Ha senso parlare di diritto d’autore ai tempi di Internet?

Un po’ di anni fa mi sono imbattuto nella lettura di un interessantissimo articolo di John Perry Barlow dal titolo Napster’s Enormous Music Room (Napster enorme sala musicale). Si era praticamente agli albori della condivisione di files, segnatamente musicali, attraverso una piattaforma peer to peer come quella realizzata dagli inventori di Napster.

Napster consentiva di connettere più computer dislocati in ogni parte del mondo: si andava alla ricerca, per esempio, di un determinato album musicale. Il motore di ricerca interno all’applicazione scandagliava nella memoria dei computer collegati al sistema Napster, e se lo trovava, attraverso la sua applicazione centrale metteva in contatto gli utenti, consentendo così la condivisione dei file. Era l’inizio della musica in formato digitale compresso: mp3.

Napster ora praticamente non c’è più: come pioniere della condivisione illegale di opere protette dalla legge sul diritto d’autore, è stato ripetutamente preso di mira dalla potente lobby delle case discografiche statunitensi, raccolte nella RIAA, con i fondatori costretti a risarcimenti milionari ed a transazioni non sempre vantaggiose con le case discografiche. Napster fu colpito secondo la regola che pur non commettendo direttamente alcuna violazione della legge sul diritto d’autore, tuttavia costituiva strumento agevolativo delle violazioni da parte dei singoli utenti/peer. Le Corti statunitensi finirono ad un certo punto anche con lo statuire che Napster era illegale in quanto costruito ad hoc per violare il diritto d’autore.

Nell’articolo che riporto di seguito in lingua originale, John Perry Barlow, storico componente ed autore dei testi dei Grateful Dead, ci vedeva lungo nel dire che Napster ed in genere la pratica della condivisione online e gratuita della musica, mettevano in seria crisi lo stesso concetto di copyright. Le piattaforme digitali a disposizione per il filesharing si sono infatti moltiplicate a dismisura dai tempi della fondazione di Napster, per cui alla fine le stesse forze dell’ordine hanno rinunciato alla persecuzione anche penale, dei singoli utenti e spesso anche delle stesse piattaforme (con qualche eccezione, tipo quella di Pirate Bay). Che senso ha, si chiede dunque Barlow, pagare la musica e soprattutto far arricchire le grandi case di produzione discografica, che sono quelle che maggiormente hanno contrastato, senza alla fine riuscirci, la diffusione del filesharing? L’artista americano giunge alla conclusione che le piattaforme come Napster sono anche un buon veicolo pubblicitario per i musicisti e le loro case discografiche: il preascolto può infatti portare all’acquisto dell’originale. Barlow vedeva giusto, più di quindici anni fa, se pensava che il business musicale doveva necessariamente trasformarsi, puntando maggiormente sugli introiti dei concerti e di altre attività.

An Op-Ed Piece for the New York Times
By John Perry Barlow

Last fall, an obscure 19 year old student named Shawn Fanning  quietly inflicted the wound that I believe will eventually kill  the music business as we know it. He set up a Web site called  Napster.com.

Of course, the recording industry, like other traditional  publication media, was already suffering a likely terminal  illness. Because of the Internet, almost any informational product can be infinitely reproduced and instantaneously  distributed all over the planet without cost. This obsoletes the  material containers previously necessary for information
transport as well as most of the industries that manufactured them.The biggest remaining obstacle to this free flow of digital liquid is legal, not practical.

But so far this impediment – copyright law – has been sufficient  to make most of the 20th Century’s best musical creations and performances very hard to find online. Nearly all of this material has been commercially released and is therefore in the white-knuckled grip of the companies that recorded it. Commercial  MP3 sites are too visible to risk legal assault by copyright patrols from the RIAA (or Recording Industry Association of America.), so they traffic mostly in recent or insignificant works.

But Fanning realized there is a lot more digitized music in Cyberspace than one might think. This is because millions of ordinary listeners have converted portions of their purchased music collections into the MP3 format and copied them onto their hard drives. He further realized that many of these personal hard disks are continuously connected to the Internet, generally because their owners, mostly students, hold accounts on academic networks.

Fanning also knew that people have an old and deep impulse to share music with one another, so, in essence, he designed an immense and growing virtual space, Napster.com, where they could do so. Napster creates a vast community of folks who can play music directly from one another’s PC’s, rather as they might play one of their roommate’s CD’s on the stereo in their dorm room.

But of course, in this environment, what can be played can also be copied. When I reach through Napster to the hard disk of some kid in Ohio and grab his copy of, say, Cassidy by the Grateful Dead, I can also place it on my hard disk as I listen to it.

