'The technological movement behind today's most bitter digital music controversies is often cast as the closest thing to online socialism since the Internet became a mainstream medium.' (John Borland, Mike Yamamoto and Corey Grice Staff Writers, CNET News.com, October 26, 2000)
The trend in the corporate 'takeover' of the sharing of music strains to finds ways to discredit its enemies, easily overwhelming them in the legal arena where hierarchies are sustained by precedent after precedent in favor the 'owners' of intellectual property or copyright. Invoking 'socialism' is surely to one of its most rapaciously absurd strategies. While the industry has been largely unsuccessful in convincing the net community of the economic morality in securing fee-based services (as amply demonstrated by the dismal testimony to the US Congress), the stark issues of a transformed means of distribution/reproduction shows that the 'hierarchies' are not so easily sustained in a form of globalization that outran its corporate and governmental sponsors.
'This is why companies engage in mortal combat to control the early stages of technologies: They know that such beginnings can easily become winner-takes-all battles, as seen in such cases as browsers, Java, multimedia streaming and instant messaging.' (A brave new - or old - world? Mike Yamamoto and John Borland Staff Writer, CNET News.com October 26, 2000)
'Mortal combat' is, in this case, as a striking term in the debate as 'socialism.' Establishing a decentralized P2P network surely terrifies industries whose dominance is hinged on very shaky notions of materiality and whose victory assures that it will profit from both subscription-based distribution and from contractual arrangements with artists who often relinquish copyright to these same corporations.
The siege, as the daily news reminds us, is directed not only at obvious targets like Napster, but at the exchange of information itself. It's led, on the one hand, to startling disclaimers, and to the chilling of free debate, to, on the other, to the potential criminalization of research. The Gnutella 'disclaimer' is particularly fascinating: 'Gnutella is an open, decentralized, peer-to-peer search system that is mainly used to find files. Gnutella is neither a company nor a particular application. It is also not a Web site; in particular, it is not this one, which is merely a hub for Gnutella information. It is a name for a technology, like the terms 'e-mail' and 'web'.' With no identifiable center, Gnutella avoids the problem of Napster (the original one at least) and make strategic corporate retaliation difficult at best.
The foreclosure of the P2P as an ideal and its nearly inescapable incorporation narrows the channel for the distribution of independent producers and artists whose marginalization is sustained in nomadic networks. But the issue at hand is not wholly aimed at the music scene but, more deeply, at protocols as well. Most interesting is the distribution of the DeCSS, which allows the decryption of DVDs. In August of 2000, a US Federal Judge outlawed the posting of the code. It proliferated in many forms (many are accessible at www.cs.cmu.edu/~dst/DeCSS/Gallery/, but amongst the earliest was Joseph Wecker's plaintive setting of the code as the song lyric for 'Descramble' (http://www.cs.cmu.edu/~dst/DeCSS/Gallery/css_descramble_joe_wecker.mp3). Posted on www.mp3.com, it was removed because it was deemed 'offensive or otherwise inappropriate.' The Motion Picture Association of America (MPAA), acting as a representative of the recording industry, and who initiated suits against any site that posted the code. Wecker's song, however, was in a slightly different circumstance. As a work of art, it was protected as speech because of its protected form. 'We will not be suing this songwriter,' said Mark Litwack, vice President of the MPAA's anti-piracy division, quoted in The New Yorker essay by Peter Maass (October 16, 2000), 'The Supercool Top-Secret DVD-Decoder Song.' Wecker's song, along with a remarkable number of other incarnations of the DeCSS material are now on the site of Dr. David S. Touretzky who has posted the material under the disclaimer: 'This web site is located at Carnegie Mellon University in Pittsburgh, Pennsylvania. Materials provided here are for purposes of education and research.' The Gallery of CSS Descramblers has T-Shirts (printed with the code), Logos, screen dumps and even a film version available at http://decss.zoy.org/.
