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

[Stevan Harnad <harnad@xxxxxxxxxxxxxxx>]

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

http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0671.html
http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#9.1
http://culturemachine.tees.ac.uk/Cmach/Backissues/j002/Articles/art_harn.htm

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
> http://news.google.com/news?hl=en&edition=us&q=riaa+261
> 
> * 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.