As in the French Revolution, today's stripping away of power, however it ends up happening, is all but inevitable, evenyou could saynecessary. Who will benefit the most is a different question. In the aftermath of 1789, it wasn't the masses themselves who came out on top, in a democracy of equals; instead it was the bourgeoisie, the merchants and factory owners the employer class. Today the winners in the Napster wars may turn out to be less the fans themselves than the stars whose sounds they are rushing to hear.
Napster, of course, is an easy-to-use combination of website and software, devised about a year ago by a nineteen-year old. With it, all those with any digital audio works stored in their computers can pool what they have into what amounts one giant library of all recorded sound. Anyone tied in can search for and then download and listen to just about any piece of music, talk, or noise ever recorded, including versions and works not obtainable in shops or catalogues. In this entire process, no money changes hands.
Napster isn't the only software around for allowing the free sharing of music; Gnutella, Scour, Freenet and a number of others each work differently but have much the same effect. And if advances in Internet bandwidth and related technology continue as expected, soon the quality of music or even video exchangeable may be as good as that on the best CD's or theatrical films. While low sound quality and convenience now induce many Napster users to buy CDs of the music they've first heard via the Internet, those won't remain significant motives for buying.The record companies are right to quake with fear.
Of course, these giant firms are not just quaking, but mounting an all out counterattack, trying to utilize law courts, police powers, encryption technologies, and whatever else they can think of. The main focus of their attack on Napster now is a lawsuit calling for Napster to be shut down, which already has come very close to success. Their case is based on the straightforward argument that unauthorized copying of what is copyrighted amounts to theft.
(Though the argument itself is straightforward, the extension
of the standard copyright law it requires is anything but. Up to
now, copying for non-commercial purposes was generally
permitted, and quite common, as when one tapes a CD track to
assemble a preferred score for dancing or exercising. Also, if you
happen to have a record or CD, the copyright laws do not forbid
you from playing it as loud as you like, for the benefit not only of
friends, but even passing strangers. Napster merely extends those
A far better way to make sense of the Napster controversy is to see that notions of property are human constructs, and have evolved in history, just as economies have, and, in fact, with them. Repeatedly, old forms have given way to new ones that operated quite differently,just as feudalism gave way to market capitalism. These days, after the fall of the Soviet Union, some argue that we have reached "the end of history." How can we believe that claim, in the light of the rapid changes we witness and take part in daily, including Napster? On the contrary, we have excellent reason to think we are in the midst of a huge historical change, one that is as deep as it is pervasive, one that can undermine most of the economic laws we take for granted. Where we will emerge, we ought to expect, is like nothing we have ever known before.
The very fact that we now have an intensifying debate over property reveals how far the economic changes have already come. A debate between different notions of property is also inevitably a struggle over the nature of the whole social order and what it will take to be a member of the class that dominates it. By the time that struggle breaks into the open, much of the new development has already occurred. By then, many in society feel a new ease with the new kind of property; a simple way of dealing with it that would seem very natural if only what was left of the old institutions didn't continue to dominate thought.
In 1789, upstart but already pretty strong capitalism was sweeping out the no longer needed nobility, whose restrictions on trade, such as duties levied by every noble, had slowed capitalist advance. In 2000, what I call the attention economy is already strong and beginning to peel away its outmoded corporate cover, in favor of a system in which those who receive more attention than they pay dominate those who pay more attention than they receive, or, in other words, stars enthrall fans. Most simply put this change is occurring because in Western Europe, the United States, Japan, and other advanced regions, material goods, abundant as a result of mass production, are less scarce and thus less important than attention itself.
The earlier struggle between economic systemsor rather, between their chief beneficiarieswas prolonged, complex and often confusing. We should expect the same of the current one.
In the eighteenth century, what was then the old notion of property centered on the inherited feudal rights of the nobility, which had become increasingly cumbersome in practice. The new then was the simple ownership of commodities, meaning anything that could be bought and sold at will, including material goods, factories, and land. It's still true today that when we think of property, the examples that would come to mind first would likely be any of the huge variety of material goods that one can own. Accordingly, everything that is property is supposed to have some worth, some definite value on the market, because it goes without saying that anything that can be owned is also sellable for some price. Natural as that may seem to us, it wouldn't have seemed so at the height of Western European feudalism many hundreds of years ago.
Once the feudal order was widespread and firmly in place, it's
success meant peaceful conditions that allowed the slow rise of
commerce. Though noble protection and patronage was vital for
most merchants and makers of goods at the beginning, it slowly
became more of a handicap. The nobles were not particularly
suited by training to prosper themselves in the new endeavors, so
they attempted to capture the new wealth through application of
their old privileges, by raising customs duties, taxes, and any
other means they thought up. That was what eventually came to
feel like a dead weight and helped incur popular wrath.
