As I discussed earlier, radio doesn’t give musicians the right to choose how their music will be presented. Radio stations purchase annual blanket compulsory licenses from organizations that collect songwriting royalties—ASCAP, BMI, and SESAC—something that
gives these broadcast outlets the freedom to order songs in whatever ways they see fit. Once the song has been publicly released, copyright holders are given only limited control over their creative goods. The difference between current file-sharing and radio, at the moment, is that radio pays for what it plays. Sort of. The fee for these blanket licenses compensates the songwriter, not the performing artist. In other words, every time a commercial radio sta-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 303
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tion played Frank Sinatra’s signature song, “My Way,” the crooner didn’t see a dime, because late-1950s teen idol Paul Anka wrote it.
Radio stations are essentially getting a free ride on the value Sinatra added to Anka’s song.25
At first glance this payment practice seems unfair, but it really points to how the enforcement of copyright law has always involved compromise. The example of radio also shows how “free” can
translate into cash. Radio broadcasts act as commercials that advertise the existence of a record, and it is in this indirect way that performing artists are remunerated for their efforts. If all copyright owners had their way—if they could manifest their own vision of a
“perfect” world—our media culture would be quite different, and much more constrained. For instance, if early-twentieth-century song publishers had their way, we’d still be diligently buying their sheet music, just as if modern record companies had prevailed in court in 1999, there would be no MP3 players.
THE GIFT ECONOMY IN ACTION
When the Dave Matthews Band shelved an entire album recorded
with longtime producer Steve Lilywhite, the songs leaked onto the Internet and fans devoured them. The band initially believed the album wasn’t worth putting out, but the extensive downloads
demonstrated otherwise. And when they released an official version of the album, Busted Stuff, it debuted at number one. Even though the audience for the CD overlapped with those who had already downloaded versions of those tracks, it sold about two million copies, according to Nielsen/Soundscan. The same scenario played out with the Chicago-based rock band Wilco, which was dropped by Warner after the major label deemed their album “uncommercial.” As the group searched for a new label, the tracks leaked onto McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 304
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file-sharing networks—so they put the album on their Web site so that fans could listen to it for free.
By applying the major labels’ logic, the band’s gift should have cut into sales, but the exact opposite happened. Wilco’s Yankee Hotel Foxtrot ended up debuting in the Billboard top twenty and went on to be the band’s biggest album, selling a half million copies, double that of its last album. The publicity surrounding the plight of the record combined with the free distribution of their music on the Internet undoubtedly generated more sales for the little band that could. Wilco’s next album, A Ghost Is Born, also spread on file-sharing networks long before its official release. “How do I feel about the record leaking on the Internet?” says Wilco business manager Tony Margherita. “Well, that’s a little bit like asking me how I felt about the sun coming up today. It’s an inevitable thing and not something we ever perceive as a problem.”26 The Magnetic
Fields are signed to Nonesuch, Wilco’s label. “When we went to Nonesuch,” says Claudia Gonson, “they told us not to worry about downloading—because look at what happened with Wilco, and
how their sales increased.”
Responding to concerns about downloading, film archivist Rick Prelinger argues that the answer isn’t the nearly impossible task of preventing unauthorized duplication. The solution is to sell more copies by creating incentives and positive reinforcements to purchase. Many people still collect CDs and DVDs because of the value that the packaging and supplementary materials add—and they
download. “The biggest reason to make material available for free is that it feeds demand,” Prelinger tells filmmakers and other creative types. “Think of a free download as a trailer, a preview, an ad, as a way of stimulating DVD sales.”
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else was collecting at that time: educational filmstrips, industrial films, and the like. It became a rather large collection that went to the Library of Congress, and since 2000 he’s been working in a partnership with Brewster Kahle’s Internet Archive to digitally distribute these materials. What’s fascinating about the Prelinger Archives is that they’ve taken all the key films from the collection and put them online, for free. People who download the material can then reuse the footage in their own work without restriction; all that is asked for is a simple credit. “So if somebody wants to make a movie and they don’t have money to get footage,” Prelinger tells me,
“they can access really a kind of wonderful library of historical footage for free.”
