The Napster affair

‘The Napster affair’ can be interpreted as one of the founding myths of a new deal for domination and sharing, opposing two normative conceptions of ‘globalisation’. On the one hand, a privative commercial conception, guided by the aim of maximising the profits of those who use its ways and means. On the other, a public approach to globalisation, non lucrative and determined by concern for maximising social sharing, be it communautarian or beyond community frontiers. Two conceptions, with their variants and ambiguities, which also define in relief at least two sorts of globalisation subjects.

The first is a commercial subject (producers, distributors, consumers…) that comes into being and maintains itself on the horizon of profit allocation (economic, intellectual, artistic…), whose only common measure is money (which ‘equalises exchange’)and the value attributed to ‘what is exchanged’. Let us recall Aristotle, book V of Nichomachean Ethics : ‘Money, as a measure, makes things commensurable and thus brings them into equality: for there would be no community of interests without exchange, no exchange without equality, nor finally equality without commensurability’.

The second subject of ‘globalisation’ is a non-commercial public subject whose measure is presented as being nothing other than exchange itself (which raises philosophical and legal problems). Exchange of knowledge and information, works of art, technology, networks, addresses, facilitated by the ‘NICT’, means of communication that present few ‘barriers to entry’. Exchange between ‘equals’, which would no longer need to be ‘equalised’ by money. Exchange which, beyond individual satisfaction of those who give and receive, aims to develop such a process at world level, private interest then merging with general interest (entering Napster provides access to tens of millions of private music collections, rather than those of just your friends).

I will go on to underline the contradictions run into by the organised world of societies of authors, musical publishing and recording companies, and, in particular, the Major companies. Because founding the case instigated against Napster on the argument that it is nothing more ‘than a large scale piracy device’, as the RIAA did, is an anti-diluvian position to which Diane Cabell of the Berkman Centre previously replied ‘The relationship between the Internet and the world of music still remain to be defined. People are not going to stop copying music on the Net because of a legal decision’. In effect, it seems clear that globalisation of cultural products copying is intrinsic to the current state of affairs, and that to pretend to derail it by means of legal decisions or administrative rules is a lost cause, moreover lamentable. Hence the other questions posed to all the organisations who principally backed a defensive strategy on the current editorial problem : ‘Do you think that you will be able to stop the rising tide of the sharing of ideas and artistic works with your buckets filled with authors rights? Perhaps the legal/economic model of domination on which your commercial companies and their durability are founded is quite simply already dead (if not quite yet buried!). Would it not be time to draw consequences other than legal ones? New forms of non-privative production, distribution and exchange constitute the most powerful reply to the extreme concentration of the supply of ‘cultural products’ to which you have contributed for two decades, and they are able to overstep all your activities. Would it not equally be time to initiate a dialogue with their promoters which would not be reduced to pointless and outdated legal/financial arguments?

Finally, considering the hesitation, or even the muteness of the administrations since the Napster affair (cf. the wait-and-see policy of the American federal authorities), I will ask again: what can we expect from the States in the context of globalisations that rocked the normative relations between the holders of artistic and intellectual rights, the distributors of artistic works, their clients and those who cannot be their clients? Since they are confronted with analogous issues (domination and sharing at the heart of the European Union and WTO, for example): should we and must we still hope for State (or even multilateral institutions) arbitration between diverging private interests of producers, distributors, consumers, and the non-commercial aspirations of individuals for sharing and exchange? Whilst their legitimacy and their role are called into question everywhere by this globalisation that they pretend not to be able to grasp, must we wait for the States to indicate where domination must stop and sharing commence?

If not, our priorities demand to be modified! And the first among them, untimely and even intempestive, is precisely to redefine –through an international debate— concepts of domination and sharing allowing a critical re-evaluation of the different on-going processes of globalisation.

The present ‘sharing’ (companies/authors) being de facto inequitable, Napster’s means for free diffusion is a good chance to question domination and the practices of the large companies, to redefine the rules of the game between the companies, distributors, societies of authors, artists and consumers, and, in particular, to suggest a new model of remuneration for authors and for contribution of consumers.

From this point of view, the provisionary conclusion of the Napster episode, followed by the launch of the Courtney Love sitcom (who had taken on Napster’s cause, before reclaiming a complete rewriting of her musical contracts whilst attacking her label ‘Universal’), outlines the field of cultural industries as a priority experimentation field for an unavoidable debate. It is not by chance: it has always been the case that the arts under their various guises have been at once means that privileged sharing amongst men and unceasing objects for attempts (often successful) at privatisation. What we are seeing with the ever more privative globalisation of the cultural industries and the multiway contestation that it generates is only one episode in a long historical battle. Thus it becomes necessary, in the here and now, to imagine the state that will succeed that of extreme concentration. After tyranny, democracy? And, if it is the case, what form of ‘democracy’?



(This article synthesises a longer study by the same author. It can be found in French at the following address : Le cas Napster)