The Heavenly Jukebox
Rampant music piracy may hurt musicians less than they fear. The real threat -- to listeners and, conceivably, democracy itself -- is the music industry's reaction to it
by
Charles C. Mann
A LITTLE while ago I heard that the future of
music was being decided in a nondescript office suite above a bank in San Mateo,
California. I couldn't get there in time, so I asked a friend to check it out.
A crowd was milling in front of the entrance when he arrived. My friend parked
illegally and called me on his cell phone. There are twenty or thirty television
cameras, he said, and a lectern with a dozen microphones. Also lots of police
officers. I asked about the loud noise in the background. "That,"
he explained, "is people smashing compact discs with sledgehammers."
The compact discs contained music by the rock
band Metallica. Three weeks earlier Metallica had sued a now-notorious Internet
start-up called Napster, which is based on the fourth floor of the bank building.
(The name comes from the founder's moniker in adolescence.) Far from being the
colossus that its media prominence might lead one to expect, Napster is a surprisingly
small outfit: it consists mainly of a Web site, about thirty-five hip, slightly
disheveled employees, and a hundred or so of the powerful computers known as
servers. By connecting to these computers with special software, Napster members
can search one another's hard drives for music files, downloading gratis any
songs they discover.
As the furor over Napster suggests, the opportunity
to share music quickly and without charge has been greeted with more enthusiasm
by listeners than by the music industry. Although the company's music-swapping
software has only just been officially released, the service already has about
20 million regular users, and the tally is rising every day. Countless other
people use Napster's brethren; the company is but the most prominent of many
free-music services on the Internet. The result, in Metallica's opinion, is
an outrageous pirate's bacchanalia -- millions of pieces of music shuttling
around the Net uncontrolled. The group filed suit, according to its drummer,
Lars Ulrich, "to put Napster out of business."
I asked my friend to visit Napster's headquarters
that day because I knew that Ulrich, Metallica's lawyer, and several burly guys
in T-shirts were driving to San Mateo in a black sport-utility vehicle. In the
SUV were thirteen boxes full of printouts listing the user names of 335,435
Napsterites who, the band said, had traded Metallica songs during the previous
weekend. Ulrich and his entourage planned to dump the boxes in the company's
tiny, cluttered foyer. The people with the sledgehammers planned to shout unflattering
remarks while this was taking place. Suddenly a compact man with high-tide hair
and shades came to the podium: Lars Ulrich. My friend held up his phone a few
feet from the drummer's face, but I could barely hear Ulrich. The catcalls were
too loud.
"You suck, Lars! You sellout!"
"This is not about pounding the fans,
this is about Napster ..."
"Then why are you busting them? Have you
ever even used Napster, Lars?"
Hooting laughter almost drowned out Ulrich's
response. In an online chat with fans the previous day, Ulrich had admitted
that he had never actually tried Napster. Indeed, he said later, his experience
with the Internet was limited to using America Online "a couple of times
to check some hockey scores." Nonetheless, his suspicions, however unfounded
on experience, were entirely warranted as a matter of fact.
Within the music industry it is widely believed
that much of the physical infrastructure of music -- compact discs, automobile
cassette-tape players, shopping-mall megastores -- is rapidly being replaced
by the Internet and a new generation of devices with no moving parts. By 2003,
according to the Sanford C. Bernstein & Co. Investment Research Group, listeners
will rarely if ever drive to Tower Records for their music. Instead they will
tap into a vast cloud of music on the Net. This heavenly jukebox, as it is sometimes
called, will hold the contents of every record store in the world, all of it
instantly accessible from any desktop. And that will be just the beginning.
Edgar Bronfman Jr., the head of Universal, the world's biggest music company,
predicted in a speech in May that soon "a few clicks of your mouse will
make it possible for you to summon every book ever written in any language,
every movie ever made, every television show ever produced, and every piece
of music ever recorded." In this vast intellectual commons nothing will
ever again be out of print or impossible to find; every scrap of human culture
transcribed, no matter how obscure or commercially unsuccessful, will be available
to all.
