10 May 2000
Source: Column, US national newspaper
10 May 2000
By Holman W. Jenkins Jr.
Intellectual property, not to put too cynical a point on it, is that which can be protected.
As anyone deeply concerned with the wealth of rock stars already knows, Napster is a new software model that has raised a serious question about whether recorded music is still proteetable. Naturally its appearance has occasioned much weeping among big-name musicians, accustomed to the idea that technology is their friend.
Once it was technology that let them warble a few tunes into a microphone and then resell that single performance to thousands or millions of fans. Or rather, it was the clunkiness of the distribution system (trucks, record stores) that multiplied the number of transactions so the record companies could assess a tax on each one.
Now the technological worm is turning. Music fans can download Napster, a free piece of software from a website, and instantly scour the web for downloadable music files, known as MP3 files, on the hard drives of millions of other fans. Napster leaves it up to users to worry about copyright laws, which is to say no one worries about copyright laws. We have disorganized crime on a massive scale.
This is wrong, terribly wrong, and yet it's hard to think of anything to say but tough luck, buster. A quirk of technology giveth and a quirk of technology taketh away.
Hollywood knows that movies are ripe to be Napsterized too. There's already a compression scheme called DivX circulating that will reduce a two-hour film to a file small enough to be transferred in minutes over broadband.
No technological fix is likely to put things back the way they were. Though companies are going through the motions of developing encryption and digital watermarking, they know it only takes one copy of a work to get loose in digitized, unprotected form, and soon it's everywhere. The jig is up. The smart people in music are already working on ways to make a single playing too cheap to be worth stealing, hoping to make up the difference on volume.
Still each day the future can be held off is another day the old economics can be milked. The heavy-metal band Metallica, entering its "fat Las Vegas Elvis stage," in the words of one ex-fan, is suing Napster and demanding that it "deregister" the screen names of those customers trafficking in its music.
Also suing is Andre Young, a.k.a. Dr. Dre, founding member of the rap group "Niggaz With Attitude." His grievance -- "I don't like people stealing my music" -- is unimpeachable, but it sounds funny coming from someone whose music extols the "gangsta" life.
Napster could conceivably be ground up by the law (on Monday, two preliminary rulings went against it), but a new model, called Gnutella, is already taking hold. Gnutella allows users to share any files they care to make available to each other, and it doesn't require a central server to broker the exchange the way Napster does. In other words, there is nobody to sue.
Having run up the white flag on the entertainment industry's behalf, we must now consider the implications for many of the Internet business models that investors have spent billions to try out.
It's no accident that Napster took off on college campuses first, where kids not only have broadband, but have it coming and going -- unlike most Internet service providers, whose systems allow much faster downloads than uploads. Interesting, isn't it, that the population with the greatest access to bandwidth also found the fastest way to use it up?
More than 100 schools have banned Napster because it was causing too much traffic. But there aren't enough kids on campus to trade that many files among themselves. It was off-campus users -- i.e. the whole world-reaching into dorms and campus computer centers to download music.
Implication One: Look out, phone companies. You only have to inspect a typical Napster search result to see that most users are old-fashioned phone-modem customers. Their messing around with bulky music files, if the traffic keeps growing at a geometric rate, could overwhelm the old, circuit-switched local phone network.
Implication Two: Look out, cable companies. After billions of dollars of upgrading, they've created broadband systems that may download at blazing speeds but still upload at rates hardly better than excruciating phone modems. DSL, the broadband technology favored by the phone industry, is much more adaptable to a Napsterized world, because it can run heavy traffic both ways.
Implication Three: Look out, everybody. The cable companies aren't the only ones that saw the future as average folks downloading stuff from a relative handful of megaservers. Aficionados of the stripped-down network eomputer make the same assumption. And those who want to make a living running electronic exchanges (eBay, the auto industry, the stock markets) haven't reckoned on the revelation that you don't need to attract users to a single site to make a market.
