties over the ISP's network under certain
The Napster case raises the important
question of liability for companies that only provide software or services
that enable online music exchange but do not themselves actually reproduce
or distribute any of the music. Also, Napster's software allows for identification
of the ISP numbers of its members, which could create the potential for prosecution
of the individuals that use Napster's software.
In October 1999, an independent
security analyst discovered that RealNetworks had assigned each of the users
who registered its popular Real Jukebox software a global unique identification
number (GUID) and was using that number to track music listening patterns.
Although RealNetworks claimed that the data was only used for aggregation
purposes, GUID technology potentially enabled RealNetworks to create personal
profiles for identified individuals that included everything from listening
preferences to credit card numbers. This type of data collection was in direct contradiction
The same day The New York Times
reported this story, RealNetworks released a patch for its software that allowed
RealJukebox users to block transmission of their personal information, and
amended its privacy statement to give its software users a more detailed description
of what data might be collected about them. These corrective actions did
not stop two separate class-action suits from being filed against RealNetworks.
The first, a $500 million suit filed in California Superior Court, claimed
RealNetworks violated California's unfair business practices law. A second,
federal class action suit, filed in the Eastern District of Pennsylvania,
claims that RealNetworks violated the federal Computer Fraud and Abuse Act
and state privacy and consumer protection laws.
This controversy underscores the
importance of privacy issues on the Internet. Privacy concerns arising out
of such situations have prompted the Federal Trade Commission to examine online
profiling. In a study underwritten by the FTC and DoubleClick, a majority
of respondents stated a preference for targeted advertising and personalized
Net service, but over 92% of those surveyed stated that privacy on the Internet
was a concern for them, and 67% of respondents were "very concerned"
about potential abuses arising from the use of their personal information.
of Oregon Student Convicted Under the No Electronic Theft (NET) Act
In November 1999, University of
Oregon student Jeffrey Levy pled guilty to violating the NET Act, thus becoming
the first person to fall within its scope. Levy drew the attention of university
administrators when his website began sending out 1.7 Gigabytes of information
over the course of several hours. After University administrators contacted
the FBI, Levy's computer was searched.
According to the prosecuting attorney,
Levy had illegally posted approximately $70,000 worth of copyrighted material
on his site, including 1,000 MP3 files. The NET makes it illegal to
reproduce or distribute copyrighted materials worth more than $1,000.
For Levy, the maximum penalty could have been three years in prison and a
$250,000 fine. Due to his cooperation, he received two years of probation
and a limit on his Internet access.
Levy's case signifies a new commitment
by law enforcement authorities to use the tools at their disposal to uphold
copyright and intellectual property laws. Beyond the NET, proposals for new
sentencing guidelines may make the sanctions for violating copyright laws
more severe. Furthermore, the Department of Justice, the Customs Service,
and other agencies have recently announced an intellectual property rights
initiative that is aimed specifically at entertainment software pirates.
Students at Carnegie Mellon University Reprimanded for
In October 1999, administrators
at Carnegie Mellon University randomly searched 250 student files and punished
71 students for illegally sharing MP3 files across the school's intranet.
Although some the files searched were password protected, all of the students
had made their passwords available in public files. The students were stripped of their Internet access
and were required to attend a 90-minute lecture on copyright laws and infringement.
This case highlights the potential
liability of universities for the actions of their students. According the
DMCA, universities are protected from prosecution for copyright infringement
only if they take action when notified of potential copyright violations.
Universities that fail to do so may face entity level liability.
In Support of Online Music Distribution
For the many artists who have regular
conflicts with their recording studios over sharing profits, online music
distribution offers an appealing option. Artists such as the Beastie Boys,
David Bowie, and Chuck D have all publicly stated their intention to use the
Internet as a distribution channel for their music. Last May, Chuck D's group
Public Enemy released its new album, There's a Poison Goin' On, online
through the website Atomic Pop. Visitors can purchase the CD online or download
the music digitally. Bowie and Chuck D have both released singles online.
These artists view music distribution
over the Internet as a way to capture a larger proportion of the profits from
As stated by Chuck D, "It used to be all about the triple R -- radio,
retail, record companies. The Internet means you don't need them nearly as
much. I'm going to use it not just for myself, but to help out some newer
artists who are doing their thing."
At the moment, most industry insiders
see MP3 technology as most useful for independent record labels looking for
cost effective methods of distributing their distributing their music. Piracy
issues currently preclude large recording companies from embracing online
Picture Association of America's DVD Case
In January, Norwegian police arrested
and charged 16-year-old Jon Johansen with copyright infringement and gaining
unauthorized access to data and software. Johansen had posted a program called
DeCSS that breaks the encryption on DVDs and allows them to be copied and
converted into other types of operating systems.
With the proliferation of DeCSS, the Motion Picture Association of America
filed a lawsuit in New York against various individuals who it considered
instrumental in DeCSS's rampant spread throughout the Internet. On January
20, U.S. District Judge Lewis Kaplan granted a preliminary injunction and
ordered the hackers to take down its DeCSS posting or potentially face sanctions
under the DMCA.
Proponents of the code claim that
the purpose of DeCSS is to allow the playback of DVDs on operating systems
not supported by the Motion Picture Association of America, which will in
turn lead to better and cheaper DVD players due to increased competition in
The main alternative operating system that these programmers seek to introduce
into the DVD fold is Linux. To date, DVDs are not manufactured with the capability
of being played on Linux machines.
Although video and DVD pirating
may seem to make little impact in highly developed markets such as the United
States, the consequences can be very real in developing markets. For example,
a recent study by the Film and Video Industry Association of Malaysia shows
that 80 cinema screens at 58 locations have ceased operations in the past
two years, partially due to the prevalence of pirating.
At the same time, in the United States, DVD hacking is probably not occurring
nearly on the scale of music piracy. The average DVD is 5 gigabytes in size—a
prohibitively large file to download no matter the speed of your Internet
connection. Furthermore, blank DVDs usually cost more than DVD movies.
ICraveTV is a Toronto-based company
that broadcasts live programs from 17 U.S. and Canadian television stations,
including affiliates of the four major United States networks. Thirteen movie
and broadcasting companies, along with both the National Football League and
the National Basketball Association, have filed suits to stop ICrave from
broadcasting their copyrighted material.
For its part, ICrave claims that
its free web broadcasts are intended only for Canadian Internet users and
that their broadcasts are legal in Canada. However, movie and broadcasting
executives claim that ICrave’s security measures are inadequate to ensure
that non-Canadians are excluded from the site. On February 8, 2000, U.S.
District Judge Donald Ziegler issued a preliminary injunction against ICraveTV
because its security measures did not bock access for U.S. viewers.
The movie and broadcast industry
sees this case as a benchmark for protecting intellectual property on the
Internet. Movies and broadcast programming derive their revenues from advertisers.
If the same content was freely available on the Internet, these industries
could lose both advertisers and the viewers those advertisers seek to reach.
Economy of Ideas:
Framework for Patents and Copyrights in the Digital Age.
(Everything you know about intellectual property is wrong.)
John Perry Barlow
Cognitive Dissident, EFF Co-Founder, and Fellow, Berkman Center for Internet
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 everyone, and the receiver cannot
dispossess himself of it. Its peculiar character, too, is that no one possesses
the less, because every other possesses 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 me. That ideas
should freely spread from one to another over the globe, for the moral and
mutual instruction of man, and improvement of his condition, seems to have
been peculiarly and benevolently designed by nature, when she made them, like
fire, expansible over all space, without lessening their density at any point,
and like the air in which we breathe, move, and have our physical being, incapable
of confinement or exclusive appropriation. Inventions then cannot, in nature,
be a subject of property.
the time I've been groping around Cyberspace, there has remained unsolved
an immense conundrum that seems to be at the root of nearly every legal, ethical,
governmental, and social vexation to be found in the Virtual World. I refer
to the problem of digitized property.
riddle is this: if our property can be infinitely reproduced and instantaneously
distributed all over the planet without cost, without our knowledge, without
its even leaving our possession, how can we protect it? How are we going to
get paid for the work we do with our minds? And, if we can't get paid, what
will assure the continued creation and distribution of such work?
we don't have a solution to what is a profoundly new kind of challenge, and
are apparently unable to delay the galloping digitization of everything not
obstinately physical, we are sailing into the future on a sinking ship.
This vessel, the accumulated canon
of copyright and patent law, was developed to convey forms and methods of
expression entirely different from the vaporous cargo it is now being asked
to carry. It is leaking as much from within as without.
efforts to keep the old boat floating are taking three forms: a frenzy of
deck chair rearrangement, stern warnings to the passengers that if she goes
down, they will face harsh criminal penalties, and serene, glassy-eyed denial.
property law cannot be patched, retrofitted, or expanded to contain the gasses
of digitized expression any more than real estate law might be revised to
cover the allocation of broadcasting spectrum. (Which, in fact, rather resembles
what is being attempted here.) We will need to develop an entirely new set
of methods as befits this entirely new set of circumstances.
of the people who actually create soft property—the programmers, hackers,
and Net surfers--already know this. Unfortunately, neither the companies they
work for nor the lawyers these companies hire have enough direct experience
with immaterial goods to understand why they are so problematic. They are
proceeding as though the old laws can somehow be made to work, either by grotesque
expansion or by force. They are wrong.
source of this conundrum is as simple as its solution is complex. Digital
technology is detaching information from the physical plane, where property
law of all sorts has always found definition.
the history of copyrights and patents, the proprietary assertions of thinkers
have been focused not on their ideas but on the expression of those ideas.
The ideas themselves, as well as facts about the phenomena of the world, were
considered to be the collective property of humanity. One could claim franchise,
in the case of copyright, on the precise turn of phrase used to convey a particular
idea or the order in which facts were presented.
point at which this franchise was imposed was that moment when the "word
became flesh" by departing the mind of its originator and entering some
physical object, whether book or widget. The subsequent arrival of other commercial
media besides books didn't alter the legal importance of this moment. Law
protected expression and, with few (and recent) exceptions, to express was
to make physical.
Protecting physical expression
had the force of convenience on its side. Copyright worked well because, Gutenberg
notwithstanding, it was hard to make a book. Furthermore, books froze their
contents into a condition that was as challenging to alter as it was to reproduce.
Counterfeiting or distributing counterfeit volumes were obvious and visible
activities, easy enough to catch somebody in the act of doing. Finally, unlike
unbounded words or images, books had material surfaces to which one could
attach copyright notices, publisher's marques, and price tags.
to physical conversion was even more central to patent. A patent, until recently,
was either a description of the form into which materials were to be rendered
in the service of some purpose or a description of the process by which rendition
occurred. In either case, the conceptual heart of patent was the material
result. If no purposeful object could be rendered due to some material limitation,
the patent was rejected. Neither a Klein bottle nor a shovel made of silk
could be patented. It had to be a thing and the thing had to work.
the rights of invention and authorship adhered to activities in the physical
world. One didn't get paid for ideas but for the ability to deliver them into
For all practical purposes, the value was in the conveyance and not the thought
other words, the bottle was protected, not the wine.
as information enters Cyberspace, the native home of Mind, these bottles are
vanishing. With the advent of digitization, it is now possible to replace
all previous information storage forms with one meta-bottle: complex—and highly
liquid—patterns of ones and zeros.
the physical/digital bottles to which we've become accustomed, floppy disks,
CD-ROM's, and other discrete, shrink-wrappable bit-packages, will disappear
as all computers jack in to the global Net. While the Internet may never include
every single CPU on the planet, it is more than doubling every year and can
be expected to become the principal medium of information conveyance if, eventually,
the only one.
that has happened, all the goods of the Information Age—all of expressions
once contained in books or film strips or records or newsletters—will exist
either as pure thought or something very much like thought: voltage conditions
darting around the Net at the speed of light, in conditions which one might
behold in effect, as glowing pixels or transmitted sounds, but never touch
or claim to "own" in the old sense of the word.
might argue that information will still require some physical manifestation,
such as its magnetic existence on the titanic hard disks of distant servers,
but these are bottles that have no macroscopically discrete or personally
will also argue that we have been dealing with unbottled expression since
the advent of radio, and they would be right. But for most of the history
of broadcast, there was no convenient way to capture soft goods from the electromagnetic
ether and reproduce them in anything like the quality available in commercial
packages. Only recently has this changed and little has been done legally
or technically to address the change.
the issue of consumer payment for broadcast products was irrelevant. The consumers
themselves were the product. Broadcast media were supported either by selling
the attention of their audience to advertisers, using government to assess
payment through taxes, or the whining mendicancy of annual donor drives.
All of broadcast support models
are flawed. Support either by advertisers or government has almost invariably
tainted the purity of the goods delivered. Besides, direct marketing is gradually
killing the advertiser support model anyway.
media gave us another payment method for a virtual product in the royalties
which broadcasters pay songwriters through such organizations as ASCAP
and BMI. But, as a member of ASCAP, I can assure you this is not a model that
we should emulate. The monitoring methods are wildly approximate. There is
no parallel system of accounting in the revenue stream. It doesn't really
any case, without our old methods of physically defining the expression of
ideas, and in the absence of successful new models for non-physical transaction,
we simply don't know how to assure reliable payment for mental works. To make
matters worse, this comes at a time when the human mind is replacing sunlight
and mineral deposits as the principal source of new wealth.
the increasing difficulty of enforcing existing copyright and patent laws
is already placing in peril the ultimate source of intellectual property,
the free exchange of ideas.
is, when the primary articles of commerce in a society look so much like speech
as to be indistinguishable from it, and when the traditional methods of protecting
their ownership have become ineffectual, attempting to fix the problem with
broader and more vigorous enforcement will inevitably threaten freedom of
greatest constraint on your future liberties may come not from government
but from corporate legal departments laboring to protect by force what can
no longer be protected by practical efficiency or general social consent.
when Jefferson and his fellow creatures of The Enlightenment designed the
system that became American copyright law, their primary objective was assuring
the widespread distribution of thought, not profit. Profit was the fuel that
would carry ideas into the libraries and minds of their new republic. Libraries
would purchase books, thus rewarding the authors for their work in assembling
ideas, which otherwise "incapable of confinement" would then become
freely available to the public. But what is the role of libraries if there
are no books? How does society now pay for the distribution of ideas if not
by charging for the ideas themselves?
complicating the matter is the fact that along with the physical bottles in
which intellectual property protection has resided, digital technology is
also erasing the legal jurisdictions of the physical world, and replacing
them with the unbounded and perhaps permanently lawless seas of Cyberspace.
