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.
An invasion of armies can be resisted, but not an idea whose time has come. - Victor Hugo
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.
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