September 14, 2003

Whatever Will Be Will Be Free on the Internet

HE recording industry's long-running battle against online music piracy has come to resemble one of those whack-a-mole arcade games, where the player hammers one rubber rodent's head with a mallet only to see another pop up nearby. Conk one, and up pops another, and so on.

Three years ago, the music industry sued Napster, the first popular music file-sharing network on the Internet. That sent Napster reeling, but other networks for trading copyrighted music — KaZaA, Grokster, Morpheus and others — sprang up. Last week, in the latest swing of the hammer, the Recording Industry Association of America filed 261 lawsuits against individual file sharers, which will surely make some of their estimated 60 million compatriots think twice — for now. Earth Station Five, a company based in the West Bank, surfaced recently with claims of being at war with the industry association. It promises the latest in anonymous Internet file sharing. Its motto: "Resistance is futile."

Since Gutenberg's printing press, new technologies for creating, copying and distributing information have eroded the power of the people, or industries, in control of various media. In the last century, the pattern held true, for example, when recorded music became popular in the early 1900's, radio in the 1920's and cable television in recent years.

But the heritage and design of the Internet present a particularly disruptive technology. Today's global network had its origins in the research culture of academia with its ethos of freely sharing information. And by design, the Internet turns every user in every living room into a mass distributor of just about anything that can be digitized, including film, photography, the written word and, of course, music. Already, Hollywood is trying to curb the next frontier, film swapping. The inevitable advance of technology will make reading on digital tablets more convenient than reading on paper, so the publishers of books, magazines and newspapers have their worries as well. "Nobody is immune," observed Michael J. Wolf, managing partner in charge of the media practice at McKinsey & Company, a consulting firm.

"The cultural and technical principle embedded in today's Internet is that it is neutral in the sense that the people who use it have the power to determine its use, not corporations or the network operators," said Jonathan Zittrain, a co-director of the Berkman Center for the Internet and Society at the Harvard Law School. "The plan for the Internet was to have no plan."

The Net's free-range design, combined with the global proliferation of personal computing and low-cost communications networks, laid the foundation for the surge of innovation and new uses that became so evident by the late 1990's. The World Wide Web is the overarching example, but others include instant messaging, online gaming and peer-to-peer file sharing. And while companies are free to build proprietary products and services in cyberspace, the basic software and communications technology of the Internet lies in the public domain — open for all to use.

It was inevitable, then, that the Internet would eventually force a radical rethinking of intellectual property rights, and the music industry's current travails represent a particularly dramatic example of the mutating rules — though not the only one. Consider, for example, the rise of so-called open-source software. The poster child of open-source projects is GNU Linux, an operating system whose computer code is distributed freely over the Internet and is maintained and debugged by a loose-knit global community of programmers. Linux has become a genuine challenge to Microsoft because programmers around the world can see and modify the underlying source code — instead of jealously guarding it as a trade secret.

That concept of open-source is inseparable from the Internet, because it provides the vehicle for free exchange and widespread distribution — the same idea that is at the heart of file sharing and one that is spreading well beyond the techies. A group, led by Lawrence Lessig, a professor at Stanford Law School, has established a "creative commons" project for collecting and putting creative works including music, film, photography and literature in the public domain, inspired by the open-source software model.

The Massachusetts Institute of Technology is posting the content of 500 of its courses online this fall, a project called OpenCourseWare. In Britain, a small group of artists and editors has set up a Web site for Jenny Everywhere, an increasingly popular open-source cartoon. Its only requirement is that any cartoon include its license, which states "others may use this property as they wish. All rights reversed."

What all this means for the future of intellectual property, and some businesses, is as unpredictable as the open-source revolution itself. In the music business, it seems remarkable that only a few believe the technology cannot be held in check.

One of those few is David Bowie. "I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing," Mr. Bowie said in an interview last year. The future of the music industry, he suggests, is that songs are essentially advertisements and artists will have to make a living by performing on tour.

Others fear that, as the futility of technological fixes becomes clearer, the response may be onerous legal restrictions on the Internet and how people use it. "You don't want to break the kneecaps of the Internet to protect one relatively small industry, the recording business," Mr. Lessig, the Stanford professor, said.

William Fisher, a Harvard law professor, offers a solution for the recording industry's Internet challenge, and one that borrows from the past. When radio became popular in the 1920's and 1930's and began broadcasting copyrighted songs, the record companies, singers and bands protested. The answer was to have the radio stations pay the copyright holders and set up a measuring system so the largest payments went for the most popular songs.

In a book to be published next year, Mr. Fisher recommends placing a 15 percent tax on Internet access and a 15 percent tax on devices used for storing and copying music and movies like CD-burners, MP3 players and blank CD's.

The funds raised, he estimates, would be about $2.5 billion in 2004, roughly the projected amount the recording industry and Hollywood would lose to online piracy. The music business and Hollywood would get refunds based on what works were the most popular downloads.

"It's not perfect," Mr. Fisher admitted.

Still, it does represent what is not much in evidence today — some sort of middle ground that would compensate rights holders but also move with the march of technology and consumer behavior instead of merely trying to fight it.

"With music file sharing, you have a cultural norm that is being established by what is technologically possible," said Daniel Weitzner, a director at the World Wide Web Consortium. "That is very hard to resist."