Cyberspace, there are not only no national or local boundaries to contain
the scene of a crime and determine the method of its prosecution, there are
no clear cultural agreements on what a crime might be. Unresolved and basic
differences between European and Asian cultural assumptions about intellectual
property can only be exacerbated in a region where many transactions are taking
place in both hemispheres and yet, somehow, in neither.
Even in the most local of digital
conditions, jurisdiction and responsibility are hard to assess. A group of
music publishers filed suit against Compuserve this fall for it having allowed
its users to upload musical compositions into areas where other users might
get them. But since Compuserve cannot practically exercise much control over
the flood of bits that pass between its subscribers, it probably shouldn't
be held responsible for unlawfully "publishing" these works.
of property, value, ownership, and the nature of wealth itself are changing
more fundamentally than at any time since the Sumerians first poked cuneiform
into wet clay and called it stored grain. Only a very few people are aware
of the enormity of this shift and fewer of them are lawyers or public officials.
who do see these changes must prepare responses for the legal and social confusion
that will erupt as efforts to protect new forms of property with old methods
become more obviously futile, and, as a consequence, more adamant.
SWORDS TO WRITS TO BITS
now seems bent on creating a world economy primarily based on goods that take
no material form. In doing so, we may be eliminating any predictable connection
between creators and a fair reward for the utility or pleasure others may
find in their works.
that connection, and without a fundamental change in consciousness to accommodate
its loss, we are building our future on furor, litigation, and institutionalized
evasion of payment except in response to raw force. We may return to the Bad
Old Days of property.
the darker parts of human history, the possession and distribution of property
was a largely military matter. "Ownership" was assured those with
the nastiest tools, whether fists or armies, and the most resolute will to
use them. Property was the divine right of thugs.
the turn of the First Millennium A.D., the emergence of merchant classes and
landed gentry forced the development of ethical understandings for the resolution
of property disputes. In the late Middle Ages, enlightened rulers like England's
Henry II began to codify this unwritten "common law" into recorded
canons. These laws were local, but this didn't matter much as they were primarily
directed at real estate, a form of property that is local by definition. And
which, as the name implied, was very real.
continued to be the case as long as the origin of wealth was agricultural,
but with dawning of the Industrial Revolution, humanity began to focus as
much on means as ends. Tools acquired a new social value and, thanks to their
own development, it became possible to duplicate and distribute them in quantity.
encourage their invention, copyright and patent law were developed in most
western countries. These laws were devoted to the delicate task of getting
mental creations into the world where they could be used—and enter the minds
of others—while assuring their inventors compensation for the value of their
use. And, as previously stated, the systems of both law and practice that
grew up around that task were based on physical expression.
it is now possible to convey ideas from one mind to another without ever making
them physical, we are now claiming to own ideas themselves and not merely
their expression. And since it is likewise now possible to create useful tools
that never take physical form. we have taken to patenting abstractions, sequences
of virtual events, and mathematical formulae--the most un-real estate imaginable.
certain areas, this leaves rights of ownership in such an ambiguous condition
that once again property adheres to those who can muster the largest armies.
The only difference is that this time the armies consist of lawyers.
their opponents with the endless Purgatory of litigation, over which some
might prefer death itself, they assert claim to any thought that might have
entered another cranium within the collective body of the corporations they
serve. They act as though these ideas appeared in splendid detachment from
all previous human thought. And they pretend that thinking about a product
is somehow as good as manufacturing, distributing, and selling it.
was previously considered a common human resource, distributed among the minds
and libraries of the world, as well as the phenomena of nature herself, is
now being fenced and deeded. It is as though a new class of enterprise had
arisen which claimed to own air and water.
is to be done? While there is a certain grim fun to be had in it, dancing
on the grave of copyright and patent will solve little, especially when so
few are willing to admit that the occupant of this grave is even deceased
and are trying to up by force what can no longer be upheld by popular consent.
legalists, desperate over their slipping grip, are vigorously trying to extend
it. Indeed, the United States and other proponents of GATT are making adherence
to our moribund systems of intellectual property protection a condition of
membership in the marketplace of nations. For example, China will be denied
Most Favored nation trading status unless they agree to uphold a set of culturally
alien principles that are no longer even sensibly applicable in their country
a more perfect world, we'd be wise to declare a moratorium on litigation,
legislation, and international treaties in this area until we had a clearer
sense of the terms and conditions of enterprise in Cyberspace. Ideally, laws
ratify already developed social consensus. They are less the Social Contract
itself than a series of memoranda expressing a collective intent that has
emerged out of many millions of human interactions.
have not inhabited Cyberspace long enough or in sufficient diversity to have
developed a Social Contract that conforms to the strange new conditions of
that world. Laws developed prior to consensus usually serve the already established
few who can get them passed and not society as a whole.
the extent that either law or established social practice exists in this area,
they are already in dangerous disagreement. The laws regarding unlicensed
reproduction of commercial software are clear and stern . . . and rarely observed.
Software piracy laws are so practically unenforceable and breaking them has
become so socially acceptable that only a thin minority appears compelled,
either by fear or conscience, to obey them.
sometimes give speeches on this subject, and I always ask how many people
in the audience can honestly claim to have no unauthorized software on their
hard disks. I've never seen more than ten percent of the hands go up.
there is such profound divergence between the law and social practice, it
is not society that adapts. And, against the swift tide of custom, the Software
Publishers' current practice of hanging a few visible scapegoats is so obviously
capricious as to only further diminish respect for the law.
of the widespread popular disregard for commercial software copyrights stems
from a legislative failure to understand the conditions into which it was
inserted. To assume that systems of law based in the physical world will serve
in an environment that is as fundamentally different as Cyberspace is a folly
for which everyone doing business in the future will pay.
I will discuss in the next segment, unbounded intellectual property is very
different from physical property and can no longer be protected as though
these differences did not exist. For example, if we continue to assume that
value is based on scarcity, as it is with regard to physical objects, we will
create laws that are precisely contrary to the nature of information, which
may, in many cases, increase in value with distribution.
large, legally risk-averse institutions most likely to play by the old rules
will suffer for their compliance. The more lawyers, guns, and money they invest
in either protecting their rights or subverting those of their opponents,
the more commercial competition will resemble the Kwakiutl Potlatch Ceremony,
in which adversaries competed by destroying their own possessions. Their ability
to produce new technology will simply grind to a halt as every move they make
drives them deeper into a tar pit of courtroom warfare.
Faith in law will not be an effective
strategy for high tech companies. Law adapts by continuous increments and
at a pace second only to geology in its stateliness. Technology advances
in the lunging jerks, like the punctuation of biological evolution grotesquely
accelerated. Real world conditions will continue to change at a blinding pace,
and the law will get further behind, more profoundly confused. This mismatch
economies based on purely digital products will either be born in a state
of paralysis, as appears to be the case with multimedia, or continue in a
brave and willful refusal by their owners to play the ownership game at all.
the United States one can already see a parallel economy developing, mostly
among small fast moving enterprises who protect their ideas by getting into
the marketplace quicker then their larger competitors who base their protection
on fear and litigation.
those who are part of the problem will simply quarantine themselves in court
while those who are part of the solution will create a new society based,
at first, on piracy and freebooting. It may be that when the current system
of intellectual property law has collapsed, as seems inevitable, that no new
legal structure will arise in its place.
something will happen. After all, people do business. When a currency becomes
meaningless, business is done in barter. When societies develop outside the
law, they develop their own unwritten codes, practices, and ethical systems.
While technology may undo law, technology offers methods for restoring creative
TAXONOMY OF INFORMATION
seems to me that the most productive thing to do now is to look hard into
the true nature of what we're trying to protect. How much do we really know
about informaiton and its natural behaviors?
are the essential characteristics of unbounded creations? How does it differ
from previous forms of property? How many of our assumptions about it have
actually been about its containers rather than their mysterious contents?
What are its different species and how does each of them lend itself to control?
What technologies will be useful in creating new bottles to replace the old
Of course, information is, by its
nature, intangible and hard to define. Like other such deep phenomena as light
or matter, it is a natural host to paradox. And as it is most helpful to
understand light as being both a particle and a wave, an understanding of
information may emerge in the abstract congruence of its several different
properties that might be described by the following three statements:
Information is an activity.
Information is a life form.
Information is a relationship.
the following section, I will examine each of these.
INFORMATION IS AN ACTIVITY
Is a Verb, Not a Noun.
Freed of its containers, information
is obviously not a thing. In fact, it is something that happens in the field
of interaction between minds or objects or other pieces of information.
Gregory Bateson, expanding on the
information theory of Claude Shannon, said, "Information is a difference
which makes a difference." Thus, information only really exists in the
delta. The making of that difference is an activity within a relationship.
Information is an action that occupies time rather than a state of being which
occupies physical space, as is the case with hard goods. It is the pitch,
not the baseball, the dance, not the dancer.
Is Experienced, Not Possessed.
when it has been encapsulated in some static form like a book or a hard disk,
information is still something that happens to you as you mentally decompress
it from its storage code. But, whether it's running at gigabits per second
or words per minute, the actual decoding is a process that must be performed
by and upon a mind, a process that must take place in time.
was a cartoon in the Bulletin of Atomic Scientists a few years ago which illustrated
this point beautifully. In the drawing, a holdup man trains his gun on the
sort of bespectacled fellow you'd figure might have a lot of information stored
in his head. "Quick," orders the bandit, "Give me all your
Has To Move.
are said to die of suffocation if they stop swimming, and the same is nearly
true of information. Information that isn't moving ceases to exist as anything
but potential...at least until it is allowed to move again. For this reason,
the practice of information hoarding, common in bureaucracies, is an especially
wrong-headed artifact of physically based value systems.
is Conveyed by Propagation, Not Distribution.
way in which information spreads is also very different from the distribution
of physical goods. It moves more like something from nature than from a factory.
It can concatenate like falling dominos or grow in the usual fractal lattice,
like frost spreading on a window, but it cannot be shipped around like widgets,
except to the extent that it can be contained in them. It doesn't simply move
on. It leaves a trail of itself everywhere it's been.
central economic distinction between information and physical property is
the ability of information to be transferred without leaving the possession
of the original owner. If I sell you my horse, I can't ride him after that.
If I sell you what I know, we both know it.
INFORMATION IS A LIFE FORM
wants to be free.
Brand is generally credited with this elegant statement of the obvious, recognizing
both the natural desire of secrets to be told and the fact that they might
be capable of possessing something like a "desire" in the first
Biologist and Philosopher Richard Dawkins proposed the idea of "memes,"
self-replicating, patterns of information that propagate themselves across
the ecologies of mind, saying they were like life forms.
believe they are life forms in every respect but a basis in the carbon atom.
They self-reproduce, they interact with their surroundings and adapt to them,
they mutate, they persist. Like any other life form they evolve to fill the
possibility spaces of their local environments, which are, in this case the
surrounding belief systems and cultures of their hosts, namely, us.
the sociobiologists like Dawkins make a plausible case that carbon-based life
forms are information as well, that, as the chicken is an egg's way of making
another egg, the entire biological spectacle is just the DNA molecule's means
of copying out more information strings exactly like itself.
Replicates into the Cracks of Possibility.
DNA helices, ideas are relentless expansionists, always seeking new opportunities
for lebensraum. And, as in carbon-based nature, the more robust organisms
are extremely adept at finding new places to live. Thus, just as the common
housefly has insinuated itself into practically every ecosystem on the planet,
so has the meme of "life after death" found a niche in most minds,
more universally resonant an idea or image or song, the more minds it will
enter and remain within. Trying to stop the spread of a really robust piece
of information is about as easy as keeping killer bees South of the Border.
The stuff just leaks.
Wants To Change.
ideas and other interactive patterns of information are indeed life forms,
they can be expected to evolve constantly into forms that will be more perfectly
adapted to their surroundings. And, as we see, they are doing this all the
for a long time, our static media, whether carvings in stone, ink on paper,
or dye on celluloid, have strongly resisted the evolutionary impulse, exalting
as a consequence the author's ability to determine the finished product. But,
as in an oral tradition, digitized information has no "final cut."
information, unconstrained by packaging, is a continuing process more like
the metamorphosing tales of prehistory than anything that will fit in shrink
wrap. From the Neolithic to Gutenberg, information was passed on, mouth to
ear, changing with every re-telling (or re-singing). The stories that once
shaped our sense of the world didn't have authoritative versions. They adapted
to each culture in which they found themselves being told.
there was never a moment when the story was frozen in print, the so-called
"moral" right of storytellers to keep the tale their own was neither
protected nor recognized. The story simply passed through each of them on
its way to the next, where it would assume a different form. As we return
to continuous information, we can expect the importance of authorship to diminish.
