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S E P T E M B E R  1 9 9 8

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


IF there is a totemic example of the vexations of copyright infringement, it's James Brown, the Godfather of Soul. Now sixty-five, Brown was born horribly poor and raised by his aunt in a Georgia brothel. As a child, he shilled for the brothel by singing and dancing in the streets. He was caught stealing clothes from cars and was sent away for several years when still in his teens. But rather than slide into full-fledged delinquency, Brown emerged to begin a fifty-year music career that shaped the course of gospel, rhythm and blues, rock-and-roll, disco, and funk (which he more or less invented). Spinning, falling on his knees, dropping into splits, he climaxed shows with an exuberant fake heart attack, after which he was carried offstage on a cape and "resurrected" by screaming fans. Brown was one of the first African-American pop singers to wrest control of his career -- including the copyright to his songs -- from the white music establishment.
Related link:

  • The Fine Print: Legal Issues that Concern Musicians
    A site "devoted to legal issues that may concern musicians, artists and performers of all kinds."

  • In the 1980s Brown's commercial star dimmed. But his music was heard more than ever before, because rappers by the dozen built their songs around recorded snippets -- "samples," in the jargon, which are "looped," or played over and over -- of such Brown hits as "Cold Sweat" and "Get on the Good Foot." Thirty years after the release of "Say It Loud (I'm Black and I'm Proud)," Brown's black-power anthem from 1968, bits and pieces of the song are still all over the airwaves. "It is impossible to listen to more than 15 minutes of rap radio on any given night in Boston without hearing a back beat, a guitar hook, or a snatch of vocals from 'Say It Loud,'" Mark Costello and David Foster Wallace wrote in Signifying Rappers, a critical study of the genre.

    What does Brown think of his place on the cutting edge of intellectual-property regulation? I called him to find out. A receptionist patched me through to a cell phone. Brown was in a car and somewhat distracted; he had discerned clues to a fellow driver's mental condition and unwholesome fondness for his mother from his behavior at the wheel. I knew that the unlicensed copying of Brown's music had been curtailed in the aftermath of a 1991 court decision, which prevented the rapper Biz Markie from distributing a record that sampled the singer Gilbert O'Sullivan without permission.

    The Recording Industry Association of America threatens unlicensed samplers so vigorously that on July 29 a compact-disc plant refused to manufacture a new CD by the experimental art-music collective Negativland. The Negativland CD -- Over the Edge, Volume 3: The Weatherman's Dumb Stupid Come-Out Line -- is an "audio collage" created by manipulating sounds from different sources, much in the way that Dada artist Max Ernst cut and pasted old engravings and photographs to create visual collages. Because Negativland's sampling is an example of lawful "fair use," according to spokesperson Mark Hostler, the RIAA is misusing copyright law to trump the group's right to free speech.

    I wanted to know what Mr. Please, Please, Please thought of the new software that allows people to put entire albums on the World Wide Web. The previous night, for instance, I had downloaded part of his landmark 1963 album, The James Brown Show Live at the Apollo, from a computer in Finland. "This technology," he said, "I hate it. Hate it!" Then he hung up.

    "I feel for the guy," says Scott Burnett, the marketing vice-president of Liquid Audio, a two-year-old company in Redwood City, California, that sells a system for distributing music over the Internet. "But James Brown -- like a lot of other musicians -- needs to say, 'I can't keep fending off the Internet. I need to embrace the Internet and deal with its vagaries. I need to find a way to leverage the Internet, given my situation as an artist, to help me make money.'"

    To help musicians safeguard their work in the digital age, Liquid Audio tucks inaudible copyright and licensing data into recorded music, a process called "digital watermarking." To watermark a piece of music, Liquid Audio takes advantage of a quirk of digital recording: its characteristically harsh tone. Even the most grating rock songs are full of smooth, continuous sounds; the sequences of zeroes and ones in digital recording can only approximate the flow, in somewhat the way the steps on a spiral staircase approximate the curve of a helix. To fill in the gaps, a studio will overpaint the recording with a thin wash of noise -- a technique known as "dithering." Dithering, according to Rick Fleischman, the company's senior marketing director, "provides this extremely low-level noise you can hide things in." By "sculpting" the dither, Liquid Audio can, in theory, encrypt up to sixty-four characters, including the International Standard Recording Code (a sort of serial number for recorded sound), a second code identifying the computer that watermarked the song, a third identifying the computer that downloaded it, and a fourth, added at the time of the sale, giving information about who bought the song.

