SPAN: November/December 1999

SPAN

Who Will Own Your Next Good Idea?

By Charles C. Manu

Publisher Francis B. Ward

Cinema Paradiso

By Richard Schickel

Editor-in -Chief Kiki S. Munshi

Fade-out?

By Stanley Kauffmann

Editor Lea Terhune Associate Editor Arun Bhanot

Satyajit Rayand Hollywood

Copy Editor A. Venkata Narayana

By Arun Bhanot

Editorial Assistant K. Muthu1.'Umar

By Richard Corliss

Back to the Dirty '30s Hollywood, Bollywood

Art Director Suhas Nimbalkar Deputy Art Director Hemant Bhatnagar

Walter Reuther Working-Class Hero

By Irving Bluestone

Production/Circulation Manager Rakesh Agrawal

A Social Divide Written in Stone

Research Services AIRC Documentation Services, American Information Resource Center

By David Roberts

Front cover: am Puri and Patrick Swayze in a scene from Roland Joffe's film City of .Joy (above), and Shabana Azmi in John Schlesinger's Madame Sousatzka. (below). Collaborations such as these bring Indian cinema closer to its American counterpart. Photo credits, (above) Photofest; (below) Simon Mein; Š 1988 Cineplex Odeon Films, Inc. Note: SPAN does not accept unsolicited manuscripts and materials and does not assume responsibility for them. Query letters are accepted.

Published by the Public Affairs Section, American Center, 24 Kasturba Gandhi Marg, ew Delhi 110001 (phone: 3316841), on behalf of the American Embassy, New Delhi.

Printed at Thomson Press (India) Limited, Faridabad, Haryana. The opinions expressed in this magazine do not necessarily reflect the views or policies of the U.S. Government. No pari of this magazine may be reproduced without the prior permission of the Editor. For permission write to the Editor. Price of magazine, one year subscription (6 issues) Rs. 125; single copy, Rs. 30.

PatentAbsurdities

By Seth Shulman

Jaisalmer Fort Restored

By Sumita Mehta

Governance= Performance An Interview with Carolyn Kay Brancato

The Myth of Order

By Ellen Ullman

A LETTER ince SPAN

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American "Cinema

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and ideas~stimulated

explores the contentious

by Richard Schickel, takes up the his ton" of

the world's favorite pastime and its transformation,

for better or

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property

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Complicating tomorrow

mourns the loss of old-time cinema as a new digital

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best directors.

deathbed~interacted

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listed on in-

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and ICICI is a new name

on the NYSE. Caroh"n Brancato talks about stocks and the role of good corporate marketplace

gm"ernance

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she says, operates

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great fortresses

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Hero."

how the 20th century will shape the 21 st,

\,'e d\vell on the romantic on opposite

about

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of \'Valter Reuther, a 20th-century Having considered

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control. And on the human side of indusm',

from American

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Charles C. Mann, in "\'\'ho

\\'ill Own Your 0: ext Good Idea)" enters the arena of intellectual

of restoration

best of Hollywood

by Seth Shulman

and the need "for fostering a more healthy and equi-

battles in "Back to the Dirty '30s"; and Stanley Kauffmann,

with Hollywood's,

in the

issue of narrow private interests versus

table system of private enterprise."

for worse, over 10 decades; Richard Corliss discusses censorship

India's cinema developed

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leaps of science and technolog\"

public freedom to dra\l" on our collective natural and intellectual

Software,

\\'ith the end of the 20th centun路.

?\Iany aspects of the old millennium

nated

tion for creations

Y2K? Ellen Ullman offers comfort

these changes.

issue of SPAN also coincides

and

to secure credit and compensa-

square off against those who want to offer their ideas for free.

for quite some time. Those

name changing to the American Information \\'e moved

but our essential

and cooperation

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of \"ou who use the American

it

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understanding

are raging abour copyrights

past20 years. "Patent Absurdities"

of the Foreign

photos bl"

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patents~methods astOunding

with the U.S. State Depart-

USIS \\'ill henceforward

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THE PUBLISHER

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Who Will

Own Your Next Goodldeail ~omecorporations want to lock up copyright even tighter. ~ome intellectuals want to abandon copyright altogether. What is at stake and where is the middle ground?

bout 12 years ago I walked past a magazine kiosk in Europe and noticed the words "temple des rats" on the cover of a French magazine.

Rat temple! I was amazed. A few months before, a friend of mine had traveled to northwestern India to write about the world's only shrine to humankind's least favorite rodent. The temple was in a village in the Marusthali Desert. That two Western journalists should have visited within a few months of each other stunned me. Naturally, I bought the magazine.

The article began with a Gallic tirade against the genus Rattus. Le spectre du rat, Ie cauchemar d' humanite' Quel harreurl-that sort of thing.

Then came the meat: an interview, in Q&A form, with a "noted American journalist" who had just gone to the rat temple. The journalist, who was named, was my friend. No such interview had ocCUlTed:the article was a straight translation, with fake interruptions by the "interviewer" such as "\lraiment.?" and "Man Dieu!"

I was outraged. To my way of thinking, these French people had ripped off my friend. I telephoned him immediately; he had the same reaction. Expletives crackled wildly across the Atlantic. Reprinting his copyrighted article without permission or payment was the same, we decided, as kicking down his door and stealing his CD player.

