Whose Art Is It, Anyway?

When the guillotine dropped in 18th century Paris, Marie Antoinette’s head wasn’t the only thing to roll. French revolutionaries also took an ax to copyright law, declaring that books belonged to the people.

Two hundred years later, copyright is again on the block, this time thanks to Napster, the renegade Web site that enables people to copy music without paying for it.

On Monday in San Francisco, the Recording Industry Assn. of America’s lawsuit against Napster goes before the federal 9th Circuit Court of Appeal. As attorneys wrangle over the finer legal points surrounding digital piracy, larger philosophical questions loom: If technology renders copyright unenforceable, will some artists stop creating? How much control should an artist have over his work once it enters a public forum? And who should serve as the gatekeeper for popular art?

Viewpoints differ, but one thing is clear: If history serves as a guide, tampering with copyright law could have major consequences.

*

The notion of intellectual property is a curious one. For most of human history, it didn’t even exist. Imagine a caveman trying to patent fire, or Moses tacking a copyright notice on the Ten Commandments, and you get the picture.

Things began to change after the arrival of the printing press in the 15th century. As soon as books no longer had to be copied by hand, piracy exploded. Government crackdowns soon followed--but not to protect authors.

“Copyright was a child of censorship,” says Tom W. Bell, a law professor at Chapman University. European publishers were granted monopoly printing licenses in exchange for suppressing literature that governments disliked.

Eventually, philosophers began wrestling with the issue, debating such esoteric questions as who owns a letter--the writer or the recipient (an English court said the writer did). Even Immanuel Kant took a break from contemplating the nature of God to pen “On the Injustice of the Pirating of Books,” in which he argued that authors had a moral right to profit from the creations of their minds.

Other scholars countered that intellectual property rights were a monopoly that stifled the free flow of ideas. They claimed the connection between an artist and his masterpiece should end as soon as the work is finished.

In France in 1789, revolutionaries decided that once something was in print, it became everyone’s property. The result was “a disaster,” says historian Carla Hesse, author of “Publishing and Cultural Politics in Revolutionary Paris” (UC Press). “Most major works of literature and philosophy fell out of print because people couldn’t make any money off them. The market was saturated.”

In Paris, 20% of the publishers went bankrupt. The rest printed little more than gossip sheets and other ephemera that could make a profit before anyone else had time to duplicate it. “Great works of art were not produced under this system,” says Hesse, who teaches at UC Berkeley.

After three years, France reinstated copyright.

In the United States, the Founding Fathers took a middle-of-the-road approach to intellectual property. The idea was to dangle a financial carrot to authors as an incentive to create, but eventually shift the work into the public domain.

*

Now, technology has revived the centuries-old debate. At the center of the controversy is Napster Inc., the San Mateo company whose free software enables users to search each other’s computers for digital music files, which they can download in place of buying a CD. Some 6% of U.S. home PCs with modems have used Napster, according to a study by Media Metrix, an Internet research firm.

Even if Napster is ruled illegal, the threat to copyright remains. Spinoffs like Gnutella and Freenet can download not only music but movies and text. And, unlike Napster, no company or centralized Web site is involved. Lawyers would have to track down and sue individual pirates.

Nobody expects CD sales to hit zero. Many recordings are bought as gifts, and Grandma would look cheap wrapping a disc she downloaded for free. But it’s obvious that widespread piracy would crimp the record industry’s bottom line.

Which is fine with many Napster sympathizers, who argue that the companies are gouging consumers and that heavy-handed copyright enforcement is choking the free flow of information.

To historian Hesse, the rhetoric has a familiar ring. “Pirates always present themselves as champions of the consumer,” she says. “They say prices are too high, information should spread more freely, and that the public good is served. But it’s always a smokescreen for their own commercial interests.”

Then again, Napster defenders feel a bit of deja vu themselves. From player pianos forward, the entertainment industry has sued to block new inventions--radio, VCRs, cable TV, digital audiotapes--warning of imminent financial ruin. Yet in each case, the new technology ultimately swelled industry coffers.

It’s like the boy who cried wolf. Even if Napster truly is a threat, many don’t believe the warnings.

Indeed, some say the only “wolf” is copyright law itself.

