MP3: It's Only Rock and Roll and The Kids Are Alright
What the content industry has claimed is a "crisis" of digital reproducibility is actually the opportunity they have been dreaming of. All the whining about piracy and "unauthorized use" and the high-profile lawsuits are sly tactics. The music industry is just stalling through litigation until it can establish a standard, secure digital-encryption format, which is an essential step toward a global "pay-per-view" culture. This technocratic regime will be a severe threat to democracy and creativity around the world.
The important struggle here is not bands versus fans, or even Time Warner versus pirates. It involves the efforts of the content industries to create a "leakproof" sales and delivery system so they can offer all their products as streams of data triple-sealed by copyright, contract and digital locks. Then they can control access, use and ultimately the flow of ideas and expressions. The content industry has been clear about its intentions to charge for every bit of data, stamp out the used-CD market and crush libraries by extinguishing fair use. In late June America Online agreed to a deal with a digital-rights management system called InterTrust. InterTrust will provide the encryption and decryption technology to AOL's software so that AOL users will endure metered and regulated use of digital music, film, text and everything else. Other digital music services are struggling to settle cases with the record industry and are considering ways to install electronic controls on their music.
The reason the culture industry can take advantage of the "Digital Moment" to trump the democratic process and write its own laws is that digital formats collapse the distinction between using material and copying material. If you are reading this article on the Nation website, you have made a copy of it on your computer. If you are reading the magazine proper, you have not. Because regulating reading or listening raises deep First Amendment concerns, courts have been unwilling to do so until now. However, copyright law regulates copying. So, digital distribution allows a higher level of regulation than we ever imagined. Soon--unless Napster and MP3 formats prevail--we will have to apply for a license to listen or read, and the rule of law will no longer apply. America Online will in essence be the cop, jury and judge in matters of copyright.
What James Madison knew, and American jurists have known for centuries, is that a leaky copyright system works best. When properly balanced, copyright allows users--that's citizens to you and me--to enjoy the benefits of cultural proliferation at relatively low cost through a limited state-granted monopoly. Libraries help that process by letting the wealthy or the community subsidize information for all, most usefully for the poor. And a thin, leaky copyright system allows people to comment on copyrighted works, make copies for teaching and research, and record their favorite programs for later viewing. Eventually, a copyright runs out, and the work enters the public domain for all of us to enjoy at an even lower cost.
But when constructed recklessly, copyright can be an instrument of censorship. Here's the big picture: Copyright used to embody a clear and cautious balance among artists, producers and users. Now the game is rigged, thanks to the political power of AOL, Time Warner et al. Citizens, music fans, artists, teachers, librarians and programmers are in a virtual lockdown from these trends. Metallica is not. Perhaps as a result of all the attention Napster has received, people will notice these long-term threats to our culture and democracy and stop demonizing kids who love music.