m_topn picture
Atlantic Monthly Sidebar

Go to this issue's Table of Contents.

S E P T E M B E R  2 0 0 0 

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

Elton John Gets Mad

TO many musicians, the threat to the majors posed by the Net is more than counterbalanced by the promise of the heavenly jukebox. Ultimately, many music pundits say, listeners will simply pay a monthly fee and download whatever music they want. Music will no longer be a product, acquired in a shrink-wrapped package, in the vision of Jim Griffin, the co-chairman of Evolab, a start-up that is attempting to create a wireless version of the jukebox. Instead it will become a service, almost a utility. Consumers will have ready access to more artists than they do now, but will pay less for music; musicians will no longer be forced to cover exorbitant production costs, and will be able to reach audiences more easily than ever before. "Musicians will get paid," Griffin promises. "But to the consumer, music will feel free -- just the way cable TV feels free once you've paid the fee."

Illustration by Jose Cruz

Huge obstacles stand in the way of this attractive vision. Legally, downloading a song can be construed as being simultaneously a sale (someone is buying the song), a broadcast (the song is being transmitted over the Internet), and a mechanical copy (the buyer is making a copy on a hard drive). Pooling the world's music would require negotiating copyright licenses with dozens of collecting societies (ASCAP, BMI, Harry Fox, and the like) here and abroad, hundreds of record companies big and small, and thousands of independent music publishers. One would also have to obtain licenses from the patent-holders on the codec and the developers of the copy-protection software, if any is used. The entire musical output of the world may well end up on Napster or its equivalent before the lawyers finish.

This possibility may not prove completely disastrous. In the past, creators who have lost revenue they should have received from intellectual property have been able to find other ways to support themselves, even if under reduced circumstances. Musicians will still be able to charge for performances, sell T-shirts, and make personal appearances at the launch parties of new dot-coms. Some may follow the singer-songwriter Todd Rundgren's lead and send subscribers regular shipments of music for a fee. Others will use the Net to introduce listeners to their music with the hope of then charging for more. More than a million people downloaded music by the band Fisher from MP3.com, and as a result the band was signed by a major early this year.

Such plans are not limited to pop groups. Symphony orchestras have been losing record contracts as labels cut back on releases whose sales potential is small. In June sixty-six symphony orchestras and opera and ballet companies, among them some of the nation's most prominent, announced that they were joining together to build audiences by distributing their music over the Net. Musicians will explore services like MP3.com's DAM, which charges fans a fee to burn songs from unsigned bands onto custom-made CDs; the musicians and the Web site split the proceeds. The company also pays bands to let their work be syndicated to restaurants and other establishments as hip background music. David Bowie, ever inventive, has sold bonds based on his future earnings. The singer-songwriter Aimee Mann, regarded by her label as uncommercial, successfully released a CD over the Internet. Limp Bizkit announced plans for a national tour of free concerts, with the band's fee picked up by a corporate sponsor -- Napster.

In addition, businesses will probably still have to pay: they can be sued more readily than individuals for playing illicit music. And advertisers, broadcasters, film companies, Web sites, and other companies will always be interested in music. "Music draws a crowd," Griffin says. "And there are a lot of reasons that companies are interested in crowds. Look at the JVC Jazz Festival in New York, or Budweiser sponsoring the Rolling Stones." These firms sponsor music not to sell compact discs but because music provides an environment in which to put across a message. "Maybe Coke will find a way to integrate itself directly into the shows," says Hal Varian, the Berkeley economist. "Or they'll release the music free on the Internet, except that it will be wrapped in a commercial."

Varian is untroubled by the thought of corporate-sponsored music. What difference does it make if the Spice Girls are marketed by Coca-Cola or by Virgin Records, soon to be a subdivision of AOL Time Warner? The difference is that Virgin must recoup its costs from the sale of CDs and cassettes, whereas Coca-Cola can write off the whole undertaking as an advertising expense. If it hired experienced marketers, Coca-Cola, which has annual revenues much higher than those of the entire music industry, would be far better able to promote music than any individual label. If Virgin cannot make money from the sale of music, it will either be hired by Coca-Cola -- or Nike, or Ford, or Frito-Lay -- or be replaced by it.

Even if they lost their supremacy, the labels would still have ways to make money. Their expertise in production and marketing would still be valuable. And their control over the copyrights on music of the past would still generate licensing revenues from advertisers, broadcasters, and other businesses. Indeed, the proliferation of Internet radio and music-subscription services may create a windfall for the labels' music-publishing arms. But there is little doubt that in a world where individual listeners can ignore copyright rules, the labels will lose their dominant position.

From the archives:

"The World Streaming In," by Bill McKibben (July 2000)
New software lets you tune your dial to anywhere.

Surprisingly few performers and composers would mourn the fall of the majors. The hostility musicians routinely express toward their industry is unlike anything in book publishing or even in Hollywood. Elton John, who has sold more than 60 million records and won four Grammies, is like a Stephen King or a John Grisham of music. It seems fair to say that neither writer would, as John did in March, on the Today show, vehemently denounce publishers as "thieves" and "blatant, out-and-out crooks." The major labels were now "just laughing all the way to the bank," he said. "But they won't be laughing very soon, because when the music on the Internet comes in, the record companies will all be crying."