We were wrong. Although the magazine had

A

done my friend wrong, what was stolen was not at all like a CD player. CD players are physical property. Magazine articles are intellectual property, a different matter entirely. When thieves steal CD players, the owners no longer have them, and are obviously worse off. But when my friend's writing was appropriated, he still had the original manuscript. What, then, was stolen?

Because the article had been translated, not one sentence in the French version appeared in the original. How could it be considered a copy?

Anomalies like this are why intellectual property has its own set of laws.

Intellectual property is knowledge or expression that is owned by someone. It has three customary domains: copyright, patent and trademark (a fourth form, trade secrets, is sometimes incl uded). Copyrighted songs, patented drugs and trademarked soft drinks have long been familiar denizens of the American landscape, but the growth of digital technology has pushed intellectual property into new territory. Nowadays one might best define intellectual property as anything that can be sold in the form of zeroes and ones. It is the primary product of the Information Age. All three forms of intellectual property are growing in importance, but copyright holds pride of place. In legal terms, copyright governs the right to make copies of a given work. It awards limited monopolies to creators on their creations: for a given number of years no one but Walt Disney can sell Mickey Mouse cartoons without permission. Such monopolies, always valuable, are increasingly lucrative. For the past 20 years the copyright industry has grown almost three times as fast as the economy as a whole, according to the International Intellectual Property Alliance, a trade group representing film studios, book publishers, and the like. In 1997, the alliance says, copyrighted material contributed more than $400 billion to the U.S. economy and was the country's single most impol1ant export.

These figures may actually understate the value of copyright. Today it is widely believed that personal computers, cable television. the Internet and the telephone system are converging into a giant hose that will spray huge amounts of data-intellectual property-into American living rooms. As this occurs, according to the conventional scenario, the economic winners will be those who own the zeroes and ones, not those who make the equipment that copies, transmits and

displays them. Because copyright is the mechanism for establishing ownership, it is increasingly seen as the key to wealth in the Information Age. At the same time, the transfOimation of intellectual property into electronic form creates new problems. If the cost of manufacturing and distributing a product falls, economic forces will drive down its price, too. The Net embodies this principle to an extreme degree. Manufacturing and distribution costs collapse almost to nothing online: zeroes and ones can be shot around the world with a few clicks of a mouse. Hence producers of digital texts, music and films will have trouble charging anything at all for copies of their works-competitors can always offer substitutes for less, pushing the price toward the vanishing point.

In addition, creators must deal with piracy, which is vastly easier and more effective in the digital environment. People have long been able to photocopy texts, tape-record music and videotape television shows. Such leakage, as copyright lawyers call it, has existed since the first day a reader lent a (copyrighted) book to a friend. With the rise of digital media, the leakage threatens to turn into a gush. To make and distribute a dozen copies of a videotaped film requires at least two videocassette recorders, a dozen tapes, padded envelopes and postage, and considerable patience. And because the copies are tapes of tapes, the quality suffers. But if the film has been digitized into a computer file, it can be e-mailed to millions of people in minutes; because strings of zeroes and ones can be reproduced with absolute fidelity, the copies are perfect.

And online pirates have no development costs-they don't even have to pay for paper or blank cassettes-so they don't really have a bottom line. In other words, even as digital technology drives the potential value of copyright to ever greater heights, that same technology threatens to make it next to worthless.

This paradox has engendered two reactions. One is to advocate eliminating copyright altogether. Led by a small but surprisingly influential cadre of libertarian futurists, anti-copyrightists believe that the increased ease of copying effectively obviates the Š symbol and all it entails. "Information wants to be free"-a phrase apparently coined by the writer Stewart Brand-is the apothegm of choice here. In this view, copyright restricts what people can do with the intellectual property coming through the wires. Futilely but dangerously, it tries to fence the electronic frontier. It unjustly creates monopolies in the basic commodity of the Information Age. It is a relic of the past and should be expunged.

The other, opposing reaction is to strengthen the hand of copyright owners. Realizing the growing economic import of copyright, U.S. Congress is rapidly trying to overhaul the nation's intellectualproperty regime. The changes would give copyright owners more control for longer times; some would make it a crime to work around copyright-protection schemes. A different tack is being taken by state governments, which may bypass copyright altogether by amending the laws governing sales contracts. If they succeed, copyright owners will be able to ask individual customers to agree to contracts regulating the zeroes and ones flowing into their homes.

Before we send this vintage episode of Seinfeld to your computer, please read the/ollowing conditions and terms, paying careful attention to the clauses that forbid taping or replaying the program

even once. After you click "OK," the transmission will start.

Because I make much of my living from copyright, I find the toand-fro fascinating, and have a vested interest in the results. But issues bigger than the financial status of writers are involved.

Copyright is the regulatory authority for the marketplace of ideas.

It lays out the economic ground rules to create the hubbub of debate that the Founders believed necessary for democracy-one reason that they included copyright in the U.S Constitution (Article I, Section 8, instructs Congress to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries"). Copyright law allows Michael Jackson to make a fortune from the Beatles catalog, and Bill Gates to add to his untold wealth by licensing electronic reproductions of the photographs of Ansel Adams. But its real purpose is to foster ever more ideas and ever more innovation from ever more diverse sources. When, in 1790, George Washington asked Congress to enact copyright legislation, he argued that it would increase the national stock of knowledge. And knowledge, he said, is "the surest basis of public happiness."

