Re: Napster: stealing another's vs. giving away one's own

From: Stevan Harnad <>
Date: Fri, 3 Oct 2003 02:51:32 +0100

Here are some links to where the very same napster disanalogy has come
up in the past:

Stevan Harnad

On Thu, 2 Oct 2003, Peter Suber wrote:

> Not Napster for Science
> If the past is any guide, it will be hard to argue for open access in a
> month when P2P music swapping is a hot story in the news. Academics and
> journalists who haven't encountered the idea of open access to
> peer-reviewed journal articles and their preprints --just the people who
> need to hear the argument-- find it too easy to assimilate this unfamiliar
> idea to the more familiar one. "Napster for science" is the inevitable,
> false, and damaging result.
> This is such a month. The Recording Industry Association of American
> (RIAA) sued 261 music swappers on September 8, hoping to scare and deter
> tens of millions of co-swappers. The lawsuits have greatly intensified the
> public debate on file sharing and copyright. In fact, the discussion is
> now broader and deeper, touching on what universities should do, what
> parents should do, what music lovers should do, what musicians should do,
> what music companies should do, what courts should do, and what legislators
> should do.
> So this is a good time to say, once more, in public, with emphasis, that
> open access to peer-reviewed research articles and their preprints is
> fundamentally different from free online access to music files, despite one
> obvious similarity.
> What makes music swapping interesting is that most musicians don't consent
> to it and most file swappers don't seem to care. But I don't want to talk
> about that, really, except as a contrast to the situation with journal
> articles. Scientists and scholars *do* consent to publish their journal
> articles without payment. This has been the rule in science and
> scholarship since 1665 when the first science journals were launched in
> London and Paris. Scholarly monographs and textbooks are different,
> because authors can hope for royalties. For the same reason, most music,
> film, and software are different. But journal articles are special. Music
> companies and music lovers would call them peculiar.
> The fact that scholars eagerly submit articles to journals that don't pay
> for them, even journals that demand that authors sign away their copyright,
> is probably the best-kept secret about academic publishing among
> non-academics. It's the fact that simultaneously explains the beauty of
> open access and the mistake of "Napster for science".
> This peculiarity of journal articles should draw some of the public
> attention generated by music swapping. Defenders and critics of music
> swapping should both hear this intelligence and say, "Really? Scholars do
> all that work researching and writing, and then give it away to some
> journal? Either you're lying or free online access to journal articles is
> completely different from free online access to music." But instead, we
> tend to hear the opposite. Most people disregard this difference as
> trifling or technical and equate consensual open access with unconsensual
> Napsterism.
> If "Napster for science" communicates the basic free-of-price idea to a
> larger public, then isn't it a useful phrase? The answer is No! It's true
> that music swapping is about free online access to content. That's the
> important similarity. But it's equally about an army of content creators
> who resist free online access. It may be about freedom, but it's also
> about copyright infringement. Careful writers, with careful readers, could
> successfully compare open access with the first feature of Napsterism and
> contrast it with the second. But why bother? It's much more effective to
> define open access in its own right than to yoke it to the better-known but
> different concept and then try to undo the confusion that results.
> Copyrighted scholarship does not face the same mass infringement that
> copyrighted music does. And yet, like copyrighted music, most copyrighted
> scholarship is locked away behind economic, legal, and technical
> barriers. You might think it's ripe for a real Napster attack. But nobody
> advocates this, least of all the open-access movement. Open access
> proponents know that the peculiar legal standing of journal articles makes
> free online access possible without infringement. The simple, sufficient
> reason is consent. When authors and copyright holders consent to open
> access, there is no infringement.
> With sex, we have no trouble seeing that consent is critical. Sex with the
> consenting is one of life's great goods. Sex with the unconsenting is a
> crime. If the public could see this fundamental distinction behind forms
> of online access and file swapping, then open-access proponents could
> welcome the comparison to Napster. It would show open access in the best
> light. "You know that kind of free online access to music that makes most
> musicians and all studios hopping mad? How cool would it be if they
> consented to it? Imagine that. That's open access."
> Open access is free access by and for the willing. There is no vigilante
> open access, no infringing, expropriating, or piratical open access.
> Of course I'm not saying that all journals consent to open access. Most
> don't. I'm saying that academic authors consent to write and publish their
> research articles without payment. The consent to relinquish payment is
> directly connected to the consent to open access. Musicians would either