Napster suggests that users won't be so passive and will do a lot of serving themselves. And Gnutella-like software can let buyers and sellers create markets without going through a broker. Bill Gates has argued steadfastly that the hemi-powered. software-filled PC is not dead yet. And Apple has been trying to sell iMacs to the masses based on their video-editing capabilities. These folks are onto something.
Implication four: Look out, policy makers. As companies fret about their own strategic positions, they find it useful to frighten the public about the possibility of commercial censorship. First, it was AOL when it saw AT&T's cable acquisitions beating it to the broadband punch. Now it's Disney trying to pretend that AOL's acquisition of Time Warner's cable network could make it impossible for Disney to reach its customers.
Napster demonstrates, if it still needs demonstrating, that anything anybody cares to distribute on the web will be available to anybody who wants it. How many AOL subscribers are right now using its dial-up service to steal music, via Napster belonging to AOL TimeWarner? Probably millions. Is AOL trying to block them from downloading Napster?
Nope. In theory, an access provider could block anything it wants to, but then it wouldn't be providing access, and its customers would go elsewhere. Anarchy wins. Stop worrying.
Source: US national newspaper.
While American courts struggle over the recording industry's challenge to digital music swapping, Ian Clarke, a 23-year-old Irish programmer, is moving on to the next battleground. He is finishing a program that he says will make it impossible to control the traffic in any kind of digital information -- whether it is music, video, text or software.
His program, known as Freenet, is intended to make it possible to acquire or exchange such material anonymously while frustrating any attempt to remove the information from the Internet or determine its source.
Mr. Clarke and his group of programmers have deliberately set themselves on a collision course with the world's copyright laws. They express the hope that the clash over copyright enforcement in cyberspace will produce a world in which all information is freely shared. In any case, the new programs could change the basic terms of the discussion about intellectual property.
The swapping of music files over the Internet, through services like Napster and MP3.com, has already raised the hackles and mobilized the lawyers of the recording industry and some musicians, who say the practice amounts to piracy. They hope either to halt the services or to collect royalties on the digital works being swapped.
But programs now emerging make it possible to find and acquire files without reference to a central database, and thus provide no single target for aggrieved copyright holders. And methods being developed to protect such works -- like scrambling the data and requiring a key to decode it -- may wind up being trumped by similar encryption that covers the tracks of those doing the swapping.
"If this whole thing catches on," Mr. Clarke said, "I think that people will look back in 20 to 40 years and look at the idea that you can own information in the same way as gold or real estate in the same way we look at witch burning today."
The groups and companies pursuing the new distribution technologies -- programs that in effect create vast digital libraries spread across potentially hundreds of thousands of large and small computers -- do not necessarily share Mr. Clarke's ideological viewpoint. They range from iMesh, an Israeli-American start-up company that aspires to become an international commercial digital distribution system, to several small groups of free-software developers intent on building new systems for the sharing of any kind of digital information.
Some contend that if their software lends itself to copyright infringement, it is the user's responsibility, not theirs. Mr. Clarke, putting into practice a view expressed by many in the free-software movement, takes the more extreme position that copyright protection is simply obsolete in the Internet era.
A test version of his Freenet program -- written in England and now distributed free to many countries around the world -- was posted on the World Wide Web in March.
Mr. Clarke, who lives in London and works for a small electronic commerce company, said last week in a telephone interview that there had been more than 15,000 downloads of the early versions of his product, indicating that hundreds or perhaps thousands of network servers on the World Wide Web are already running the program. Any file that any user wants to offer to others can be made available through the system. So far, that includes software programs, video pornography and a copy of George Orwell's "1984."
Mr. Clarke said he was confident that corporations trying to develop complex technologies to encrypt information or otherwise halt the free sharing of computer data would ultimately fail. "I have two words for these companies: give up," he said. "There is no way they are going to stop these technologies. They are trying to plug holes in a dam that is about to burst."
That attitude, plus the fact that millions of users have come to rely on easy access to digital information via the Internet, suggests that the issue may quickly outstrip the current debate over copyright infringement between the recording industry association and a variety of Internet music distributors.
