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The Heavenly Jukebox

Illustration by Jose Cruz

Rampant music piracy may hurt musicians less than they fear. The real threat -- to listeners and, conceivably, democracy itself -- is the music industry's reaction to it

by Charles C. Mann

A LITTLE while ago I heard that the future of music was being decided in a nondescript office suite above a bank in San Mateo, California. I couldn't get there in time, so I asked a friend to check it out. A crowd was milling in front of the entrance when he arrived. My friend parked illegally and called me on his cell phone. There are twenty or thirty television cameras, he said, and a lectern with a dozen microphones. Also lots of police officers. I asked about the loud noise in the background. "That," he explained, "is people smashing compact discs with sledgehammers."
Discuss this article in the Technology & Digital Culture conference of Post & Riposte.

More on technology and digital culture in The Atlantic Monthly and Atlantic Unbound.

More on politics and society in The Atlantic Monthly and Atlantic Unbound.

The compact discs contained music by the rock band Metallica. Three weeks earlier Metallica had sued a now-notorious Internet start-up called Napster, which is based on the fourth floor of the bank building. (The name comes from the founder's moniker in adolescence.) Far from being the colossus that its media prominence might lead one to expect, Napster is a surprisingly small outfit: it consists mainly of a Web site, about thirty-five hip, slightly disheveled employees, and a hundred or so of the powerful computers known as servers. By connecting to these computers with special software, Napster members can search one another's hard drives for music files, downloading gratis any songs they discover.


WEB ONLY

INTERVIEW
There's No Such Thing as "Secure Digital Music"
An e-mail exchange with the Internet-security expert Dan Farmer.

INTERVIEW
The Baby and the Bathwater
An e-mail exchange with the international copyright expert P. Bernt Hugenholtz.

INTERVIEW
The New Tastemakers
An e-mail exchange with Jim Griffin, the CEO of Cherry Lane Digital, founder of EvoLab, and former head of the technology department at Geffen Records.

INTERVIEW
Peer-to-Peer
An e-mail exchange with Gnutella developer Gene Kan.

LINKS
Navigating the Heavenly Jukebox
A selective guide to the new world of music on the Net, including the Napster controversy and related sites.


As the furor over Napster suggests, the opportunity to share music quickly and without charge has been greeted with more enthusiasm by listeners than by the music industry. Although the company's music-swapping software has only just been officially released, the service already has about 20 million regular users, and the tally is rising every day. Countless other people use Napster's brethren; the company is but the most prominent of many free-music services on the Internet. The result, in Metallica's opinion, is an outrageous pirate's bacchanalia -- millions of pieces of music shuttling around the Net uncontrolled. The group filed suit, according to its drummer, Lars Ulrich, "to put Napster out of business."

I asked my friend to visit Napster's headquarters that day because I knew that Ulrich, Metallica's lawyer, and several burly guys in T-shirts were driving to San Mateo in a black sport-utility vehicle. In the SUV were thirteen boxes full of printouts listing the user names of 335,435 Napsterites who, the band said, had traded Metallica songs during the previous weekend. Ulrich and his entourage planned to dump the boxes in the company's tiny, cluttered foyer. The people with the sledgehammers planned to shout unflattering remarks while this was taking place. Suddenly a compact man with high-tide hair and shades came to the podium: Lars Ulrich. My friend held up his phone a few feet from the drummer's face, but I could barely hear Ulrich. The catcalls were too loud.

"You suck, Lars! You sellout!"

"This is not about pounding the fans, this is about Napster ..."

"Then why are you busting them? Have you ever even used Napster, Lars?"

From the archives:

"Who Will Own Your Next Good Idea?," by Charles Mann (September 1998)
Some corporations want to lock up copyright even tighter. Some naiv intellectuals want to abandon copyright altogether. Where is a "do-nothing" Congress now that we need one?

"Jukebox Piracy," by Stanley Green (April 1962)
"Perhaps the lawmakers really couldn't have foreseen in 1909, the year the copyright law was passed, that there ever would be such a universal dispenser of culture as a jukebox."

From Atlantic Unbound:

Roundtable: "Life, Liberty, and ... the Pursuit of Copyright?" (September 1998)
What is at stake in the battle over intellectual property in the information age? Charles C. Mann, John Perry Barlow, Lawrence Lessig, and Mark Stefik join in a special Atlantic Unbound Roundtable.

Digital Culture: "The MP3 Revolution," by Charles C. Mann (April 8, 1999)
A new technology may carry us back into our musical and cultural past.

