Wild horses

IS JOHN PERRY BARLOW a) a musician, b) a politician, c) a Wyoming rancher, d) a journalist, e) co-founder of the Electronic Frontier Foundation (EFF), or f) all of the above? For an hour at Comdex a few weeks ago he was a panelist sparring with media company executives and computer activists about DRM (digital rights management). Afterward, Barlow and I chatted in the speaker ready room.

“Anybody who cares about the future of technology — anybody who cares about the future, period, ought to be awfully concerned about this,” he says from beneath mesquite-bushy eyebrows. “This” is the rapid evolution of DRM schemes and companion legislation. And Barlow thinks people working in technology have been agnostic about the issue.

“They need to recognize that they’re going to be faced with a fairly stark choice,” he continues, “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.”

Barlow pauses for emphasis. “You have to get politically active and stop it from happening because Congress has been bought by the content industry.” The cybersenator is interrupted by a voice in his ever-present ear bug, a call from an artist with whom he’s writing songs.

“The choice is being made at a very complex and subterranean political level,” Barlow resumes. “It’s being done in standards settings, with the FCC, in amendments to obscure bills in Congress, in the closed-door sessions to set the Digital Broadcast Standard.” And the problem is? “What we’re talking about is a control and surveillance mechanism for the purpose of observing copyright piracy, but [it] can be used for anything.”

Fair use is under assault. “I have to make sure the rights are cleared every time I download something or somebody wants me to hear something,” Barlow declares. “It’s going to cut back on what I hear, which is going to cut way back on my capacity to create.”

Now Barlow warms to the task: “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. 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.”

Then there’s the content companies’ “protect the artists” rationale, which Barlow calls “the simplistic and basically fallacious notion that unless we strengthen dramatically the existing copyright regime, that artists don’t get paid anymore.” This is the RIAA’s mantra: We’re here to protect both the content creator and the consumer.

“First of all, artists aren’t getting paid much now,” Barlow says, pointing out that recording artists got less than 5 percent of last year’s $17 billion in CD sales. “Second, making the institutions that are robbing them blind even stronger is not going to assure our 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.”

Barlow sees live performances as one way out of the DRM lockbox. “There was nearly $60 billion in concert proceeds last year, and of that, the artists got closer to 35 or 40 percent,” Barlow notes, challenging the record business’s notion of success in the creative world. “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 you ever see a dime yourself. But if you’re not dealing with this piratical intermediary, you can do just fine with an audience of 5,000 or 6,000,” Barlow says.

Case in point: “The guy that just called me, who I’m writing songs with at the moment — [he’s] a young guy in a young band; they sold out Radio City Music Hall two nights running in August,” Barlow reports. “They’ve got their own record company, who sells direct on the Web, which does quite well.” What happens when an independent act becomes too successful? Barlow admits they’ve had to make concessions because of monopoly control over concert venues and radio airplay.

And speaking of monopolies, Barlow sees .Net and Web services as a DRM single point of control. “.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.”

Why not create an additional flag that’s set at the artist’s discretion? “I think that would be great,” Barlow says. “I think that the industry, for all of their creative choice, would fight it to the death, and they’d have the money to win.”

Me: “They would have a hard time fighting a free flag …”

Barlow: “No, they wouldn’t.”

Me: “Isn’t that what the battle is?”

Barlow: “No. The battle is who makes the most contributions to Congress.”

Me: “If it’s all that cut-and-dried …”

Barlow: “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 disobediences.”

For starters, John Perry Barlow suggests boycotting copy-protected CDs. The EFF is fighting on in court against effectively unlimited corporate copyright extensions.

“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?”