Today the marketplace of ideas is being shaken up by the competing demands of technology, finance and law. Large sums of money are at stake. Change seems inevitable. One way or another, we will lay a new institutional foundation for literary culture in the United States. How we do it will playa big role, according to the logic of the Founders, in determining our future well-being. It would be comforting to believe that decisions will be made thoughtfully and well. But little evidence suggests this is true.

Indeed, we may be heading into a muddle that will take us a long time to escape.

SWITCHED-ON

BOOKS Set next to a horse pasture in the foothills of the Santa Cruz Mountains, the Xerox Palo Alto Research Center (PARC) is a flat, Miesian rectangle with the bronze-tinted windows and anodizedaluminum mullions that are ubiquitous in Silicon Valley. Despite its nondescript appearance, PARC occupies a special place in the annals of computing. In the 1970s researchers there created the windows-and-mouse interface now seen on millions of desktops around the world. Xerox failed to capitalize on this innovation.

Steve Jobs, of Apple Computer, saw it demonstrated on a tour of PARC in 1979. He borrowed the idea, hired some of its creators, and went on to build the Macintosh.

Xerox's decision to shelve the mouse is notorious in digital circles. Less well known is that at about the same time the company decided not to pursue another big innovation: the technology for electronic paper. In this case the company was lucky enough to have a second shot at the idea: the original researcher, Nick Sheri don, remained at PARC, and in 1991 he was given permission to pick up where he had left off. The results of his work were unveiled in an advertisement broadcast during the 1998 Winter Olympics.

Intellectual property is knowledge or expression that is owned by someone.

Copyright, a mechanism for establishing ownership, may be the key to wealth in the information age.

Sheridon calls his invention Gyricon, for "rotating image," but it's really a flexible, cordless computer screen that looks and acts like a piece of paper. Or will look and act-in its current, stillcrude state, electronic paper resembles thin, floppy pieces of gray vinyl. Sheridon asked me when I recently visited PARC if I wanted to hold a sheet. I felt like someone being offered the chance to see the first, staticky RCA television in 1932. The sheet of Gyricon was dark and grainy and had an unlovable, spongy feel. But despite the imperfections I was fascinated. There in my hands was a rough draft of a possible future. If e-paper is widely accepted, as seems plausible, it will turn the world of copyright upside down, and with it literary culture.

Technophiles evoke a future in which ordinary books, bookstores and libraries disappear, replaced by the all-encompassing pipeline of zeroes and ones into the home. Printed pages, the rancher and rock lyricist turned Internet advocate John Perry Barlow explains, are nothing but bottles for ideas.

"Now, as information enters cyberspace, the native home of Mind, the bottles are vanishing," he has written. In the future, says William Mitchell, the dean of architecture at the Massachusetts Institute of Technology, physical books will be of interest mainly to those "addicted to the look and feel of tree flakes encased in dead cow."

As skeptics note, these triumphalist predictions recall the scene in The Hunchback of Notre Dame in which the dour, scholarly Archdeacon Frollo confronts a scary new technology: the printing press. "Ceci tuera cela!" the archdeacon cries.

"The book will kill the church!" Frollo's vision of the demise of religion was spectacularly wrong.

Technophobes argue that the predicted death of the book is equally exaggerated. Who will curl up with a computer in bed? they ask. Readers can't dog-ear pages or highlight favorite passages on today's computer screens; they can't even see where the text begins and ends. Indeed, many prophets of the book's demise make their claims in the pages of books-a practice, the PARC consultant Paul Duguid has observed, "which has much of the logic of making yourself the executor of your own will."

Although Sheridon loves the flexibility and ease of digital technology, he tends to agree with the pro-book forces. "Paper has remained unchanged for 2,000 years," he told me. "There's a message there." The message is that people like paper; they have not adjusted to bulky picture tubes on their desks. Sheridon likens the monitor to polyester, a substance that did everything but make people want to wear it. Xerox studies suggest that most people print out electronic mail that is longer than half a

page; paper use tises by 40 percent in offices that introduce e-mail. Instead of trying to make computers replace books and paper, Sheridon concluded, computers should become books and paper.

Each Gyricon sheet is made of transparent silicone rubber. Inside are millions of plastic balls, each smaller in diameter than a human hair, embedded in the silicone like so many marbles. Every ball has a white half and a black half, making it look in magnification a bit like a model of the moon. The ball carries an electrostatic charge-the same kind of charge that makes clothes stick together in the dryer. If electrical fields approach, they attract or repel the black half, causing the spheres to rotate within their little pockets in the plastic. If a white half points toward the surface of the paper, it makes a white dot; if a black half is up, the dot is black. Arranging the black and white dots creates a black-and-white image in much the same way that arranging pixels creates an image on the computer screen.

Once rotated, the balls stay in place, locked in position within their cavities. "You can get very long-term storage of an image," Sheri don says.

"Or you can run the paper through the charge again and make another image." The plastic can be made cheaply, and each sheet can be used at least a million times before the balls stop working. In contrast, a million sheets of the bond paper in my photocopy machine would cost thousands of dollars and make a stack more than 300 feet tall.