Digital Culture: "The Unacknowledged Legislators of the Digital World," by Charles C. Mann (December 15, 1999)
In his new book, Code, the cyberlaw expert Lawrence Lessig offers a disconcerting vision of the Internet's future. Perhaps too disconcerting.

Hooting laughter almost drowned out Ulrich's response. In an online chat with fans the previous day, Ulrich had admitted that he had never actually tried Napster. Indeed, he said later, his experience with the Internet was limited to using America Online "a couple of times to check some hockey scores." Nonetheless, his suspicions, however unfounded on experience, were entirely warranted as a matter of fact.

Within the music industry it is widely believed that much of the physical infrastructure of music -- compact discs, automobile cassette-tape players, shopping-mall megastores -- is rapidly being replaced by the Internet and a new generation of devices with no moving parts. By 2003, according to the Sanford C. Bernstein & Co. Investment Research Group, listeners will rarely if ever drive to Tower Records for their music. Instead they will tap into a vast cloud of music on the Net. This heavenly jukebox, as it is sometimes called, will hold the contents of every record store in the world, all of it instantly accessible from any desktop. And that will be just the beginning. Edgar Bronfman Jr., the head of Universal, the world's biggest music company, predicted in a speech in May that soon "a few clicks of your mouse will make it possible for you to summon every book ever written in any language, every movie ever made, every television show ever produced, and every piece of music ever recorded." In this vast intellectual commons nothing will ever again be out of print or impossible to find; every scrap of human culture transcribed, no matter how obscure or commercially unsuccessful, will be available to all.

Bronfman detests Napster. His speech likened the company to both slavery and Soviet communism. But its servers constitute the nearest extant approximation of his vision of a boundless sea of digital culture. While Ulrich spoke, I logged on to Napster. More than 100,000 people were on the company's machines, frolicking about in terabytes of music. "True fans of the talent are the ones who respect our rights," the drummer was saying. I typed in search terms: Mahler, Mingus, Method Man, Metallica ... all were free for the taking. And all were freely being taken -- users couldn't put a nickel in the machine even if they wanted to. Little wonder that the thought of such systems spreading to films, videos, books, and magazines has riveted the attention of artists, writers, and producers.

"Down in front! Down in front! ... Metallica sucks!"

"Hey, Lars!" -- a reporter. "Are you able to quantify the revenue lost?"

"It's not about revenue."

"Yeah? What's it about, then?"

In the short run the struggle is for control of the heavenly jukebox. Technophiles claim that the major labels, profitable concerns today, will rapidly cease to exist, because the Internet makes copying and distributing recorded music so fast, cheap, and easy that charging for it will effectively become impossible. Adding to the labels' fears, a horde of dot-coms, rising from the bogs of San Francisco like so many stinging insects, is trying to hasten their demise. Through their trade association, the Recording Industry Association of America, the labels are fighting back with every available weapon: litigation, lobbying, public relations, and, behind the trenches, jiggery-pokery with technical standards. Caught in the middle are musicians, Metallica among them, who believe that their livelihoods will soon be menaced by their own audiences.

At stake in the long run is the global agora: the universal library-movie theater-television-concert hall-museum on the Internet. The legal and social precedents set by Metallica v. Napster -- and half a dozen other e-music lawsuits -- are likely to ramify into film and video as these, too, move online. When true electronic books, e-magazines, and e-newspapers become readily available, their rules of operation may well be shaped by the creation of the heavenly jukebox. Music, according to a National Research Council report released last November, is the "canary in the digital coal mine."

This is unfortunate. Silicon Valley denizens often refer generically to writers, painters, filmmakers, journalists, actors, photographers, designers, and musicians as "content providers," as if there were no important differences among them. Yet the music industry -- tangled in packages of rights that exist nowhere else, burdened by the peculiar legacies of earlier conflicts -- is not like other culture industries, and digital technology is exerting different forces on it. Compared with writers and filmmakers, musicians are both more imperiled by the Internet and better able to slip past the threat. The music industry seems to have less room to maneuver. In consequence, it has been pushing for decisive judicial and legislative action. The Internet will become a principal arena for the clash of ideas that the Founders believed necessary for democracy. Allowing the travails of a single industry -- no matter how legitimate its concerns -- to decide the architecture of that arena would be a folly that could take a long time to undo.

"It's not about our bank accounts, it's about the thousands and thousands of artists out there who aren't fortunate enough to have the --"

"Radio is free! What about radio?"

"We have the right to control our music!"

"Fuck you, Lars. It's our music too!"

