The deal was sealed with a hug. Instead of being at war, Bertelsmann, the world's third-largest media conglomerate, and Napster, the popular upstart, are to be partners. Bertelsmann will drop its copyright infringement suit against Napster if the free file-sharing service can convert to paid subscriber services, using a secure system that grants access to Bertelsmann Music Group's catalogue. Bertelsmann extended a $50 million development loan to Napster to get the system up and running. And the giant got stock options in the so-far-profitless pipsqueak.
For obvious reasons, media moguls and teenage music fans are watching the deal closely. But so should everyone who writes or creates for a living: we are about to witness a live test of whether technology can protect digital intellectual property.
A crucial part of Napster's or any other paid distribution on the Internet will be "digital rights management" (DRM) software. The availability of DRM products has exploded in the last year. Some, like those from Alchemedia, "wrap" or "shield" a song or e-book, illustration, or streaming video file in unique encryption that lets users look, but not, for example, download, copy, or send without paying for those uses. Other DRM services, like iCopyright or Sealed Media, attach licensing rules and pricing structures to a file on the client's Web site or the DRM company's server and facilitate instantaneous permission and voluntary payment.
If mischief does occur, digital cops can nab the perp. Security software can extract a file's distinguishing features -- its "DNA" -- then "spider" the Web for matches, and then issue cease-and-desist notices to the offending sites and their Internet service provider. One such service, BayTSP.com, claims to have caught more than 12,000 infringers in three months of operation, and attained 100 percent compliance in removing purloined files.
Yes, it's still a cinch to whisk content away on the Internet. Yes, the cyberspace into which it's whisked is vast and growing vaster. But contrary to the implication of the Netizen open-source slogan -- "Information wants to be free" -- there is nothing intrinsic to the medium or its content that makes the Net untamable. The same technologies that abet piracy can also help safeguard the goods, pay the piper, or catch the thief.
Skeptics call DRM clumsy, intrusive, and virus-vulnerable. And even its developers know they won't survive unless they devise user-friendly products that are compatible with other formats and systems -- and fast. Finally, the lock has to cost less than what the burglar would otherwise carry off. But the estimated value of that loot -- publishing-industry revenues lost to piracy -- ranges from $1.5 billion to $11 billion by 2005. So some high-end locks are in order.
Tom Bell, a University of San Diego law professor and expert in technology and copyright law, believes commercial digital payment systems -- what he calls "fared use" -- will soon be so widely accepted that they could make fair-use laws and lawsuits virtually unnecessary.
Most experts don't expect the courts to wither from disuse. Indeed, the law is being voluminously rewritten in response to a growing number of complex digital-rights conflicts. Still, if technology can no longer be blamed for anarchy and can in fact be viewed as copyright's ally, the legal and economic question changes. Now we have to ask: Whom will software and statute serve?
The answer isn't always clear, and alliances can shift. For instance, Martin Garbus, the eminent civil-liberties lawyer and defender of writers, is representing Eric Corley, the open-source guru who was sued by the Motion Picture Association of America for posting on his Web site the code that unscrambles the copy-preventive system in DVDs. Garbus sees DVD scramblers, and the laws protecting them, as censors themselves, locking up visual products against fair use. As more and more information is digitized, journalists -- who are both producers and users of copyrighted property -- find themselves on both sides of the question.
Free speech and technology, meanwhile, both play a role in the major ongoing battle over online intellectual property: the one between authors and publishers over economic fairness. In the current Supreme Court case, Tasini v New York Times, for instance, writers are charging publishers with unauthorized -- and unpaid -- online reuse of print articles. The defendants have hired another big First Amendment gun, Laurence Tribe, to argue that a victory for the writers would remove thousands of texts from circulation. Actually, writers haven't asked to have their work taken down; they just want to be paid when their work is disseminated.
The case stands for hundreds of similar, smaller disputes. They reflect not only the realities of the Internet, but an excuse created in its name. The realities: a proliferation of digital "repurposing," and the fact that publishers want all the rights to the original content because they want all the profits. The excuse is what those publishers tell writers: that they must gain all the rights up front (or retrospectively) because the speed of media innovation makes repeated re-licensing and remuneration impractical.
With DRM, that excuse begins to sound weak. Because one of security software's chief selling points is its ability to record who clicks what, from where, how often. Thus it enables a publisher to bill and direct revenues in any amount to any party. DRM, then, not only can give media companies a way to guard their online interests, but also a relatively easy way to be fair to creators.
Now they must find, or be compelled to find, the will.
In the end, there's more at stake than money or even free speech. Copyright law developed in the eighteenth century, when mass publication was debasing the artist "to a petty commodity producer," as the cultural historian Terry Eagleton put it. Around the same time the modern idea of the person as a creature with an expressive self and individual rights was also being born. In protecting ownership of the products of one's imagination, copyright protected personhood.
Today's new media technologies and techniques multiply authors' creative and commercial opportunities. But they also threaten to debase the creator, this time to low-paid, low-status "content provider." So, now as in the past, copyright is more than a commercial instrument. It safeguards a cherished belief about the modern self: that our creations are part of us. In this, technology can be enemy or friend.
Judith Levine is a contract adviser and grievance officer for the National Writers Union, as well as a writer for national publications both on and offline. Her second book, Harmful to Minors: Children, Sex, and the Perils of Protection, is scheduled to be published in 2002.