Sheridon told me that this technology might be available by 2000. He didn't want to guess when the world might see the next step: electronic books.

What would such devices look like? "Regular books," Joseph Jacobson, a researcher at the MIT Media Lab who is working on another version of epaper, says. Electronic books "might need a small battery and a port to link to computers, but otherwise the basic format of the book is so useful that I see little reason not to keep it." Three companiesSoftBook and NuvoMedia, in Silicon Valley, and Everybook, in Pennsylvania-are poised to introduce "electronic books" within the next year, but these will be, in essence, keyboardless portable computers that can display words. To Jacobson, true electronic books should open and shut like paper books and have bendable pages that can be flipped through. To show text, each sheet in an electronic book would have to be covered with transparent electrodes, much as the screens of laptop computers are now controlled by transparent circuitry. The electrodes would be controlled by chips in the spine. Manufacturing an electronic book would thus be the equivalent of wiring sev-

eral hundred thin, flexible laptop screens edge-first into a narrow circuit board. Such mechanisms would be hideously expensive at first, but in researching this article I did not meet many people who thought they would never be built.

Readers would open their e-books and see a list of works on the title page-the collected works of William Faulkner, say. To read The Sound and the Fury, one would tap the title, and the text, stored in the circuitry of the spine, would flow noiselessly onto the pages. If the tale of the Compsons seemed too involuted, one could tap Light in August and actuate it instead, or Ahsalom, Absaloml Given the advances in computer memory, it should be feasible to store entire libraries in every electronic book.

Readers could use a stylus to underline favorite passages and write in the margins; the next time the text was generated, the marginalia would appear as well.

Giving me a tour of his laboratory, Jacobson dilated cheerfully on the possibilities of electronic books. In the future, he suggested, books will never go out of print. Landfills will not be clogged with obsolete telephone directories. The Sunday New York Times will not consume forests every week. Jacobson had several electronic-paper projects under way, in one of which charged white balls formed an image by swimming to the surface of a dark-blue page. He demonstrated some early versions of his electronic paper, but made me promise not to divulge details, in order to avoid upsetting his corporate sponsors. To my untrained eye his e-paper seemed glitzier than Sheridon's but further from realization.

Imagine, Jacobson said, a world in which decaying stacks of old National Geographies did not sit in garages. "You guys must spend a fortune on paper, ink and postage," he said, referring to this magazine. Why not zap text and artwork directly to subscribers? "That's what they buy the magazine for, isn't it? Not to mention that the whole business of printing and mailing takes so much time."

Atlantic Monthly subscribers might receive blank electronic magazines, he suggested. Every month readers would plug the magazines into their computers to receive the next issue-or an issue of another magazine, depending on which chips the receptacle contained.

I asked, not for the first time, about piracy. What would prevent unscrupulous entrepreneurs in faraway countries from buying books and magazines and reselling them at half price on the World Wide Web? Would the existence of electronic paper make it dramatically more difficult to sell written works?

"That's the problem, isn't it?" Jacobson said, smiling. Technology always has an upside and a

downside. he said. He thinks that electronic books and magazines will inevitably come into existence, because they promise such economic and ecological advantages. "But we need to do it all in the right way," he said. "Otherwise the intellectual-propelty issues ..." His voice trailed off. "Well," he said, "you might really have a negative impact on the culture."

RED~ WHITE AND BLUE FOR $~O How real is the threat of piracy? Very real, according to Jack Valenti, of the Motion Picture Association of America (MPAA). The world, in his view, is a "heartbreaking," "devastating" "pirate bazaar" in which counterfeiters with "no sense of morality" steal billions from America's moviemakers. In December 1997 the MPAA estimated that piracy, chiefly in the form of illegal videocassettes, costs the U.S. motion-picture industry more than $2.5 billion a year.

Movies are not the only losers. Publishers complain that pirates knock off expensively produced textbooks in fields ranging from business management and computer science to medicine and English. Music companies hire a firm called GrayZone to hunt down bootleg-CD makers and Web-site pirates around the globe. In some countries-Russia and China, for example-more than 90 percent of all new business software is pirated, according to the Business Software Alliance and the Software Publishers Association. the two major trade associations in the field. The International Intellectual Property Alliance claims that foreign copyright infringement alone costs U.S. firms as much as $20 billion a year.

Clitics charge that these huge figures are absurd, and not only because of the obvious difficulty of measuring illicit activity. While researching this article I obtained a CD-ROM called "CAD Xpress" for about $30 ("CAD" is the acronym for "computer-assisted design"). It contained a copy of the current version of AutoCAD, the leading brand of architectural-drafting software, which has a list price of $3,750. According to the Software Publishers Association, my copy of CAD Xpress represents a $3,750 loss to Autodesk, the manufacturer of AutoCAD. This assumes, of course, that I, and every other buyer of CAD Xpress, would otherwise pony up thousands of dollars for AutoCAD. More important, in the view of Stanley Besen, an economist at Charles River Associates, a con-

Copyright is the regulatory authority for the marketplace of ideas. Today that marketplace is being shaken up by the competing demands of technology, finance and law.

suIting firm in Washington, D.C., the huge estimates of piracy losses don't take into account the copyright owners' responses to copying. "Suppose I know that people are going to copy Lotus 12-3," he said to me. "So I sell it for $500, knowing that four people will make copies of each program, whereas I might sell it for only $100 if all five users purchased programs for themselves." The price takes copying into account, and no loss occurs.