    Such schemes (more than a dozen companies are developing them) may make illicit copies of watermarked works easy to identify, but copyright owners will have to sieve the Internet to find them. In a pilot effort Broadcast Music, Inc. (BMI), one of the major music-rights agencies, has begun sending out "spider" programs that crawl from Web site to Web site, cataloguing sound files in a search for copyright infringers. Digimarc, a photo-watermarking company in Portland, Oregon, has a spider that combs cyberspace on Playboy's behalf for unauthorized copies of Miss November. Similar spiders have been used for several years to construct Internet indexes such as AltaVista, HotBot, and Lycos. But the Web is so large that even the busiest spiders can barely catalogue half of it. Copyright owners will thus be condemned to play an eternal game of catch-up, according to Mark Stefik, a researcher at Xerox PARC, the editor of Internet Dreams, and the author of the forthcoming The Internet Edge. A real solution to piracy will require what he delicately refers to as "a hardware component."

    Compass In the age of the Internet, Stefik argues, the only way to foil piracy -- indeed, the only way to charge for intellectual property -- will be to equip all televisions, telephones, computers, music players, and electronic books with chips that regulate the flow of copyrighted material. "Kind of like having V-chips for copyright," he says. When I download The Sound and the Fury into my electronic book, the ©-chip will register the transaction, speeding my payment to the copyright owner and invisibly encoding the record in my copy of the text. If I lend the novel to my sister by E-mailing her a copy, my E-book will erase the original copy, so that only one is in circulation. The software won't permit my sister to dump the text into any E-book without a ©-chip, so the copy will always remain within a closed circle. Similar rules will apply to videos, music, journalism, databases, photographs, and broadcast performances -- any configuration of zeroes and ones that can be sold and delivered by wire. Current, if primitive, examples of what Stefik calls "copyright boxes" include Nintendo machines, whose proprietary hardware is meant to ensure that only Nintendo-approved games work on them, and digital audio tape (DAT) recorders, which contain a chip that prevents the copying of previously copied tapes.

    Copyright boxes could let copyright owners subdivide usage rights, creating new markets for information. If I want to download music by James Brown, for example, I could negotiate the terms at the Web site of his company, James Brown Enterprises. By paying a little extra, I could obtain the right to send a copy of "Say It Loud" to my sister without deleting it from my computer. By paying a little less, I could rent the music for a party next week, with the ©-chip expunging the music the morning after. I might buy a site license, so that everyone in the family could listen to "Say It Loud." I might acquire only the right to listen myself, typing in a password to prove my identity every time I wanted to hear the Hardest Working Man in Show Business. Copyright boxes, Stefik says, "open up a lot of possibilities."

    These possibilities, he concedes, will not be easy to achieve: "I don't see this as a debate about next week." People may find ways to circumvent ©-chips; others may regard the chips as unworkably inconvenient. But perhaps the greatest obstacle, Stefik thinks, is attitude. A small but significant group of technophiles scoffs at the whole idea of copyright boxes, believing that the Internet changes the role of intellectual property so much that the chips will be useless. Some Web denizens believe that the change is profound enough that efforts to safeguard copyright in the digital world actually work against the interests of a democratic society.


    THE first time I spoke with Richard Stallman, he took off most of his clothes. Clad only in his pants, he marched down a long, busy corridor in MIT's Laboratory for Computer Science. His destination was a room full of large computers, in which he had installed a NordicTrack exercise machine. In front of the exercise machine stood a big fan, which Stallman switched on. To keep the computers from overheating, the room was air-conditioned to about 65 degrees. When I mentioned the cold-catching potential of shirtless exercise in a frigid wind, Stallman replied that he did not like to sweat. Then he began talking about copyright. Still talking, he stepped onto the NordicTrack and began to exercise vigorously. The fan blew his long hair out behind him like a flag. All the while he spoke with fluency, in neatly organized paragraphs, about copyright in the Information Age.