> lose revenue from open access or fear that they would. That's why most
> don't consent to it. But because scholars have already relinquished income
> from articles, they have nothing to lose and everything to gain from open
> access.
> We can go further. Scholars don't just consent to relinquish payment and
> copyright. They are eager to publish --at least journal articles-- even on
> these harsh terms. Nothing shows more clearly that they write journal
> articles for impact or influence, not revenue. Their interest lies in
> making a contribution to knowledge, partly for its own sake and partly
> because advancing knowledge will advance their careers. This explains why
> open access serves their interests, and why limiting access to paying
> customers (the traditional model in scholarly publishing and the RIAA model
> for music) would violate their interests.
> Music swapping was practiced in the age of vinyl, but it took digital music
> and the internet to make it widespread. It's widespread now because
> something unexpectedly good happened, not because some creeping criminal
> malice overtook tens of millions of people. We graduated from the age of
> vinyl in two stages, first by recording music in bits, and then by creating
> a worldwide network of bit-swapping machines. This was revolutionary
> progress from every point of view. Now that we can make perfect copies and
> distribute them at virtually no cost to a worldwide audience, we should
> find ways to seize this beautiful opportunity, make it lawful, and enjoy
> the new access to information that it makes possible.
> The RIAA and commercial journal publishers both have reason to fear that
> the internet will make them unnecessary. They both respond to this fear by
> making their products harder to use, less accessible, and more expensive,
> which is surely perverse. The RIAA has now gone even further, trying to
> intimidate users and make them afraid to take advantage of the power of the
> internet. If it wins, then digital technology will be like sex in the
> Victorian age. Virtue will be construed as resistance to all the beautiful
> temptations. This will chill advances even to the consenting.
> I know that some fraction of music swapping carries the artist's consent
> and encouragement. These artists consent to free downloads because for
> them (as Tim O'Reilly put it in another context) invisibility is worse than
> infringement. So while most musicians fear losing revenue from open
> access, some don't. While most don't consent to it, some do. This fact
> upsets the digital Puritanism of the RIAA and blurs the moral lines it has
> tried to draw for music swapping.
> It may be that open access to music will increase net sales, and that most
> musicians below the top ranks of superstardom will profit from it. I'm in
> no position to say. But it is clear that the RIAA is engaged in
> self-serving oversimplifications about both the economic interests of
> musicians and the truth about copyright. The comparison to open access
> helps us draw at least one lesson: copying digital files is *not*
> theft. It's only unlawful when the files are copyrighted and when the
> copyright holder refuses consent. But many files are in the public domain,
> and many carry the copyright holder's consent to free or open access. This
> is true for growing bodies of both music and scholarship. This is more
> than lawful; it's wonderful.
> News coverage of the RIAA's 261 lawsuits
> * Postscript. In my view, Phase One of the open-access movement is to
> secure open access to journal articles and their preprints. They're the
> easiest case or low-hanging fruit because their authors already consent to
> write and publish them without payment.
> However, we should imagine a Phase Two in which we persuade authors and
> artists who do not currently consent to reconsider. Ripe for persuasion
> are authors of scholarly monographs, who rarely earn royalties and, even
> when they do, would benefit far more from the wide audience than the meager
> checks. Also in this category are programmers who might shift from priced
> to open source code. Novelists might be persuaded by the experience of the
> Baen Free Library that the free online availability of the full-text
> stimulates more sales than it kills. Finally, it might include musicians
> who decide, with Janis Ian, that free access, wide recognition, and good
> will generate more sales than high-priced invisibility.
> We can also imagine a Phase Three in which we enlarge and protect the
> public domain by rolling back copyright extensions, establishing the
> first-sale doctrine for digital content, restoring fair-use rights denied
> by DRM, and letting federal copyright law preempt state contract or
> licensing law. While all these steps would be advances for the free flow
> of information, copyright reform is unnecessary for open access. All we
> need is consent. All we need for the bulk of science and scholarship is
> Phase One. All we need for music is Phase Two.
> If all we need is consent, and our idea is a worthy one, then all we need
> is a chance to spread the word about it. We should be able to bootstrap
> this good idea into reality by explaining, educating, and
> persuading. Spread the word. (How cool is that?)
> * PPS. Does anyone know an online directory of *open-access music* --MP3
> files that are lawful to download and share because the copyright holder
> has consented? Note that services like Apple iTunes that offer lawful
> downloads, for pay, don't count.
Received on Fri Oct 03 2003 - 02:51:32 BST

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