Such accommodations might insulate software firms from some of the effects of copying. But Besen does not think that they can insulate the companies from all of them, especially when a single bootleg can spawn so many other illicit copies that the original company can't raise the price enough to compensate for the losses incurred. I bought CAD Xpress at the Golden Shopping Centre, in Hong Kong. The Golden Shopping Centre was a kind of shopping mall for copyright infringement: three stories of pirated video games, CDs, videotapes and software. Situated next to the Sham Shui Po subway station, in Kowloon, the mall was not hard to find-the address was in my Fodor's Citypack guidebook to Hong Kong.

The mall consisted of an unlovely concrete block jammed with small, kiosklike stores. Stores on the first floor sold mainly bootleg video games and devices that permit players illicitly to use games built for one company's machines on machines made by another. The second floor was full of pirated music and film. I wasn't interested in the music, because most of it was Chinese pop I didn't know. But I was intrigued by the stacks of digital video disks. DVDs are compact disks that contain entire movies (they are sometimes called video compact disks, or VCDs). Expatriate cineastes complain that most theaters in Hong Kong are devoted to the local product: action pictures stalTing the fleet-footed likes of Jackie Chan and Chow-yun Fat. But the stacks of illegal DVDs included such esoteric fare as the works of the late Polish director Krzysztof Kieslowski, whose trilogy, Red, White and Blue, was available for $20. Grand l//usiol1 for $6.00! The Crying Game for $8.00! Fellini's Satyricon for next to nothing! I began to see what low-cost distribution was all about.

The third floor was devoted to computer programs. Here I bought CAD Xpress. In a gesture to the law, it was sold under the counter. Actually, what was under the counter was loose-leaf binders that cataloged the store's illicit wares. Confused by the descriptions, which were written in garbled English, I asked a woman at one store if she sold AutoCAD, and she spoke to a young person who ran off and 10 minutes later reappeared with the CD-ROM. "How much is it?" I asked. She wrote "240" on a slip of paper240 Hong Kong dollars, then about $30 U.S. Because I make my living from copyright, I felt funny about buying pirated software.

To satisfy my curiosity without arousing my conscience, I had decided to buy software that my family already owned. This idea collapsed when I saw CAD Xpress and its ilk. Competition among pirates ensures that their CD-ROMs are crammed with software: buying a single program wasn't easy. According to my local Autodesk dealer, my $30 copy of CAD Xpress contains more than $20,000 worth of computer-assisted-design software.

For me, the software was less than ideal. Most of the instructions were in Chinese, and some of the programs didn't work (or

at least I couldn't make them work). But overall the disk was still a good buy. For another 30 I bought a CD-ROM called Power Dragon Software. One of its 48 programs was Quicken, the popular accounting software. Given the relatively small size of Quicken, I presumably paid less than a dollar for it-indeed, less than a quarter. In another store I bought the same version of Quicken on two floppy disks. This cost $25-about a hundred times as much, and almost as much as the whole CD-ROM, which included 47 other programs. The difference was that the floppy disks came with a photocopy of the manual, which is more informative than the program's help screens. Because the manual was not available electronically, it was considerably harder to copy than the program and hence considerably more valuable.

Many stores in Golden Shopping Centre sold compilations of computer games, 50 or so per CD-ROM. It occuned to me as I flipped through them that T was inspecting a kind of precursor to the electronic book. T had recently written a book. Completely fomlatted, the manuscript was about 600,000 bytes in size. A CD-ROM holds more than 600 million bytes, enough for scores of books.

Complaining too loudly about illicit software exposes Amelicans to a charge of hypocrisy. During the 19th century U.S. copyright law did not extend to foreigners' works. New York City became the piracy center of the world. Charles Dickens' A Christmas Carol sold for the equivalent of $2.50 in England. On this side of the Atlantic bootleg editions cost six cents. U.S. publishers were unmoved by the plight of their writers who were pirated in England: they could make more money by stealing Little Don'it here than by selling Little Women there. Only in 1891 did Congress pass international-copyright legislation.

I asked the man who sold me Power Dragon if the threat of prosecution worried him. He asked a friend to translate. The friend said, "He is not worried. Soon, very soon, his boss will sell on the Internet. They will send the programs through another country."

Which one? I asked. Iraq, India. Bulgaria, somewhere in Africa. the fliend said. It didn't matter. In a world made up of hundreds of different nations, someone would always be willing to assist his operations. Later I found out that the salesman was right. When the United States pressured China to stop piracy, in 1997, most of the industry simply moved across the harbor to Macau. At the time, I asked the salesman's friend if business was good. "Yes," he said.

He pointed to the crowd around us. "Better every day," he said.