“Why not free?” Prelinger says, turning my inevitable question around. “As long as it’s possible for me to make a living out of that collection—it turns out that we actually make more money because we give things away.” He put his money where his mouth is, demonstrating in practice the fact that the gift economy isn’t just a nifty theoretical idea, that you can give things away and still have a viable product. “We have a two-tier model. If you want a very, very high-quality copy—a physical copy on tape—you can pay to license it from us,” he says. “But if you want something for free, you go online and you download it. It’s been exciting. I think archives are validated by what kind of use is made of them. There’s been this profu-sion of work that wouldn’t have happened if people hadn’t had access to that material. So it’s kind of an exercise in democracy.”
Prelinger points out that in 2003 his company’s sales were up roughly 20 percent from the previous year—this during a recession, something that wasn’t true of his competitors. He attributes the increased profits to the easy availability of the archive’s films online and the publicity that has generated, allowing Prelinger’s outfit to compete with other archive companies with bigger marketing McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 306
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budgets. He says there are a lot of people out there whose jobs require them to find interesting imagery and recycle it into the culture—trend spotters, fashion people, MTV producers, ad people, and others. “It’s kind of like the rising tide. I make more money,” Prelinger says, “and all the other people that are involved with selling stock footage do better. I think it’s kind of an amazing example.”
At the exact moment when Hollywood successfully lobbied the
FCC to mandate that television signals carry a “broadcast flag”—
which prevents programs from being downloaded—the British
Broadcasting Corporation took another course. After visits from Lawrence Lessig and Brewster Kahle, in 2003 the BBC announced it would make much of its archive available for download. BBC
director-general Greg Dyke will make available free, digitized versions of the network’s productions from the earliest radio broadcasts to its most current documentaries. It also allowed media-makers to reuse the BBC’s material in their own work. Con-templating a question about whether or not file-sharing harms the BBC, Dyke pauses, then asks, “Wait a minute. Why do we care about them sharing our programs?” It’s part of the BBC’s charter: to make its material available to as wide an audience as possible. File-sharing only helps this cause.
The project is called the BBC Creative Archive and is inspired in part by the U.S.–based Creative Commons project, which Lessig helped found with involvement from Kahle, Prelinger, and others.
The Creative Commons Web site offers simple boilerplate contracts that allow artists’ works to be easily shared, and Brewster Kahle’s Internet Archive offers free hosting of digitized works that carry a Creative Commons license. Sound-collage artists such as Negativland and Vicki Bennett have applied Creative Commons sampling licenses to their work, which encourages others to sample and McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 307
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transform it. The famous Brazilian artist Gilberto Gil, today Brazil’s minister of culture, released his 2003 album with a Creative Commons license.
“You are free,” the license stated, in part, “to make derivative works.” Rather than all rights reserved, some rights are reserved. Gil retained his copyright on the album, but the license gives others more freedom to do something new and unexpected with fragments of his music, without dealing with lawyers. “I’m doing it as an artist,” says Gil, though he acknowledges his leading role as a Brazilian government official. He says his ministry has been “getting interested in supporting projects concerning free use,” not only for music but creative content in general.27
The gift economy also works in its own curious way for artists whose songs have been sampled, something that has frequently
rekindled the commercial life of the original artist or song. Liquid Liquid was dealt a major legal headache when Grandmaster Flash appropriated their song “Cavern” for Flash’s “White Lines,” but it turned out to be a good thing over the years. “I don’t have any bad feelings about the ‘Cavern’ thing,” bassist Richard McGuire tells me, sitting in his immaculate Manhattan studio. “I think it helped keep our band alive. The band still has this following because of that, and it’s given us so much more attention. The song will live on because of it.”
OPEN-SOURCE AND FREE CULTURE
The same technological advances that made digital sampling possible also helped dramatically lower the price of home recording equipment. Garage bands and platinum-selling artists alike now use computer-based software and hardware systems that cost a
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price, musicians can make a high-quality recording and put it directly onto the hard drive of a computer (though it still can’t re-create the sonic richness and nuance of many traditional studios).
With these programs, rather than patching your guitar through a physical reverb or distortion pedal, you can download “plug-ins”
that generate those effects. Since the late 1990s, there’s been an explosion in the number of free, freaky effects available for musicians and producers to download and do with what they want.