    Writers, he said, do not actually own their words. Computer programmers -- Stallman is one -- do not own a single line of their programs, and never have. Painters own only their canvases, and those only until they are sold. Far from recognizing any natural rights of authors, he said, copyright is a bargain between the public and publishers, in which the public consents to restrict its rights as a kind of bribe to publishers. "The Constitution doesn't care whether content owners make money," Stallman claimed, puffing slightly. "What's important is the public's right to learn."

    The "free" in free software does not necessarily mean "without charge." Free software is intellectually free, meaning that people can copy and modify it; the Foundation charges for services like putting its programs on CD-ROMs. Nor does "free" mean "not copyrighted." Stallman copyrights his programs and assigns all users a special license: they can freely copy and change his work, provided they do not restrict others from doing the same with the copies and changes. This form of copyright, Stallman says, is "copyleft."

    I thought he was nuts. But the next time I spoke with him, I was contrite. I had since learned that many legal scholars share his views on the nature of copyright, and that he had devoted the past fourteen years to putting his beliefs into practice. Richard Stallman is the only programmer ever to receive a MacArthur fellowship -- one of the prizes known, to his embarrassment, as "genius" awards. Having created several essential programming tools, he could easily have cashed in. Instead he gave his work away and set up the Free Software Foundation, a loosely organized group dedicated to replacing proprietary software with programs that people can trade among themselves without copyright restrictions. A principal goal of the foundation is to attack current notions of intellectual property.
    Related links:

  • "Why Software Should Not Have Owners," by Richard Stallman
    An article posted at the Web site of the Free Software Foundation.

  • "The Right to Read," by Richard Stallman
    A science-fiction story about the future world of copyright. The story originally appeared in the February, 1997 issue of Communications of the ACM.

  • In this country copyright was set up by a group of skeptics about copyright. The Founders knew how copyright had originated in Britain, and they didn't like it. In 1557 Queen Mary I gave control of all printing and book sales to a single guild, the Stationers' Company. Guild members bought manuscripts outright from writers and then had the exclusive right to print and sell them forever. The Crown even granted exclusive rights to print the works of long-dead writers like Plato and Virgil. In return the guild helped the Crown to censor "seditious and heretical books." Protected by its statutory monopoly, the guild charged such high prices that John Locke railed against "the company of ignorant and lazy stationers." Radically, Locke proposed that the guild should voluntarily allow anyone to publish writers who had been dead for more than a millennium. The guild ignored him.

    Daniel Defoe led the charge to give writers some say in the literary trade. "A Book," he argued, "is the Author's Property, 'tis the Child of his Inventions, the Brat of his Brain." When publishers ignored writers' wishes, it was "every jot as unjust as lying with their Wives, and breaking-up their Houses." Parliament began withdrawing royal monopolies, whereupon the Stationers' Company adroitly co-opted Defoe's call for authors' rights -- booksellers would buy perpetual licenses to manuscripts, and everything would go as before. To the booksellers' dismay, Parliament agreed that writers should be given control of their works, but only for a limited time (fourteen years, with the option of renewing for another fourteen). The Statute of Anne, the first modern copyright law, was enacted in 1710.

    The guild spent decades trying to recapture its monopoly. In a series of lawsuits booksellers argued that authors naturally own their works, that booksellers can legitimately buy those works outright, and that the government cannot strip businesses of their property after fourteen years or any other arbitrary length of time. The very notion, the well-known jurist Richard Aston said, "is against natural reason and moral rectitude." Wait a minute, Samuel Johnson in effect retorted -- if publishers own works forever, they can withhold them from the market, permanently diminishing the common store of knowledge. "For the general good of the world," Johnson believed, a writer's work "should be understood as ... belonging to the publick." Only in 1774 did the House of Lords declare that authors and publishers have no absolute property rights over their works. To spur creativity, society dangles a carrot in the form of special rights to control distribution. The rights are temporary, meaning that the products of the mind always return to their real state: owned by no one, usable by everyone.