JAMES BROWN HAS A PROBLEM If there is a totemic example of the vexations of copyright infringement, it's James Brown, the Godfather of Soul. Now 66, Brown was born hOITiblypoor and raised by his aunt in a Georgia brothel. As a child, he shilled for the brothel by singing and dancing in the streets. He was caught stealing clothes from cars and was sent away for several years when still in his teens. But rather than slide into full-fledged delinquency, Brown emerged to begin a 50(Conrinued on page 51)

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f the several deeply depressing moments during this year's Academy Awards broadcast, none was more so than the one in which Roberto Benigni almost kicked Steven Spielberg in the head as he clambered over a row of seats to claim his best actor's prize. It wasn't just that Benigni had won for a genuinely bad performance-a wretched imitation of the inimitable Chaplin. Or that the film in which he had given it, Life Is Beautiful, had already won the best foreign language film award for its heedless travesty of the century's central tragedy, the Holocaust. Or even that his well-calculated representation of childish glee at his good fortune ill became a man who has not only survived but prospered in the notoriously cutthroat Italian film industry.

No, it was something else. This climax to the worldwide triumph of Life Is Beautiful says something deeply disturbing about the state of international cinema, about how it has changed, in little more than a few decades, from a realm dominated by the likes of Bergman and Fellini, to imagine Kurosawa and Truffaut-try

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one of them behaving like a ninny upon winning an Oscar-to one dominated by purveyors of feel-good entertainments that don't merely parody the values of their historical betters but, in cases like Benigni's, mercilessly crush them.

In seeking to place blame for the ascendancy of such lightweights, it is tempting to look for some failure of nerve or sensibility, not only in the United States but everywhere else. But the paradoxical, even perverse, truth is that we have only ourselves to blame, for it is the resounding (and unprecedented) success of American films in the international marketplace that has created the conditions in which Benigni (and a few others like him) have flourished.

Some simple statistics illustrate the point: In the 1990s, the American share of European box-office returns has grown from about 50 percent to more than 70 percent. Even in France, which currently has the continent's most competitive movie industry, close to 60 percent of the films released are American in origin.

These figures are duplicated everywhere around the world.

When an industry representing a single

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A top film critic recounts the story of the movies' rise after the turn of the century, their transformation into an exhilarating international art form, and their recent decline into highgrossing irrelevance.

nation, most especially a cultural industry, achieves market penetration of that sort, it causes alarm. Most obviously, in this case, it frightens people who make movies outside the United States as they face what appears to them, and is in fact, nearly insurmountable competition. It also concerns the self-appointed, but highly vocal, guardians of national cultural purity everywhere, especially in those countries, such as France, that take particular pride in the importance and singularity of their contributions to world civilization. You needed only to glance at the French press during the final round of the talks surrounding the creation of the World Trade Organization during the early 1990s-the outrage that arose over the way American movies (and television and popular music) were dominating the local market, the passionate pleas for some enhanced defenses against this invasion-to gauge the fear and loathing stilTed by our "cultural imperialism."

Those critics are objecting to someC thing that most American critics are also damning-the rise of what the Economist recently called "the generic blockbuster,"

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Intolerance (1916). Film pioneer D.W. Griffith specialized in epic productions. The most expensive film made at the time, it involved building immense sets, such as this one. for Belsha::::ar's feast in Babylon.

Robin Hood (1922). a silent film starring Douglas Fairbanks, 11:, set the tone for blockbusters for decades to come. Fairbanks, his wife Mary Pid.ford, Charlie Chaplin and DW. Griffith made history when they set up the first artist-owned distribution company, United Artists, in 1919-an idea that was years ahead of its time.

the kind of film that was originally made for brain-damaged American teenagers, but which, it was soon discovered, was going down very well overseas. Some trace the blockbuster's genesis to Jaws in 1975, others to Star Wars in 1977, but that's unimportant.

What is important is that these films, as the magazine also observed, "are driven by special effects that can be appreciated by people with minimal grasp of English rather than by dialogue and plot. They eschew fine-grained

cultural observation for generic subjects that anybody can identify with, regardless of national origin." All through the postwar period, American producers had contented themselves with making about 30 percent of their grosses abroad. Now, pushed by all those Terminators and Lethal Weapons-not to mention sub verbal grossout comedies such as There's Something about Mary, which translate with equal immediacy overseas-that figure began to creep up to 50 percent. In many cases it was more than that; there are plenty of films that have doubled, tripled, even quadrupled their domestic grosses overseas.

In the United States today, some 66 percent of all movie tickets are sold to just 18 percent of the potential audience, to young people aged IS to 24. Somewhat less than 30 million admissions are sold every week, mostly to that crowd, but that is just one-third of the tickets that were sold in this country in the late 1940s, when the general population was some 120 million less than it is now.

What this means is that, were it not for their use as a place for young people to go on dates, the movies today would not be mass entertainment at all. They would be a minority pleasure-something like the opera or symphony

or ballet--possibly requiring some sort of subsidy to survive, but surely existing on the money they make from what are still rather quaintly called the ancillary markets, such as television licensing and home video sales. Indeed, for the last several years this has been the source of most of their domestic profits. In this adolescent-dominated climate, it is unsurprising that when a studio makes a serious but by no means esoteric movie-something like L.A. Confidential or Without Limitsit does not understand how to market the film, and it almost inevitably fails.

There is, of course, "indieprod," a realm where filmmakers such as Stanley Tucci (Big Night), Bryan Singer (The Usual Suspects), and Kevin Smith (Clerks) can ! begin their careers on low budgets but ~ with considerable freedom. But they often i co have trouble moving up to big-studio production, where the rough edges of their swung decisively toward the foreign film, work are almost invariably worn down to which was good for its producers' bank conform to the mass-market template. accounts but even better for our souls.