"I have no shortage of gray hairs from worrying about these programs," said Talal G. Shamoon, a Silicon Valley executive who heads a working group of the Secure Digital Music Initiative, a technology and entertainment industry working group.
Some legal experts believe that the intellectual property laws are being used in an effort to grapple with technologies they were never intended to address.
"Copyright law is not the right tool in the case of many of the new technologies," said Pamela Samuelson, a digital technology and copyright expert at the law school of the University of California at Berkeley. "The question will quickly become whether other governments have reasons to try to regulate these new systems or whether the U.S. government has the ability to regulate them."
Indeed, law enforcement officials are only beginning to wrestle with the implications of new technologies that will permit the anonymous, instant, global distribution of information of any kind. "We're obviously looking at all of these," said Christopher Painter, deputy chief of the Justice Department's computer crime and intellectual property section. "It makes our job more difficult and makes it harder to find the people who are perpetrating crimes."
Freenet, which Mr. Clarke conceived while he was an undergraduate at the University of Edinburgh, is intended to function without any centralized control point. "Freenet is a near-perfect anarchy," he said.
Another Internet digital distribution program, Gnutella, created by software developers at the Nullsoft subsidiary of America Online, has the same distributed approach employed by Freenet, meaning that there is no central directory of what information the system contains.
Unlike Napster, which is limited to digital music files, Gnutella makes it possible to distribute video, software and text documents as well.
America Online declared Gnutella an "unauthorized freelance project" in March, just hours after it was made available on the Internet. But since its developers made its code freely available, independent programmers have continued to refine Gnutella even though the project was officially canceled.
Many computer industry executives contend that if the recording industry's suit against Napster succeeds, it will simply lead digital-music enthusiasts to use alternatives, like Gnutella and Freenet, which are even less open to copyright enforcement.
"So are all the musicians and record companies going to continue their suits against Napster?" a Gnutella user who identified himself as Panicst8 wrote in a recent network posting. "It seems kind of pointless, or have they just not figured out yet that Gnutella is about 10,000 times more effective at locating what you want?"
Freenet goes several steps beyond Gnutella in an effort to protect the anonymity of those who publish or copy information electronically. It encrypts each file and scrambles the key -- actually a long number -- needed to find the file within the system.
And Freenet incorporates a digital "immune system" that responds to any effort to determine the location of a piece of information by spreading the information elsewhere in the network.
Freenet relies on a system of volunteers who run the program on network computers, or servers, Mr. Clarke said, and it will even be difficult for the operators of individual parts of the network to determine which computer holds any particular file.
For the moment, at least, copyright holders can take comfort from the fact that Freenet is more efficient at obscuring the source of information than at helping users find it. Mr. Clarke has not yet built a search capability into the system, so users must find other ways to let one another know how to retrieve files.
And technologists like Mr. Shamoon say systems like Freenet present a challenge, but not an insurmountable one. In addition to his industry role with the Secure Digital Music Initiative, Mr. Shamoon is senior vice president for media at the InterTrust Technologies Corporation, a Silicon Valley company that builds systems for protecting intellectual property.
He cites the possibility of the transmission of viruses and other harmful programs as being one of the obvious risks inherent in electronic communities where no basis for trust inherently exists.
"From a trust standpoint, the current generation of tools such as Gnutella and Freenet are a nightmare for the same reason that badly constructed social communities are a nightmare," Mr. Shamoon said.
The recording industry will survive, he argues, if it is able to offer its users new things of value.
"There are a lot of dangers here," he said. "But as a society, we're very adept at adapting to compensate for these things."
Mr. Clarke, it seems, would not disagree. Citing past innovations from the photocopier to magnetic tape, he writes on his Web site, "Artists and publishers all adapted to those new technologies and learned how to use them and profit from them; they will adapt to Freenet as well."
Pooling ResourcesMore than a dozen systems make it easier to distribute or exchange digital files like music, text or graphics. Here are some of the most popular. Some have centralized files or indexes; others distribute data widely over a network, making it more difficult to trace its origin.
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