Will copyright survive the Napster bomb? Nope, but creativity will.
By John Perry Barlow
The great cultural war has broken out at last.
Long awaited by some and a nasty surprise to others, the conflict between the industrial age and the virtual age is now being fought in earnest, thanks to that modestly conceived but paradigm-shattering thing called Napster.
What's happening with global, peer-to-peer networking is not altogether different from what happened when the American colonists realized they were poorly served by the British Crown: The colonists were obliged to cast off that power and develop an economy better suited to their new environment. For settlers of cyberspace, the fuse was lit last July, when Judge Marilyn Hall Patel tried to shut down Napster and silence the cacophonous free market of expression, which was already teeming with more than 20 million directly wired music lovers.
Despite an appeals-court stay immediately granted the Napsterians, her decree transformed an evolving economy into a cause, and turned millions of politically apathetic youngsters into electronic Hezbollah. Neither the best efforts of Judge Patel - nor those of the Porsche-driving executives of the Recording Industry Association of America, nor the sleek legal defenders of existing copyright law - will alter this simple fact: No law can be successfully imposed on a huge population that does not morally support it and possesses easy means for its invisible evasion.
To put it mildly, the geriatrics of the entertainment industry didn't see this coming. They figured the Internet was about as much of a threat to their infotainment empire as ham radio was to NBC. Even after that assumption was creamed, they remained as serene as sunning crocodiles. After all, they still "owned" all that stuff they call "content." That it might soon become possible for anyone with a PC to effortlessly reproduce their "property" and distribute it to all of humanity didn't trouble them at all.
But then along came Napster. Or, more to the point, along came the real Internet, an instantaneous network that endows any acne-faced kid with a distributive power equal to Time Warner's. Moreover, these were kids who don't give a flying byte about the existing legal battlements, and a lot of them possess decryption skills sufficient to easily crack whatever lame code the entertainment industry might wrap around "its" goods.
Practically every traditional pundit who's commented on the Napster case has, at some point, furrowed a telegenic brow and asked, "Is the genie out of the bottle?" A better question would be, "Is there a bottle?" No, there isn't.
Which is not to say the industry won't keep trying to create one. In addition to ludicrously misguided (and probably unconstitutional) edicts like the Digital Millennium Copyright Act, entertainment execs are placing great faith in new cryptographic solutions. But before they waste a lot of time on their latest algorithmic vessels, they might consider the ones they've designed so far. These include such systems as the pay-per-view videodisc format Divx, the Secure Digital Music Initiative, and CSS - the DVD encryption system, which has sparked its own legal hostilities on the Eastern front, starting with the New York courtroom of Judge Lewis Kaplan.
Here's the present score: Divx was stillborn. SDMI will probably never be born owing to the wrangling of its corporate parents. And DeCSS (the DVD decryptor) is off and running, even though the Motion Picture Association of America has prevailed in its lawsuit aimed at stopping Web sites from posting - or even linking to - the disc-cracking code. While that decision is appealed, DeCSS will keep spreading: As the Electronic Frontier Foundation was defending three e-distributors inside Kaplan's court last summer, nose-ringed kids outside were selling T-shirts with the program silk-screened on the back.
The last time technical copy protection was widely attempted - remember when most software was copy-protected? - it failed in the marketplace, and failed miserably. Earlier attempts to ban media-reproduction technologies have also failed. Even though entertainment execs are exceptionally slow learners, they will eventually realize what they should have understood long ago: The free proliferation of expression does not decrease its commercial value. Free access increases it, and should be encouraged rather than stymied.
The war is on, all right, but to my mind it's over. The future will win; there will be no property in cyberspace. Behold DotCommunism. (And dig it, ye talented, since it will enrich you.) It's a pity that entertainment moguls are too wedged in to the past to recognize this, because now they are requiring us to fight a war anyway. So we'll fatten lawyers with a fortune that could be spent fostering and distributing creativity. And we may be forced to watch a few pointless public executions - Shawn Fanning's cross awaits - when we could be employing such condemned genius in the service of a greater good.
Of course, it's one thing to win a revolution, and quite another to govern its consequences. How, in the absence of laws that turn thoughts into things, will we be assured payment for the work we do with our minds? Must the creatively talented start looking for day jobs?
Nope. Most white-collar jobs already consist of mind work. The vast majority of us live by our wits now, producing "verbs" - that is, ideas - rather than "nouns" like automobiles or toasters. Doctors, architects, executives, consultants, receptionists, televangelists, and lawyers all manage to survive economically without "owning" their cognition.
I take further comfort in the fact that the human species managed to produce pretty decent creative work during the 5,000 years that preceded 1710, when the Statute of Anne, the world's first modern copyright law, passed the British parliament. Sophocles, Dante, da Vinci, Botticelli, Michelangelo, Shakespeare, Newton, Cervantes, Bach - all found reasons to get out of bed in the morning without expecting to own the works they created.