As for foreign filmmakers, what's left In this time, films coming into the to them, if they hope for substantial profUnited States from France and Italy and its, is occasional access to a market now Sweden and Japan and Spain and India largely neglected by U.S. producers, what and Britain utterly dominated the convermight be called the market for mature ge- sation among critics and the knowing niality, sweet-spirited, rose-hued movies audience, including young filmmakers that aren't about anything very much, but looking for new ways of expressing themwhich can, about once a year, get the older selves. Everyone could see that the most folks out of the house to attend a movie in basic grammar of film was being exa theater, just like they did in the good old panded in these offerings, and with it the days. Prior to Life Is Beautiful, the breakrange of subjects and ideas (which inout hits in this category were Like Water cluded the idea of film itself) that movies for Chocolate, Four Weddings and a could address.

Funeral and The Full Monty, each in its "Cinephilia," Susan Sontag calls this wayan agreeable enough film, but none of spirit in a recent article lamenting the dethem in danger of being confused with cline of the movies, both as popular and The 400 Blows or Breathless or 81f2. high art. The term, she says, reflects "a conviction that cinema was an art unlike I'm naturally suspicious of nostalgia.

It's the emotion that makes us old before any other: quintessentially modem, distinctively accessible; poetic and mysteriour time and, often enough, stupid beyond belief. But I do think that there was a brief ous and erotic and moral-all at the same historical moment, beginning sometime in time." It was, as she says, a religion, a crusade, and a world view. It was also a way the 1950s and ending sometime in the 1970s, the passing of which all of us who that culturally serious members of my value the unique expressive capacity of generation, and those who immediately film must mourn. It was a period when the followed (including such important, and balance of trade with America tipped a lit- diverse, filmmakers as Martin Scorsese, tle bit more favorably to foreign filmmakWoody Allen and Steven Spielberg) deers. More important, it was a period when fined themselves, set themselves apart the intellectual balance in this country from the somewhat cinephobic intellec-

tual and artistic commulllties that preceded them.

Since some of our enthusiasm for the medium was based on our first encounters with the great works of the past, our passion partook, too, of a renaissance spirit, with this difference: most people living through renaissances are not aware of their good fortune, while this one was clearly visible to those of us reveling in its excitements. It seemed especially glorious, perhaps, because American movies up to that time were in such a cautious phase, with the romantic elegance of the high silent era, the heedless verve of the talkies' first decade, and the dark mordancy of the early postwar years' film noir lost to Cinemascope and 1950s blandness and banality.

This renaissance was hard won. And it is, I think, useful to understand something of the historical conditions that created it.

We must begin by acknowledging that in the industry's infancy the international playing field was quite level. Indeed, I was surprised to learn from Victoria de Orazia's very thorough 1989 essay on the American challenge to European cinema in the Journal of Modern History that in some of the years prior to World War 1, the French actually produced and exported more films than Americans did, with the Italians not too far behind. It is not hard to imagine why

Lady from Shanghai (1948) was written and ~ directed by Orson Welles.

He was also its stm; with Rita Hayworth. 1t is an example offilm nair, a genre which depended heavily on cinematic chiaroscuro and sinister story lines. Welles was brilliant with such films, but he was inevitably plagued by studio inte/ference which often botched the end result.

1n Star Wars (1977) a reliable formula was translated from the Old West into science fiction mythology by director George Lucas. The compelling story and unprecedented special effects created a cult phenomenon that continues today. as Episode I: The Phantom Menace-jourth in the series--packs theaters. Here Alec Guinness, the original Obi-Wan Kenobe and villain Darth Vader (David Prowse, voice by James Earl Jones), test their abilities to wield The Force as they joust with light sabres.

this free cinematic trade worked so well.

In those days, films circulated more or less anonymously. They didn't carry credits, so audiences could not recognize their country of origin by the director's name or even by the names of their leading players. And, remember, these were silent films, so language was not a giveaway either. Translate the intertitles into the local idiom, and unless some famous landmark appeared in a shot, it was really impossible to tell where a picture was made. seems t that for a while no one cared. It was the miracle of moving images that people cared about-especially when they were deployed in the service of gripping stories and spectacle. Early in this century's second decade, Europeans pioneered the feature film while Americans hesitated. Adolph Zukor, by importing a three-reel hand-colored Passion Play, a 1910 French adaptation of a German work, and by snapping up two years later the American rights to Sarah Bernhardt's somewhat longer Queen Elizabeth, proved that Americans could and would sit still for movies of substantial duration.

We know, too, that D.W. Griffith was inspired to make The Birth of a Nation in 1915 by the example of Quo Vadis? and other Italian spectacles. It is certainly possible to imagine that if great and terrible events had not intervened, the film industries of the United States and the major European nations might have retained rough economic parity for a long time,

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though the sheer size of its domestic market would eventually have given America a clear economic advantage.

