Pay Artists, Not 'Owners'
Moglen, Eben, The Nation
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? …