Creative people may have to renew their acquaintance with humility.
our system of copyright makes no accommodation whatever for expressions that
don't at some point become "fixed" nor for cultural expressions
lack a specific author or inventor.
improvisations, standup comedy routines, mime performances, developing monologues,
and unrecorded broadcast transmissions all lack the Constitutional requirement
of fixation as a "writing." Without being fixed by a point of publication
the liquid works of the future will all look more like these continuously
adapting and hanging forms and will therefore exist beyond the reach of copyright.
expert Pamela Samuelson tells of having attended a conference last year convened
around the fact that Western countries may legally appropriate the music,
designs, and biomedical lore of aboriginal people without compensation to
their tribe of origin since that tribe is not an "author" or "inventor."
soon most information will be generated collaboratively by the cyber-tribal
hunter-gatherers of Cyberspace. Our arrogant legal dismissal of the rights
of "primitives" will be back to haunt us soon.
the exception of the rare classic, most information is like farm produce.
Its quality degrades rapidly both over time and in distance from the source
of production. But even here, value is highly subjective and conditional.
Yesterday's papers are quite valuable to the historian. In fact, the older
they are, the more valuable they become. On the other hand, a commodities
broker might consider news of an event that is more than an hour old to have
lost any relevance.
INFORMATION IS A RELATIONSHIP
Has Value and Is Unique to Each Case
most cases, we assign value to information based on its meaningfulness. The
place where information dwells, the holy moment where transmission becomes
reception, is a region that has many shifting characteristics and flavors
depending on the relationship of sender and receiver, the depth of their interactivity.
Each such relationship is unique.
Even in cases where the sender is a broadcast medium, and no response is returned,
the receiver is hardly passive. Receiving information is often as creative
an act as generating it.
value of what is sent depends entirely on the extent to which each individual
receiver has the receptors...shared terminology, attention, interest, language,
paradigm...necessary to render what is received meaningful.
is a critical element increasingly overlooked in the effort to turn information
into a commodity. Data may be any set of facts, useful or not, intelligible
or inscrutable, germane or irrelevant. Computers can crank out new data all
night long without human help, and the results may be offered for sale as
information. They may or may not actually be so. Only a human being can recognize
the meaning that separates information from data.
fact, information, in the economic sense of the word, consists of data that
have been passed through a particular human mind and found meaningful within
that mental context. One fella's information is all just data to someone else.
If you're an anthropologist, my detailed charts of Tasaday kinship patterns
might be critical information to you. If you're a banker from Hong Kong, they
might barely seem to be data.
Has More Value Than Scarcity.
physical goods, there is a direct correlation between scarcity and value.
Gold is more valuable than wheat, even though you can't eat it. While this
is not always the case, the situation with information is usually precisely
the reverse. Most soft goods increase in value as they become more common.
is an important asset in the world of information. It may often be the case
that the best thing you can do to raise the demand for your product is to
give it away.
this has not always worked with shareware, it could be argued that there is
a connection between the extent to which commercial software is pirated and
the amount that gets sold. Broadly pirated software, such as Lotus 1-2-3 or
WordPerfect,becomes a standard and benefits from Law of Increasing Returns
based on familiarity.
my own soft product, rock and roll songs, there is no question that the band
I write them for, the Grateful Dead, has increased its popularity enormously
by giving them away. We have been letting people tape our concerts since the
early seventies, but instead of reducing the demand for our product, we are
now the largest concert draw in America, a fact that is at least in part attributable
to the popularity generated by those tapes.
I don't get any royalties on the millions of copies of my songs that have
been extracted from concerts, but I see no reason to complain. The fact is,
no one but the Grateful Dead can perform a Grateful Dead song, so if you want
the experience and not its thin projection, you have to buy a ticket from
us. In other words, our intellectual property protection derives from our
being the only real-time source of it.
problem with a model that turns the physical scarcity/value ratio on its head
is that sometimes the value of information is very much based on its scarcity.
Exclusive possession of certain facts makes them more useful. If everyone
knows about conditions that might drive a stock price up, the information
again, the critical factor is usually time. It doesn't matter if this kind
of information eventually becomes ubiquitous. What matters is being among
the first who possess it and act on it. While potent secrets usually don't
stay secret, they may remain so long enough to advance the cause of their
of View and Authority Have Value
a world of floating realities and contradictory maps, rewards will accrue
to those commentators whose maps seem to fit their territory snugly, based
on their ability to yield predictable results for those who use them.
aesthetic information, whether poetry or rock 'n' roll, people are willing
to buy the new product of an artist, sight-unseen, based on their having been
delivered a pleasurable experience by previous work.
is an edit. People are willing to pay for the authority of those editors whose
filtering point of view seems to fit best. And again, point of view is an
asset that cannot be stolen or duplicated. No one but Esther Dyson sees the
world as she does and the handsome fee she charges for her newsletter is actually
for the privilege of looking at the world through her unique eyes.
the physical world, value depends heavily on possession, or proximity in space.
One owns that material that falls inside certain dimensional boundaries and
the ability to act directly, exclusively, and as one wishes upon what falls
inside those boundaries is the principal right of ownership. And of course
there is the relationship between value and scarcity, a limitation in space.
the virtual world, proximity in time is a value determinant. An informational
product is generally more valuable the closer the purchaser can place himself
to the moment of its expression, a limitation in time. Many kinds of information
degrade rapidly with either time or reproduction. Relevance fades as the territory
they map changes. Noise is introduced and bandwidth lost with passage away
from the point where the information is first produced.
listening to a Grateful Dead tape is hardly the same experience as attending
a Grateful Dead concert. The closer one can get to the headwaters of an informational
stream, the better his changes of finding an accurate picture of reality in
it. In an era of easy reproduction, the informational abstractions of popular
experiences will propagate out from their source moments to reach anyone who's
interested. But it's easy enough to restrict the real experience of the desirable
event, whether knock-out punch or guitar lick, to those willing to pay for
Protection of Execution
the hick town I come from, they don't give you much credit for just having
ideas. You are judged by what you can make of them. As things continue to
speed up, I think we see that execution is the best protection for those designs
that become physical products. Or, as Steve Jobs once put it, "Real artists
ship." The big winner is usually the one who gets to the market first
(and with enough organizational force to keep the lead).
as we become fixated upon information commerce, many of us seem to think that
originality alone is sufficient to convey value, deserving, with the right
legal assurances, of a steady wage. In fact, the best way to protect intellectual
property is to act on it. It's not enough to invent and patent, one has to
innovate as well. Someone claims to have patented the microprocessor before
Intel. Maybe so. If he'd actually started shipping microprocessors before
Intel, his claim would seem far less spurious.
as Its Own Reward
is now a commonplace to say that money is information. With the exception
of Krugerands, crumpled cab-fare, and the contents of those suitcases which
drug lords are reputed to carry, most of the money in the informatized world
is in ones and zeros. The global money supply sloshes around the Net, as fluid
as weather. It is also obvious, as I have discussed, that information has
become as fundamental to the creation of modern wealth as land and sunlight
is less obvious is the extent to which information is acquiring intrinsic
value, not as a means to acquisition but as the object to be acquired. I suppose
this has always been less explicitly the case. In politics and academia, potency
and information have always been closely related.
as we increasingly buy information with money, we begin to see that buying
information with other information is simple economic exchange without the
necessity of converting the product into and out of currency. This is somewhat
challenging for those who like clean accounting, since, information theory
aside, informational exchange rates are too squishy to quantify to the decimal
most of what a middle class American purchases has little to do with survival.
We buy beauty, prestige, experience, education, and all the obscure pleasures
of owning. Many of these things can not only be expressed in non-material
terms, they can be acquired by non-material means.
then there are the inexplicable pleasures of information itself, the joys
of learning, knowing, and teaching. The strange good feeling of information
coming into and out of oneself. Playing with ideas is a recreation which people
must be willing to pay a lot for, given the market for books and elective
seminars. We'd likely spend even more money for such pleasures if there weren't
so many opportunities to pay for ideas with other ideas.
explains much of the collective "volunteer" work that fills the
archives, newsgroups, and databases of the Internet. Its denizens are not
working for nothing, as is widely believed. Rather they are getting paid in
something besides money. It is an economy that consists almost entirely of
may become the dominant form of human trade, and if we persist in modeling
economics on a strictly monetary basis, we may be gravely misled.
PAID IN CYBERSPACE
all the foregoing relates to solutions to the crisis in intellectual property
is something I've barely started to wrap my mind around. It's fairly paradigm-warping
to look at information through fresh eyes--to see how very little it is like
pig iron or pork bellies, to imagine the tottering travesties of case law
we will stack up if we go on treating it legally as though it were.
I’ve said, I believe these towers of outmoded boilerplate will be a smoking
heap sometime in the next decade and we mind miners will have no choice but
to cast our lot with new systems that work.
not really so gloomy about our prospects as readers of this jeremiad so far
might conclude. Solutions will emerge. Nature abhors a vacuum and so does
one of the aspects of the electronic frontier that I have always found most
appealing--and the reason Mitch Kapor and I used that phrase in naming our
foundation--is the degree to which it resembles the 19th Century American
West in its natural preference for social devices which emerge from it conditions
rather than those which are imposed from the outside.
the West was fully settled and "civilized" in this century, order
was established according to an unwritten Code of the West that had the fluidity
of etiquette rather than the rigidity of law. Ethics were more important than
rules. Understandings were preferred over laws, which were, in any event,
I believe that law, as we understand
it, was developed to protect the interests that arose in the two economic
"waves" which Alvin Toffler accurately identified in The Third Wave.
The First Wave was agriculturally based and required law to order ownership
of the principal source of production, land. In the Second Wave, manufacturing
became the economic mainspring, and the structure of modern law grew around
the centralized institutions that needed protection for their reserves of
capital, manpower, and hardware.
of these economic systems required stability. Their laws were designed to
resist change and to assure some equability of distribution within a fairly
static social framework. The possibility spaces had to be constrained to preserve
the predictability necessary to either land stewardship or capital formation.
the Third Wave we have now entered, information to a large extent replaces
land, capital, and hardware, and as I have detailed in the preceding section,
information is most at home in a much more fluid and adaptable environment.
The Third Wave is likely to bring a fundamental shift in the purposes and
methods of law that will affect far more than simply those statutes that govern
"terrain" itself--the architecture of the Net--may come to serve
many of the purposes that could only be maintained in the past by legal imposition.
For example, it may be unnecessary to constitutionally assure freedom of expression
in an environment that, in the words of my fellow EFF co-founder John Gilmore,
"treats censorship as a malfunction" and re-routes proscribed ideas
natural balancing mechanisms may arise to smooth over the social discontinuities
that previously required legal intercession to set right. On the Net, these
differences are more likely to be spanned by a continuous spectrum that connects
as much as it separates.
despite their fierce grip on the old legal structure, companies which trade
in information are likely to find that in their increasing inability to deal
sensibly with technological issues, the courts will not produce results that
are predictable enough to be supportive of long-term enterprise. Every litigation
becomes like a game of Russian roulette, depending on the depth the presiding
or adaptive "law," while as "fast, loose, and out of control"
as other emergent forms, is probably more likely to yield something like justice
at this point. In fact, one can already see in development new practices to
suit the conditions of virtual commerce. The life forms of information are
evolving methods to protect their continued reproduction.
example, while all the tiny print on a commercial diskette envelope punctiliously
requires much of that who would open it, there are, as I say, few who read
those provisos, let alone follow them to the letter. And yet, the software
business remains a very healthy sector of the American economy.
is this? Because people seem to eventually buy the software they really use.
Once a program becomes central to your work, you want the latest version of
it, the best support, the actual manuals, all privileges that are attached
to ownership. Such practical considerations will, in the absence of working
law, become more and more important in important in getting paid for what
might easily be obtained for nothing.
do think that some software is being purchased in the service of ethics or
the abstract awareness that the failure to buy it will result in its not being
produced any longer, but I'm going to leave those motivators aside. While
I believe that the failure of law will almost certainly result in a compensating
re-emergence of ethics as the ordering template of society, this is a belief
I don't have room to support here.
I think that, as in the case cited above, compensation for soft products will
be driven primarily by practical considerations, all of them consistent with
the true properties of digital information, where the value lies in it, and
how it can be both manipulated and protected by technology.
the conundrum remains a conundrum, I can begin to see the directions from
which solutions may emerge, based in part on broadening those practical solutions
that are already in practice.
and Its Tools
believe one idea is central to understanding liquid commerce: Information
economics, in the absence of objects, will be based more on relationship than
existing model for the future conveyance of intellectual property is real
time performance, a medium currently used only in theater, music, lectures,
stand-up comedy and pedagogy. I believe the concept of performance will expand
to include most of the information economy from multi-casted soap operas to
stock analysis. In these instances, commercial exchange will be more like
ticket sales to a continuous show than the purchase of discrete bundles of
that which is being shown.
other model, of course, is service. The entire professional class—doctors,
lawyers, consultants, architects, etc.—are already being paid directly for
their intellectual property. Who needs copyright when you're on a retainer?
fact, this model was applied to much of what is now copyrighted until the
late 18th Century. Before the industrialization of creation, writers, composers,
artists, and the like produced their products in the private service of patrons.
Without objects to distribute in a mass market, creative people will return
to a condition somewhat like this, except that they will serve many patrons,
rather than one.
can already see the emergence of companies that base their existence on supporting
and enhancing the soft property they create rather than selling it by the
shrink-wrapped piece or embedding it in widgets.
Hawkins' new company for creating and licensing multimedia tools, 3DO, is
an example of what I'm talking about. 3DO doesn't intend to produce any commercial
software or consumer devices. Instead, they will act as a kind of private
standards setting body, mediating among software and device creators who will
be their licensees. They will provide a point of commonalty for relationships
between a broad spectrum of entities.
any case, whether you think of yourself as a service provider or a performer,
the future protection of your intellectual property will depend on your ability
to control your relationship to the market--a relationship that will most
likely live and grow over time.
value of that relationship will reside in the quality of performance, the
uniqueness of your point of view, the validity of your expertise, its relevance
to your market, and, underlying everything, the ability of that market to
access your creative services swiftly, conveniently, and interactively.
interaction will provide a lot of intellectual property protection in the
future, and, indeed, it already has. No one knows how many software pirates
have bought legitimate copies of a program after calling its publisher for
technical support and being asked for some proof of purchase, but I would
guess the number is very high.
same kind of controls will be applicable to "question and answer"
relationships between authorities (or artists) and those who seek their expertise.