Thus copyright began as a power exercised by the strong state, a holdover from the feudal period, which is normally considered anathema to the free market. Even more in its modern form, intellectual property can only be enforced by a state's power and invasiveness. Only in a situation such as the present, when one superpower dominates the world, can intellectual property truly be enforced outside the boundaries of the particular state that grants the right in each case.
One sign that copyright as well as patents and trade secrets remain a feudal-like grant of rights, rather than something normal and natural in the world of commodities, is the arbitrariness of their duration. Copyrights now last for the life of the author plus seventy-five years, while patents last for twenty years. Why these times? By what rationale would half as long or twice as long, or forever or no time at all not be more natural? Both the durations currently in force were chosen by legislatures, as successors to kings. In this, intellectual property rights are quite different from ordinary property under the reign of free-market ideology. Under the latter, when you buy or make something, it is yours to do with what you will and to dispose of as you see fit. You can keep it as long as you want, or pass it on to heirs in perpetuity (barring estate taxes).
Intellectual property not only has time limits, but it cuts across the enjoyment of ordinary property. If you buy a chair or a tomato, you can photograph it from any angle, and do whatever you want with the photos. if you buy a book, on the other hand, copyright law forbids you to photograph or photocopy the pages and do what you will with the results.This clash with the more standard laws of marketable goods once again illustrates the anachronistic character of intellectual property as a leftover feudal-like constraint, granted by a monarch.
What of those who argue as if copyright stems from an inalienable and 'natural" right of an artist to control the future of his or her work? According to that thought, if you own the copyright to a story you've written, you ought to be able to prevent its appearing with illustrations you think go against the spirit you intended. In point of fact few publishers of books or music honor such a notion, and if this right did exist, it would be quite out of keeping with the realities of free-market workings. For why shouldn't it be extended not just to the work of recognized artists (recognized by whom? only the state, evidently) to all kinds of goods made by anyone? If I work in a spoon factory, why shouldn't the use of the spoons I make be restricted to what I think appropriate? Or if I am a farmer, why shouldn't I be able to control who eats the food I grow, and to what uses they put the energies they get from it? If I happen to be a pacifist for instance, shouldn't I be able to forbid my crops being used to feed soldiers? Or if I am homophobic, shouldn't I be able to forbid gay people eating them?
As these examples suggest, the idea that the maker of
anything could enforce her will on the subsequent consumers is
entirely at odds with the basic ways that markets work, and with
the idea that once something is bought, it becomes the private
property of the buyer, with the notion of privacy including the
right to do what one wills with it. Not surprisingly, no modern,
capitalistic state has ever granted general rights remotely like that
version of full protections for artists. While such notions may
seem consonant with the intellectual property laws that hang on
as feudal remnants, it would be more accurate to view honoring
the artist as an echo from the futurethe period of a full-scale
attention economy, for it is, as I will argue, a view that goes along
with the homage fans owe to stars,
Paragraph [8}, coming just after a paragraph allowing the establishment of post offices, allows that Congress shall have power "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." This formulation makes clear that intellectual property remains a prerogative of the state, exercised for reasons of the state in this case to promote "progress." There is nothing suggesting any inherent right of artists to control the future destiny of their works.
This passage in the US Constitution had to fit into the larger themes of a document that as much as any helped propel and endorse the new concept of property rights vested in buyable and sellable things, a world made as free as possible for commerce. These things of course were made primarily in workshops and a little later in factories, factories that would grow in size and complexity, but still for a long time produced mainly standardized, material, things.
Intellectual property laws once fitted roughly but comfortably
into that general category because they were enforced, spottily,
only by control over the material outputs of workshops or
factories. When copyright was first introduced, for instance, and
for long thereafter, copying a book entailed the laborious process
of resetting the type from scratch, a considerable labor which was
hard to hideit would show up in the finished products, for even
pirated books were still very evidently material things, material
products. While preservation of intellectual property rights in that
sense was difficult, in that period it was manageable to some
degree because it only required a knowledge of what was on sale
on the market. The origins of most products of this kind, even
illicit ones, was most often not hard to work out. The printing
workshop or factory behind a pirated work would be easy to spot,
if not by an actual stock of the books themselves, then by
matching the peculiarities of the type used to that in the
Where do ideas really exist as such? A record or CD sitting its case, or a book on the shelf, of even on a website, can only be of use, can only turn into ideas or musical experiences, when a listener's or a reader's mind is involved. Ideas ultimately can exist only in minds, and intellectual property laws interpreted as conveying ownership of ideas logically imply that that is where enforcement has to be.
Imagine, then, technology taken to its ultimate extremeto the level (sounding like science fiction) at which humans have such subtle implants in their brains that they can transfer detailed ideas or musical or visual experiences from one to the other without having to use any visible external machinery at all. It would be close to mental telepathy. While this may never fully happen, today's technology is clearly headed ever nearer that ultimate limit.