Bronfman detests Napster. His speech likened
the company to both slavery and Soviet communism. But its servers constitute
the nearest extant approximation of his vision of a boundless sea of digital
culture. While Ulrich spoke, I logged on to Napster. More than 100,000 people
were on the company's machines, frolicking about in terabytes of music. "True
fans of the talent are the ones who respect our rights," the drummer was
saying. I typed in search terms: Mahler, Mingus, Method Man, Metallica ... all
were free for the taking. And all were freely being taken -- users couldn't
put a nickel in the machine even if they wanted to. Little wonder that the thought
of such systems spreading to films, videos, books, and magazines has riveted
the attention of artists, writers, and producers.
"Down in front! Down in front! ... Metallica
sucks!"
"Hey, Lars!" -- a reporter. "Are you able to quantify the revenue lost?"
"It's not about revenue."
"Yeah? What's it about, then?"
In the short run the struggle is for control
of the heavenly jukebox. Technophiles claim that the major labels, profitable
concerns today, will rapidly cease to exist, because the Internet makes copying
and distributing recorded music so fast, cheap, and easy that charging for it
will effectively become impossible. Adding to the labels' fears, a horde of
dot-coms, rising from the bogs of San Francisco like so many stinging insects,
is trying to hasten their demise. Through their trade association, the Recording
Industry Association of America, the labels are fighting back with every available
weapon: litigation, lobbying, public relations, and, behind the trenches, jiggery-pokery
with technical standards. Caught in the middle are musicians, Metallica among
them, who believe that their livelihoods will soon be menaced by their own audiences.
At stake in the long run is the global agora:
the universal library-movie theater-television-concert hall-museum on the Internet.
The legal and social precedents set by Metallica v. Napster -- and half a dozen
other e-music lawsuits -- are likely to ramify into film and video as these,
too, move online. When true electronic books, e-magazines, and e-newspapers
become readily available, their rules of operation may well be shaped by the
creation of the heavenly jukebox. Music, according to a National Research Council
report released last November, is the "canary in the digital coal mine."
This is unfortunate. Silicon Valley denizens
often refer generically to writers, painters, filmmakers, journalists, actors,
photographers, designers, and musicians as "content providers," as
if there were no important differences among them. Yet the music industry --
tangled in packages of rights that exist nowhere else, burdened by the peculiar
legacies of earlier conflicts -- is not like other culture industries, and digital
technology is exerting different forces on it. Compared with writers and filmmakers,
musicians are both more imperiled by the Internet and better able to slip past
the threat. The music industry seems to have less room to maneuver. In consequence,
it has been pushing for decisive judicial and legislative action. The Internet
will become a principal arena for the clash of ideas that the Founders believed
necessary for democracy. Allowing the travails of a single industry -- no matter
how legitimate its concerns -- to decide the architecture of that arena would
be a folly that could take a long time to undo.
"It's not about our bank accounts, it's
about the thousands and thousands of artists out there who aren't fortunate
enough to have the --"
"Radio is free! What about radio?"
"We have the right to control our music!"
"Fuck you, Lars. It's our music too!"
Legislation,
Litigation, Leg-Breaking
ULRICH, it seemed clear, regarded the widespread
dissemination of contraband music as a dangerous new thing, another anxiety-provoking
novelty from the electronic age. In fact unauthorized music has been around
as long as the music industry itself. Ulrich was not even the first musician
to sue a business that he regarded as a cover for intellectual piracy. That
honor may belong to Sir Arthur Sullivan, of Gilbert and Sullivan. Indeed, Sullivan's
problems were, if anything, worse than Metallica's.
Like the members of Metallica, who are unusually
independent of their record label, Sullivan was a careful businessman who forced
the music industry to accede to his demands. In the last quarter of the nineteenth
century, when Sullivan composed his operas, the phonograph was in its infancy
and radio broadcasts did not exist; the chief sources of music were churches,
theaters, music halls, and the pianos that were prominently featured in most
middle-class parlors. All these had to be fed large quantities of sheet music.
In consequence the music industry was dominated by a group of big sheet-music
companies. Sheet music was immensely popular -- hit pieces sold hundreds of
thousands of copies. And the industry would have been even more profitable,
its leaders believed, if it had not faced rampant international piracy. Bootleg
Brahms and Beethoven were openly hawked on the streets of every city in Europe
and the Americas. As one of Britain's most popular composers, Sullivan was a
favorite target for bootleggers; he and his manager spent years fighting copyright
infringement in court.
