"Can't sue all the people all the time"

Pay Artists, Not 'Owners'
by Eben Moglen

So far as one can tell from their recent behavior, the recording
companies believe that the survival of civilization depends on
terrorizing 12-year-olds. Among the 261 lawsuits filed by the
Recording Industry Association of America on September 8, the preteen
set has figured prominently, along with college students and (to the
industry's embarrassment) a teenaged recent immigrant from Poland,
whose stash of online music turned out to include mostly recordings
of Polish folk songs and Hungarian hip-hop--two genres of music not
controlled by the five companies that "own" 90 percent of the
nation's music.

The recent vicious turn in the file-sharing struggle marks a new
epoch in the defeat of ownership: Suing your own customers is not a
sustainable business model. But the oligopolists of culture are
running out of alternatives. It's worth stepping back a little to see
why, in the larger context, they are doomed to fail.

Until Thomas Edison's inventions, the vast majority of human cultural
activity was not subject to the metaphor of "intellectual property."
Copyright, as a device for protecting publishers under the guise of
protecting authors, affected only printed works in the nineteenth
century. The Edison revolution made recorded music and video
possible, and also made it possible to apply the metaphor of
"property" to the intangible forms of creation that were embodied in
the new physical recording media of phonograph records and motion
picture film. The twentieth century understood culture in terms of
the physical artifacts that contained it, and so the metaphor of
property made sense for the justification of the monopolies in
distribution that copyright law afforded the increasingly
concentrated oligopoly of "media" or "content" companies.

But the metaphors of property that made sense in the Age of Edison
are no longer useful in the Age of the Internet. Culture is now
carried in digital form, as "bitstreams" that can be copied and
distributed to everyone frictionlessly. Treating those bitstreams as
property means trying to prohibit sharing: The recording
industry--which has done no small amount of stealing from musicians
in its brief history--likes to claim that sharing a song with
someone else is equivalent to stealing a CD from a store. But the
metaphor is neither technically sound nor morally acceptable to the
first generation of the twenty-first century. All over the world the
children of the Internet Age recognize that networks are for sharing
data, and that technology makes excluding those who don't pay
literally impossible. Growing up with the Net means distrusting the
equation of sharing with stealing that seems so convincing to the
generation born before we learned how to connect everyone to
everyone else.

So the moral consensus that lay behind the idea of intellectual
property has fractured, readmitting to visibility an earlier critique
of the ownership of ideas. Perfect digital copying and costless
electronic distribution raise once again the issue of the morality of
exclusion: If we can give everyone on earth a copy of any digital
work of beauty or utility for the same price that we make the first
copy, why is it ever moral to exclude anyone from anything? If we
could duplicate loaves and fishes by pressing a button, it would be
immoral to charge more for food than some people could afford to pay.
In the Age of the Internet, the wealth of culture "owners" depends on
a view of morality that condemns sharing and ignores the injustice of
exclusion.

To support their position, the middlemen whose activity has become
not only unnecessary but morally repugnant put forward the false
claim that without their effort to extinguish sharing, artists will
starve. The spectacle of an oligarchy that keeps about 94 cents of
each dollar paid for music posturing as the friend of the musician
would be sickening were it not absurd. But the question "How will
artists be paid in a world of file-sharing?" has seemed to many the
crowning objection in the oligarch's case.

In fact, of course, musicians and other artists thrived before Edison
turned culture into commodities. And there is every reason to believe
that new forms of interaction between artist and audience can
actually improve artists' financial lot. The same network that makes
it trivial to share music with the click of a button makes it
similarly easy to transmit a dollar to an e-mail address, without
friction and without loss. The online auction phenomenon has already
accustomed millions of Americans to the model: an individual seller
auctioning off an item she owns receives payment from an individual
buyer through PayPal, a system that allows reliable and secure bank
transfers or credit card transactions through e-mail, with a click.
This technology can allow audiences to pay creators directly, through
the software on their computers that downloads and plays the music,
in turn enabling the musicians to pay for the services (engineering,
promotion, production assistance) that support their art. If those of
us who can afford it were to set up our computers to pay a quarter
automatically to the artist for each song we get by sharing and
decide to keep, musicians would earn enough to repay everyone in the
creative chain (songwriters, producers, engineers) while keeping more
than the pittance the "owners" condescend to award them now.

Audiences and artists don't need the middlemen anymore. Their reason
for being is defunct, and they are trying to maintain themselves by
force. But it won't work. They can sue some of the people some of the
time, but they can't sue all of the people all of the time.