Since 1790, copyright terms have gradually expanded from a maximum of 28 years to the author’s lifetime plus 70 years. Economics professor Roger Noll of Stanford says the continual push to expand the scope of copyright is really about protecting the profitability of Mickey Mouse, the Beatles and a handful of other lucrative properties.

“The vast majority of copyrighted material has no economic life beyond a few years,” he explains.

Some critics say strict copyright laws limit artists, who often build off existing works. For example, Shakespeare borrowed heavily from other authors. “Under today’s copyright regime, his legal bills would have been staggering,” says Tom G. Palmer of the Cato Institute, a Libertarian think tank.

*

Copyright owners have historically sought a cut for every use of their work. That’s why radio stations pay royalties for the songs they play; and bars and restaurants cough up fees for background music and TV broadcasts.

But sometimes copyright’s reach can seem intrusive. In 1995, ASCAP, which collects royalties for songwriters, demanded that Girl Scouts pay fees for singing around the campfire. Public outcry scuttled the plan.

Attempts to control other “private” uses--such as homemade tapes and photocopying for scholarship--have been halted by the courts. In Europe, on the other hand, authors’ rights are supreme. Royalty levies are added to the price of every blank cassette and videotape. Some countries even keep track of how many times books are checked out of libraries so governments can issue “public lending” royalties to compensate authors for lost income, says Paul Goldstein, author of “Copyright’s Highway.”

The struggle between the two sides is an updated version of the debate over who owns a letter: How much control should an artist have over his work once it enters the public square?

In the case of digital piracy, Pamela Samuelson, a law professor at UC Berkeley, fears a “civil war” between copyright owners and consumers. The record industry’s logic seems to be that “everybody who makes an illegal copy should go to jail,” she says. “We’ll end up filling our jails with copyright offenders.”

If Napster wins in court, entertainment executives foresee chaos. They warn of a “cultural Dark Ages,” saying that artists won’t create without financial incentives.

Others disagree. Although some artists might switch to more lucrative jobs, many would continue to produce new works, says Murray Bilmes, a psychology professor at Alliant University in San Francisco. “Van Gogh painted because he had to paint. An awful lot of people have created without any payment in sight.”

Of course, if artistic output did plunge, an argument could be made that thinning the herd isn’t necessarily a bad thing, given the amount of dreck that passes for art these days. “What is the optimal level of artistic expression?” asks Chapman University’s Bell. “Maybe we have too much.”

Still, nobody suggests that writers and musicians should work for free. The question is how to compensate them if copyright loses its teeth.

In the days before intellectual property laws, artists either had to be independently wealthy or find a patron. The latter sometimes limited artistic freedom. For instance, composer Haydn’s job was to write whatever the prince ordered, says ethnomusicologist Robert Garfias of UC Irvine.

One of the unsung benefits of copyright is that it democratized the production of art, says Bill Alford, a Harvard law professor.

So, if it’s undone, a new system must take its place. Alas, many of the proposed solutions are either impractical or could fundamentally alter the nature of books and music available to the public.

Internet futurist Esther Dyson has suggested that musicians might earn their paychecks from concerts instead of CD sales, and authors from lectures instead of book royalties.

But expecting bands to prosper solely from touring could have unforeseen effects on their music. After all, the Beatles did some of their most creative work once they stopped doing concerts. And, as the Atlantic Monthly recently noted: If novelists had to make a living from public performances, recluses like Thomas Pynchon and J.D. Salinger would be broke--and Salman Rushdie would be dead.

Another oft-cited new business model is singer Todd Rundgren, who offers a subscription package of downloadable music and online chats for $25 a year. The drawback: It wouldn’t work for unestablished bands.

Rundgren’s site also raises questions about the much-touted notion of a “heavenly jukebox,” from which people could download unlimited songs for a subscription fee, akin to cable TV. If a single artist charges $25, how steep would the fee be for access to all music? And would piracy undercut it, too?

The standard response is, “Information wants to be free,” borrowed from Whole Earth Catalog publisher Stewart Brand, usually without attribution and certainly without paying royalties. But hardly anyone mentions the second half of the quote: “Information wants to be expensive, because in an Information Age, nothing is so valuable as the right information at the right time.”

Perhaps that’s why futurist Dyson charges $750 a year for her newsletter and distributes it only by U.S. mail.