    The Founders wholly approved. Products of the human mind "cannot, in nature, be a subject of property," Thomas Jefferson wrote. "He who receives an idea from me, receives instructions himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." Nonetheless, Jefferson saw benefits in awarding writers a short-term monopoly on their works. Monopolies were generally "among the greatest nuisances in Government," James Madison agreed, but copyright was "too valuable to be wholly renounced." Anyway, if problems arose, it could always be abolished. Pamela Samuelson, an intellectual-property specialist at the University of California at Berkeley, says that Jefferson, Madison, and the other Founders regarded copyright as "a small evil done to accomplish a larger good." Like the Statute of Anne in Britain, the U.S. Copyright Act of 1790 gave writers of books, maps, and charts a fourteen-year copyright, with the option of renewing for another fourteen.

    The debate about whether authors and publishers owned literary works was far from over. Writers themselves, the Framers of the Constitution were sympathetic to creators' proprietary feelings. They admitted that writers own their work before it is published. So why is it no longer their property afterward? In the most important nineteenth-century legal treatise on copyright, Eaton S. Drone scoffed at the "absurd" notion that authors should automatically lose their property rights -- it "cannot be defended on any principle." Mark Twain groaned, "Only one thing is impossible to God -- to find any sense in any copyright law on this planet." Sympathizing with creators, Congress has extended copyright to music, photographs, films, software codes, chip schematics, architectural drawings, and many different kinds of "literary works." Although the Supreme Court consistently reaffirmed the primacy of the public over copyright owners, the distinction meant less as Congress heard the owners' pleas and gradually extended the length of copyright from fourteen years to the life of the author plus fifty years. The copyright term was so much longer than the natural life of most books that, for all practical purposes, authors might as well have owned the rights in perpetuity.

    Richard Stallman knew nothing of this when he began working at MIT, in the early 1970s. Programs had passed from hand to hand, with ingenious computer users like Stallman and his colleagues freely tinkering with and improving the code for the good of all. By the end of the decade court decisions and legislation made software copyrightable, and computer-code software was increasingly under lock and key. "People were being stopped from changing, using, and improving software," Stallman told me. "They were forbidden to share."

    In 1984 Stallman founded the Free Software Foundation, probably the first anti-copyright organization of the digital era. It spawned a movement. Today nonproprietary programs are used worldwide, though they are rarely encountered by ordinary people.

    The only computer operating system not made by Microsoft that is gaining market share is Linux, free software written by hundreds of volunteer programmers led by Linus Torvalds. Worldwide, it runs on as many as ten million computers, with the number increasing rapidly. It is little known in the home market, though this may change with the year-end release of Gnome, a Windows-like point-and-click interface that will be downloadable without charge.

    Few E-mail users have heard of Sendmail, for instance, although it routes and delivers most electronic mail around the Internet. Nor do most Net surfers know that half the "server" computers that make up the Web depend on free software called Apache. But the most important legacy of the Free Software Foundation may be something other than software: an abiding skepticism on the Internet about the sanctity of all intellectual property.

    Perhaps the most widely known copyright skeptic is John Perry Barlow, who co-founded the Electronic Frontier Foundation, a civil-liberties group for cyberspace. Intellectual-property law "cannot be patched, retrofitted, or expanded to contain digitized expression," Barlow declared in a widely read manifesto from 1994. "These towers of outmoded boilerplate will be a smoking heap sometime in the next decade." Barlow's idea derives from his experiences writing for the Grateful Dead. Unlike most bands, the Dead allowed fans to record concerts and trade the tapes, which ended up increasing their audience. "Not that we really planned it, but it was the smartest thing we could have done," Barlow told me recently. "We raised the sales of our records considerably because of it."

    Tree Trimming Experiences like his, he said, show that copyright is not so much wrong as outmoded: "Copyright's not about creation, which will happen anyway -- it's about distribution." In Barlow's view, copyright made sense when companies had to set up elaborate industrial processes for "hauling forests into Waldenbooks or encapsulating music on CDs and distributing them to Tower Records." To make such investments feasible, unauthorized copying had to be stopped -- that's why the Dead let fans trade homemade tapes of concerts but sent "nasty lawyers" after counterfeiters who duplicated and sold official recordings. In the future, Barlow told me, people will be able to download music and writing so easily that they will be reluctant to take the trouble to seek out hard copies, let alone want to pay for them. Musicians or writers who want to be heard or read will have to thumbtack their creations onto the Web for fans to download -- free, Barlow insisted. Because distributing material on the Internet costs next to nothing, there will be no investment in equipment and shipping to protect. Record companies and publishers will be obviated, and the economic justification for copyright will vanish. Copyright boxes will be ineffectual: the Internet is not just full of people who scoff at copyright but also, as a practical matter, too large to police.

