To Ulrich, such claims have merit but fail to address a central question. "Why would people pay for music if they get it for free?" he asked outside Napster. "We're very lucky—we have all the money we need. But what about the musicians who are just getting started? How are they going to survive?"
The back and forth exemplifies the "fear and greed" that drive the struggle over online music, according to P. Bernt Hugenholtz, of the Institute for Information Law, at the University of Amsterdam. Publishers of all kinds of material fear the unpredictability of the Internet, he argued at a conference in London last year. Their apprehension leads to campaigns of "aggressive, almost paranoid lobbying for increased copyright protection in the digital environment." In turn, the lobbying scares the digital elite, who fear that "the Internet, once hailed as the ultimate vehicle of democracy and empowerment, will succumb to the evil forces of monopoly and capitalism."
For "content industries," fear turns directly to greed with the realization that digital technology provides opportunities to extract money from consumers in ways never before attempted. Consider Stephen King's electronic novella, Riding the Bullet. Not only was it "printed" and distributed for next to nothing, but in theory the book could not be copied from one computer to another—owners of Riding the Bullet could not lend it to their friends. Editors often guess that four or five people read every "hard" copy of most popular books and magazines; digital technology offers the captivating possibility of forcing the freeloaders to pay up.
Users feel greed too. Every person to whom I introduced Napster, Gnutella, Scour, and the other services was tempted to use them. (Because I make my living from copyright, I tried to restrict my downloading to music I already own or that is out of print. Although that is probably illegal, I figured the artists wouldn't mind.) At first I thought that most adults would never put up with the uncertainties of illicit downloads—the bad rips, the cut-off transmissions, and the defects of the MP3 codec itself, which are distinctly audible in sustained pure notes. But according to a survey funded by the Pew Charitable Trusts, more than 40 percent of all music-grabbers are thirty or older. Indeed, it is hard to imagine asking people to forgo the twin pleasures of downloading anything they want without paying and coming up with intellectual justifications for doing it. "Information wants to be free." "The labels are thieves." "Everything's going to the Net anyway."
Seeing itself as under threat, each side lashes out at the other. Record labels, invoking the image of the suffering genius in the garret, speak of the need to protect artists. But the copyrights involved are all too often owned by enormous companies. Users, too, see themselves as powerless victims of corporate over-reaching. But one of the features of the Internet, as the development of MP3 shows, is that small groups of people can greatly disturb large organizations.
Gnutella is an example. The initial version of the software was written by programmers at a subsidiary of America Online called Nullsoft. On March 14 of this year Nullsoft put a preliminary version of the software on the Web. America Online, one recalls, is merging with Time Warner, the owners of Warner Music, one of the five majors. The appearance of Gnutella apparently displeased AOL, and the program vanished within hours. But during that time thousands of people downloaded the program, and thousands more tried but were blocked by traffic. Eight days later someone I don't know e-mailed me and several hundred other people a copy of Gnutella's source code, which could be used to re-create the program. Because the code was copyrighted by America Online, actually using it would have been legally fraught. I didn't have to worry, because in another e-mail I was told the address of a Web site where volunteer coders had posted a version of the software they had created without using the original source code. This new version was the one I was using when someone tried to download my music.
In part, Gnutella was a response to the legal threats against Napster. In Napster every user's searches are shuttled through a central hub—the company's server room. The service can be shut down by unplugging the hub. Similarly, because all the searches are directed to Napster's Internet address, college computer administrators can reject all requests to send and receive data to and from that site, thus blocking it completely. With Gnutella, the users' computers are all connected directly to one another. Gnutella is therefore much less vulnerable to legal action—there's no central entity to sue. The reason the software was written is evident from the anonymous tutorial that accompanied the first version. The decentralized nature of the software, it explained, "makes it pretty damned tough for college administrators to block access to the gnutella service ... [and] almost fucking impossible for college [administrators] to block the free uninhibited transfer of information.... Am I making myself painfully clear? I thought so."
Gnutella has many potential uses, but today it is primarily a vehicle for sharing illicit music, pirated software, and pornography. The last is especially prominent. Although Gnutella is usually discussed in connection with music, the most common search term users type in must surely be "Pamela Anderson video." Without much trouble I was able to find pirated versions of most of the software on my computer, complete with identifying codes necessary for installation; many versions of a take from the French television show Dimanche in which the camera operator cruelly zooms in as Britney Spears falls out of her dress; a complete set of Yo-Yo Ma's latest version of the Bach solo-cello suites; cheat files for a computer game named Obsidian that my son and I never finished playing because it was too long; a plaintext copy of Riding the Bullet; twelve of Shostakovich's fifteen string quartets, most of them performed by the Borodin; and a preliminary version of a DivX software kit for ripping and playing DVDs.