Newsletters, magazines, and books will be supplemented by the ability of their
subscribers to ask direct questions of authors.
will be a billable commodity even without authorship. As people move into
the Net and increasingly get their information directly from its point of
production, unfiltered by centralized media, they will attempt to develop
the same interactive ability to probe reality which only experience has provided
them in the past. Live access to these distant "eyes and ears" will
be much easier to cordon than access to static bundles of stored but easily
most cases, control will be based on restricting access to the freshest, highest
bandwidth information. It will be a matter of defining the ticket, the venue,
the performer, and the identity of the ticket holder, definitions that I believe
will take their forms from technology, not law.
most cases, the defining technology will be cryptography.
as I've said perhaps too many times, is the "material" from which
the walls, boundaries--and bottles--of Cyberspace will be fashioned.
course there are problems with cryptography or any other purely technical
method of property protection. It has always appeared to me that the more
security you hide your goods behind, the more likely you are to turn your
sanctuary into a target. Having come from a place where people leave their
keys in their cars and don't even have keys to their houses, I remain convinced
that the best obstacle to crime is a society with its ethics intact.
I admit that this is not the kind of society most of us live in, I also believe
that a social over-reliance on protection by barricades rather than conscience
will eventually wither the latter by turning intrusion and theft into a sport,
rather than a crime. This is already occurring in the digital domain as is
evident in the activities of computer crackers.
I would argue that initial efforts to protect digital copyright by copy protection
contributed to the current condition in which most otherwise ethical computer
users seem morally untroubled by their possession of pirated software.
of cultivating among the newly computerized a sense of respect for the work
of their fellows, early reliance on copy protection led to the subliminal
notion that cracking into a software package somehow "earned" one
the right to use it. Limited not by conscience but by technical skill, many
soon felt free to do whatever they could get away with. This will continue
to be a potential liability of the encryption of digitized commerce.
it's cautionary to remember that copy protection was rejected by the market
in most areas. Many of the upcoming efforts to use cryptography-based protection
schemes will probably suffer the same fate. People are not going to tolerate
much which makes computers harder to use than they already are without any
benefit to the user.
encryption has already demonstrated a certain blunt utility. New subscriptions
to various commercial satellite TV services sky-rocketed recently after their
deployment of more robust encryption of their feeds. This, despite a booming
backwoods trade in black decoder chips conducted by folks who'd look more
at home running moonshine than cracking code.
obvious problem with encryption as a global solution is that once something
has been unscrambled by a legitimate licensee, it may be openly available
to massive reproduction.
some instances, reproduction following decryption may not be a problem. Many
soft products degrade sharply in value with time. It may be that the only
real interest in some such products will be among those who have purchased
the keys to immediacy.
Furthermore, as software becomes
more modular and distribution moves online, it will begin to metamorphose
in direct interaction with its user base. Discontinuous upgrades will smooth
into a constant process of incremental improvement and adaptation, some of
it man-made and some of it arising through genetic algorithms. Pirated copies
of software may become too static to have much value to anyone.
in cases such as images, where the information is expected to remain fixed,
the unencrypted file could still be interwoven with code which could continue
to protect it by a wide variety of means.
most of the schemes I can project, the file would be "alive" with
permanently embedded software that could "sense" the surrounding
conditions and interact with them, For example, it might contain code that
could detect the process of duplication and cause it to self-destruct.
methods might give the file the ability to "phone home" through
the Net to its original owner. The continued integrity of some files might
require periodic "feeding" with digital cash from their host, which
they would then relay back to their authors.
course files that possess the independent ability to communicate upstream
sound uncomfortably like the Morris Internet Worm. "Live" files
do have a certain viral quality. And serious privacy issues would arise if
everyone's computer were packed with digital spies.
point is that cryptography will enable a lot of protection technologies that
will develop rapidly in the obsessive competition that has always existed
between lock-makers and lock-breakers.
cryptography will not be used simply for making locks. It is also at the heart
of both digital signatures and the afore-mentioned digital cash, both of which
I believe will be central to the future protection of intellectual property.
believe that the generally acknowledged failure of the shareware model in
software had less to do with dishonesty than with the simple inconvenience
of paying for shareware. If the payment process can be automated, as digital
cash and signature will make possible, I believe that soft product creators
will reap a much higher return from the bread they cast upon the waters of
they will be spared much of the overhead that presently adheres to the marketing,
manufacture, sales, and distribution of information products, whether those
products are computer programs, books, CD's, or motion pictures. This will
reduce prices and further increase the likelihood of non-compulsory payment.
of course there is a fundamental problem with a system that requires, through
technology, payment for every access to a particular expression. It defeats
the original Jeffersonian purpose of seeing that ideas were available to everyone
regardless of their economic station. I am not comfortable with a model that
will restrict inquiry to the wealthy.
Economy of Verbs
future forms and protections of intellectual property are densely obscured
from the entrance to the Virtual Age. Nevertheless, I can make (or reiterate)
a few flat statements that I earnestly believe won't look too silly in fifty
the absence of the old containers, almost everything we think we know about
intellectual property is wrong. We are going to have to unlearn it. We are
going to have to look at information as though we'd never seen the stuff
- The protections that we will
develop will rely far more on ethics and technology than on law.
- Encryption will be the technical
basis for most intellectual property protection. (And should, for this and
other reasons, be made more widely available.)
- The economy of the future will
be based on relationship rather than possession. It will be continuous rather
And finally, in the years to come,
most human exchange will be virtual rather than physical, consisting not of
stuff but the stuff of which dreams are made. Our future business will be
conducted in a world made more of verbs than nouns.
Caliente, New Mexico, October 1, 1992
York, New York, November 6, 1992
Massachusetts, November 8, 1992
York, New York, November 15, 1993
Francisco, California, November 20, 1993
Wyoming, November 24-30, 1993
York, New York, December 13-14, 1993
expression has lived and grown to this point over the time period and in the
places detailed above. Despite its print publication here, I expect it will
continue to evolve in liquid form, possibly for years.
thoughts in it have not been "mine" alone but have assembled themselves
in a field of interaction that has existed between myself and numerous others,
to whom I am grateful. They particularly include: Pamela Samuelson, Kevin
Kelly, Mitch Kapor, Mike Godwin, Stewart Brand, Mike Holderness, Miriam Barlow,
Danny Hillis, Trip
and Alvin Toffler.However,
I should note in honesty that when Wired sends me a check for having temporarily
"fixed" it on their pages, I alone will cash it . . . .
Code, & Canon: What do Music, Programming, and Law Have in Common Besides
Glenn Otis Brown, HLS ‘00
Last semester, seeking a break
from law school, I sat in on an undergraduate class on elementary music theory.
The first day the instructor covered the basic concepts of rhythm, then moved
on to polyrhythms—complex arrangements of multiple rhythmic lines. To demonstrate
a particular point, the professor wrote out two series of notes side by side
on the chalkboard. On his cue, the students on the left half of the class
clapped the rhythm on the left; a couple of bars later, the right half of
the class joined in, following the other notated rhythm. For a few seconds
it was pure cacophony—as if we had all just burst into applause—but soon a
strong rhythm emerged. As the feeling in my hands and arms, and the thunder
in my ears, made their way into my guts, I began to make out the relationship
between the two series. Soon I recognized the same pattern represented in
the two lines of symbols on the chalkboard. It was a kind of revelation,
linking the visceral with the cerebral. Banging my hands together and grinning
stupidly, I felt a little like a caveman who’d just made the connection between
physical phenomena and written language.
As the group found its groove,
the professor let us continue clapping without his or a metronome’s aid.
He simply stood back and watched—wearing, it seemed to me, a slight smirk.
Which triggered a second epiphany: my music teacher was practicing law.
No doubt he would wince at the
thought. (Just as you, the reader, might be wincing now—particularly if you’re
not a lawyer.) But what is law but the regulation of human behavior? With
no more than a string of written symbols, and a dose of institutional authority,
my music prof had gotten a class full of adults to behave exactly as he wanted—indeed,
to clap like kindergarteners. For a moment, he was king; the students were
his willing musical subjects; and the written symbols, a rhythmic decree.
It was an unusual and paranoid
insight to make, I’ll admit. (What I had perceived as a smirk was more likely
the pleased smile of a teacher who’d gotten a point across.) But at the time
I was reading an unusual and paranoid book—Code and Other Laws of Cyberspace,
by Lawrence Lessig.
Lessig, who is the Berkman Professor of Law at Harvard Law School, argues
that in the digital world, computer code has as much power to regulate human
behavior as law, if not more. The written language of computer software—the
ones and zeros that make up object code, the mutant English that comprises
most source code—may control online human behavior more effectively than any
plain-language statute. Lessig, a true believer in law and due process, calls
for society to view this phenomenon with suspicion, fearing that we may be
unwittingly ceding political control over to computer code and its authors.
With Lessig’s thoughts soaked into
my subconscious, I somehow regarded the notes on the chalkboard as a rudimentary
computer program. Likewise, I saw the group of clapping students as a giant
machine, a human player-piano simply executing what the punch card, and its
composer, had dictated. All of which may help explain why I had the eerie
and absurd vision of music teacher-as-despot: I had adhered to his will,
expressed in the notes on the board. I had relinquished control of my behavior
to a set of abstract figures. In a way, I had experienced what Lessig has
called—in a very different context, of course—the “Tyranny of Code.”
Doubtless experiences like mine
are not foreign to professional musicians, particularly orchestral musicians.
The notion of a “tyrannous” or “authoritarian” conductor is familiar, even
for the average music fan who, like me, is largely ignorant of classical music.
These days a composer seldom gets to conduct his own piece, as my music teacher/tyrant
music often has its own kind of “separation of powers”: usually, a conductor
merely interprets and performs another composer’s score, making him more combination
textualist judge/ruthless executive than dictator. Contrasted with the conductor,
then, the composer is music’s equivalent of a one-person legislature. If
the composer is feeling generous, she might include an occasional cadenza,
a brief opportunity for the musician to act on his or her own volition (also
known as improvisation). Or she might employ “grace notes,” notes with no
rhythmic value that the musician, or the conductor through the musician, can
emphasize as much or as little as he wants. Grace notes are a rough analog
to the legislative practice of leaving certain matters up to “judicial discretion”
or subject to negotiation by private parties. To this extent, grace notes
give the musician a small measure of freedom.
Yet grace notes can also be a way
for a composer to give merely the impression of freedom. In my music
class, for example, we once listened to the introduction to Stravinsky’s Rite
of Spring. The intro, which features a whimsical oboe flitting around
in a high register at an uncertain tempo, sounds as if it’s been improvised.
But when you look at the sheet music, the first few bars are deliberately
laid out and peppered with strategic grace notes. To a certain extent, then,
it is indeed improvised—different musicians will play it slightly different
ways under different conductors. But it is improvised, paradoxically, just
as Stravinsky wanted it.
The notion of improvisational music
must have sounded as mad to early European classical musicians as democracy
did to their monarchical rulers. If each musician, or citizen, were left
to his or her own will, would not chaos and discord necessarily follow?
Not necessarily, as jazz, and universal
suffrage, would later show us. In terms of a musician’s individual freedom,
jazz is as far from classical music as American democracy is from the rule
of the Czars or Louis XIV. Like American democracy, jazz is usually based
on some underlying text or score—a kind of constitution—by which the players
are restricted at a fundamental level. But within its parameters, each musician
is more or less free to interpret and create the music as he wishes—to put
in his two-cents worth in the formation of the piece. Lead instruments (horns,
guitar, voice) usually enjoy more freedom than rhythm instruments (drums,
bass), but in most pieces each usually gets its turn to freestyle. And in
some kinds of jazz, as in the closing passages of some Dixieland numbers,
nearly everyone improvises at the same time, with surprisingly coherent and
Classical music’s reluctance to
embrace improvisation is understandable. Apart from the notorious egos of
conductors and composers, there’s the simple problem of managing dozens of
musicians in the same room. Note that some of the freedom enjoyed by jazz
ensembles stems in part from their smaller size—there is simply less likelihood
of discord the fewer players you’ve got. Usually, the most improvisational
acts have no more than five or six musicians. In this small setting, there’s
little need for rules or hierarchy, or even sheet music. As Charlie
Parker advised his bebop band, “Fuck what’s written down.”
The larger the group gets, though,
the greater need there is for some musical anchor, and for formal leadership.
Witness the “big band” phenomenon, or some of Gil
Evans’ later experiments with jazz orchestration. It was still jazz,
but the written music played a much more important role, as did the band’s
leader, who often stood before the group like a more laid-back version of
the European conductor. (There are exceptions to the rule, of course, on
both extremes: the late Sun
Ra’s Arkestra sometimes featured up to 80 musicians improvising simultaneously,
and the average string quartet is as faithful to the score as a symphony orchestra.
Still, it’s a useful concept.)
The notion of a group’s freedom
being a function of its size also carries over into governance. Political
thinkers like Montesquieu believed democracy could only work at a very local
level, and that the larger a sovereign state became, the more its citizens
would have to yield power to a central authority.
The American system of federalism inherited a strain of this principle. The
Framers conceived of the notion of “dual sovereignty,” under which the states
would preserve their own governmental identities, and citizens could elect
leaders with local ties and interests. And admirers of a strong dual system
often refer to the states as “laboratories” of the law—small, flexible legal
workshops where innovative policies or jurisprudential theories can be tested
and compared to those of neighbor states.
