SECOND THOUGHTS ON NAPSTER, GREED, & GG

[Birgitte Jorgensen <bj@kemmunet.net.mt>]

I subscribe to the daily digest version of this list, so apologies right
off the top to anyone who may have contributed to the Napster discussion
in between deliveries and whose comments therefore go unintentionally
without acknowledgement here.

Bengt has made a vital distinction between Napster, a platform for
sharing music files, and MP3.com, a site which sells downloadable music
files.

> Napster isn't really a site with music as mp3.com, it is like a huge
listing
> of MP3 files on other people's hard drives. When you fetch a music
piece,
> you actually are downloading it from another person's PC/MAC. Napster
only
> acts as a large "telephone book" that lists the hard drive contents of
the
> PCs that are logged in. This is what makes this legal case so
difficult.

The distinction is, of course, both a legal and an economic one, but
there are also significant cultural, technical, and, yes, ethical,
implications deriving from this crucial difference.

One objection I have to using Napster is purely technical. Call me
paranoid, but unless you are hooked up to an immense government,
university or institutional mainframe, the thought of having the whole
world, or even a single propellorhead in a college dorm somewhere,
scanning my personal computer?s hard drive is frankly creepy, and leaves
me feeling far too vulnerable for comfort. Reason enough to buy my CDs
for now.

The more one thinks about it the closer one gets to the realization
that, in a sense, there is really nothing new or even unprecedented
about the Napster problem, it?s just that technology has now advanced to
an endgame stage where the underlying issues of copyright, royalties,
consumer rights, corporate license, and artistic proprietorship have
been thrust into the foreground where they can no longer be ignored
because there?s far too much money and power at stake. While the
technology has arrived with which to disseminate music in ways only
dreamed of a few years ago, our legal apparatus, business models,
cultural-industry mechanisms, and even our perceptions of artists, and
especially of art versus commerce, lag behind these changes.
Mould-shattering times indeed!

For years now people who do not think of themselves as criminals (people
like us, I presume) have been blithely transferring tracks from their
records and CDs onto audio tape cassettes for their own use (car stereo,
Walkman, boombox) and duplicated them for private use by their friends
and others. Did the record companies actually expect anyone to buy both
the disc and the cassette? (For the sake of this discussion, I leave out
the issue of industrial-scale commercial piracy since it?s largely
irrelevant to the Napster argument.) To be sure, the sound quality is
less than optimal, but people do it because they can and because they
have found it advantageous to make their own audio tapes (and now to
burn their own CDs), the benefits being too obvious and too numerous to
list here. And they do it even though they know it is illegal. Does this
mean we are all a bunch of slimy, unethical louts pointing our fingers
in grandiose self-righteousness at the insatiable profit-motives of the
record companies and money-grabbing recording artists? In a strictly
legal sense, yes it does. In ethical terms, we?re in a classic
battleship-grey area.

One of the reasons for the persistence of such blurred ethics is the way
in which small-scale piracy is motivated and conducted. As our
F_Minorean Napsterite, Bengt, confirms, "Although I could very well
download this music and easily make my own CDs of them (I am lucky to
have a broadband DSL connection), I still prefer to buy the actual CDs
from a record store (actually from Amazon.com)." Then, he continues with
what the music industry is free to interpret either as a threat or as an
opportunity to reconfigure: "I don't think this will be the case for
much longer though." We could all get on our high horses and call him
unethical, but more than likely we?re simply envious of his bandwidth.

On the whole, the music industry appears to have a warped picture of the
market, for no matter how frothy mouthed some artists and record
companies can become at the thought of their artistic property going
through an unauthorized transfer from CD to tape or hard drive without
the user paying a toll, I have never encountered a single person whose
entire audio collection consists of copied tapes and CDs (I do not doubt
that a few people like that exist, but c?est la vie; I know they
certainly exist in the world of software) nor have I ever met anyone who
has NOT made an "illegal" audio tape, but these same people have more
often than not proceeded to go out and support their artists of choice
by buying a better-quality version of the music that appealed to them.
(The equivalent holds true for small-scale software pirates.) And that
is precisely the point that tunnel-visioned record executives and
less-than-enlightened recording artists fail to take in: much of the
material that has over the years found its way onto consumer audio tape
illegally or is downloaded from Napster would never have been purchased
in the first place; therefore, they don?t necessarily constitute lost
sales or stolen profits.

It seems self-evident that the vast majority of consumers in the
developed world are willing to pay a reasonable price for the music that
moves them, so perhaps the record companies should start reinvesting
some of their profits in product improvement: better sound quality,
enhanced CD-ROM material, more goodies, lower prices. (Again, the
software industry has for the most part met piracy problem with positive
rather than punitive measures, offering support, free upgrades, and
other added values for registered users. It is probably no coincidence
that the computer geeks, the programmers, the technicians, the digerati,
are among the first groups to achieve enlightenment in these matters and
to lead us into the era of, if you?ll pardon the expression, The New
Economy.) I agree with Bob that the inventive mind of the young designer
of Napster software should be hailed. And users of Napster should
consider this: he?s not deriving any royalties from your enrichment.