    In 1993 Barlow and Mitch Kapor, the creator of the Lotus 1-2-3 spreadsheet, visited the Golden Shopping Centre, in Hong Kong. "Mitch, just as a thought experiment," Barlow recounted, "ordered the latest version of Lotus 1-2-3." The woman in the store told Kapor to come back in half an hour to get a pirated copy. Kapor told her that he had written the program. "The girl," Barlow said, "looked at him without the slightest trace of moral anxiety and said, 'Yeah, but you still want a copy, right?'"
    Related links:

  • "Intellectual Property on the Net," by Esther Dyson
    "The newly revealed physics of information transfer on the net will change the economics and perhaps ultimately the laws governing the creation and dissemination of intellectual property."

  • Some people may still try to control their works with copyright boxes, concedes Esther Dyson, a cyberpundit who puts out Release 1.0, an insiders' newsletter about technology. But they will have a tough time. Dyson has no truck with Stallman's notion that intellectual property is immoral. ("He doesn't have the right to say my property should be free. His can be free, if that's what he wants to do.") Nonetheless, she, too, believes that copyright will fade in importance. Even if creators can use ©-chips to forestall piracy, they will still have to compete for an audience with everyone else posting material on the Net -- that is, with the entire world. Like television stations on cable systems with hundreds of channels, writers and musicians on the Internet will be so desperate for audiences that, Dyson says, they will be glad to be copied, because their increased notoriety will translate into lucrative personal-appearance fees. "It's a new world," Dyson says. "People will have to adjust."

    Dyson's recent book, Release 2.0, sold for $25. But in tomorrow's wired world, she believes, content providers will be paid for ancillary services or products, not for their works. "Maybe Steven King will post his books on the Internet -- and start charging for readings. University professors publish works basically for free, and make money by teaching and by giving their institutions respectability with their names. Already some software companies are distributing software for free and charging for support. Consultants publish free newsletters in order to win clients." Not Dyson, though; she charges $695 a year for her newsletter, which is available only on paper and is delivered to subscribers by the U.S. Post Office. "It's not a mass-market thing," she explained to me. "It's not timely, it's timeless."

    Even without charging for CDs, James Brown, a master of the stage, could survive by giving concerts. Less dynamic artists, the copyright doubters explain, would seek sponsors. After all, rich people paid artists to create the treasures of the Renaissance. "I don't think it's inconceivable that we can return to that," Barlow says. Corporations might package art with advertisements, the way Absolut vodka pays novelists to deck out its ads with short pieces of fiction that mention the company. "Look at the British Airways commercials," says Richard Saul Wurman, an "information architect" who runs the annual Technology, Entertainment, and Design conference, a wateringhole for digerati. "Some of those ads fit all the definitions of great pieces of art. They move you in the way that you would say a great poem does, and they're advertisements for an airline. It's not such a huge step to a novel created by Coca-Cola."

    "We are moving into a 'post-literate millennium,' predicts David L. Lange, a law professor at Duke University, when digital technology "will sweep away all resistance to meaning, and all constraints beyond the individual."

    "Most great works of art were not written for money," Dyson told me, explaining why she is not worried about artists' losing copyright revenues. "Maybe I'm naive, but I think and hope that as this plays out, there will be less incentive for trashy stuff that is only marketed for money." In a world with little or no copyright "we could have more good things and be inundated by fewer bad ones." Perhaps. But before embracing the loss of copyright it might be useful to consider what happened the last time a country, jettisoning all restrictions on literary property, let information go truly free.


    The online version of this article appears in three parts. Click here to go to part one. Click here to go to part three.

    Charles C. Mann is a contributing editor of The Atlantic. His most recent book is @ Large (1997), written with David Freedman.

    Illustrations by Theo Rudnak

    Copyright © 1998 by The Atlantic Monthly Company. All rights reserved.
    The Atlantic Monthly; September 1998; Who Will Own Your Next Good Idea?; Volume 282, No. 3; pages 57 - 82.

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