Technology, law, and culture seemed to conspire
against British composers and music publishers. Improvements in printing and
shipping methods had made it cheaper and easier for outlaw printers to manufacture
and distribute sheet music. Worse, from the publishers' point of view, courts
in many countries ruled that piano rolls (the player piano was another new invention)
did not infringe composers' copyrights, because the perforations in the rolls
did not look like the notes in the original printed music, and hence could not
be copies of them. Building on this precedent, phonograph recordings, too, were
deemed not to require licenses or payments to composers. When publishers complained,
they encountered a distinct lack of popular sympathy for their plight.
One of the biggest sources of illicit sheet
music in London was a limited partnership led by James Frederick Willetts, a.k.a.
"the London Pirate King." The partnership was known as James Fisher
& Co., although there was no James Fisher; the real principals hesitated
to do business in their own names. Fisher & Co. had a simple business plan:
it sold the scores for musical compositions without paying copyright holders
for the right to do so. If customers ordered 500 or more copies, the partners
would prepare them to specification. "Piracy while you wait," one
publisher's lawyer growled.
Is history repeating itself? At first glance
the answer seems to be yes. Once again new technology has encouraged the proliferation
of unauthorized music for next to nothing. Once again consumers have eagerly
embraced this material. Once again complexities in copyright law seem to provide
legal havens for practices detested by publishers -- havens used by new businesses
to give the public access to contraband music. And once again some voices are
arguing that music copyright has done little but create an exploitative oligopoly
that feeds on musicians and listeners alike. The way events play out today,
however, may well be different from the outcome a century ago.
Sullivan fought British bootleggers but was
especially outraged by their American counterparts: legitimate publishers who
took advantage of a quirk in U.S. law that denied the protections of copyright
to foreign authors. The irate Sullivan filed lawsuit after lawsuit in U.S. courts,
but only dented the trade. To prevent the pirating of The Pirates of Penzance,
he long refused to publish the score; bouncers prowled every show to stop music
thieves from writing down the melodies. Tired of what he regarded as "guerrilla
warfare," Sullivan paid American musicians to put their names on the scores
of several operas, including The Mikado, and then to hand the rights back to
him, thus satisfying the requirements of U.S. copyright law. He sued American
theatrical companies when the scores were pirated anyway -- and lost. "No
Englishman possesses any rights which a true-born American is bound to respect,"
one judge supposedly said. In 1900, when Sullivan died, his funeral cortege
passed through London streets that were still full of scofflaw music-hawkers.
British publishers were fighting back too.
"They were losing a lot of money," says James Coover, a music professor
at the State University of New York at Buffalo. "What else would you expect
them to do?" As he documents in Music Publishing, Copyright and Piracy
in Victorian England (1985), the efforts of Britain's Music Publishers' Association
were at first scattershot and ineffective. The publishers tried to restrict
the length of time during which people could perform sheet music before they
were required to buy another copy. They asked the postmaster general to block
all music shipments from the United States. They threatened to prosecute musicians
who transposed songs into other keys. But eventually the publishers hit on a
winning strategy: they persuaded Parliament to pass strong new anti-piracy legislation
and then sought to enforce it.
The Musical Copyright Act came into effect
on October 1, 1902. That day more than a thousand anti-pirate vigilantes, paid
by the Music Publishers' Association, swaggered onto the streets of London,
searching for and destroying illegitimate editions of "Stars and Stripes
Forever," "Brooklyn Cake Walk," and "Pliny, Come Kiss Yo'
Baby!" The goons became violent. Skulls were cracked, doors broken, sheet-music
bonfires set. Millions of songs were seized. In addition to vigilantes, the
publishers hired lawyers, who sued Fisher & Co. in 1905. Testimony was lopsided.
The publishers called more than fifty witnesses, Fisher & Co. zero. Willetts
was sentenced to nine months in the clink. The light sentence annoyed the publishers,
who had gone to considerable expense to prosecute him. Nonetheless, the trial
was successful, Coover told me recently: by showing the teeth in the new copyright
law, the publishers "scared off" the great majority of music black-marketeers.