I also find it significant that not only do Napster users still buy CDs,
they use Napster in a resourceful way to compare tracks, sample before
buying, and to find new material they might not otherwise have located.
In other words, Napster has deepened the range and expanded the scope of
their musical consumerism and enhanced their appreciation of music. No
record store can offer anything remotely like that experience, just as
the online book and music sites offer cross-referencing capabilities
impossible to duplicate in the bricks-and-mortar world. I call this kind
of development progress and it seems wrongheaded and peevish to claim
that it is damaging recording artists or writers.

As a literary type who loves music (as opposed to a musician who loves
literature), I was wondering why there isn?t a similar controversy in
cyberspace over the swapping of digital book chapters. Anne Marble has
informed us of Sf and romance sites, but are most of the literati just
Luddites or are there secret underground channels of bookworms who
willingly expose their hard drives to others who want to read the latest
Proust biography or newly-discovered Nabokov stories for free?
Conventional wisdom would suggest that the publishing industry would be
as retrograde as the music industry but not so. They are busily creating
an e-book industry as we speak. And digital book readers are a
qualitatively different breed from music lovers. Case in point: when
Stephen King recently published the first installment of his much
publicized e-book on the Web, his most devoted fans paid TWICE to make
up for the shortfall caused by unscrupulous (or simply cynical)
downloaders who did not pay for the material!! Can you imagine even for
a millisecond any Metallica fans compensating the band for estimated
losses incurred through unauthorized downloading? Unthinkable.

But if you think the music industry battle with technophiles is vicious
wait until you see the main feature. As bandwidth broadens, there is
going to be an even bloodier showdown with the power brokers of
Hollywood when the Napster equivalent of sharing digital movies becomes
as common as swapping songs. I can?t wait. The way we giggle at the
videotape warnings from the FBI and Interpol (does this agency actually
exist or is it as fictitious an entity as James Bond?s employer?) has
always incensed the movie industry into full battle mode. The only
reason home video piracy never got completely out of control among
private users in the same way as it did with audio tapes is primarily
due to the fact that most people don?t have dual VCRs and the quality of
second or third-generation VHS dubs is dismal. It?s surely not because
consumers didn?t want to deprive Hollywood of the greater profit margins
it so richly deserves. The point, however, is the same as with music:
people love movies and sharing copies will be part of a much broader
picture that includes the legitimate purchase of substantial numbers of
videos and DVDs, not to mention continued cinema-going (and there would
be more of that if the chains had not built so many of those abysmal
screening-room-sized cineplexes).

Until the Net erupted into our lives, all this "criminality" transpired
without any serious public debate and despite the legal threats of
record companies impotent to resist our subversive consumer activism
(sounds far more heroic than mere pirating), partly because there was
little they could do about it and partly because the potential profit
losses were minimal, though assuredly painful to any record executive
worth his or her Platinum Amex card, in comparison to digital file
sharing. It?s the sheer scale and speed of Napster, and the rapid
proliferation of devices to take advantage of it, that has changed
everything.

The point is that when a technology becomes cheap enough and ubiquitous
enough, like audio cassette tape player-recorders, VCRs, CD burners,
computers, mobile phones, and so on, they open up new ethical frontiers,
and because these technologies become so quickly integrated in our
social and private lives, they are also rapidly deemed NECESSARY. Then,
it?s a short leap from an option or privilege to a full-blown right. So
I?d like to propose that a basis for creating a new ethic be founded on
a brand new declaration of human rights that goes something like this:
Every global citizen is entitled to equal and unimpeded access to new
technology. (This would include technology as it pertains to education,
medicine, transportation, energy, etc., not just the cultural
industries.) Thus, when the introduction of a new technology poses some
challenge to the status quo or intervenes in narrow corporate interest
or eradicates insupportable privilege, governments would be compelled by
law to find ways to accommodate the advance of technology and make it
affordable to the masses. Who doubts that the tyranny of technology is
not the new religion?

At the crux of the issue is this: just because a technology is available
does it give us the right to use it freely as we see fit, or to use it
only in limited ways? Which ways might that be? Who should decide? What
criteria would we use to establish these parameters? What about those
who can?t afford access? Well, I seem to be right back where we started
by repeating Mary Jo?s questions and adding a few of my own!