“There’s all sorts of synthesis techniques that can be applied,”
says über-gearhead Thom Monahan. “Stuff that emulates analog
circuitry, like stuff you might find in an old studio. You can do lots of things with plug-ins.” Reason is a popular audio-production program, one that is designed to emulate a rackful of audio gear—
drum machines, samplers, synthesizers, pianos, etc. The program allows you to use “sound sets” called Refills, which might contain, for instance, the full range of notes made by an organ. Propeller-head, the software company that makes Reason, opened the architecture of the software so that people could create their own Refills.
For instance, the 808 drum machine, whose booming bass sound
was the foundation of a lot of 1980s hip-hop and House records, has been fetishized by collectors to the point that it now sells for thousands.
“There’s a guy in Italy who thought it was ridiculous,” Monahan says, “so he took his 808 and he sampled the hell out of it, and put together this amazing Refill of his 808 drum machine and put it online so that people could do stuff with it.” Similarly, Thomas O’Neill loved an eight-foot Baldwin grand piano that his parents had to get rid of, so he spent hours recording it. He then turned the digitally preserved piano into a Refill packet and posted it on the Web for anyone to download. “I hope you like this little gift to the Reason user community,” O’Neill wrote on his Web site, “and that it finds its way into your music making.” This is yet another example of the McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 309
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gift economy, which goes to the very communal heart of the open-source and free-software movements.
The “openness” of open source and the “freedom” of free soft-
ware allows many people to collaborate and build upon each
other’s ideas, which are then transformed into something new and unexpected. This kind of creativity is possible because open-source code can be copied and freely built upon by an army of volunteers, then given back to the community, often in improved or expanded form. The surprising thing about the open-source and free-software movement is that its products often outcompete the products of their closed, proprietary competitors. For instance, the open source Sendmail routes over 80 percent of all e-mail on the Internet, and Linux commands 27 percent of the server market, much to Microsoft’s chagrin. Bill Gates has a right to be concerned. In 2002
Britain, Russia, China, South Korea, and other countries began to seriously consider replacing their Microsoft servers with Linux-based PCs.
Other governments worldwide are expected to require state
agencies to use free, open-source software, and Brazil, Thailand, India, and Germany have already begun to use open-source software on public computers. During these times of education budget cuts, many information technology (IT) workers in the United States are turning to open-source software. For instance, a University of Missouri IT employee told me that his department uses open source whenever possible, something that is increasingly common for his colleagues at other institutions. In 2003 Massachusetts adopted a broad-based strategy for the state government to use open-source software. State Administration and Finance Secretary Eric Kriss said that the state was motivated by reducing licensing fees, but also
“by a philosophy that what the state has is a public good and should be open to all.”28
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Google, and many others run on Linux. Even Motorola released a cell phone that runs on the open-source Linux and Java in order to speed the development of innovative features and applications, something that other companies followed. “We’ve been open, using Java, which is the key to applications,” says Motorola senior VP
Scott Durchslag. “But putting Linux under Java as our operating system is openness cubed.”29 By 2003 IBM was running television ads worldwide, proclaiming, “The Future Is Open.”
Richard Stallman, the founder of the Free Software Foundation, explains that his use of the word “free” isn’t economic. It’s “free,” as in “free speech,” Stallman says, not “free,” as in “free beer.” Lawrence Lessig explains, “A resource is ‘free’ when (1) one can use it without the permission of anyone else or (2) the permission one needs is granted neutrally.” Still, you might be wondering, why does the gift economy work? Is it some sort of magic increase machine?
Intellectual-property scholar James Boyle says that it’s fun to debate and imagine all the different explanations, but they’re ultimately irrelevant. With open-source software, he writes, you have a global network of people, and it costs almost nothing to transmit, copy, and share digital materials.
With these assumptions, it just does not matter why they do it. In lots of cases, they will do it. One person works for love of the species, another in the hope of a better job, a third for the joy of solving puzzles, and so on. Each person has his own reserve
price, the point at which he says, “Now I will turn off Survivor and go and create something.” But on a global network, there are a lot of people, and with numbers that big and information overhead that small, even relatively hard projects will attract motivated and skilled people whose particular reserve price has been crossed.30
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Robert Greenwald’s Outfoxed, discussed in chapter four, used a kind of open-source methodology to produce this documentary.