The pirate trade quickly collapsed, done in by a determined blend of legislation,
litigation, and leg-breaking.
Today's music industry, like yesterday's, initially
faced unfavorable laws; like yesterday's industry, it induced the legislature
to revamp them and then went after infringers with a legal club. The first attempt
to prosecute someone who released copyrighted material on the Internet, in 1994,
collapsed embarrassingly when the judge threw out the charges -- existing case
law said that infringement had to be associated with financial gain, and the
material had been given away. The No Electronic Theft Act, passed in 1997, closed
this loophole. The Digital Millennium Copyright Act, passed in 1998, further
strengthened the industry's hand -- it banned attempts to circumvent copy protection.
With the help of what Edgar Bronfman, of Universal, recently described as a
"Roman legion or two of Wall Street lawyers," the Recording Industry
Association of America has for the past two years sued or threatened to sue
Web sites that contain copyrighted songs, universities that allow students to
trade tunes on their computer networks, consumer-electronics companies that
produce digital music players, online-music services that lack proper licenses,
and, of course, Napster. A&M Records, et al. v. Napster, an RIAA-backed
suit by seventeen record companies, was filed in December, ninety-four years
after charges were brought against Fisher & Co.
Some of the lawsuits have been successful,
most notably a proceeding against MP3.com, a site that, among other things,
lets people listen through the Internet to music they own on compact discs.
(The company did not obtain the requisite licenses to provide this service.)
Napster has suffered serious legal setbacks, even though a trial remains at
least a month away. Nonetheless, it is widely believed that this time around,
laws and lawsuits will not be enough. Although the British were able to preserve
their traditional way of selling music at the beginning of the twentieth century,
nothing comparable will be possible at the beginning of the twenty-first --
the Internet, as the new-economy magazines like to say, has Changed Everything.
Hillary Rosen, the president of the RIAA, conceded to me that "there are
not enough lawyers in the world to sue all the people we'd have to sue."
(As it is, the association sends as many as thirty threatening letters every
day.) Stop fighting to preserve the past, Rosen counsels record labels. It can't
be done. The costs of manufacturing and distributing online music are so low
that record companies will be forced to offer their wares on the Net. Instead
of fighting the trend, she says, the industry should "embrace the opportunities"
provided by the Internet. Don't try to stop the flow of zeros and ones -- rechannel
it!
Rosen's advice is predicated on the belief
that the labels can find a way to make music files effectively uncopyable --
a belief that many Internet-security experts regard as an illusion. "If
people think that building higher walls and nastier barbed wire around desirable
product [on the Net] is going to prevent people from getting it, they're only
fooling themselves," contends Dan Farmer, a computer-security researcher
for EarthLink, a big Internet service provider. Farmer strongly believes in
protecting artists' copyrights; indeed, he consulted for the plaintiffs in A&M
Records, et al. v. Napster. But in a time when a single click can spread a work
around the world, he and others ask, how can anyone imagine that it is possible
to control distribution?
In an e-mail exchange I asked Farmer what would
happen if all content migrated to the Net, as many publishers promise, but none
of it could be paid for, as many technophiles promise. Would this mean the collapse
of the music labels, the movie studios, and book publishers? (I barely avoided
adding The Atlantic Monthly and myself to the list.) Given publishers' past
successes, such an apocalyptic resolution seemed unlikely. But watching the
lists of song titles on Napster drop down my screen like the slats of a venetian
blind made it easy to imagine. Farmer quite properly replied that economics
wasn't his field. He restated his belief that there was really not much to be
done about it. Then he added, in what I imagined were the apologetic tones of
someone forced to give bad news, "I can see why people get worried about
this stuff, though."
Continued...
(The online version of this article appears
in four parts. Click here to go to part two, part three, or part four.)
------------------------------------------------------------------------
Charles C. Mann is a correspondent for The Atlantic. His article about copyright
in the Internet age, "Who Will Own Your Next Good Idea?" (September,
1998, Atlantic), was a finalist for a National Magazine Award.
------------------------------------------------------------------------
Copyright © 2000 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; September 2000; The Heavenly Jukebox - 00.09; Volume 286,
No. 3; page 39-59.