When I tried to describe this rosy picture of artistic self-sufficiency on the Net to the science-fiction writer Bruce Sterling, he was able to contain his enthusiasm. In 1993 Sterling became one of the first writers to post a book in its entirety on the Internet. The effort was part of a time "when writers really had the idea that with all this great technology they could bypass the Man and go directly to the public," he told me. "Hell, I believed it -- sort of, I guess. And you know what we all found out? It never works. Either you spend all your time marketing yourself, in which case you don't actually write, or you hand over the marketing to your Web-site guy or the new Internet entrepreneur who's going to take care of it all for you, and they then become your new boss."

Some artists may do well under the new system, Sterling said. Some won't. But, as he points out, the current attempt to weigh the results of the loss of effective copyright assumes that the majors will sit by passively as their role is usurped. They won't, of course. As they did in the past, they'll fight with every available weapon. And sooner rather than later they'll go after the Internet itself.

Fear and Greed

WHEN I was younger, I was briefly in a rock band. Some of its members were not completely devoid of musical talent; alas, I was not one of them. As often occurs in such situations, I was assigned to the drums. Eventually the other members decided that having no ability to keep a beat was even more of a handicap on the drums than on other instruments, and I was replaced by someone who also couldn't play drums but at least had the potential to learn.

I recently obtained a tape we made in performance. Because I wanted to learn more about digital music, I decided to make a project of converting the songs on the tape into MP3 files. After considerable fussing I was able to listen to my younger self on the tinny little speakers that flank my monitor. The experience failed to provoke regret about the road not taken. In fact, it provoked little thought of any kind until a few days later, when I loaded up Gnutella.

Gnutella is software that (again!) is being developed by a loose band of young people with a lot of spare time. (The name Gnutella comes from a combination of "Nutella," a thick chocolate-hazelnut spread presumably favored by the program's developers, and the GNU Project, a free-software group.) Like Napster, Gnutella allows people to search one another's hard drives for pieces of music; unlike Napster, Gnutella lets its users swap pictures, movies, and texts.

After the Gnutella window came up on my screen, I saw that its users were sharing about a million megabytes' worth of pictures, sounds, programs, and texts. And then, to my shock, I saw that somebody was trying to copy my band's music.

Because the last thing I wanted was to reveal this stuff to the world, I quickly slammed the program shut. After double-checking to ensure that Gnutella wasn't running, I sat in my chair, somewhat unnerved. I was safe -- should I run for public office, my opponent would not be able to use the music to ridicule me in attack ads. But who had tried to copy it, and how had they found it? A few minutes later I figured it out. I had stuck the MP3s in a directory with other MP3s. Because I couldn't remember the names of the songs we played, I had awarded whimsical names to the computer files of those songs. Some of the names were variants on the names of famous rock tunes. A Gnutella user searching for the originals had come across mine and tried to download one of them.

In this small way I walked in Lars Ulrich's shoes. The impetus for Metallica's legal attack on Napster was the circulation on the service of rough drafts of "I Disappear," a single from the soundtrack of Mission: Impossible 2. With the volatile promiscuity of the Internet, unfinished versions had been copied hundreds of times, depriving the group of control over its own work and, possibly, of some sales. When the musicians complained, they were astounded by the angry reaction. Trying to stop what they viewed as the forced publication of private material, Metallica -- rebellious rock-and-rollers for twenty years -- suddenly found themselves accused of censorship and toadying to corporate America.

Did the band in fact lose money, in addition to control? Ascertaining the financial impact of file-swapping is difficult -- indeed, the discussion quickly verges on the theological. Because not everyone who downloads a song would otherwise have paid for the compact disc, one can't simply multiply the number of illicitly traded CDs by the average price of a CD to estimate the economic impact of unauthorized copying. So pro- and anti-sharing advocates rely on indirect data. In May, Reciprocal, a start-up in New York that hopes to make money from secure downloads, released a study showing that CD sales at stores near colleges -- thought to be hotbeds of Napster users -- had slipped slightly, whereas overall CD sales had risen. Scoffing, pro-Napster forces pointed out that this year, when MP3 is supposedly destroying the music business, the industry is selling more compact discs than ever before. Such sales increases, in the view of John Perry Barlow, an advocate of sharing and a former lyricist for the Grateful Dead, are the logical outcome of music-swapping, which exposes audiences to new music. Counterargument: it is simply the demographic boom in the number of teenagers that is propelling the rise in music sales. Counter-counterargument: this spring new records by Eminem, Britney Spears, and 'N Sync were easily available on the Internet, yet buyers mobbed stores for all three; No Strings Attached, by 'N Sync, sold 2.4 million copies in its first week -- more than any other album in history.

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."

Illustration by Jose CruzSeeing 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.

From Atlantic Unbound:

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.

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."

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

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 (Part Four); Volume 286, No. 3; page 39-59.