Bizarre vs. Bazaar

by Doc Searls

Are you ready to lose Internet Radio? Well, get ready, because that's exactly what will happen if the Copyright Office carries out its current interpretation of the DMCA.

For context, let's go back a couple weeks to when I wrote about some of the radio flowers blossoming on the creative commons we call the Net. Here's a bouquet:

I've also written about our friends at KPIG and Radio Paradise, where Bill Goldsmith has been making the most of open-source methods and software to give this young industry what it needs to grow and even make a little money along the way. When you tune into his stations (and to many of the others listed above), you're literally listening to Linux.

What we're seeing with Internet Radio, even more than we saw with Napster, is the music market's workaround of a grotesquely obsolete regulatory environment where big-time broadcasting has grown safely protected from accountability to its own users. Today the AM and FM bands are populated almost entirely by a strange breed of immense mutant advertising-fed cattle that seem to reproduce only by cloning. Drive through four cities hitting your radio's SCAN button, and you'll find at least four different “Good Times, Great Oldies” stations playing the same playlist of 200 songs. And that's just the tip of the shitberg.

Simply put, Internet Radio is what happens when Demand gets the power to Supply. It's nothing more complicated than The Market at work.

But the regulators and their bizarre beneficiaries have no idea what a real market is, and they are lined up with bulldozers, ready to replace nature's own music marketplace with a new Net-enhanced version of the plumbing system we call The Media. They started with the DMCA, and their latest bulldozer is something called CARP, the Copyright Arbitration and Royalty Panel. After meeting in secret for the last several months, CARP issued a report on February 20 “recommending rates and terms for the statutory license for eligible nonsubscription services to perform sound recordings publicly by means of digital audio transmissions (”webcasting“) under 17 U.S.C. §114...” etc.

Specifically, CARP wants to charge very steeply—punitively—for broadcasting music on the Net. KPIG lays out the issues as kindly as they can:

Independent webcasters such as KPIG are facing a grave threat to our existence. It may be an evil conspiracy on the part of the big record companies and corporate webcasters, or - more likely - it's just a dumb mistake. In either case, KPIG could soon be liable for huge music usage fees ($5,000 - $10,000 per month) that would make it impossible for us to stay online.

The effect will be to outlaw webcasting, something the big broadcasters will never miss because it's a pain in their butts anyway.

The DMCA anchors a strategic vector for these people, and it's not hard to see where it's pointing. How long before the Library of Congress (which is behind CARP, by the way), in cahoots with some new industry-led enforcement body, starts crawling the Web looking for matches between quoted and copyrighted text and busting individuals for violations? How long before free speech starts costing you? (And not just Dmitry.)

Webcasting is just the first species marked for destruction. Whether this is an evil plot, a dumb bureaucracy at work or both, the effects are the same: the destruction of the Net as a commons and its replacement with a plumbing system for the distribution of “content” (a word hardly used in a shipping context before Big Media got all drooly over The Promise of The Net).

So what can we do, beyond what the EFF and other friends are already up to?

In my most recent SuitWatch newsletter, I called for two courses of action:

One is to do everything we can to draw a distinction between the place-based concepts on which the Net and the Web were based (and which drive expressions like “address”, “site”, “home” and “location”) and the plumbing-based concepts by which the both regulators and Big Media want to redefine the Net (and which drive expressions like “content”, “deliver”, “move” and “distribute”). I think Larry Lessig and the Creative Commons folk (who will have a high profile at the upcoming O'Reilly Emerging Technology Conference) are doing a good job at framing that one up. But we need to build on the Commons concept; just being conscious about language will help. Look at it this way:

  • We have the advantage if we talk about the Net as a place.

  • They have the advantage if we talk about the Net as a plumbing system for shipping content.

(And make no mistake, it is a death-match between the two, one fought in our own minds as well as out in the social environment we call The Marketplace.)

The other is to march on Washington*. I know that's very 60s and retro, but sometimes you just have to get physical. You have to deliver the missing clues, in person, to elected representatives and the regulators they employ. What better place to do that than on the nation's home commons? For a little motivation on that one, let's revisit the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Congress made exactly that kind of law with DMCA, and it needs to repealed.

Let's show these guys there's nothing bizarre about democracy at work but, instead, something very bazaar. It's hard to imagine a more peaceable assembly than one that's nothing more than a real market doing its real job.

*Or we could take a train, webcasting live music along the way, stopping to perform and have fun at venues along the way. Whatever it takes.

Doc Searls ( is Senior Editor of Linux Journal and a co-author of The Cluetrain Manifesto. The opinions he expresses here are his own.

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