Fair use under assault

JOHN PERRY BARLOW is a retired Wyoming cattle rancher, a lyricist for the Grateful Dead, co-founder of the EFF (Electronic Frontier Foundation), and an outspoken advocate for fair use of content. In an interview with InfoWorld Test Center Director Steve Gillmor, Barlow discusses his opposition to DRM (digital rights management), intellectual property law, and copyright extension.

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InfoWorld: What is the message that you feel needs to be made about DRM?

Barlow: I think that anybody who cares about the future of technology -- anybody who cares about the future, period -- ought to be awfully concerned about this. But people who work in technology have been agnostic on the subject so far. They need to recognize that they're going to be faced with a fairly stark choice, which is a gradual concentration around certain trusted platforms that cannot be broken out of and are filled with black boxes that you can't code around and can't see the inside of.

You have to get politically active and stop it from happening, because Congress has been bought by the content industry. The choice is being made at a very complex and subterranean political level. It's being done in standard settings, with the FCC, in amendments to obscure bills in Congress, in the closed door sessions to set the Digital Broadcast Standard. It has very significant long-term effects [for] the technical architecture of cyberspace, because what we're talking about embedding into everything is a control and surveillance mechanism for the purpose of observing copyright piracy, but [it] can be used for anything.

InfoWorld: Don't you think it's ironic that the computer industry is going along with this?

Barlow: I think it's unfathomable. But Microsoft and Intel are going to make their pact with the Hollywood devil and they're going to create a huge, trusted platform that's going to be the institutional platform. Apple, every Linux publisher, AMD, Motorola, Transmeta, and various different hardware manufacturers are not going to sign on, and there's going to be another open platform. But there are efforts under way to make that unlawful. There's a bill being proposed that would forbid the United States government to use anything that was under a GPL [General Public License]. That's significant, and it's obscure. ... I'm not saying the GPL needs to be protected, but I think if you're going to have critical mass, technological mass around a set of standards, that not being able to have the United States government as a customer for those standards is a significant matter.

InfoWorld: You obviously feel strongly as an artist about the need to protect fair use of content.

Barlow: We can't be creative without having access to other creative work. [If] I have to make sure that the rights are cleared every time I download something or somebody wants me to hear something, it's going to cut way back on what I hear, which is going to cut way back on my capacity to create. Imagine what it would be like to write a song if you'd never heard one. Fair use is essential. But it is under assault.

InfoWorld: Why is it a difficult proposition to make this case?

Barlow: It's a difficult proposition because the content industry has done a marvelously good job of getting people to believe that there's no difference between a song and a horse, whereas for me, if somebody's singing my song, I think that's great. They haven't stolen anything from me. If somebody rides off on my horse, I don't have anything and that is theft. Otherwise intelligent people think that there's no difference between stealing my horse and stealing my song. [The content industry] has also managed to create the simplistic and basically fallacious notion that unless we strengthen dramatically the existing copyright [regime], that artists don't get paid anymore. First of all, artists aren't getting paid much now. Second, making the institutions that are robbing them blind even stronger is not going to assure [their] getting paid more. And it's going to make it very difficult for us to create economic [and] business models that would create a more interactive relationship with the audience, which would be good for us economically and good for us creatively.

InfoWorld: Do we have to wait for an artist to do this?

Barlow: We need to start giving people a mechanism that they can use to compensate the artist themselves.

InfoWorld: Which is?

Barlow: I think there are a variety of ways. They're doing it already [with] the performance model, which I don't think is perfect but it's actually better than it's given credit for being. Think about it: $17 billion in CD sales last year [and] of that the artists themselves got less than 5 percent. There was $60-some billion in concert proceeds last year, and of that the artists got closer to 35 or 40 percent. ... There is already a system of compensation that's working, and I think that there will be other systems of compensation that can work. ... We have the assumption that unless you're selling 200,000 units of work, you're not successful. Well that's true -- under the current conditions -- because it takes at least that much before [the artist] ever sees a dime. But if you're not dealing with this piratical intermediary, you can do just fine with an audience of 5,000 or 6,000.

InfoWorld: Demonizing the record companies is easy to do but it doesn't seem to have much effect.

Barlow: It's gradually having an effect. New artists don't automatically want to go out and find a manager; there's a huge defection. The guy who I'm writing songs with at the moment, [he's] in a young band; they have nothing to do with the record industry. They sold out Radio City Music Hall two nights running in August, so they're doing quite well. They've got their own record company, [which] sells direct on the Web [and] does quite well but will never make a Billboard chart. But they get the whole proceeds. So it's working.

InfoWorld: Why do you see .Net and Web services as another one of the dominos being lined up as DRM points of control?

Barlow: .Net is full of stuff to guarantee that the message that's [being] passed does not have a copyright flag set on it. All those Web services are built to watch what's going through the service. They have the capacity to analyze the nature of the material that's passing through.

InfoWorld: Why not create an additional flag that's set at the discretion of the artist?

Barlow: I think that would be great. [And] I think that the industry would fight it to the death and they'd have the money to win.

InfoWorld: Wouldn't they have a hard time fighting a free flag?

Barlow: No, they wouldn't.

InfoWorld: But isn't that what the battle is about?

Barlow: No, the battle is [about] who makes the most contributions to Congress. It's that simple.

InfoWorld: Then why are we talking about this, if it's that cut and dried?

Barlow: Because we have to figure out either a way to come up with a pool of political contributions in defense of the creative common or we have to come up with an organized and massive system of civil disobedience. We need to start organizing boycotts, and one of the first things that needs to be boycotted is copy-protected CDs. I don't think anybody should buy one.

InfoWorld: How can the EFF make a difference in this?

Barlow: We're actually at the table for these discussions on the Digital Broadcasting [Standard]. And we're fighting copyright extensions, which we believe have reached a point where there's no possibility of fair use. The problem with intellectual property law is that it tries to take something that is extremely difficult to define and put hard definitions around it. It's not a system that we want to try to embed in cyberspace in the early days of this development. ... We're creating the architecture, the foundation for the social space where everybody in humanity is going to gather. And if we jigger the foundation design to suit the purposes of organizations that will likely be dead in 15 years, how shortsighted is that?