Although the medium was film, rather than computer software, it was similar to the way individual open-source programmers write certain sections of code, which are then compiled to create something larger than the sum of its parts, like Linux. In the case of Outfoxed, the New York Times reported that a group of volunteers was recruited to watch Fox News’s broadcasts twenty-four hours a day, with each volunteer assigned to monitor a particular time slot.
Greenwald created a list of categories—the sort of techniques used by Fox News to slant its coverage—and when a volunteer noticed an example on the producer’s list they e-mailed the producer the exact date and time it aired.
This information was entered into a spreadsheet, and before
long Greenwald’s assistants had logged enough examples to begin constructing a general outline of the film. Soon after, a small army of highly skilled film editors (who worked for next to nothing because they sympathized with the film’s politics) organized the clips into subsections that eventually created coherent narrative. Each worked as a separate node, often in different cities, and at the end of each day they posted their work on a secure Web site for Greenwald to review. Outfoxed was conceived and completed in just four and a half months, an astoundingly short amount of time to create a professional-looking documentary.
Interestingly, the ability of free or open-source software to remain unrestricted relies on the existence of copyright; it’s another reason why copyright itself isn’t inherently flawed. “Copyleft” is the term Richard Stallman uses to describe the method he and others apply to prevent their free-software code from being turned into proprietary software, that is, full of restrictions. “Copyleft uses copyright law,” Stallman says, “but flips it over to serve the opposite McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 312
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of its usual purpose: Instead of a means of privatizing software, it becomes a means of keeping software free.” The basic premise of copyleft is that it uses the legal-contractual force of copyright law to permit anyone to do anything with the code. You just can’t add your own restrictions to it (all modifications must be free—again, as in freedom).
There are many companies that profit from open-source soft-
ware, such as Red Hat, a company that packages and bundles Linux software and sells it for a price. But Red Hat also supports the development of new code and returns it to the open-source community, setting the information free. It’s by honoring the very basic social contract that we learned when we were kids—to share, and share alike—that companies such as Red Hat can contribute to
openness and make money. (Red Hat is profitable, has $328 million in the bank, and provides support for Amazon, DreamWorks,
Reuters, British Petroleum, and others.) Red Hat claims that the open-source model “often builds better, more secure, more easily integrated software. And it does it at a vastly accelerated pace compared to proprietary models.” Also, it’s cheaper for consumers.
The fact that much of the (sometimes giddily over-the-top) discussion of cyberspace’s “innovation commons” originates in the United States comes as no surprise to Eva Hemmungs Wirtén, a
Swedish scholar. The way America’s Wild West has been romanticized—freedom from constraints, rugged individualism, and ingenuity—overlaps closely with the tech talk of certain open-source and free software advocates. Those who lament the expansion of intellectual property and the enclosure of the Internet’s public domain can occasionally sound like Libertarian cowboys who are
repulsed by how the beautiful wide-open spaces have been fenced in by government (or corporate) regulation. At their worst, they come off like free-market yahoos whose primary mission is to protect the personal liberties of the programmer.
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“Innovation is a poor excuse for democracy,” Wirtén points out,
“and the ultimate test of whether or not the Internet truly offers the possibility of a global public domain lies perhaps not in its capacity to stimulate further technological breakthroughs on the part of a privileged elite but in its capacity to ensure increased public and hence democratic participation.”31 I believe that for a “free culture”
movement to grow into a broad-based coalition—rather than re-
main in an affluent technological ghetto—its raison d’être, its obsession should center around fostering genuinely democratic
freedom of expression® and social justice, rather than merely developing cool gadgets and nifty software tools.
Given that, I’m encouraged by some in the next generation of
open- and free-software converts. For instance, Nelson Pavlosky, the nineteen-year-old Swarthmore College student who sued Diebold over its copyright censorship, sees open and free software as something more than just an engine of innovation and individualistic creativity. “My friend installed Linux on my computer the summer before my freshman year,” he tells me, “and I was instantly hooked. It was just so cool; it embodied everything I believe in.” At the heart of the free-software ethos, Pavlosky sees an ideal of partic-ipatory democracy, one that comes from the bottom up—rather
than a top-down privatized model. “This is at the core of my philosophy: that people should be active, not passive,” the undergrad says, avoiding the cold, geeky technobanter some programmers can lapse into—instead, exuding a kind of earnest, humanistic warmth.
