Pay Artists, Not ‘Owners’

Pay Artists, Not ‘Owners’

Eben Moglen has been representing parties sued by the recording industry and is working on a book about the death of intellectual property.


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? If we could duplicate loaves and fishes by pressing a button, it would be immoral to charge more for food than some people could afford to pay. In the Age of the Internet, the wealth of culture “owners” depends on a view of morality that condemns sharing and ignores the injustice of exclusion.

To support their position, the middlemen whose activity has become not only unnecessary but morally repugnant put forward the false claim that without their effort to extinguish sharing, artists will starve. The spectacle of an oligarchy that keeps about 94 cents of each dollar paid for music posturing as the friend of the musician would be sickening were it not absurd. But the question “How will artists be paid in a world of file-sharing?” has seemed to many the crowning objection in the oligarch’s case.

In fact, of course, musicians and other artists thrived before Edison turned culture into commodities. And there is every reason to believe that new forms of interaction between artist and audience can actually improve artists’ financial lot. The same network that makes it trivial to share music with the click of a button makes it similarly easy to transmit a dollar to an e-mail address, without friction and without loss. The online auction phenomenon has already accustomed millions of Americans to the model: an individual seller auctioning off an item she owns receives payment from an individual buyer through PayPal, a system that allows reliable and secure bank transfers or credit card transactions through e-mail, with a click. This technology can allow audiences to pay creators directly, through the software on their computers that downloads and plays the music, in turn enabling the musicians to pay for the services (engineering, promotion, production assistance) that support their art. If those of us who can afford it were to set up our computers to pay a quarter automatically to the artist for each song we get by sharing and decide to keep, musicians would earn enough to repay everyone in the creative chain (songwriters, producers, engineers) while keeping more than the pittance the “owners” condescend to award them now.

Audiences and artists don’t need the middlemen anymore. Their reason for being is defunct, and they are trying to maintain themselves by force. But it won’t work. They can sue some of the people some of the time, but they can’t sue all of the people all of the time.

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