We reject kings, presidents,
and voting. We believe in rough consensus and running code.
Dave Clark, Internet Engineering Task Force
The peculiarities of the Internet
Engineering Task Force (IETF) make for a good case study of how the social
interactions found in music and law have analogues in the digital realm.
The IETF modestly describes itself as “a loosely self-organized group of people
who make technical and other contributions to the engineering and evolution
of the Internet.” In fact, the group does much
more than merely contribute to the Internet’s development: it creates
the stuff that makes the Internet tick, the standard networking protocols
that make the Net’s many-to-many communication possible. For example, the
IETF is responsible for SMTP, or Simple Mail Transfer Protocol, the fundamental
transmission subsystem that helps email travel across the Net reliably and
Despite its daunting responsibilities,
the IETF conducts itself with the same informality and lack of orthodoxy as
a commune or primitive village, (or to return to the music metaphor, a small
group of jamming musicians). On the one hand, the IETF slogan’s denunciation
of “kings and presidents” evokes the spirit of radical anti-Federalists of
the late 18th-Century United States, or of certain anarcho-utopian
movements of the 20th Century.
On the other, its “rough consensus and running code” language calls to mind
the ethos of jazz improvisation. The Internet’s relentless growth, like a
fast-moving jazz number, leaves no time for voting and due process—choices
about what policy to construct, or what note to lay down, must be made on
the fly. The IETF even makes its decisions by ear: “Rough consensus” is
measured by a “hum” vote; if a significant buzz fills the room, the measure
Whether in technology, music, or
law, however, the appeal of informal decision-making is often misleading.
Such procedures can be much less democratic than they might first appear.
Where there are no written rules, natural leaders’ powers are usually left
unchecked. “Soft” authority like the power of persuasion, or for that matter,
coercion, tends to rule. Here, again, I will summon the ghost of Charlie
Parker to make my point, with Miles Davis acting as the medium. Miles’ recollection
of Bird’s management style shows that playing by the seat of your pants isn’t
necessarily a formula for musical democracy:
“I loved the way Bird [relied on
improvisation] . . . When that shit works, man, it’s a motherfucker. But
if you get a group of guys who don’t understand what’s happening, or they
can’t handle all that freedom you’re laying on them, and they play what they
want, then it’s no good.”
Miles’ quote illustrates how informality
can be insidiously autocratic—freedom becomes something you lay on
people. But it also shows how decision-making by group improvisation (or
rough consensus, whatever you want to call it) only functions when it’s an
exclusive group. Bird let you play what you wanted to play, provided that
you played what he wanted to hear—and you played it superbly. Likewise, the
IETF may fancy itself a radical bottom-up organization, but its notion of
“rough consensus” certainly isn’t measured against a society-wide standard
that includes engineers and lay people alike. To put it another way: I would
get laughed out of an IETF meeting as quickly as I would a Charlie Parker
To some extent, then, it seems
that the informal ensemble model of social interaction only works when the
players are of similar sophistication. All are welcome to contribute, provided
all are sufficiently skilled. Political theorists might call this technocracy,
rule by experts. Or it might be a particular strain of meritocracy—after
all, jazz musicians and programmers are often self-taught, and come from a
wide range of socio-economic backgrounds. But it is not democracy. Perhaps
that’s not such a bad thing; maybe we as a society should defer to our aesthetic
and technical high priests on such matters. But here the jazz-tech comparison
yields to an important distinction: unlike music, the consequences of code
extend past the aesthetic realm into the socio-political. While Bird’s band’s
decisions may only play on my emotions, coders with a public charge, like
the IETF, affect my online existence—and without my consent.
Mention the word “standard” to
a jazz musician, and he’ll think “My
Funny Valentine,” “Love
for Sale,” or “Summertime.”
Mention it to an Internet engineer, and you’ll get “TCP,” “IP,” and, for that
matter, “MP3.” Yet the two meanings of the word have more in common than
these hypothetical responses might suggest. In the Internet context, a “standard”
is a universal (or near-universal) technological protocol that facilitates
interconnectivity. In jazz, a standard is an old, familiar pop song that
allows disparate musicians to play together. As Bill Crow puts it in his
A jazz musician from Dallas
who knew the standard tunes could sit in with a band in Boston or Paris
or Stockholm without difficulty even if he played with a regional style.
In both cases, then, standards
are tools that ease communication across different contexts. They create
what economists call a “network effect”—roughly, a benefit based on the prevalence
of the standard, not any inherent characteristic of it. An oversimplified
but helpful example: your telephone is useful only to the extent other people
It’s an imperfect analogy, concededly.
The standards created by the IETF operate at much more fundamental level than
the cover tunes shared by the world’s jazz musicians. Internet jargon helps
shed light on this difference: jazz standards are “content”—non-functional
information that is communicated—while Internet protocols comprise the medium
itself, the infrastructure by which “content” is passed along. A closer analogy
to the standards set by IETF would be the convergence of written musical symbols
early in modern music’s development. Given digital technology’s relatively
recent birth, the IETF could be better described as creating the Internet’s
equivalent of staff lines, clef symbols, and notational values.
Despite the imperfect parallel,
this discussion of standards serves as a good launching point for some legal
lessons that technology might learn from music.
Jazz standards don’t only promote
communication between musicians. They also serve as fodder for new versions
of old songs, thematic backbones that musicians can adopt, adapt, and make
their own. Billie Holiday’s cover of “Love
for Sale” is sultry and mischievous, for example, while piano great Art
Tatum’s solo version scampers up and down the keyboard like a child goofing
on the stairs.
This customizable nature of jazz
standards calls to mind a rough but apt analogy in the world of coding: “open
source.” Open source software is software whose underlying source code is
both freely available and freely modifiable. That is, users have access to
the written instructions that underlie a certain piece of software and are
free to alter that code to suit their purposes.
Open-source is important because,
to fully understand how a piece of software works, programmers usually need
access to the program’s source code. In some instances, they might succeed
in “reverse engineering” a particular program—the digital equivalent of taking
apart a transistor radio to see how it functions. In jazz (and many other
forms of non-classical music), musicians learn songs in a roughly similar
way, disassembling and reconstructing a song by ear without ever seeing its
sheet music. Yet a program’s inner workings are often more opaque than those
of piece of music. And given the increasing prevalence of certain technological
protections, and the existence of legal barriers, reverse engineering is often
not an option for the intellectually curious coder.
In contrast to open-source software
is “proprietary” code. This more traditional model of software publishing
is premised on the notion that a program’s code is its source of financial
value to the author, and should therefore be kept confidential. Open-source
advocates complain that proprietary code “is generally built according to
a predetermined plan that leaves little room for deviation or innovation.”
Apart from inhibiting customization and the progress of computer science,
argue open-source proponents, proprietary code facilitates monopolistic practices,
which lead in turn to higher prices and reduced choices for software consumers.
Indeed, notable monopolist Microsoft
is the most prominent practitioner of proprietary coding. Judge Thomas Penfield
Jackson, the Federal judge who held Microsoft in violation of U.S. antitrust
law this November, is now considering remedies for the company’s unfair trade
practices. Some legal commentators have called for Jackson to force Microsoft
to abandon its proprietary-code ways. This proposed remedy is known as “compulsory
licensing.” Under such a regime, Microsoft would be obliged to make the source
code for its Windows operating system available to other software makers at
a fair price. This would, in a way, amount to compelling Microsoft to practice
open-source coding, which, contrary to many misconceptions, relies on a complex
system of similar licenses.
Ordering Microsoft to publish its
code may seem like a radical solution to some. Yet a lesson from the music
context indicates that compulsory licensing is really nothing new.
Few people outside the music and
entertainment law industries know about a curious exception to copyright law’s
protection of musical compositions. Section 115 of the U.S. Copyright Act
essentially forces the owner of the rights to a musical composition to allow
any musicians to record his or her own version of the song, in exchange for
a fair royalty arrangement. The rationale for this so-called
“cover license” is, like open-source licensing, based in some notion of free
expression. As a leading intellectual property textbook puts it, one reason
for Section 115 is “the individuality in expression that inevitably occurs
during a particular performance of a prewritten musical work.”
Yet the cover exception has as
much to do with net social welfare as it does individual interests. The public
debate over Section 115, found in the statute’s legislative history, is telling
in this regard. Created in 1909, the exception survived the 1967 revision
of the copyright laws despite some legislative scrutiny. One particular section
of the 1967 debate merits close attention:
“[T]he record producers argued
vigorously that the compulsory license system must be retained. They asserted
that the record industry is a half-billion-dollar business of great economic
importance in the United States and throughout the world; records today are
the principal means of disseminating music, and this creates special problems,
since performers need unhampered access to musical material on nondiscriminatory
terms. Historically, the record producers pointed out, there were no recording
rights before 1909 and the 1909 statute adopted the compulsory license
as a deliberate anti-monopoly condition on the grant of these rights. They
argued that the result has been an outpouring of recorded music, with the
public being given lower prices, improved quality, and a greater choice.
The position of the record producers is that the compulsory license has avoided
antitrust problems that have plagued the performing rights field, and
for the same reasons has been adopted (and recently retained) in a number
of foreign countries. They maintained that the dangers of monopolies and
discriminatory practices still exist, and repeal would result in a great upheaval
of the record industry with no benefit to the public.” (emphasis added)
What’s striking about this passage,
apart from its relevance to the software antitrust debate of today, is that
the Section 115 exception was viewed as beneficial to both consumers and the
music industry. Indeed, the lobbying efforts of the record industry itself
were largely responsible for this softening of intellectual property rights
Note that the compulsory license
applies only to the underlying composition, not the sound recording of the
song itself. So while Miles Davis could cover, record, and sell his version
After Time”—a song originally put on the charts by pop singer Cindy
Lauper—he could not have pressed and sold copies of Lauper’s recording
of the song. In the software context, this principle would mean that a coder
could copy and modify Windows’ source code but would be barred from copying
the Windows CD-ROM or sharing it with friends.
Musicians looking for songs to
cover often have an alternative to turning to the Section 115 “cover license.”
They can simply choose songs in the public domain—pieces whose limited copyright
protection has expired. This is the case with some jazz standards, which
musicians can re-arrange, record, or perform without paying a cent to the
authors of the compositions (which may seem harsh until we consider that few,
if any, authors even live to see the end of copyright’s near century-long
Programmers, whose profession has
only existed for a couple of decades, have no such luxury. Even the first,
most rudimentary mainstream software from the late 70s and early 80s will
enjoy copyright protection into the late 21st Century. This, plus the absence
of any “cover license” exception for software, means that programmers are
barred by law from modifying and improving upon a particular program’s code,
unless a it is offered as open source. Some commentators fear that these
obstacles are impeding the growth of computer science.
Among other concerned observers,
Zittrain—Executive Director of the Berkman
Center—has called for an unorthodox solution that serves as a simple
alternative to a compulsory licensing scheme. Zittrain argues that
legal protection for software should be of a shorter duration than for
traditional forms of intellectual property, given the high turnover
rate for innovation in the computing context:
for all computer software, including operating systems, should be drawn much
more in line with its shelf life. Before the Smithsonian is preparing a display
for a piece of software, the government-granted intellectual-property monopolies,
such as copyright and patent, should lapse.”
proposal amounts to nudging software out of the intellectual property nest
and into the public domain much earlier in its life-cycle than currently policy
dictates. The idea is that such programs should, like an old pop tune, become
public property for the coding community to learn from and improve upon.
It may be that the market for open
source will address these problems by itself. The recent rash of IPOs by
companies offering services or products related to Linux, a prominent open-source
operating system, indicates that the market solution is not altogether far-fetched.
Yet while we’re waiting for the answer to that riddle, time is ticking away—and
a real-space week is a cyber-space year. It is impossible to measure the
amount of innovation that might be lost under the current legal regime. Perhaps
the law should take a cue from its earlier experiences with the growth of
music and apply them to the software context. Such a legal experiment might
well result in “an outpouring of code, with the public being given
lower prices, improved quality, and a greater choice.”
A glossary of terms from music,
law, and technology.
by Shoshana Lopatin ‘00 and Talia Milgrom-Elcott ‘02
Burn, Burning: Recording music to a CD
using home equipment.
Compact Disc-Recordable. A compact disc that can be recorded using a computer.
CD-Rs are inexpensive but cannot be rewritten.
Compact Disc-Rewritable. CD-RWs are more expensive than CD-Rs, but they
can be rewritten.
drive. The basic drive used for recording CD-Rs.
process by which a visitor navigates through websites by clicking on links.
Codec: As the
name implies, codecs are used to encode and decode (or compress and decompress)
various types of data—particularly those that would otherwise use up inordinate
amounts of disk space, such as sound and video files. See, for example,
Management Systems (see also Trusted Systems): A
trusted system specifically meant to protect copyright digitally.
Per Mega (or thousand).
The term is used by Internet marketers to price ad banners. Sites that sell
advertising will guarantee an advertiser a certain number of impressions
(number of times an ad banner is downloaded and presumably seen by visitors),
then set a rate based on that guarantee times the CPM rate. For example,
a website that has a CPM rate of $25 and guarantees advertisers 600,000
impressions will charge $15,000 ($25 x 600) for those advertisers' ad banners.
Cracker: One who
breaks security on a computer system with malicious intent. Coined by hackers
in defense against journalistic misuse of the term "hacker."
vs. Streaming: Rather
than downloading a whole MP3 and then listening to it, streaming an MP3 allows the user to
listen to the MP3 as it is being downloaded.