It is this characteristic of Napster that so haunts the RIAA . They believe that making this copy is as clear a case of theft as if I’d shop-lifted a CD from Walmart..

But what is being “stolen?” And from whom? Speaking as the fellow who co-wrote Cassidy, I don’t believe that the kid in Ohio is injuring my economic interests by sharing it with others.
Deadheads have been sharing our songs with each other for decades and it’s done nothing but increase the demand for our work.

Of course, the RIAA takes a very different view and has lately been laboring by means, both legal and technical, to eliminate fair use, requiring payment to be made every time someone hears the music they claim to own. They regard Napster to be a global thief’s bazaar.

But what can they do about it? Nothing, I’d say. Napster is legally safe from them because no copyrighted material is actually stored there. Nor is there any practical way to prosecute the burgeoning multitudes who have already made over 380, 000 musical pieces available there.

Appeals based on moral principles will avail them little.
Cyberspace is and always has been a “gift economy” where sharing  is considered a virtue, not a crime. The music industry is generally despised by both music-lovers and musicians, to whom they’ve been returning about five percent of the retail value of their works.

Further, most musicians agree with Public Enemy rapster Chuck D, who recently said that the recording industry’s legal assertion that they own the music they distribute is as senseless as would be a claim by Federal Express that they should own the contents of the packages they ship.

Also, from an economic standpoint, many musicians have discovered, as the Grateful Dead did, that the best way to make money from music is to give it away. While scarcity may increase the value of physical goods, such as CD’s, the opposite applies to information. In a dematerialized information economy, there is an equally strong relationship between familiarity and value. If your work is good, allowing what you’ve done to self-replicate freely increases demand for what you haven’t done yet, whether by live performances or by charging online for the download of new work.

For these, and far more reasons than I can state here, I’m convinced that the traditional music business is finished.
Napster and other environments like it will polish off the likes of BMG and Tower Records within five years.

Personally, I can’t say I’ll miss it. For over a century, it has exploited both musicians and audiences. By its proprietary practices and crass insistence on mass appeal, it has desertified the ecology of auditory epiphany, impoverished genius, fattened lawyers, turned plastic into gold, and offered gilded plastic in return.

Music expresses the soul of a society. It is perhaps the most singularly human activity of our peculiar species, since, unlike the rest of our major endeavors, it doesn’t support our physical survival. But the 20th Century music business has transformed the deepest currents of our culture into mere currency.

To be fair, I will confess that it had its purposes and time.
Without the record industry, I would never have heard The Rolling Stones, Stockhausen, Handel, Billy Holiday, Bob Dylan, Robert Johnson, Ravi Shankar, or Balinese Monkey Chants. Nor, more importantly, would they have been able to hear – and thus build upon – each other.

I also recognize that some percentage of those who work in it appear to be human beings. As a former cattle rancher, I feel a pang of compassion at their economic demise. But history is littered with such casualties. The people who worked in them found other jobs.

The graceful industries go down gently when they’ve outlived their utility, but doesn’t appear that this one is going to. They appear prepared to bury with themselves an entire epoch of music under a thick crust of copyright law, leaving a century-sized hole in the history of music.

We can’t allow this to happen. If it does, it will cause the still-birth of what is presently gestating on Napster.com: the musician business. (And even, with luck, something one might call the audience business.)

In Napster’s enormous room, music will arise in spontaneous and global abundance in the space between creators and listeners so interactively that it will be hard to tell which is which. No longer will we mistake music for a noun, as its containers have tempted us to do for a century. We will realize once more that music is a verb, a relationship, a constantly evolving life form.

But you can’t own verbs, nor relationships, nor divine gifts. Whatever the current legalities, I personally find defining “my” songs to be a form of property to be as philosophically audacious and as impractical as would be a claim that I own “my” daughters, another blessing that just happened to pass into the world through me..

As with my daughters, I want to exercise some control over what happens to the songs for which I was the mere conduit. I don’t want them to be altered, abused, exploited, or used by others for their own commercial purposes. Developing the proper legal and ethical instruments to assure me that ability will be tricky. But more than control, I want my songs, like my daughters, to be free to roam the world and be loved by as many as can appreciate their occasional beauty.

Whatever models evolve to protect the creation of music, I am not concerned that we will fail to economically support its makers after we quit calling it property. For some reason, humans absolutely require music, and they were providing for the material needs of musicians for tens of thousands of years before copyright law, just as they will do so for tens of thousands of years after this brief and anomalous period has been forgotten.


The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There’s also a negative side.

— Hunter S. Thompson


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