Even during the heyday of copyright, we got some pretty useful stuff out of Benoit Mandelbrot, Vint Cerf, Tim Berners-Lee, Marc Andreessen, and Linus Torvalds, none of whom did their world-morphing work with royalties in mind. And then there are all those great musicians of the last 50 years who went on making music even after they discovered that the record companies got to keep all the money.
Nor can I resist trotting out, one last time, the horse I rode back in 1994, when I explored these issues in a Wired essay called "The Economy of Ideas." (See Wired 2.03, page 84.) The Grateful Dead, for whom I once wrote songs, learned by accident that if we let fans tape concerts and freely reproduce those tapes - "stealing" our intellectual "property" just like those heinous Napsterians - the tapes would become a marketing virus that would spawn enough Deadheads to fill any stadium in America. Even though Deadheads had free recordings that often were more entertaining than the band's commercial albums, fans still went out and bought records in such quantity that most of them went platinum.
My opponents always dismiss this example as a special case. But it's not. Here are a couple of others closer to Hollywood. Jack Valenti, head of the MPAA and leader of the fight against DeCSS, fought to keep VCRs out of America for half a dozen years, convinced they would kill the film industry. Eventually that wall came down. What followed reversed his expectations (not that he seems to have learned from the experience). Despite the ubiquity of VCRs, more people go to the movies than ever, and videocassette rentals and sales account for more than half of Hollywood's revenues.
The RIAA is unalterably convinced that the easy availability of freely downloadable commercial songs will bring on the apocalypse, and yet, during the two years since MP3 music began flooding the Net, CD sales have risen by 20 percent.
Finally, after giving up on copy protection, the software industry expected that widespread piracy would surely occur. And it did. Even so, the software industry is booming. Why? Because the more a program is pirated, the more likely it is to become a standard.
All these examples point to the same conclusion: Noncommercial distribution of information increases the sale of commercial information. Abundance breeds abundance.
This is precisely contrary to what happens in a physical economy. When you're selling nouns, there is an undeniable relationship between scarcity and value. But in an economy of verbs, the inverse applies. There is a relationship between familiarity and value. For ideas, fame is fortune. And nothing makes you famous faster than an audience willing to distribute your work for free.
All the same, there remains a general and passionate belief that, in the absence of copyright law, artists and other creative people will no longer be compensated. I'm forever accused of being an antimaterialistic hippie who thinks we should all create for the Greater Good of Mankind and lead lives of ascetic service. If only I were so noble. While I do believe that most genuine artists are motivated primarily by the joys of creation, I also believe we will be more productive if we don't have to work a second job to support our art habit. Think of how many more poems Wallace Stevens could have written if he hadn't been obliged to run an insurance company to support his "hobby."
Following the death of copyright, I believe our interests will be assured by the following practical values: relationship, convenience, interactivity, service, and ethics.
Before I explain further, let me state a creed: Art is a service, not a product. Created beauty is a relationship, and a relationship with the Holy at that. Reducing such work to "content" is like praying in swear words. End of sermon. Back to business.
The economic model that supported most of the ancient masters was patronage, whether endowed by a wealthy individual, a religious institution, a university, a corporation, or - through the instrument of governmental support - by society as a whole.
Patronage is both a relationship and a service. It is a relationship that supported genius during the Renaissance and supports it today. Da Vinci, Michelangelo, and Botticelli all shared the support of both the Medicis and, through Pope Leo X, the Catholic church. Bach had a series of patrons, most notably the Duke of Weimar. I could go on, but I can already hear you saying, "Surely this fool doesn't expect the return of patronage."
In fact, patronage never went away. It just changed its appearance. Marc Andreessen was a beneficiary of the "patronage" of the National Center for Supercomputer Applications when he created Mosaic; CERN was a patron to Tim Berners-Lee when he created the World Wide Web. Darpa was Vint Cerf's benefactor; IBM was Benoit Mandelbrot's.
"Aha!" you say, "but IBM is a corporation. It profited from the intellectual property Mandelbrot created." Maybe, but so did the rest of us. While IBM would patent air and water if it could, I don't believe it ever attempted to patent fractal geometry.
Relationship, along with service, is at the heart of what supports all sorts of other modern, though more anonymous, "knowledge workers." Doctors are economically protected by a relationship with their patients, architects with their clients, executives with their stockholders. In general, if you substitute "relationship" for "property," you begin to understand why a digitized information economy can work fine in the absence of enforceable property law. Cyberspace is unreal estate. Relationships are its geology.
Convenience is another important factor in the future compensation of creation. The reason video didn't kill the movie star is that it's simply more convenient to rent a video than to copy one. Software is easy to copy, of course, but software piracy hasn't impoverished Bill Gates. Why? Because in the long run it's more convenient to enter into a relationship with Microsoft if you hope to use its products in an ongoing way. It's certainly easier to get technical support if you have a real serial number when you call. And that serial number is not a thing. It's a contract. It is the symbol of a relationship.
Think of how the emerging digital conveniences will empower musicians, photographers, filmmakers, and writers when you can click on an icon, upload a cyber-dime into their accounts, and download their latest songs, images, films, or chapters - all without the barbaric inconvenience currently imposed by the entertainment industry.