Hacker: 1) A person
who enjoys exploring the details of programmable systems and how to stretch
their capabilities; 2) One who programs enthusiastically; 3) A person who
is good at programming quickly; 4) An expert in a particular language, as
in “a Unix hacker.”
a hit is a request made to the Web server. For example, if you look at a
Web page that contains ten GIF (graphic interchange format) files, one person
visiting one page will make 11 hits on the server: one for the page and
ten for the graphics on the page.
In common parlance, a hit can
refer to several different things: 1) If you
perform a search, the results are called hits; 2) If you
load up a Web page, you've hit the site.
Commonly used term in the Internet
and software arena to refer to capturing and dominating that portion of
the attention of a large proportion of potential consumers that will be
concerned with your type of product or company.
An acronym for the Motion Picture
Experts Group, Audio Layer 3. It refers to an algorithm for file compression
originally developed for broadcast use. The algorithm was invented by a
German research firm, the Fraunhofer Institute, in 1991.
exist in markets for products for which the utility or satisfaction that
a user derives from the product increases with the number of other users
of the product. The telephone is a classic example of a product with network
effects: if only one person has a telephone, it is of little value; the
more people have telephones the more satisfaction a telephone user can derive
from possession of a telephone.
term referring to source code that is publicly accessible so that anyone
can read, redistribute, or modify the source for a piece of software. However,
there is significant debate among those in the “open source” movement about
the proper definition. See Opensource.org’s
definition. For a competing definition, see the Free
one legal case defined it, reverse engineering is “starting with the known
product and working backward to divine the process which aided in its manufacture.”
Kiwanee Oil v. Bicron, 416
U.S. 470 (1974).
for the Recording Industry Association of America. Founded in 1952, the
RIAA represents more than 500 companies engaged in the creation, manufacturing
and distribution of music. Their members represent approximately 90% of
all legitimate sound recordings produced and sold in the United States.
They include BMG Entertainment; EMI-Recorded Music; Sony Music Entertainment,
Inc.; Universal Music Group; and Warner Music Group, in addition to smaller
labels such as Rhino, Tommy Boy, HOLA Records, La Face and Zero House.
extracting audio tracks from a CD (usually at high speeds) to a file on
want to move a song, or WAV file, from a CD to your hard drive, this program
works with the encoder to help the process along. A ripper can be downloaded
separately or as part of an all-in-one player or software package.
Acronym for the Secure Digital
Music Initiative. This initiative is organizing the efforts of a consortium
of worldwide recording industry and technology companies to develop an interoperable
architecture and specification for digital music security.
for decorating or changing the appearance of an MP3 player.
A measure of the degree of attractiveness
of a website, measured by how long people spend within or at the site.
term refers to hardware and software that can be relied on to follow certain
rules, called usage rights, that specify the cost and a series of terms
and conditions under which a digital work can be used. The trusting party
is the copyright owner whose rights are being protected by the software,
not the user of the trusted system. A trusted system imposes
security by granting specific services and fulfilling specific requests
to some people and not others. Trusted systems can take different
forms, such as trusted readers for viewing digital books, trusted players
for playing audio and video recordings, trusted printers for making copies
that contain labels ("watermarks") that denote copyright status,
and trusted servers that sell digital works on the Internet.
1) To transfer
programs or data over a digital communications link from a smaller or peripheral
client system to a larger or central host one. A transfer in the other direction
is, of course, called a download. 2. [jargon] To send data (especially large
relatively standalone pieces of data like files and images) over the wire
to a remote location.
Artist & Repertoire refers
to both the people and the departments within the music industry who are
responsible for recruiting and developing new talent. The responsibilities
of an A&R person include finding new artists, helping to negotiate deals,
consulting with the artist to establish a solid direction for their music,
helping to select the best material for the recording project, setting up
and monitoring the budget for recording, and in general, overseeing the
making of records from inception to completion.
Society of Composers and Performers), BMI (Broadcast Musicians Incorporated),
and SESAC are performing rights organizations.
for “Do It Yourself,” which describes an ethic and a community. The ethic
is one of not needing the assistance of a large company to produce a service
or a product. The community is made up of those who believe in DIY.
unaffiliated with a major music label; used to describe some bands, small
record companies, and the community that they form.
share that various actors receive from the revenues of an album sale.
The often significant costs
of music production that the music publisher “recoups” out of the artist’s
share of the profits before the artist receives any return.
Licensing Scheme: A
statutory exception to copyright that limits the scope of the performance
and display rights by requiring that copyright holders make their copyrighted
works available for use given payment. For example, artists cannot withhold
their works from jukebox owners seeking to have their jukeboxes publicly
perform works if the jukebox owner properly obtains a license and pays the
Copyright: A statutorily created monopoly,
the usual justification for which is the establishment of incentives to
create, that covers a broad range of literary and artistic expression (including
books, poetry, dance, song, drama, computer programs, sculpture, painting)
and includes an exclusive right to reproduce. Copyrights are easier to secure
and last substantially longer than patents, but offer narrower and less
absolute scopes of protection.
Copyright Infringement: A
legal cause of action under copyright law whereby a defendant may be liable
for encouraging or assisting a third party to infringe a copyright even
if the defendant has not himself directly infringed the copyright.
Use: An exception
to the exclusive right to reproduce of copyright that declares that certain
unauthorized uses of copyrighted material (for purposes of criticism, comments,
news, teaching, scholarship and research) are not infringements on copyright.
Sale Doctrine: Under
this legal rule, the purchaser of a tangible form of a copyrighted expression
(such as a book) has the right to transfer that tangible form as she pleases
so long as she then does not retain the expression. Copying the expression
contained in the tangible form is not, however, allowable under the First
Online Artist is the Empowered Artist: An
EFF Correspondent Expresses Her Views on Artists and the Net
Special to EFF's Campaign for Audiovisual Free Expression June 1999
an artist in today's society requires an almost Herculean effort of will and
endeavor. With the dismantling of the National Endowment of the Arts, the
lack of a cohesive support structure for developing artists, and an increasing
focus in society on making money, not art, this leaves very little recourse
for the starving artist to do anything other than, well, starve.
then, like a technological super hero to save the day, along comes a new tool
that some say democratizes and even revolutionizes the recording industry.
It's MP3, a technology that shrinks audio files down to a tenth of their original
size, allowing up-and-coming musicians who lack that crucial component for
success—exposure, and the chance to cultivate an audience—to slap their tunes
on the Internet for anyone else to download and enjoy.
the perfect opportunity for good, old-fashioned, all-American entrepreneurship—for
artists to stand a chance of breaking into the music business without having
to chain themselves to a rock for attention. Or more significantly—chain themselves
to a binding, lengthy, and often inequitable recording contract, that record
companies often cajole first time artists into signing. Of course, the free
distribution of MP3 technology could also crack wide open the music market
is exactly why the big name record companies want to kill MP3. Or at least
get it in a serious chokehold. Right now the major recording labels currently
control 90 percent of the music distributed globally—and they would like to
keep it that way.
the record industry is crying foul in the guise of claimed concern over the
intellectual property rights of the musical artists.
The major labels are attempting
to impose their own, alternative, closed format technology on the Internet.
While much of the specifications are cloaked in secrecy, it appears that the
major labels are trying to insist that anyone who licenses their closed technology
will not be able to build equipment that handles free audio as well. The goal
of this strategy is to hold out big name recording acts as an "incentive"
to force consumers and hardware Manufacturers to acquiesce to the demands
of big labels if they want to hear Madonna in the new media.
of the record industry are also trying to intimidate MP3 producers and open
format search engines by threatening nasty lawsuits against them. The Recording
Industry Association of America, along with the International Federation of
the Phonographic Industry, have sued Fast Search and Transfer, the company
Yahoo! hired to give their audience the ability to search for MP3 on the web.
Finding legal culpability for companies who list or link to music Websites
is tantamount to finding liability with the phone company for listing businesses
in the phone book where illegal activity is taking place.
has also tried to go after Diamond Multimedia Systems, makers of the Rio MP3
player, which enables PC users to listen to MP3 files when they are away from
their computers. The RIAA claimed such devices should provide for an automatic
royalty payment to the industry association to compensate them for lost profits.
But in a recent court decision, a federal appellate court soundly rejected
all of the RIAA's claims against the Rio MP3 player.
RIAA is trying to have the final, exclusive say in what format would be the
required technology for all audio distribution. If they get their way, this
would mean that recording artists and songwriters would not be able to choose
the means of distribution of their own work. Those who owned the formatting
technology, which, if they get their way, would be the large record companies,
would then have control over who could legally copy any audio works.
is much potential for abuse here, both in terms of censorship, and in terms
of constriction of the marketplace. Here's an example:
Megalopolis media mergers are
getting more and more common, where companies who specialized in one thing,
suddenly, through a takeover, become the corporate parent another kind of
company. Suddenly, there could be competing agendas. Say that the recording
label that Snoop Dogg recorded on was taken over in a merger, and the CEO
of the corporate parent was a fundamentalist Christian and rabidly anti-rap.
That CEO might decide that Snoop's
lyrics were just a little too hard-core to be potentially distributed to
minors on the Net—and clamp down on Snoop's preexisting audio files online.
This is just censorship, of course. And the struggle against it has been
going on for as long as people have been trying to create. The difference
now is, in the restriction of MP3 technology, and the imposition of encryption
or an exclusive, alternative, format technology, no there is a new bludgeon
for the would-be censor to swing.
Even though the record companies
claim they are doing this in the interest of protection the artists from
piracy, many major recording artists, like the Beastie Boys, the Grateful
Dead and Public Enemy—have distributed some of their music in MP3. Also,
this is really somewhat of "red herring" argument. Because of
the nature of the business, the overwhelming majority of recording artists
receive no money for their recordings after their initial advance, living
mostly from ticket sales and merchandising opportunities.
believes that smart artists are thinking outside the box. That they realize
that they can make the MP3 technology work for them, instead of against them.
For example, they can spotlight a single off a new album, in much the same
way it works now with radio stations—but over the Internet, the artist is
reaching an exponentially multiplied audience.
the classic Grateful Dead example, often invoked by John Perry Barlow, Dead
lyricist and EFF co-founder. At first, in the seventies, the Grateful Dead
attempted to crack down on zealous fans recording their concerts, and then
selling and distributing the bootleg tapes all over the world. But then the
band figured out it was actually good for business, that the bootlegging network
was actually good for business—and helped enlarge the Deadhead community.
"By the time (the band died)
we were able to fill any stadium in America, any time we wanted," Barlow
has pointed out.
margin is also huge concern for an artist at any level, but especially for
one just busting into the business. Right now, the typical contract deal for
a new artist goes something like this: the artist agrees to a deal where she
doesn't even begin to see a profit unless her CD sells at least 500,000 copies.
Even then, she will likely earn only about $1 per CD. And if she doesn't sell
at least 100,000 CD's often big companies will drop her anyway.
The musician who sells artist-to-fan
direct, over the Internet, can earn $7-10 a CD, and can actually make living
selling far fewer CD's. Not to mention the fact that SHE maintains control
of the distribution of her art.
should also keep in mind the issue of easy accessibility. Fans aren't going
to like clambering over all sorts of gratuitous, newfangled technological
barriers, to get to the new Alanis Morrisette single on the other side. And
this especially goes for a single by a new you-haven't-heard-of-us yet band.
The RIIA and the like are looking to encrypt songs on the Internet—the medium,
which is supposed to be one of ultimate convenience. But with the implementation
of encrypted songs on the Internet, well, consequently, schlepping his butt
down to Tower Records instead is going to look more and more attractive to
Joe Fan. With encryption, everybody would have to an encryption key to access
the music. If a fan loses his encryption key, or his hard drive , there goes
his music collection. Also passwords can be tedious and clumsy—and off-putting
to the average consumer.
which, as we've seen, with the hacking of systems and sites at the highest
levels (like the CIA!) the issue of encryption as security has been flouted
over and over again; a crack in the code can almost always be found.
there are many reasons why artists of all level of celebrity and success should
support MP3 technology, not fear it. And why they should stand up to the self-interested
tyranny of the big recording studios.
many ways, it is a David and Goliath battle, and MP3 technology aimed at just
the right spot on the Goliath's forehead, is like the rock in David's slingshot.
MB of Fame
A Music Industry Insider (and
Law School Student) Gives His Perspective on How the Net Will, and Won’t,
Improve the Lives of Artists
Beau Brashares, HLS ‘00
Beau Brashares spent several years performing and recording with a band.
Periodically, he also contributed production, mixing, and programming to other
people’s music. During one demoralizing stretch, where he found himself working
on television spots concerning cereal, pants, and beer, he panicked and signed
up for law school.
The Internet is supposed to kill
a lot of things we’ve gotten sick of, and give birth to better things in their
places. And if there's one thing almost everybody wants to see killed and
replaced, it's the music industry. We've come to think of it as no more than
a collection of tin-eared con-men who suck the passion out of good artists
and assault us with the music of bad ones. The chorus is being swelled by
almost every voice in the media and on the street:
Hey, MP3! Bring on the meritocracy
of a Web-based musical marketplace, the infinite digital menu of styles and
sounds, the music of the new millennium accompanied by the dying gasps of
meat-space show-biz cartels.
Beneath the rousing din of all
this revolutionary fervor, some of the parade's spectators may be asking two
basic questions. One, is the traditional music business really that bad?
And two, is it really going to change that much? At the risk of sounding sour
note, I'm afraid the answers are: one, oh yes; two, probably not.
Why is the record business so unpopular?