Legislation, Litigation, Leg-Breaking

ULRICH, it seemed clear, regarded the widespread dissemination of contraband music as a dangerous new thing, another anxiety-provoking novelty from the electronic age. In fact unauthorized music has been around as long as the music industry itself. Ulrich was not even the first musician to sue a business that he regarded as a cover for intellectual piracy. That honor may belong to Sir Arthur Sullivan, of Gilbert and Sullivan. Indeed, Sullivan's problems were, if anything, worse than Metallica's.

Illustration by Jose CruzLike the members of Metallica, who are unusually independent of their record label, Sullivan was a careful businessman who forced the music industry to accede to his demands. In the last quarter of the nineteenth century, when Sullivan composed his operas, the phonograph was in its infancy and radio broadcasts did not exist; the chief sources of music were churches, theaters, music halls, and the pianos that were prominently featured in most middle-class parlors. All these had to be fed large quantities of sheet music. In consequence the music industry was dominated by a group of big sheet-music companies. Sheet music was immensely popular -- hit pieces sold hundreds of thousands of copies. And the industry would have been even more profitable, its leaders believed, if it had not faced rampant international piracy. Bootleg Brahms and Beethoven were openly hawked on the streets of every city in Europe and the Americas. As one of Britain's most popular composers, Sullivan was a favorite target for bootleggers; he and his manager spent years fighting copyright infringement in court.

Technology, law, and culture seemed to conspire against British composers and music publishers. Improvements in printing and shipping methods had made it cheaper and easier for outlaw printers to manufacture and distribute sheet music. Worse, from the publishers' point of view, courts in many countries ruled that piano rolls (the player piano was another new invention) did not infringe composers' copyrights, because the perforations in the rolls did not look like the notes in the original printed music, and hence could not be copies of them. Building on this precedent, phonograph recordings, too, were deemed not to require licenses or payments to composers. When publishers complained, they encountered a distinct lack of popular sympathy for their plight.

One of the biggest sources of illicit sheet music in London was a limited partnership led by James Frederick Willetts, a.k.a. "the London Pirate King." The partnership was known as James Fisher & Co., although there was no James Fisher; the real principals hesitated to do business in their own names. Fisher & Co. had a simple business plan: it sold the scores for musical compositions without paying copyright holders for the right to do so. If customers ordered 500 or more copies, the partners would prepare them to specification. "Piracy while you wait," one publisher's lawyer growled.

Is history repeating itself? At first glance the answer seems to be yes. Once again new technology has encouraged the proliferation of unauthorized music for next to nothing. Once again consumers have eagerly embraced this material. Once again complexities in copyright law seem to provide legal havens for practices detested by publishers -- havens used by new businesses to give the public access to contraband music. And once again some voices are arguing that music copyright has done little but create an exploitative oligopoly that feeds on musicians and listeners alike. The way events play out today, however, may well be different from the outcome a century ago.

Sullivan fought British bootleggers but was especially outraged by their American counterparts: legitimate publishers who took advantage of a quirk in U.S. law that denied the protections of copyright to foreign authors. The irate Sullivan filed lawsuit after lawsuit in U.S. courts, but only dented the trade. To prevent the pirating of The Pirates of Penzance, he long refused to publish the score; bouncers prowled every show to stop music thieves from writing down the melodies. Tired of what he regarded as "guerrilla warfare," Sullivan paid American musicians to put their names on the scores of several operas, including The Mikado, and then to hand the rights back to him, thus satisfying the requirements of U.S. copyright law. He sued American theatrical companies when the scores were pirated anyway -- and lost. "No Englishman possesses any rights which a true-born American is bound to respect," one judge supposedly said. In 1900, when Sullivan died, his funeral cortege passed through London streets that were still full of scofflaw music-hawkers.

British publishers were fighting back too. "They were losing a lot of money," says James Coover, a music professor at the State University of New York at Buffalo. "What else would you expect them to do?" As he documents in Music Publishing, Copyright and Piracy in Victorian England (1985), the efforts of Britain's Music Publishers' Association were at first scattershot and ineffective. The publishers tried to restrict the length of time during which people could perform sheet music before they were required to buy another copy. They asked the postmaster general to block all music shipments from the United States. They threatened to prosecute musicians who transposed songs into other keys. But eventually the publishers hit on a winning strategy: they persuaded Parliament to pass strong new anti-piracy legislation and then sought to enforce it.