*

Napster is just the tip of the ethics iceberg in a society where people justify fudging on their taxes, using radar detectors to avoid speeding tickets, and “borrowing” towels from gyms. L.A. Fitness’ 75 gyms now require members to bring their own towels because people were swiping $800,000 worth a year.

Then again, the music industry isn’t exactly a paragon of virtue.

The litany of transgressions includes unfair contracts with bands, underhanded schemes to get radio airplay, vile lyrics championed as “artistic freedom,” inflated prices and bullying stores that sell used CDs. The industry also torpedoed Personics, a machine that retailers used to make custom tapes.

Noll, the Stanford economist, argues that the record industry’s war against Napster has little to do with copyright. “What the music companies are afraid of isn’t piracy but that they’ll have to sell CDs for $7 or $8 instead of $20,” he says. The film industry raised a similar ruckus about pirated videos, but once they lowered video prices, people stopped pirating, he says. It was more convenient to get videos legally.

“Lowering prices saved Hollywood from VCRs,” Noll says. Likewise, when “the price of digital music gets low enough” and record companies offer a convenient way for people to make custom CDs, people won’t bother to download songs illegally, he predicts.

But Kevin Conroy of BMG Entertainment, one of the big five record companies, insists, “It isn’t cheaper to deliver music digitally.” Although the cost of manufacturing and distributing CDs plunges to nil, the savings are offset by Web-hosting charges, e-commerce expenses and assorted “production costs,” he says.

Although many music fans would like to see record companies die, they might not be enthralled with the result.

Napster fans like to complain that the record industry is depriving the public of access to new, cutting-edge music. Boycott-RIAA.com gripes that the five major recording studios released only 2,600 albums in 1999, whereas Napster offers access to 74,000 artists.

But who’s going to sort through such a morass? Some utopians say “the people” will act as gatekeepers, reviewing online books, music and films, then touting the best through word of mouth. But ultimately, that system would probably be just as arbitrary and limiting as the current one.

Moreover, in their zeal to liberate music and movies from “evil” corporations, pirates might actually be handing the government an excuse to create a distribution system that makes access to information far stricter than it’s ever been. The entertainment industry isn’t going to roll over and play dead. “It’s a constant cat and mouse game,” says Michael S. Josephson, founder of the Josephson Institute of Ethics in Marina del Rey. “Every time someone finds a new way to cheat, someone else finds a more oppressive way of surveillance and enforcement.”

*

At Xerox’s Palo Alto Research Center, Mark Stefik predicts electronic music, movies and books will be equipped with encryption and other sophisticated anti-theft protections to thwart unauthorized copying. For instance, if someone downloads a song and then e-mails it to a friend, the original could be programmed to erase itself from the first person’s computer so only one copy remains in circulation.

Such gimmicks are already in the works. Earlier this month, the FCC moved to require anti-piracy devices for digital VCRs and TVs to prevent viewers from copying digital cable movies and shows.

A National Research Council report issued earlier this year sounded optimistic about a technological fix to piracy: “Most people are not technically knowledgeable enough to defeat even moderately sophisticated systems,” and most are “law-abiding citizens rather than determined [hackers].”

But there are problems with this approach. Attorney David Nimmer, co-author of a popular text on copyright law, says a pay-per-view Internet might eventually create “a stranglehold on information.” By forcing consumers to pay every time they access a work of art, the public would lose its now-protected right to make private copies or lend them to friends. However, that’s only the case if the work is unavailable in traditional print or CD format, which is unlikely.

“People like to have books and CDs and will continue to do so for a long time,” he says.

Of course, hackers insist they’ll crack any system and make the technology available to all online.

Rather than an endless technological duel between hackers and copyright owners, Randy Picker, a University of Chicago law professor, says it would be better to devise some sort of legal mechanism to ensure artists are paid for their work.

However, nobody has figured out what that legal mechanism might be.

Josephson predicts that in time, there could be an ethical backlash. If digital theft goes unchecked, he says, “the cost will eventually become so high to society that people will revert back to principles of honesty and integrity.”

But Nimmer says reports of copyright’s death are greatly exaggerated (don’t worry, that expression is in the public domain).

“There have been constant cries over the last 50 years that copyright will end, but it hasn’t happened. Copyright always finds a way to accommodate itself to new technology.”

*

Roy Rivenburg’s e-mail address is roy.rivenburg@latimes.com.