To begin with, it is not exactly a free and efficient market. The mainstream
music industry is controlled by a cartel of five major labels: Warner, Sony,
Universal, EMI, and BMG. Last January, Warner agreed to merge with EMI, so
very soon there will be only four. Over the years, these major labels have
woven symbiotic relationships with related businesses that also have a limited
number of players: radio, television and music retailers chief among them,
but also the music press, entertainment law firms, merchandising companies,
and major performance venues. These relationships form a circular web of coercive
pressure that is used to atomize and disempower the artists, agents, or minor
labels that don't buy in. It's a lot like professional sports was before the
advent of free agency. If an athlete didn’t like the lowball deal he was offered,
he was welcome to try another league.
Even as these near-impenetrable
networks are supposedly being threatened by new technological developments,
the old-guard music business is doing just fine. It is reported to have sold
755 million units in 1999, which was 6.4% more than the previous year. But
if you talk to the artists, they sound as underpaid and embittered as ever.
Despite the calculated displays of glamorous excess used to market them, many
of today's rock stars are essentially living on nothing but loans from their
labels, and yesterday's rock stars are living by delivering pizzas. Above
all, the vast majority of artists you would love to hear will never be rock
stars at all. What gives?
a saying among musicians: before you sign a record deal, get out your dictionary
and look up the word “recoupable.” Recoupables have been a part of major label
contracts forever, and they work like this: your band has paid its dues, generated
a buzz, and potentially stands ready to reap the benefits of this work in
the mainstream marketplace. A label approaches you and says, we’ll spend maybe
a hundred thousand on recording and releasing your record. We own the masters.
You get roughly a tenth of the money we make from selling it, but all the
money we spend on recording, on manufacturing, on promotion, on touring, on
deli trays for the music writers is taken out of your tenth. If the record
looks like a hit, the label will keep spending the band’s small share on more
pressing, promoting, and so on. Why not? Once the act is selling, it behooves
a label to spend as much of the band's future income as possible and reap
virtually all the returns. This is why a major release frequently needs to
sell 500,000 copies—go gold—before sales proceeds begin reaching the band's
while the labels lack imagination in most respects, they are notoriously creative
when it comes to accounting. All in all, the deal offered to artists by a
major record label is, you get the glory, and we get the money.
But what glory! The fans, the
groupies, the various and sundry inebriants at one's very fingertips! How
many teenagers, as they and their hormone-charged bandmates shake the shingles
off their parents' garages, care about whether they will be making a living
when they are 30? I know I didn't (and I'm not). Rock music has never been
about amassing a sensible investment portfolio, and so long as there are young
people starting bands, there will be coercive record contracts awaiting them.
They'll get a slim chance at glory, while someone else will get the money.
How did such a one-sided arrangement
become the norm? Well, it used to make more sense. Until recently, it was
very expensive to make and sell a record, and only a well-capitalized conglomerate
could afford the recording, manufacturing, distribution, and marketing of
a large-scale release. With so much at risk, labels had to cover the stiffs
with a heaping helping from the hits. But the circumstances that gave rise
to this arrangement have been changing for a while now. For one thing, records
have become a lot cheaper to record. For less than twenty grand you can buy
an Alesis ADAT, a Macintosh running Digidesign's ProTools, and a Mackie mixer—the
same setup used to record Alanis Morrisette's monstro-smash, Jagged Little
have also become much cheaper to manufacture. Though the labels happily doubled
the retail price of an album when they moved to the Compact Disc format, CDs
are much cheaper to make than vinyl was. Even small-batch commercial houses
that advertise in the back of music magazines will press up your CDs for 53
But there's still the matter of
distribution. Even as recording and manufacturing costs have come down to
earth, distribution has continued to be a matter of wresting precious shelf
space in street-front music stores. Since only the majors consistently have
had the muscle to accomplish this with the big retail chains, even the so-called
“independent” labels have had to sneak under the umbrella of the majors to
reach mainstream consumers. Thus, even though a potential hit record can now
be tracked and pressed by almost anyone, the major labels have maintained
a hammerlock on the channels by which the product reaches the consumer.
that's about to change, at least according to the Internet evangelists. Already,
online stores like CD-Now have overcome real estate limitations, and will
happily ship your obscure independent release for a reasonable fraction of
the revenue. But such online retailers have so far gained only 1% of the music
market, having failed to offer the drastic savings on big sellers necessary
to lure more consumers from the stores. Not to worry, though, because the
Internet’s big gun—digital delivery of the music itself—is only starting to
be aimed at the retailers. Once high-bandwidth connections become ubiquitous
in the homes of consumers, music distribution will finally be free from the
tyranny of brick and mortar record shops, and in turn the whole conspiracy
of the record label overlords will crack like a CD jewel box . . . Right?
don’t quit your day job. Bands are indeed flocking to the Internet with hopes
of bypassing the major label formula for success, but so far the music-buying
public is bypassing them. For example, there are 40,000 hopefuls featured
on MP3.com, the biggest online aggregator of unsigned bands. Despite access
to a vast audience—supposedly a half-million people visit MP3.com daily—the
most successful of these web-based purveyors are selling less music online
than the most dismally unsuccessful major-label acts sell at Wal-Mart. Reports
are that while the free downloads are humming, MP3.com has been selling only
about one CD per month for every two bands that use its service. And while
that's better than nothing, the site isn’t doing it for free. Besides charging
a fee to be listed in their directory, MP3.com frequently requires artists
to sign over all the rights to the recordings made available for download
on the site, so that not a cent of publishing royalties are paid to the artist,
even if the song somehow becomes a runaway smash. But we’re still waiting
for that big breakthrough act to emerge from Internet, uncompromised by the
greedy major label machine. It certainly could happen, but considering that
every band uploads on the hope that it will, perhaps we ought to be hearing
about some of them by now.
the Internet music revolution is not revolutionizing the balance of power
just yet. Though most bands do not thrive under a traditional record deal,
almost none of them survive
without one. The relationship
between major labels and artists still brings to mind what a down-and-out
ex-boxer once said about promoter Don King: “Sure he ripped me off, but I
sure wish he'd rip me off again.” What’s even more worrisome for artists
finding disappointment with the Internet is that, apart from some piracy-related
lawsuits, the big labels haven't even seriously tried to squash it yet. When
the majors finally agree on standards and get their own Internet businesses
up and running, their outlook may be better than ever. They have accumulated
a massive storehouse of intellectual capital, most of which will be just as
good an investment in the new economy as it was in the old. One record executive,
who asked not to be identified, put it this way:
“It's shocking how good labels
are at what they do... Every release is researched to within an inch of its
life, and the level of demographic detail they have is amazing. If a rock
band needs to burnish its bad-boy image, their label will tell them to start
a bonfire at a music festival. It's all very calculated and it results show
up in record sales...”
Indeed, many of today's major artists
owe their success to the fact that a well-connected and well-capitalized label
chose to ignore a thousand other acts and carpet-bomb the marketplace with
that artist's music. Sites like MP3.com, even with their “featured artist”
selections, lack this kind of filtration and emphasis, which listeners have
unfortunately come to expect. It is a paradox: consumers say they want musical
variety, but then they spend most freely where artistic diversity is almost
non-existent. Most of them don’t bother to dig for the gems even when given
the chance by the Internet, keeping talented web-based artists behind the
counter at the local TCBY. Meanwhile songs that could make your day or reduce
you to tears simply wither on the vine, smothered by the all-out marketing
assaults of Britney Spears or N'Sync.
While we're on the subject of chirpy
teenaged phenomena, it is worth noting that their recent success has caused
an army of worthy acts to accumulate at the margins of the marketplace. As
the majors have worked these obscenely lucrative teen popsters, they have
been systematically cutting loose the more offbeat acts that used to round
out their rosters. So the offbeat bands take a chance on the Internet, because
in these hard times it's all they've got. Some of them are almost getting
by, particularly those who previously built a fan base with major releases.
John Hall, mastermind of 80s eccentrics King Missile (remember their unlikely
hit, “Detachable Penis”?), is no longer signed to Atlantic, but offers old
fans new material on his website. “I sell my CDs on a webpage—they send me
a check and I send them a CD. Pretty primitive.” And pretty small-time, though
Hall is doing a lot better than most unsigned artists online.
You would think with enough artists
like John Hall kicking around the web, the medium should mount a serious challenge
to the homogeneous product emanating from the big five. It should, but if
it does it won't be for long. As soon as Hall or anyone else starts to see
Internet sales pick up, the major labels will be ready and able to co-opt
the cyber-alternative music market in a drumbeat. They've been masters of
capturing the competition before, as the aforementioned anonymous record executive
gloats: Major labels now influence almost everything that happens in music—every
radio station, every print publication, and every show. A lot of the things
that used to belong to indie music, like college radio, or events like CMJ
or North By Northwest, are now under the control of the majors... They do
what they have to do to adapt, and this Internet thing is no different.
Though still on the sidelines,
you can be sure that the labels have their collective ear against the MP3
bandwagon, listening for a jingle of revenue. When they hear it, they will
jump aboard with the volume knob on 10. Indeed, if the majors went out today
and skimmed the cream off the Internet talent pool (such as it is), you wouldn't
likely see a single act turn them down. But by all accounts, they are not
signing bands off the Internet. Rather than step in now and spend money to
develop such acts, it seems the labels prefer to wait until the fruit is more
ripe for cherry-picking.
So why do the majors still wield
such leverage, and why isn’t the Internet helping, even a little, to free
the long-suffering artists? There’s tons of music already out there on the
Net; it’s already cheaper, if not free, and you don't even have to get off
your ass to go to a show or a record store. What's more, everybody's tired
of the old order, and there's a ton of money flowing from equity investors
who want in on the new one. What do labels know that websites don't?
One thing they know is that context
sells records. Internet promotion and distribution services like MP3.com,
and most of the artists that use them, are underestimating the very central
role of context in the pop music experience. It works like this: most of us,
even if we won't fall for the commercial hype, don’t like a song simply because
it's inherently good. Rather, we respond to an elaborate matrix of cultural
reference points that surround and inform the music. A band breaks out of
obscurity because there is an elusive “something” that converges from such
elements as its visual style, the impact of its stage show, and the way in
which it feeds off “the scene” in its home community. If these elements are
in place, a band often can go quite far before producing a decent recording
or a catchy song. That's why labels will never sign a band before attending
a show in the group's hometown—they want to watch the audience. That's also
why when you sign with a major label, the first order from your new bosses
is: tour, tour, tour.
anecdote to illustrate the context factor: about a dozen years ago I received
a demo tape by a new band that was supposed to be “the buzz” in their hometown
of Los Angeles. I thought it sounded appallingly bad. It was as if someone
was attempting to copy the then-unavoidable Guns & Roses, but couldn't
sing in tune or play in time. The hype had me curious though, and since they
put me on the guest list for one of their shows, I went. It was Halloween
night, and the band was called Jane's Addiction. From the moment I walked
into the nightclub, it was clear that I had entered the absolute epicenter
of all that was cool. The exuberant roar generated by the band, rippling through
the ultra-hip audience, the whole event had that unmistakable, magical vibe
that makes all your critical faculties melt away and turns you into a fan.
Suddenly, every shortcoming I'd identified on tape became a very deliberate
departure from convention, all ingeniously orchestrated into a fresh and powerful
don't think such an experience is possible online. No matter how detailed
the digital presentation gets, you just won't be able to...smell it.
That intangible, hair-on-the-back-of-your-neck dimension that transforms the
offensive into the sublime will almost certainly be lacking as you click along
in the comfort of your home.
Along with its limited ability
to promote musicians, the Internet is missing something that is central to
the selling of music as well. Digital delivery, for all its convenience and
cheapness, does not provide the tactile rush of peeling the shrink-wrap off
an eagerly awaited release. A fan draws pleasure from an imaginary reciprocity
with her favorite artists; she understands it as a two-way relationship. She
wants to physically take hold of, and possess, the record, the sticker, and
the T-shirt that comes...from them. A fan wants a totemic representation
of her auditory communion with kindred souls, and an invisible sequence of
zeros and ones piped in from a server somewhere doesn't cut it. That's why
people buy CDs instead of simply taping them, and why people download a pirated
MP3 file and still go out and buy the CD it came from. The label:
made sure that people get a product that they can hold in their hands. That's
still the defining experience for most music fans. And everything we put
out is value-added in some way—we’ll put out an album, the kids will buy
ten million copies. Then we’ll put that exact same album out with three
different ‘collectible’ covers, and the same kids will buy all three versions!
. . . I’m telling you, the reason this business isn't going anywhere is
that we’ve built such a perfect customer.”
swagger of a typically smug record man, to be sure, but one who also understands
something about the culture of music that the current Internet cheerleaders
may have missed.
not go too far, though. There are some very clever people, many of whom have
launched successful acts in real space, working to make the online music huge.
they have some easy targets to start with; certain aspects of the traditional
music business are looking wobbly and archaic already. Take commercial radio,
for instance. It still functions as a primary music marketing device for major
labels, but only because nothing better is out there yet. As John Hall predicts,
“Radio as we know it will go down the toilet. There’s very few stations possible,
and the interests of their content providers and their advertisers are diverging
so much. The labels are trying to sell records to teenagers, and the advertisers
are trying to sell cars to middle-aged commuters.”
area where change might be due is pricing. The days of the $15 CD may be numbered,
if only because developing tastes and the freedom of digital delivery will
favor individual songs rather than whole albums. “The album is kind of a 70s
concept,” says Joe
Rosenthal, an editor at Rolling Stone who follows Internet music
closely. “It's going to be hard to force consumers to buy a whole album in
the digital format.” Indeed, the album format was largely dictated by the
practical demands of manufacturing and stocking vinyl records. Those economic
limitations will be disappearing, and many fans will get their songs from
pirate sites unless labels allow them to buy singles at an attractive price.