If only the music industry had been listening to Glenn Gould?s "ravings"
as far back as 1966, we might have avoided some of this turmoil, because
this is where his radical ideas about the anonymous artist and the "new
listener" come into the picture. If we can take GG at his word, I think
what he was saying all along was that once a piece of art is created and
is, so to speak, released into the world, does it not in some way belong
to everyone? It?s now both a philosophical and concrete reality. Recall
his arguments on forgery and the false value attributed to the
one-of-a-kind object. Of course, some of what he was saying was
deliberately disingenuous, but the fact remains that he (not to mention
Andy Warhol) realized long before we were able to easily duplicate
cultural artifacts digitally en masse, that the current concept of
copyright is Victorian, and that somehow we must weave the idea of
replication into our new definition of what constitutes "art." According
to Gouldian thought, forgery's good name must be restored.

As someone who makes a living as a writer and editor, I have a personal
stake in the basic concept of copyright, but I believe we have to
reconsider the limits of its grasp, which presently exceeds its reach.
For example, about a decade ago, Canadian activists set up an
organization to administer the payment of royalties for the photocopying
of copyrighted material. Participation was effectively mandatory for
commercial copy houses (like Kinko?s), universities, governments,
libraries, etc. Some big guns supported this legislation, including
Margaret Atwood. Now, ask yourself, how many people photocopy all or
part of a book instead of buying it? (Apparently some teachers were
doing this for class handouts but they represented a tiny fraction of
the market.) I felt at the time and I feel even more so now that these
people buried their heads in the ground and were so busy trying to
protect their pennies that they didn?t see the tsunami of electronic
distribution that was poised to overtake them. At this point,
photocopiers represent such a low technology in comparison to digital
duplication that it hardly matters anymore anyway, but my point is this:
the people who stand to make the most cash from this are role model
writers like Atwood who are already more than comfortable. For others,
on average, it provided an annual cheque of $100 or less. This was
lauded as a victory by writers? organizations and unions. What ever gave
these writers their supreme sense of self-righteousness to chase down a
photocopying copyright violator to the ends of the earth? If the absence
of $100 a year threatens to break a writer, I think they should probably
find another profession. They will tell you it?s a matter of principle,
but what principle? Greed? Dictatorial control? The deliberate and
petty-minded suppression of the free and liberating spread of knowledge
and resources? There?s a revolution going on out there and the geek who
invented Napster isn?t getting rich on it. For that matter, the key
inventor of this Wonderful World Wide Web we?re using to conduct this
discussion is also someone whose intellectual real estate went
unrewarded in cold hard cash while others have made vast fortunes on
what he did for the benefit of humankind. Is he a hero, a household
name? Nah. (It?s Tim Berners-Lee of the UK if you want to email him a
thank-you note.)

I agree with Bradley?s notion that a copyright holder?s tolerance of
infringement is directly correlated to how well-established and
financially secure they are. I am by no means independently wealthy but
I could live with the idea of selling an article to a magazine,
accepting what I consider a reasonable one-time fee for my effort, time,
expenses, and the "worth" of the ideas embedded therein, and then, if
someone wants to hurl it into cyberspace and freely distribute it by
non-profiting means, that?s fine with me provided there isn?t a third
party charging a hefty fee for it without paying me a royalty. Bottom
Line: why should I demand royalties above and beyond what I considered a
reasonable compensation for a product that is no longer generating any
income but is nevertheless being consumed?

My conclusion: in the digital age, we must accept the fact the very
concept of intellectual "property" as we know it is outmoded,
unsustainable, possibly immoral, certainly an affront to the new
emerging order of things, and, in any case, a cruel illusion. That?s my
humble call to arms.

Whether we like to admit it or not, technology is leading the discussion
and not the other way around, and all our ideas about artists and
culture are in an exhilarating (or terrifying, depending on where you
stand) state of flux. It would be gratifying if we took this historic
opportunity to re-examine and re-construct our cultural institutions and
philosophies, and used that process to create a new paradigm for art in
the digital age. We could use a few more visionaries like Glenn Gould
and Marshall McLuhan at this point to help us develop a more profound
understanding of the Web as a communications tool, but their extensive
and generous body of writings will have to suffice.

If you made it this far, thanks for reading these nearly 3000 words. The
trio of yesterday's messages on Napster ethics from Bob, Bradley, and
Anne totalled more than 5000 words so I thought I could release the
brakes on verbosity and get away with it.

Birgitte

PS-
Bengt also said:
> What I find the most interesting however, is how much Glenn Gould
there
> actually seem to be out there. Seemingly more represented than
classical
> performers at the same "level of celebrity"!  My theory is that many
early
> computer users (geeks, hacker types etc) has a weakness for Bach due
to its
> structure, etc. A similar phenomenon could be seen on early MIDI
sites. The
> other factor is simply that Glenn somehow seem to attract IT people
with his
> playing and attitude.

Amazon.com appears to confirm Bengt?s theory. Their somewhat
controversial (but mischievously fun) practice of disclosing purchasing
data reveals that many Gould CDs and videos are top sellers at MIT
(Massachusetts Institute of Technology) and at silicon valley?s Stanford
University.