Interactivity is also central to the future of creation. Performance is a form of interaction. The reason Deadheads went to concerts instead of just listening to free tapes was that they wanted to interact with the band in meatspace. The more people knew what the concerts sounded like, the more they wanted to be there.
I enjoy a similar benefit in my current incarnation. I'm paid reasonably well to write, despite the fact that I put most of my work on the Net before it can be published. But I'm paid a lot more to speak, and still more to consult, since my real value lies in something that can't be stolen from me - my point of view. A unique and passionate viewpoint is more valuable in a conversation than the one-way broadcast of words. And the more my words self-replicate on the Net, the more I can charge for symmetrical interaction.
Finally, there is the role of ethics. (I can hear you snickering already.) But hey, people actually do feel inclined to reward creative value if it's not too inconvenient to do so. As Courtney Love said recently, in a brilliant blast at the music industry: "I'm a waiter. I live on tips." She's right. People want to pay her because they like her work. Indeed, actual waitpeople get by even though the people they serve are under no legal obligation to tip them. Customers tip because it's the right thing to do.
I believe that, in the practical absence of law, ethics are going to make a major comeback on the Net. In an environment of dense connection, where much of what we do and say is recorded, preserved, and easily discovered, ethical behavior becomes less a matter of self-imposed virtue and more a matter of horizontal social pressure.
Besides, the more connected we become, the more obvious it is that we're all in this together. If I don't pay for the light of your creation, it goes out and the place gets dimmer. If no one pays, we're all in the dark. On the Net, what goes around comes around. What has been an ideal becomes a sensible business practice.
Think of the Net as an ecosystem. It is a great rain forest of life-forms called ideas, which, like organisms - those patterns of self-reproducing, evolving, adaptive information that express themselves in skeins of carbon - require other organisms to exist. Imagine the challenge of trying to write a song if you'd never heard one.
As in biology, what has lived before becomes the compost for what will live next. Moreover, when you buy - or, for that matter, "steal" - an idea that first took form in my head, it remains where it grew and you in no way lessen its value by sharing it. On the contrary, my idea becomes more valuable, since in the informational space between your interpretation of it and mine, new species can grow. The more such spaces exist, the more fertile is the larger ecology of mind.
I can also imagine the great electronic nervous system producing entirely new models of creative worth where value resides not in the artifact, which is static and dead, but in the real art - the living process that brought it to life. I would have given a lot to be present as, say, the Beatles grew their songs. I'd have given even more to have participated. Part of the reason Deadheads were so obsessed with live concerts was that they did participate in some weird, mysterious way. They were allowed the intimacy of seeing the larval beginnings of a song flop out onstage, wet and ugly, and they could help nurture its growth.
In the future, instead of bottles of dead "content," I imagine electronically defined venues, where minds residing in bodies scattered all over the planet are admitted, either by subscription or a ticket at a time, into the real-time presence of the creative act.
I imagine actual storytelling making a comeback. Storytelling, unlike the one-way, asymmetrical thing that goes by that name in Hollywood, is highly participatory. Instead of "the viewer" sitting there, mouth slack with one hand on a Bud while the TV blows poisonous electronics at him, I imagine people actually engaged in the process, and quite willing to pay for it.
This doesn't require much imagination, since it's what a good public speaker encourages now. The best of them don't talk at the audience, but with them, creating a sanctuary of permission where something is actually happening. Right now this has to happen in meatspace, but the immense popularity of chat rooms among the young natives of cyberspace presages richer electronic zones where all the senses are engaged. People will pay to be in those places - and people who are good at making them exciting will be paid a lot for their conversational skills.
I imagine new forms of cinema growing in these places, where people throw new stuff into the video stew. The ones who are good enough will be paid by the rest of us to shoot, produce, organize, and edit.
People will also pay to get a first crack at the fresh stuff, as Stephen King is proving by serializing novels on the Web. Charles Dickens proved the same thing long ago with his economic harnessing of serialization. Though Dickens was irritated that the Americans ignored his British copyright, he adapted and devised a way to get paid anyway, by doing public readings of his works in the US. The artists and writers of the future will adapt to practical possibility. Many have already done so. They are, after all, creative people.
It's captivating to think about how much more freedom there will be for the truly creative when the truly cynical have been dealt out of the game. Once we have all given up regarding our ideas as a form of property, the entertainment industry will no longer have anything to steal from us. Meet the new boss: no boss.
We can enter into a convenient and interactive relationship with audiences, who, being human, will be far more ethically inclined to pay us than the moguls ever were. What could be a stronger incentive to create than that?
We've won the revolution. It's all over but the litigation. While that drags on, it's time to start building the new economic models that will replace what came before. We don't know exactly what they'll look like, but we do know that we have a profound responsibility to be better ancestors: What we do now will likely determine the productivity and freedom of 20 generations of artists yet unborn. So it's time to stop speculating about when the new economy of ideas will arrive. It's here. Now comes the hard part, which also happens to be the fun part: making it work.