Despite the continuing leverage
of labels, there will also be pressure exerted on them by their top artists,
who can dangle the prospect of Themself.com to get a bigger cut. “Leaving
the label looks attractive when they're only giving you ten percent,” says
Hall. “You'd be better off selling one-ninth as many records on your own site
and keeping all the money.”
this logic, artists who have attained household-name status in the old system
could be the ones who truly make out in the new one. Because while the Internet
has shown little promise for developing a new act's market, it sure shows
promise for selling to a market that already exists.
major labels will be glad to modify their model here and there if there’s
money to be made. They will respond to pressure from consumers and established
artists, but they will pass that pressure on to the artists who lack leverage,
as they have always done. It’s likely that all this talk of the major labels
being doomed is just so much wishful thinking. And no wonder; there are a
lot of wishful people out there: the ripped-off musicians, the frustrated
and overcharged consumers, and most vocally, the Internet entrepreneurs who
want a piece of the action. Next time you read another article about how the
Internet is certain to turn the music business upside down, reversing the
positions of the historical haves and have-nots, take note of who is telling
you all this. Chances are it's someone who's trying to sell you a little
real estate on their hype-driven website.
Okay, so maybe the Internet isn't
going to fling new stars into the skies and make a bundle for every band that
deserves an audience. But maybe the revolution isn't going to be about money
and fame anyhow. Every kid who starts a band isn't banking on being a rock
star, and every rock star isn't in it for the big bucks and big crowds. There's
all that other stuff: the joy of making noise for an audience, the rush of
knowing that somewhere, people who you've never met are listening to you.
It's these simple pleasures that launched a thousand garage bands, and still
drive the indie-rock industry.
The Internet might enhance these
pleasures for many musicians, and might make them available to many others
who otherwise would miss out completely. Take it from musician Michael Dean,
who has been everything from an indie-rock darling, to a major-label artist,
to a one-man musical Web enterprise. Dean reports that MP3 files get downloaded
from his sprawling webpage around 200 times per week, but like most other
musicians on the Web, he is not actually able to sell anything. “But
that isn't why I make music these days,” says Dean. “To me it’s sort of like
how Maximum Rock and Roll [a seminal punk fanzine] was in the beginning.
I used to get a kick out of the little letters with a five-dollar bill carefully
concealed for an order of my 7" vinyl. I was and still am losing money,
but I get a kick out of seeing ‘Venezuela’ and ‘India’ on the download hitlogs.”
you think about it, a music business full of Michael Deans might truly be
a revolutionized one.
The glossy pop acts will go on as before, groomed and marketed so as to transfer
millions from the pockets of teenagers to the pockets of record companies.
And no doubt there will still be radio stations (broadcast or webcast, either
way) that won't play anything not pressed on them by labels, record stores
(real or virtual) that won't promote anything not played on the radio, and
live venues (on the street or the Web) that won't give a gig to anyone not
sold in record stores. But for everyone else, there will be a little corner
of cyberspace where you can find almost everything the traditional music industry
ever offered—songs, pictures, quotes, videos—in short, a complete musical
experience. The only thing that will separate the minuscule players from the
megastars will be the number of people observing.
We’ve all heard that tired quote
from Andy Warhol about future people all getting to be famous for fifteen
minutes. But maybe he was a little off—perhaps everyone in the future will
be famous on 15MB of a hard drive, somewhere out in the vast expanses of cyberspace.
End of SDMI
Eric Scheirer, Technology Correspondent, MP3.com, Oct. 15, 1999
It looks like it's all
over except the shouting.
I don't mean to say that
the Secure Digital Music Initiative group will disband soon. On the contrary,
it looks like they are ready to redouble their efforts, issue a bunch more
press releases, publish some more specifications and keep trumpeting their
version of the future of online music. They are more committed than ever to
their goal of providing a secure mechanism for the protection of artists!
(Just ask them).
Eventually, the leaders
of SDMI will declare victory and go home.
But just making news and
publishing specifications was never the goal of SDMI. The real goal was to
bring the technology industry into the cartel owned by the major labels, to
create an alliance that guaranteed the majors a continuing near-monopoly over
musical content and its distribution. And now it's clear that this unlikely,
loftier ambition will never be achieved.
I'll go into the reasons
behind the failure of SDMI in this column. But I should say up front that
I think, in the abstract, a standard that can provide security over the transmission
and playback of digital music is a good thing. I’m not against secure music
at all. As Hilary Rosen, president of the Recording Industry Association of
America (RIAA) and SDMI good cop (Cary Sherman is the bad cop) is fond of
saying, the choice of a business model for each piece of music should be left
up to the musician. If you want to give away your tracks for free, that's
cool. If you want to charge $200 per listen, that's cool too. The decision
should be yours alone.
IT WAS SUPPOSED TO GO
SDMI was never just about
providing security options to the musician, though. It was about providing
security options that were controlled by the music industry, which is a much
different thing. And this would mean that the option to distribute music security
would become yet another "negotiable" clause between the artist
and the record label.
We've all seen the history
of these negotiable clauses--it's the same story as merchandising rights,
ownership of the master recording, and now Internet domain names. The label
puts out a take-it-or-leave-it offer where the musician has to give up these
rights in exchange for the recording contract. If the musician objects, he
is shown the door, and the next unsigned band in line is offered the same
This is how the music industry
leverages its distribution cartel into contracts that are unfair to musicians.
There's always another band ready to sign that take-it-or-leave-it deal.
The online digital music
revolution threatened to change that. Since music websites started providing
an alternate distribution channel for those bands that reject the contract,
the weight the labels could throw around was getting smaller. The solution--a
wise one--is to get the technology companies into bed with the record industry.
If there were a widely adopted technology for security that was controlled
by the industry, then this big lever could be restored, since only those distributors
they approved could send out content to play on the popular machines.
What the RIAA and its members
failed to realize is that to make this story real, they had to keep the technology
companies happy. The tech industry could see what was happening in the online
music space, and they wanted to make sure they maintained the opportunity
to make real businesses--hardware, software and services--from it.
The RIAA (I'm only speculating
here, I don’t have a secret mole in the music industry) thought that their
huge tracts of content, and the prospect of making it available online, would
keep the tech folks docile. But the consumer-electronics industry knows a
hard lesson that the RIAA has yet to learn: Regardless of the business model,
it has to start with value to the consumer. The majors believed that just
providing content is value that should be good enough for anyone.
But the techies know that
what is driving digital download today are flexibility, options and customization.
This is exactly what the record industry doesn’t want--a world in which consumers
are empowered to make their own buying decisions, and find their own ways
of listening and relating to music. The tech industry consulted their strategists
and decided they had to do what they do best--give consumers what they want.
And this means that the SDMI spec wasn’t going to cut it.
When I try to read the
SDMI Portable Device specification 1.0--the only thing SDMI has produced so
far--I see the fingerprints of the conflict among the major labels and the
technology companies everywhere.
Even in the introductory
parts, we read that the record industry "has identified the lack of an
open and interoperable standard for security as the single greatest impediment
to the growth of legitimate markets." And that the technology companies
developing new devices "has realized that an important part of these
device is the presence (or absence) of adequate security." What a difference
Having some experience
in creating standards, I can hear in my mind the argument that must have led
to this phrasing. There was no way, even in an introduction (actually, this
is part of the Antitrust Statement) that the tech companies were going to
buy into the idea that security is an essential part of a good consumer device.
And so they put in a sentence of their own--and it disagrees with the attitude
presented in the previous sentence.
If the two sides couldn’t
even agree, in the introduction, on whether security is essential or not,
it's no wonder that the hard questions are tripping them up.
There are so many things
in the PD specification that are blatantly against the interests of technology
companies that I can hardly believe they approved it. Maybe it's just that
they realized the spec would be a paper tiger, and with no plan to actually
build SDMI devices, they just resigned themselves to letting the music-industry
lawyers put in whatever they wanted.
Some of the astonishing
things to me are:
is no interoperability. Imagine this: You buy an SDMI portable device, and
start to buy a lot of cool tracks to play on it. You store them on your
hard drive, and have a great time moving the tracks back and forth. You
like it so much that you buy a cool new top-of-the-line player from another
company. And now none of your music plays. This is astonishing to me--I
know that SDMI doesn't claim to be making standard formats, but they must
know that customers will hear "SDMI" and think "music format."
And then, when "SDMI content" doesn’t play on an "SDMI player,"
well, that’s a big PR problem.
player could suddenly become judged non-compliant. Clause 10.4 says that
if "circumstances arise" that make a player insecure (that means
the security is cracked), the manufacturer is required to "promptly
redesign" it and "cease selling such affected products."
This requirement would play havoc with a normal product-development cycle.
RIAA gets to take apart each device to see how it works. According to Clause
10.5, the record industry can appoint an independent expert to inspect each
device "to determine whether such product(s) are SDMI-compliant."
The expert gets to look at nearly anything--object code, block diagrams,
functional design specifications--that he/she determines to be relevant
to the question of compliance. If I were a company that was making a cool
new player, I would sure think twice before I handed it over to the RIAA
(which includes Sony Corp., don’t forget) so they can decide whether they
like it or not.
What all this
adds up to is something I’ve heard from several SDMI participants: To most
technical companies, stamping their player "not SDMI compliant"
would likely be better marketing practice than playing by the rules set by
WRITING ON THE WALL
How can we tell it's over?
Right now, almost
every day, we see an announcement that another company is shipping a cool
new music product, and taking a "wait-and-see" attitude toward SDMI.
On alternate days, we learn that a music company is teaming up with an online
distributor to sell music in a format yet to be determined.
What it all adds up to
is this: The floodgates are opening. Portable devices will be huge for Christmas
this year; they will all play MP3, and none of them will be SDMI-compliant
in any way that matters. (Some probably will be stamped "SDMI",
but that doesn’t mean anything by itself).
And so the remaining question
is: What will happen to all that content the majors are sitting on? Will they
finally realize the business potential it represents, with or without "security"?
Or will they continue tilting at the windmill of piracy, hoping that some
magic bullet (today watermarking, tomorrow quantum cryptography!) will come
along that will make them feel all better?
I've learned to
stop trying to predict what the music industry is going to do. Your guess
is as good as mine.
(Republished by permission
of author and original publisher.)
Lessley Anderson, “To
Beam or Not to Beam,” The
Standard (visited February
9, 2000) <http://www.thestandard.com/article/display/1,1151,9251,00.html>.
See James Harding, “Companies
and Finance: International,” The Financial Times (London), Jan. 22,
2000, p. 20.
See Benny Evangelista, “Digital
Dupes; Movies, Music Industries Try to Keep Pirated Copies from Spinning Out
of Control,” The San Francisco Chronicle, Jan. 31, 2000, p. B1.
See Michael Stroud, “A Music
Industry Death Knell?,” Wired News (Internet), Jan. 11, 2000.
See Recording Industry Association
of America v. Diamond Multimedia Systems, 180 F.3d 1072 (9th Cir.
See Dara Colwell, “Pirates
at the Dock,” SF Weekly, Sept. 15, 1999.
See Testimony of Jeremy
Salesin, General Counsel and Director of Business Affairs for Lucasarts Entertainment
Company, LLC, Federal Clearing House Congressional Testimony, Oct.
See Dana Pasternak, "Universities
Target Student MP3 Copyright Infringement," The Daily Princetonian,
Nov. 17, 1999.
See Darran Gardner, "There's
No Music Like E-Music," The Sunday Herald, Jan. 30, 2000,
Amy Doan, "Digital Dreams," Forbes, Jan. 24, 2000,
See Declan McCullagh, “Judge
Rags on DVD Hackers,” Wired News (Internet) Feb. 3, 2000, <http://www.wired.com/news/print/0,1294,34091,00.html>.
See Matt Lazier, “Lawsuit
Names California College Student for Publicizing Encryption Code,” The
Tribune/Knight-Ridder Tribune Business News, Feb. 7, 2000.
See Shareem Amry, “Cinema
Operators Reel Under Piracy,” New Straits Times, Feb. 8, 2000, pg.
See John Stamp, “Breaking
DVD Encryption,” Los Angeles Times, Feb. 3, 2000, pg. B8, Letters Desk.
According to composing great Aaron Copland, creation and interpretation “were
usually performed, in pre-Beethoven days, by a single individual. The composer
was his own interpreter; or, as frequently happened, interpreters wrote music
for their own instrument. But nowadays, as we all know, these functions are
more usually separated . . . Consequently [there is] need of a middleman,
a talented reader who can arouse response in an audience by the public reading
of the composer’s message.” Copland, Music and Imagination, (1952),
Classic examples of Gil Evans’ orchestrated jazz include his collaborations
with Miles Davis on the albums Miles Ahead, Porgy & Bess, and
Sketches of Spain.
For a different reading of Montesquieu’s views, see Alexander Hamilton, The
Federalist No. 9, pp. 74-76, in which Hamilton famously re-casts Montesquieu
as a forefather of federalism.
See Simple Mail Transfer
821, Internet Engineering Task Force, <ftp://ftp.isi.edu/in-notes/rfc821.txt>.
For a good overview of this ideology in a particular context (the Spanish
Civil War), see generally George Orwell, Homage to Catalonia; Ramon
J. Sender, Requiem for a Spanish Peasant.
Miles: The Autobiography,
Bill Crow, Jazz Anecdotes (1990), p. 143.
For a more complete explanation of this licensing system, see Chris DiBona,
Sam Ockman and Mark Stone (eds), Open
Sources: Voices from the Open Source Revolution, Sebastopol (CA):
O'Reilly and Associates, Inc. (1999). <http://www.oreilly.com/catalog/opensources/book/perens.html>
(visited Feb. 5, 2000).
Robert P. Merges, Peter S. Menell, Mark A. Lemley, & Thomas M. Jorde,
Intellectual Property in the New Technological Age (1997), p. 383.
Copyright Law Revision, House Report No. 83, Committee on the Judiciary, 90th
Congress, 1st Session, 1967, p. 66.