Date: Mon, 05 Mar 2001 20:20:49 -0600
Subject: The rearview mirror stage


The news about Napster strikes a melancholy chord.  It appears likely
that the court will rule Napster must begin blocking access to about 1
million copyrighted songs.  Such a judgment will probably sound the
death knell for Napster. 

Lyotard writes, "As distinguished from a litigation, a differend would
be a case of conflict, between two parties, that cannot be equitably
resolved for lack of a judgment applicable to both arguments."

So, the question arises, what is the Napster case?  Is it a litigation
or a differend?

I would argue that this case is a differend because the judgment between
the two parties is clearly incommensurable.  For the recording industry,
it is clearly a case of intellectual property rights.  Since these are
owned, the means of distribution must be protected.  Music is a
commodity, like wheat, oil, steel, automobiles or Nike shoes.

For the defenders of Napster, another principle is at work -
"information should be free".  They argue that technology has now
changed the relationship between the artist and consumer.  The recording
industry has merely become an anachronistic middleman. There are other
possible relationships that might reward artists without restricting
artificially the flow of information. 

Marshall Mcluhan has written that major technological change creates a
social numbness whereby the new technology is first embraced in terms of
the old technology is replaces.  The classic example of this is the
"horseless carriage" as the name first given to the automobile.  Mcluhan
calls this approach "the rear view mirror effect".

Similarly, Alvin Toffler in his book "The Third Wave" described the
radical discrepancy between material commodities and information by the
fact that the more the commodity is used, the less it is available.  The
relationship with information is exactly asymmetrical to this.  The more
information is utilized, the more of it is available.  To restrict the
flow of information in economic terms is simply to restrict the flow of
trade.

The fact that Toffler sold himself as a consultant to Newt Gingrich in
the nineties is evidence that he did not understand his own principle. 
Perhaps, it was because his analysis was constrained by "rear view
mirror effect".  Or perhaps, he just went where the money was.

In any case, the content of hegemony today seems to be composed of
exactly such "reactionary futurology".  On the one hand intellectual
front-men rhapsodize poetically about all the riches that technology has
given us (i.e. the white American middle & upper class) both financially
and in terms of the quality of life.  On the other hand, they argue that
the only means of consistently delivering  such wealth is through an
economic system mired in nineteenth century industrialism that creates
disproportionate distribution, artificial cycles and ecological
instability.

Thus, Napster is a differend because the conflict it represents cannot
possibly be resolved by litigation.  It could even be said it figures as
proxy in a clash between modernism and postmodernism, commodity
economics and information economics and the question Lyotard raised at
the end of "The Postmodern Condition," Who will control the data banks?"

There is also the question concerning what is to be done about this
differend?  Certainly, it is possible to bear witness to this differend,
to feel it sublimely as a clash of incommeasurables and articulate this
feeling in language.  This is partly what is being attempted here.

It remains insufficient, however.  Although there will always be
differends because of the heterogeneous ways in which phrases are
linked, individual differends have a history and each one changes
dynamically over time. Thus, to bear witness to this particular
differend may mean taking actions as diverse as pirating, proliferating
shareware that duplicates Napster's functionality, artists refusing to
work through record companies and finding other venues for reward.  In
short, various groups experimenting with changing the differend even as
they bear witness to it, using the differend politically in ways that
are not limited to being merely democratic.