As it is approached, the only means for enforcing intellectual property laws would be by utter mind control. Someone would have to investigate what is in every mind and determine whether the route by which each item got there was legitimate or not. That sounds pretty much impossible, surely, but also, by contemporary standards horribly, unacceptably invasive. Besides, this kind of invasion of the privacy of the mind would thoroughly undermine the understanding that lies at the very core of the market system.
That understanding is that a potential buyer of something can
decide for him or herself, without revealing to the seller, just how
much she or he wants something, and thus what is an acceptable
amount to pay for it. No such calculation can proceed if the buyer
is transparent either to the seller or to the state acting to enforce
the rights of the seller. Thus, in the limiting case, enforcement of
intellectual property rights becomes self-defeating and absurd.
This kind of ownership cannot endure.
As I have explained in more detail in other writings, the leading kind of scarcity now, in the advanced countries, at least, is the scarcity of attention from other human beings, and more and more of life is organized around either trying to get some of it or paying it. Having attention amounts to having wealth, even though that wealth is not held in one's possession or in a bank but is distributed in many minds. It amounts to general wealth since having attention provides satisfaction of all kinds of desires. To repeat, we can call those with a great deal of attention, stars, and call those who tend to pay more attention than they get, fans. regardless of what mode of attention getting is involved, In a nutshell, that is the class structure of this new economy.
Fans may react in all sorts of ways, but as a whole they love the stars they read or watch or listen to or pay attention to in yet other ways, and will do for them, if not anything, then quite a bit. One of the most obvious thing fans typically do for artists is spread the word, playing records they particularly like to their friends and acquaintances, lending out books the same way, taking friends to see the work of their favorite visual artists, and today of course, urging friends to click on web sites that they like. All this takes place without any money changing hands, yet the successful artists, the stars, build a powerful store of attention attention that resides in the minds of their fans, spread all over the world. That is the stars' real and enduring property, a kind of property that if well taken care of will never stop paying dividends, requires no courts to enforce, and no laws to back it. (Identity theft or gross plagiarism are ways of "stealing" attention, but even these may probably be fought with publicity alone.)
It is precisely because we pay so much attention to the stars
that we worry that they may not get their just rewards or have the
right to control the fate of their output. Misguidedly, we often
seem to think the way to deal with these concerns is through the
intellectual property laws, when the it is the very fact of our
paying attention that offers the stars their real strength and
security, and our best chances to do that are often in conflict with
intellectual property laws.
Yet the world is filled with huge, hierarchically-run corporations. What keeps them going? What ensures them profitability more often than not? In large measure it is their success in holding onto and enforcing the concept of property which barely counted two centuries ago, the form that they pretend (and perhaps believe) is exactly like the old kind in which possession is what counts none other than intellectual property, in fact, including patents, design patents, trademarks, trade secrets and, certainly not least, copyright. It is not too strong to say that without the effect of these laws, capitalism would have already collapsedor at least required much more state support of some other kind.
Intellectual property enforcement works to sustain capitalism in a very simple way. It limits real competition, creating state backed monopolies for brand-named goods, new technological devices, computer software, drugs, designer clothes, athletic shoes, fast-food chains, and many other services, and, of course almost all writings, movies, pictures and ...music, which are protected most specifically by copyright laws.
Altogether these categories include the vast majority of personal, and much of business consumption. When products and services are not newly designed or obviously the output of some recognized artist or author, they are most generally bought on the basis of advertising. But advertising itself relies on attention reflected from the media environment in which it occurs, and thus depends on the starsthe attention getting entertainers, writers, journalists or sports figures that pull attention to that particular spot. Further, ads themselves have to attract attention to themselves by means other than the brand names they highlight. In other words businesses succeed today only by using the constraints of intellectual property to channel attention originally corralled by inventors, designers, editors, and other artists and creators. Businesses then use that channeled attention to process the money it draws forth through their own exchequers. Buyers are essentially fans enthralled by stars who are not free to take advantage of their attention directly but are under the thumbs of the intellectual property owners, the corporations.
Despite its apparent strength, then capitalism thus is
increasingly besieged. Intellectual property rights are crucial for
businessnot for artists of any sortyet their enforcement is
more and more problematic. As newer technologies that better
enable attention seeking, attention getting and attention paying
come to the fore to honor the needs of the new economy, the
pressure on the old will only increase. Like the feudal nobles in
France, corporate leaders are not going to give up power without a
fight, nor recognize that are no longer needed. That is what the
battles over Napster are really about, Let us look a bit more
closely at the music industry to see the details of this battle now.