Touretzky also heard from the MPAA:
'The Motion Picture Association of America is authorized to act on behalf of the following copyright owners:
Columbia Pictures Industries, Inc.
Disney Enterprises, Inc.
Metro-Goldwyn-Mayer Studios Inc.
Paramount Pictures Corporation TriStar Pictures, Inc.
Twentieth Century Fox Film Corporation
United Artists Pictures, Inc.
United Artists Corporation
Universal City Studios, Inc.
Warner Bros., a Division of Time Warner Entertainment Company, L.P.
'We have knowledge that the above-referenced Internet site is providing a circumvention device commonly known as DeCSS. DeCSS is a software utility that decrypts or unscrambles the contents of DVDs (consisting of copyrighted motion pictures) or otherwise circumvents the protection afforded by the Contents Scramble System (CSS) and permits the copying of the DVD contents and/or any portion thereof' (http://www.cs.cmu.edu/~dst/DeCSS/mpaa-00-02-08.html).
His response is lengthy but in part reads:
'I presently host a web page called the 'Gallery of CSS Descramblers' on the Carnegie Mellon University web server (at http://www.cs.cmu.edu/~dst/DeCSS/Gallery). A printout of the Gallery is annexed hereto as Exhibit B. I created the Gallery in response to the Preliminary Injunction issued by this Court. The Gallery consists of a set of files containing source code, textual descriptions of algorithms, and discussion of programs that can decrypt data that has been encrypted with CSS, or that can recover the keys necessary for such decryption. One version of the decryption code has been published on a t-shirt; the Gallery includes an image of this shirt together with a link to the web site from which the shirt can be ordered. I do not link to the binary executable file for the program known as DeCSS.
'…It is my belief that source code is expressive speech meriting the full protection of the First Amendment.
'… The conclusion I hope will be drawn by visitors to the Gallery is that even when code is primarily intended to be executed, it retains expressive content, and that content can be preserved in trivially-derived variant versions that are not executable. Therefore, the executability of code is not an essential characteristic differentiating it from other forms of speech.'
Brad King cites Fred von Lohmann (visiting researcher at Berkeley Center for Law & Technology) in a Wired News report, 'Copyright Clash Shutters Speech' (May 2, 2001): 'Today, hackers are to the First Amendment what pornographers were twenty years ago,' von Lohmann said. 'The same way Larry Flynt was a First Amendment crusader in the seventies. The question of (whether you can)publish code seems to be under attack in all kinds of places. If code is speech, and federal courts have said that it's speech, then when can the government come in and regulate code?'
'Tethered' downloads is a phrase that comes from 'MusicNet, a joint venture with major record labels from AOL Time Warner, Bertelsmann and EMI Group, plans to let music fans search for, then download or stream, a broad range of music owned by those three labels, Glaser said. These songs could be downloaded from other MusicNet subscribers, as people would on Napster, as well as from central servers. But there are key differences between the labels' effort and the popular file-swapping service. Only music that has been authorized by the labels will be available to trade. Any music downloaded via MusicNet will be 'tethered' to personal computers, so it can't be burned to CDs or transferred to portable devices. Consumers will also get an occasional reminder to 'relicense' their downloaded music, meaning they will have to keep paying monthly subscriptions to listen to downloaded music.' ('RealNetworks unveils Napster-like service', John Borland, CNET News.com, May 17, 2001)
The danger, as even Ben Bagdikian concluded in the 1983 book The Media Monopoly is that 'irresponsibly excessive profits will continue to weaken the vitality of a crucial institution,' and that 'glib financial manipulators will repeat more pious speeches even as their media treat the public mind with contempt.'
'Die technologische Bewegung hinter den erbittertsten Kontroversen im Bereich der digitalen Musik wird oft als eine Entwicklung gesehen, die dem Online-Sozialismus am nächsten kommt, seit das Internet zum Mainstream-Medium avanciert ist' (John Borland, Mike Yamamoto, Corey Grice, CNET News.com, 26. Oktober 2000)
