Day: March 7, 2001

Now that Napster is about to be effectively shut down, does Napster’s quick rise and fall represent a victory of defeat for the large corporations who control most recorded music? Writing in The Nation, Eben Moglen presents the best short commentary putting for the optimistic view that even with its demise, Napster still represents the first nail in the coffin of industries who rely upon intellectual property monopolies. According to Moglen,

The shuttering of Napster will not achieve the music industry’s goals because the technology of music-sharing no longer requires the centralized registry of music offered for sharing among the network’s listeners that Napster provided. Freely available software called OpenNap allows any computer in the world to perform the task of facilitating sharing; it is already widely used.

Like a lot of commentaries on Napster, Moglen ignores both the fundamental mistake that record companies made that allowed Napster to exist in the first place which is also the source of one of the biggest threats from corporations. The reason people can trade MP3s on Napster is because the music industry never bothered to create any sort of effective copy protection scheme for compact discs

At the time the probably thought copy protection for CDs would provide no additional protection while adding to manufacturing costs. After all, who was gong to copy a 600 megabyte compact disk at a time when 40 megabyte hard drives could still run hundreds of dollars? Who knew that within two decades you’d be able to walk into a consumer electronic store and walk out with a 60 gigabyte hard drive for about $200?

The record, movie, and publishing companies don’t plan on making that sort of mistake a second time, and are attempting to stop future Napsters on two fronts. The first is, of course, on the legal side. Already large corporations managed to push through the obscene Digital Millennium Copyright Act which took finely balanced copyright laws and rewrote them to exclusively benefit large corporations. Anybody who has ever bought a computer game with some annoying copy protection scheme, for example, knows that they only have to wait a few days after a game is released to find a hack to appear on the Internet describing how to circumvent the copy protection. The DCMA essentially made it illegal to even attempt to circumvent copy protection schemes, even though legitimate users of software, movies, and CDs have many perfectly legal reasons for circumventing such protection.

The second front is on the technical side of things. Despite the DCMA’s provisions, somebody somewhere in the world is likely to hack traditional copyright methods. But what if copy protection were built in at the system level in a way that would make circumventing it extraordinarily difficult?

A good example of something like this is the copy protection scheme implemented in the soon-to-be-released Dataplay recordable disks. Dataplay uses an optical recordable system that can store 500 megabytes of data on a disk the size of a matchbook. Blank disks can be manufactured to sell at retail for about $15, so this is potentially an excellent media for MP3 players and other areas where users need a lot of data storage.

But Dataplay decided to cave to media companies by embedding a copy protection scheme into devices it sells. The copy protection scheme will apply to all files that are transferred to Dataplay-enabled files. Suppose you have a tape of a lecture that you convert to MP3. The second you transfer it to a Dataplay MP3 player, the copy protection system on the player limits what you can do with that MP3. At a friend’s house and want to copy that MP3 to your friend’s hard drive? The system isn’t going to let you.

Of course you could simply not use an MP3 player that has such a copy protection system, but intellectual property industries are busy lobbying computer and computer peripheral makers to include such copy protection schemes at the computer hardware level, so at some point in the future the new hard drive you buy for your computer may have a built in copy protection scheme that severely limits not only the way you access commercial music and video files, but also your own files as well.

Moglen thinks these industries are doomed because “no business can survive by suing or harassing its own market,” but if you have sophisticated system-level copy protection widely deployed — combined with legal protections to stop hackers — you don’t need to sue or harass your customers.

Of course having your hard drive on permanent lock down by your (not so) friendly neighborhood corporation would be a disaster. That such a system will succeed only with the aid of the government is one more reason to permanently end the entanglements between government and corporations.

On the other hand, assuming this doesn’t come to pass and the recording industry ends up fighting a losing battle, what happens next? Moglen blithely asserts that inevitably writers, musicians and others will find a way to make a living without the current distribution models,

Thsi increase in efficiency means that composers, songwriters and performers have everything to gain from making use of the system of unowned or anarchistic distribution, provided that each listener at the end of the chain still knows how to pay the artist and feels under some obligation to do so [emphasis added], or will buy something else — a concert ticket, a T-shirt, a poster — as a result of having received the music for free. Hundreds of potential “business models” remaining to be explored once the proprietary distributor has disappeared, no one of which will be perfect for all artistic producers but all of which will be the subject of experiment in decades to come, once the dinosaurs are gone.

This sort of rhetoric always strikes me as pie-in-the-sky dreaming. Sort of like nuclear waste, the issue of how we’re going to deal with long term intellectual property issues is to be put off and solved by some future generation. Will people feel obligated to provide payment for something they receive for free? I’m assuming that the reason The Nation only posts on its web site a small handful of articles that appear in its print version is because the publisher has strong doubts about that hypothesis.

The only currently viable business models seem to be traditional advertising, paid subscriptions, and outright begging a la public radio and television fund raising drives. But each of these approaches is completely undermined by free sites. Why would I ever pay for the content at the San Francisco Bay Guardian, for example, when CommonDreams reprints — without permission — all of the articles from that newspaper that I’m interested in?

I think Moglen is probably correct that in the long term “distribution oligarchs” are dead. I’m not convinced, however, that the result will be all that better for individual artists, writers and performers.

Source:

Liberation musicology. Eben Moglen, The Nation, March 12, 2001.