The US Constitution offered protection to authors, as we have seen. By extension, "authors" now can mean composers, singers and musicians. But over most of the 20th century such creators rarely had clear copyright in their works, because in order to get records made, promoted and distributed, they had to sell the rights to record companies. Today the record companies insist that recordings are "works for hire," a special category that means that no matter what, the musicians can never get their rights back. Typically, the companies also require multi-record deals. Since they try to sign musicians when they are young and unsophisticated, they rarely encounter much difficulty in getting these restrictive contracts signed. Then the companies carefully control what further recordings they release, based on the benefits they foresee for themselves, not for the musicians. By dribbling works out slowly, they can keep the musicians from ever finishing their multi-record indentures.
Still, through recording their work, a small fraction of music artists do make considerable fortunes. Their largest gains usually come from concerts, specifically sales of tickets sales, T-shirts and other souvenirs to those of their fans who are dedicated enough to do what it takes to attend. The records themselves generally only draw the initial attention.
But, of course, manyif not mostmusicians play for reasons other than money. These reasons must be paramount, since most musicians, like other artists and writers, have little chance of even making a living at it.There is the sheer love of music of course, and there is also a desire to be heard, to have an audience, and to have some kind of direct relationship with that audienceattention, in a word. If it were possible to gain the audience without the record company, and even without any money changing hands, many musicians and other artists would still be eager. Even in economic terms, this would be far from stupid, because they would be obtaining huge wealth in terms of the new attention economy
The love of fans for the stars of whatever kind is certainly
nothing new. One thing that is relatively new is the vast size of the
potential audience, now billions strong. Another is the opportunity
of even a major star reaching out quite directly to her audience
and asking for whatever she may want. We are not quite there
perhaps, but we are very close to the point that a star, at least,
needs no bank account to live very well, needs nothing but the
attention of the fans, and that the fans can express their attention
to the star, not with money but with directly satisfying whatever
desire the star might have. Certainly today, a sufficiently popular
star could use the Internet to ask fans for money, say to buy a
new estate, and would probably get it straight away.
To put it another way, musicians along with movie actors, video-game designers, writers and others who create whatever gets attention, are in fact being greatly short-changed by the present system. Even those who seem rich in terms of money, are kept far from their just deserts, Rather than needing copyright, they are actually suffering under the power that this legal form as presently handled turns over to the corporations and their leaders.
Soon technology could end the need for the kinds of things that music companies, record distributors and radio broadcasters do. Stars will do without any of them to distribute their work to a wide audience. Of course new practices will be needed for artists to take advantage of the new situation. Some of these new arrangements are already at hand. Right now, today, any well known musician, could allow fans to download songs at no cost from her web site, and do very well. She could live on money made from concerts. All the new fans she would acquire by allowing anyone with the Internet access to hear her music would add significantly to the takes from tours.
Alternatively, a musician or group could charge admission to performances on the Internetto be held at some specific, pre announced time. All their real fans, the world over would want to tune in at just that time, just to hear them "live over the Internet", and would gladly pay to do that. It's also not hard to envisage technology that would allow performers to see and hear the fans as they perform and fans to be aware of each other, just as in a current concert appearance.
Yet another option would be to issue recorded works over the web, and simply to ask fans to pay if they feel like it. The horror fiction writer Stephen King is recently started releasing a new novel on the web chapter by chapter, saying he would continue after the second installment only if 75% of the readers had paid him a dollar each for each chapter already seen. Some of his fans used his website to beg for the opportunity to pay more, so as to assure that the full work would get published regardless of the percentage of readers anteing up. It turned out that far more than 75% did pay.
Musicians could obviously adopt either of these models. They
could call on fans to send a certain amount of moeny each before
they issued more songs, or they could simply ask for a certain
total amount and let fans know how much more was needed.
More reticent artists could rely on fan clubs to set up sites to look
after them. Endless other possible mechanisms would work with
no connection to any large corporation.
I must add that, though most musicians should do better than now, some will certainly do worse, just as some tradespeople undoubtedly failed when their noble patrons fell to the guillotine. The same will be true for any other class of attention getter. And not all fans will find themselves better off either, though I suspect the majority will, with corporations not swallowing up attention that could otherwise be more widely shared.
The increasingly complex edifice that comprises intellectual property laws and their enforcement is already beginning to totter. Everyone, and certainly artists should be glad to see it succumb. Of course, we should look for ways of aiding those who will genuinely suffer should that happen, and to make sure that the arts and other kinds of innovations are actually encouraged as the transformation takes hold. In the meantime, we should expect that the struggle over intellectual property will intensify before it ends; the "content providers" like the record companies will try to enlist the companies that control Internet pathways and providers; they will flood the world with propaganda on behalf of their existing rights, will lobby for new police protection to prevent what they insist is theft, and will do more besides. Right now, however, it seems quite apparent that the tide of history is against them.