Eben Moglen, professor of law
and legal history at Columbia University Law School, serves without
fee as general counsel of the Free Software Foundation
(http://emoglen.law.columbia.edu).You can read more of his
writing at http://moglen.law.columbia.edu.
The recording industry has been celebrating the supposed defeat of Napster. The Court of Appeals for the Ninth Circuit has affirmed the grant of a preliminary injunction that may well have the effect of closing the service down completely and ending the commercial existence of Napster's parent (that is, unless the record companies agree to an implausible deal Napster has proposed). But despite appearances, what has happened, far from being a victory, is the beginning of the industry's end. Even for those who have no particular stake in the sharing of music on the web, there's value in understanding why the "victory"over Napster is actually a profound and irreversible calamity for the record companies. What is now happening to music will soon be happening to many other forms of "content" in the information society. The Napster case has much to teach us about the collapse of publishers generally, and about the liberative possibilities of the decay of the cultural oligopolies that dominated the second half of the twentieth century.
The shuttering of Napster will not achieve the music industry's goals because the technology of music-sharing no longer requires the centralized registry of music offered for sharing among the network's listeners that Napster provided. Freely available software called OpenNap allows any computer in the world to perform the task of facilitating sharing; it is already widely used. Napster itself--as it kept pointing out to increasingly unsympathetic courts--maintained no inventory of music: It simply allowed listeners to find out what other listeners were offering to share. Almost all the various sharing programs in existence can switch from official Napster to other sharing facilitators with a single click. And when they move, the music moves with them. Now, in the publicity barrage surrounding the decision, 60 million Napster users will find out about OpenNap, which cannot be sued or prohibited because, as free software, no one controls its distribution and any lawsuits would have to be brought against all its users worldwide. Suddenly, instead of a problem posed by one commercial entity that can be closed down or acquired, the industry will be facing the same technical threat, with no one to sue but its own customers. No business can survive by suing or harassing its own market.
The music industry (by which we mean the five companies that supply about 90 percent of the world's popular music) is dying not because of Napster but because of an underlying economic truth. In the world of digital products that can be copied and moved at no cost, traditional distribution structures, which depend on the ownership of the content or of the right to distribute, are fatally inefficient. As John Guare's famous play has drummed into all our minds, everyone in society is divided from everyone else by six degrees of separation. The most efficient distribution system in the world is to let everyone give music to whoever they know would like it. When music has passed through six hands under the current distribution system, it hasn't even reached the store. When it has passed through six hands in a system that doesn't require the distributor to buy the right to pass it along, it has already reached several million listeners.
This increase in efficiency means that composers, songwriters and performers have everything to gain from making use of the system of unowned or anarchistic distribution, provided that each listener at the end of the chain still knows how to pay the artist and feels under some obligation to do so, or will buy something else--a concert ticket, a T-shirt, a poster--as a result of having received the music for free. Hundreds of potential "business models" remain to be explored once the proprietary distributor has disappeared, no one of which will be perfect for all artistic producers but all of which will be the subject of experiment in decades to come, once the dinosaurs are gone.
No doubt there will be some immediate pain that will be felt by artists rather than the shareholders of music conglomerates. The greatest of celebrity musicians will do fine under any system, while those who are currently waiting on tables or driving a cab to support themselves have nothing to lose. For the signed recording artists just barely making it, on the other hand, the changes are of legitimate concern. But musicians as a whole stand to gain far more than they lose. Their wholesale defection from the existing distribution system is about to begin, leaving the music industry--like manuscript illuminators, piano-roll manufacturers and letterpress printers--a quaint and diminutive relic of a passé economy.
The industry's giants won't disappear overnight, or perhaps at all. But because their role as owner-distributors makes no economic sense, they will have to become suppliers of services in the production and promotion of music. Advertising agencies, production services consultants, packagers--they will be anything but owners of the music they market to the world.
What is most important about this phenomenon is that it applies to everything that can be distributed as a stream of digital bits by the simple human mechanism of passing it along. The result will be more music, poetry, photography and journalism available to a far wider audience. Artists will see a whole new world of readers, listeners and viewers; though each audience member will be paying less, the artist won't have to take the small end of a split determined by the distribution oligarchs who have cheated and swindled them ever since Edison. For those who worry about the cultural, economic and political power of the global media companies, the dreamed-of revolution is at hand. The industry may right now be making a joyful noise unto the Lord, but it is we, not they, who are about to enter the promised land.