“The greatest barrier to positive change on our planet is apathy, and what better way to promote apathy than to prevent people
from participating? What better way is there to prevent people from caring than to remove all sense of community, of involvement in the world around them, to make action and activity the domain of other people far away?” Reminding me of his religious background, he explains, “There is actually a lot of overlap with my Quakerism.
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A Quaker meeting is very democratic. Anyone can speak in a meeting—that right is not reserved for a priest or preacher—and Quakers have a long tradition of direct action that opposes injustice.”
“The importance of open-source software is not that it intro-
duces us to a wholly new idea,” writes Professor Boyle. “It makes us see clearly a very old idea.”32 He’s talking about the long-standing ethic of resource sharing, and the Internet has opened up new opportunities for the gift economies to flourish. For instance, the prestigious Berklee College of Music has put a large amount of content online. With a Creative Commons license, Berklee encourages people to freely download more than one hundred music lessons that come with video, audio, and text files. These range from tips on Afro-Cuban conga rhythms to turntable tricks for DJs. There are a number of reasons why Berklee is wading knee-deep into the gift economy. “(One) it’s free and easy—the best proven way to get your stuff widely disseminated right now,” says Glenn Otis Brown, executive director of Creative Commons. “(Two) it’s their audience.
A lot of people using these networks are music lovers, so they know they’re getting the attention of groups inclined to listen. This project really demonstrates that file-sharing is basically just a great communication tool, and there are very legitimate uses of this kind of technology.”
The college is doing this to cheaply spread the Berklee name
around the world, to educate students about careers in the music industry, and to cultivate a multisided conversation about file-sharing. After quietly introducing these lessons in late 2003, within a month the files spread to more than ten thousand Web sites, generating over one hundred thousand downloads during that brief period. While Dave Kusek, associate vice president of the school, and other faculty members were surprised at this overwhelming positive response, they were even more amazed to discover that McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 315
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these users were also uploading their music to file-sharing networks. “When you look at the big picture, most musicians, if they’re not songwriters, make most of their money performing,” says
Kusek. “It’s a great way for new artists to get exposure for nothing.
This is an example of when you want to use the network to distribute, when you want access to your material to be free. That’s a choice you can make that has a lot of power.”33 Creativity wants to be paid, true, but it also wants to spread freely, to be known.
FROM THE MUSIC BUSINESS TO THE MUSICIAN’S BUSINESS
A funny thing (humorous, at least, to someone who isn’t a major-label exec) is that the music industry itself is responsible for usher-ing in what it sees as the dark days of downloading. In the 1980s record companies were pushing the digital compact-disc format on the public, but cassette and LP buyers remained unconvinced. CD
sales weren’t as brisk as they had hoped. Then, in the late 1980s, the major labels instituted an industry-wide no-return policy on vinyl that forced retailers to stop carrying LPs. Because the vast majority of records released fail commercially, a liberal return policy had been an industry norm. Stores could no longer sell LPs without serious financial risk, because they couldn’t return them for credit. I was working at a record store during the late ’80s, and I remember watching the geographic shift as CDs colonized the majority of the racks over a brief period of time.
Although CDs are in many ways better than cassettes and LPs—
in terms of sound quality and portability, respectively—this change was not purely the result of “free market” supply and demand. It was a conscious policy instituted by record companies who wanted to make sure this format took off. The policy generated higher profits and new sales as fans began replacing their vinyl collections with McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 316
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CDs at inflated prices. And it didn’t engender sympathy among consumers when a U.S. court found the nation’s largest labels guilty of a conspiracy to drive up CD prices. These companies were ordered to pay back consumers $143 million for a practice called
“minimum wage pricing” (which contributed to the steadily in-
creasing retail cost of CDs throughout the 1990s). Also in 2004, New York state attorney general, Eliot Spitzer, revealed that the majors agreed to shell out upward of $50 million in royalties to artists they had neglected to pay.34 Production expenses fell, consumer prices rose, and artist’s royalty rates stayed the same—when artists were paid at all.
Selling CDs meant higher profits, but it eventually allowed fans to easily “rip” songs onto their computers and upload music files to the Internet. Jim Guerinot, manager of the Offspring, a favorite among Napster users in 2000, believes that the industry brought the downloading debacle on itself. He said that when record companies complain about downloading, “I say to them, ‘Hey, I’m not the one who went out and had sex without a