The Musical Copyright Act came into effect on October 1, 1902. That day more than a thousand anti-pirate vigilantes, paid by the Music Publishers' Association, swaggered onto the streets of London, searching for and destroying illegitimate editions of "Stars and Stripes Forever," "Brooklyn Cake Walk," and "Pliny, Come Kiss Yo' Baby!" The goons became violent. Skulls were cracked, doors broken, sheet-music bonfires set. Millions of songs were seized. In addition to vigilantes, the publishers hired lawyers, who sued Fisher & Co. in 1905. Testimony was lopsided. The publishers called more than fifty witnesses, Fisher & Co. zero. Willetts was sentenced to nine months in the clink. The light sentence annoyed the publishers, who had gone to considerable expense to prosecute him. Nonetheless, the trial was successful, Coover told me recently: by showing the teeth in the new copyright law, the publishers "scared off" the great majority of music black-marketeers. The pirate trade quickly collapsed, done in by a determined blend of legislation, litigation, and leg-breaking.

Today's music industry, like yesterday's, initially faced unfavorable laws; like yesterday's industry, it induced the legislature to revamp them and then went after infringers with a legal club. The first attempt to prosecute someone who released copyrighted material on the Internet, in 1994, collapsed embarrassingly when the judge threw out the charges -- existing case law said that infringement had to be associated with financial gain, and the material had been given away. The No Electronic Theft Act, passed in 1997, closed this loophole. The Digital Millennium Copyright Act, passed in 1998, further strengthened the industry's hand -- it banned attempts to circumvent copy protection. With the help of what Edgar Bronfman, of Universal, recently described as a "Roman legion or two of Wall Street lawyers," the Recording Industry Association of America has for the past two years sued or threatened to sue Web sites that contain copyrighted songs, universities that allow students to trade tunes on their computer networks, consumer-electronics companies that produce digital music players, online-music services that lack proper licenses, and, of course, Napster. A&M Records, et al. v. Napster, an RIAA-backed suit by seventeen record companies, was filed in December, ninety-four years after charges were brought against Fisher & Co.

Some of the lawsuits have been successful, most notably a proceeding against MP3.com, a site that, among other things, lets people listen through the Internet to music they own on compact discs. (The company did not obtain the requisite licenses to provide this service.) Napster has suffered serious legal setbacks, even though a trial remains at least a month away. Nonetheless, it is widely believed that this time around, laws and lawsuits will not be enough. Although the British were able to preserve their traditional way of selling music at the beginning of the twentieth century, nothing comparable will be possible at the beginning of the twenty-first -- the Internet, as the new-economy magazines like to say, has Changed Everything. Hillary Rosen, the president of the RIAA, conceded to me that "there are not enough lawyers in the world to sue all the people we'd have to sue." (As it is, the association sends as many as thirty threatening letters every day.) Stop fighting to preserve the past, Rosen counsels record labels. It can't be done. The costs of manufacturing and distributing online music are so low that record companies will be forced to offer their wares on the Net. Instead of fighting the trend, she says, the industry should "embrace the opportunities" provided by the Internet. Don't try to stop the flow of zeros and ones -- rechannel it!

Rosen's advice is predicated on the belief that the labels can find a way to make music files effectively uncopyable -- a belief that many Internet-security experts regard as an illusion. "If people think that building higher walls and nastier barbed wire around desirable product [on the Net] is going to prevent people from getting it, they're only fooling themselves," contends Dan Farmer, a computer-security researcher for EarthLink, a big Internet service provider. Farmer strongly believes in protecting artists' copyrights; indeed, he consulted for the plaintiffs in A&M Records, et al. v. Napster. But in a time when a single click can spread a work around the world, he and others ask, how can anyone imagine that it is possible to control distribution?

In an e-mail exchange I asked Farmer what would happen if all content migrated to the Net, as many publishers promise, but none of it could be paid for, as many technophiles promise. Would this mean the collapse of the music labels, the movie studios, and book publishers? (I barely avoided adding The Atlantic Monthly and myself to the list.) Given publishers' past successes, such an apocalyptic resolution seemed unlikely. But watching the lists of song titles on Napster drop down my screen like the slats of a venetian blind made it easy to imagine. Farmer quite properly replied that economics wasn't his field. He restated his belief that there was really not much to be done about it. Then he added, in what I imagined were the apologetic tones of someone forced to give bad news, "I can see why people get worried about this stuff, though."

Continued...

(The online version of this article appears in four parts. Click here to go to part two, part three, or part four.)


Charles C. Mann is a correspondent for The Atlantic. His article about copyright in the Internet age, "Who Will Own Your Next Good Idea?" (September, 1998, Atlantic), was a finalist for a National Magazine Award.

Illustrations by Josť Cruz.

Copyright © 2000 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; September 2000; The Heavenly Jukebox - 00.09; Volume 286, No. 3; page 39-59.