It defies belief to expect that publishers will passively let this continue. As Lawrence Lessig, of Harvard Law School, points out, the structure of the Internet is set by software and federal law, both of which can always be rewritten. Applying this insight straightforwardly to Gnutella leads to the suggestion that the music industry ask Congress to ban music-swapping or even add stringent legal controls on decentralized file-sharing applications.
Could the government really clamp down? According to Dan Farmer, the computer-security researcher, it will always be possible to disguise the use of such services by encryption. Such arguments have repeatedly proved true in the past, but they do not take into account the possibility that law enforcement, spurred by industry, might go after infringers much harder than it has before. "Silicon Valley is constantly saying that the government is irrelevant and powerless," Lessig says. "But that's because most people there have never seen it get serious."
Today Internet service providers are shielded from responsibility for the traffic they bear. Just as my telephone company is not legally liable if I make criminal plans on the phone, my Internet service provider is not implicated if I trade unauthorized music on the Net. But if providers were required by law to monitor actively for the use of Gnutella, people would be less likely to use it. "If the police started arresting people and seizing their computers," says Robert Kohn, a co-founder of EMusic.com, "music on the Internet would not seem quite so free." Worried about the future of free speech, a computer activist in London named Ian Clarke is leading an effort to create a network called FreeNet that would guarantee anonymity, no matter what. But it, too, could conceivably be prohibited, and if it comes to anything, surely we will see attempts to do so. The Net, Bronfman promised in July, "will not be able to survive if it becomes a haven for illegal activity. Copyrights must be protected online."
The trouble is that the legal charge is being led by the recording industry, which—in addition to having the most to lose—has a tradition of tight copyright control and rough dealings that is not shared by other media. Given the special circumstances of the industry, this tradition is comprehensible. But it doesn't qualify the labels to set the rules for the global forum. To music companies, prohibiting online anonymity, something Bronfman has suggested, may make sense. But print publishers should feel differently about letting people read and write without revealing their identities. Too many editors know how important anonymity was to Soviet protest literature, and how profitable some of that writing was in the West. Similarly, the movie industry should be careful of the legal precedents set in music. If Napster wins its lawsuits, DivX movies may slip into legality.
Equally important, other culture industries potentially have less to fear from unbridled distribution than the music industry. The Secure Digital Music Initiative will be broken, argues Martin Eberhard, the e-book manufacturer, not so much because of the Internet but because of the combination of the Internet and personal computers. Computers can simultaneously play and re-record music for future distribution, whether or not the music was initially encrypted. Single-purpose machines like CD players and electronic-book readers cannot do this without retrofitting that is beyond the capability of the vast majority of computer users—it involves tinkering with hardware components. If electronic books, magazines, and newspapers are distributed through the Internet not to computers but only to specialized reading devices, they will be much less vulnerable to copying. If Hollywood stops licensing DVD technology to computer manufacturers, the studios will gain some of the same protections; and they will also continue to be able to count on money from ticket sales. For the record labels it's too late. They can't take back compact discs and the millions of CD machines that can play them.
Musicians, who share so little of the wealth from music copyright, might even do better in a world of unrestricted copying, by performing, selling merchandise, offering subscriptions, and the like. Writers, filmmakers, and other content providers who have fewer ways to recoup may well be more vulnerable to the Net. These losses, though, lie only in the future.
The potential lack of economic harm is especially significant in light of the importance of copyright to democracy. According to most legal scholars, the writers of the Constitution viewed copyright in utilitarian terms. By granting a temporary monopoly on distribution to creators, the Founders hoped to stimulate the creation of new ideas. "The creator was rewarded for a little while, but then the idea passed into the commons, where people could do what they liked with it," Lessig says. Now, he says, the campaign against piracy is pushing toward "a massive increase in regulation over the distribution of culture, which is inconsistent with the conception of the commons that lies at the root of democracy." In the American tradition artists, writers, musicians, and audiences work together, creating the intellectual ferment that has helped this country adapt to change for more than two centuries. "People hear the cries of the industry about piracy, which are real and justifiable," Lessig says. "But they don't realize that simply giving the industry what it wants will have an impact on the entire public sphere."
Except for the music industry, the campaigners against Internet piracy are working well in advance of the problem. Many of the music-industry lawsuits have been decided rapidly, without extensive fact-finding; many did not even require the companies to show that they had been harmed. The Digital Millennium Copyright Act, which is being used to sue Napster, contains elaborate provisions governing the Secure Digital Music Initiative, even though music files that are fully SDMI-compliant don't yet exist. "People are always scoffing that the technology moves so much faster than the law," P. Bernt Hugenholtz, of the University of Amsterdam, told me, "but that's ridiculous. In fact the law is moving faster than the technology, which is both ironic and a very bad sign. I'll tell you one thing. All academics I've ever met—no matter what their political stance—agree on one thing: all this Internet-related legislation is very, very premature."
He sighed. "You'd think they'd at least see what the car looked like before trying to drive it."