But World War I virtually shut down production in the European nations, and by the time it was over the American industry had, in effect, reinvented itself, creating a model that Europe could not hope to duplicate. Americans had developed the star system, built on the celebrity of Mary Pickford, Charlie Chaplin, Douglas Fairbanks, and their like, their huge salaries more than justified by the stability their reliable drawing power brought to a notoriously unstable business. It turned out, of course, that their iconic qualities were completely translatable in every corner of the globe-indeed, required no translation.

Almost everything I'm saying about the formative years of the motion picture industry can be encapsulated by the incident that serves as the prologue to Movies and Money (1998), an excellent economic history of the medium by producer David Puttnam and Neil Watson. The place is Moscow. The time is Christmas Eve 1925.

Two films open that night. One is Sergei Eisenstein's national epic, The Battleship Potemkin. The other is an epic of quite a different sort-maybe we should call it an international epic-Douglas Fairbanks' Robin Hood. Both receive excellent reviews. But only one of them has what we have since learned to call "legs."

Eisenstein's film plays for a few weeks to sparse crowds in a dozen theaters, then is withdrawn. Fairbanks' movie plays for months to packed houses.

Both films have been mounted on a noexpense-spared basis. It might even be argued that the Russian movie has certain advantages over its competitor, in that it is by a native son and takes up a recent event of shaping significance in the lives of his compatriots in a manner so electrifying that it would influence directors around the world for decades to come. The Fairbanks film, by contrast, treats of a time, a place and a myth remote from the Russian audience, and though it does so with great elan, no one argued then, and no one argues now, that it is a milestone in world cinematic history-though I must say, faced

today with the choice confronting Muscovites 7.4 years ago, I think I'd opt for Robin Hood, too. Much more fun.

But Robin Hood had a great star at its center, a man of indefatigable charm and tireless energy. Moreover, even though he had cast himself up in Merrie Olde England, there was something distinctly, attractively American about Fairbanks.

Here, as always, his character was populist, cheekily antielitist, genially subversive of authority, smart without being ideological or intellectual; and this movie, like all his movies, was romantic, dashing, humorous, optimistic, luxurious-and full of thrilling stunts that, like today's special effects, a lot of people wanted to see more than once to try to figure out how they were done.

Did Fairbanks and the makers of Robin Hood and other American fIlmmakers of the day understand, before their intemational receipts told them so, how universal the attitudes and aspirations projected in their fIlms were? Of course not. When Fairbanks and his new bride, Mary Pickford, took a wedding trip to Europe in 1920, they were astonished at the riotous crowds that greeted them, even in staid London and Oslo.

Did their successors who presided over the classic and economically all-powerful Hollywood of the interwar years fully comprehend the breadth of their films' reach? Yes, absolutely. They were proud of the way their movies represented American values overseas. Did they understand the depth of their influence on foreign audiences and calculate ways of enhancing that influence? The answer to that has to be no. Their foreign takings were economically significant to the American moguls, about 20 percent of their grosses, but not overwhelmingly so.

On the whole, however, the moguls were fiercely ethnocentric and, in any case, had trouble enough keeping abreast of the domestic audience's mood swings. It is probably fair to say that they had no idea of how their movies were working on anyone, anywhere, anytime, that they had no sense of how that curious blend of reality and fantasy which is the American movie was, over time, reordering everyone's way of apprehending the world.

Finally, did the Americans have any in-

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8 The Seventh Seal (1957), directed by lngmar Bergman. The Swedish director!s stark. archetypal films have had lasting influence.

tention of driving their European competitors out of business? I think not. Driving them to the wall was good enough for the moguls. By this I mean-and again I rely on de Grazia-they sought every advantage they could in their foreign trade. don't think we can entirely blame Hollywood for acting as it did in these years. It was, in effect, fighting fire with fire. From the 1920s onward, almost every European country with a substantial film industry tried to protect it with government subsidies, tariffs and quotas.

Critics pitched in by disparaging imported images. These defenses were feeble, and have often been deplored by economists and others. For selfish reasons, I disagree-not with their general principle, but with its application in this case. These subsidies and protections have, over many decades, proved vital to the survival of film industries that were essentially unable to defend themselves solely with their own resources. They were therefore vital to the protection of many of world cinema's most influential and enduring masterpieces.

These policies had several downsides,

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notably the hundreds, perhaps thousands, of really bad movies made to satisfy protectionist laws ("quota quickies") or to sop up subsidies. We in America never saw these films, and most people in their countries of origin avoided them as well.

The alternative strategy of trying to compete in the world mass market by imitating American movies produced films that were as a rule greeted with contempt everywhere. (A few notable exceptions included some of the French films nail'S of the 1950s and, from Italy, the best spaghetti westerns of the 1960s, which revitalized the form.)

The largest successes of the European industries-the films that exerted an influence on filmmakers and cineastes the world over--came when they did what was most natural to them, which was to behave like an opera company or some other traditional producing arts organization, encouraging individual film artists to work in the oldfashioned way, expressing personal visions as they had been shaped by the national cultures in which these artists had been born and raised. These films, many of them landmarks of world film history, could not and would not have been made without

some sort of official subvention.

German expressionism, the epic cinema of the Soviet Union, the romantic humanism of the French-all of these movements attracted a profitable minority audience internationally. More important, they exerted an influence on American filmmakers.

Serious directors studied them and occasionally borrowed techniques from them: King Vidor, the greatest of American silent filmmakers, openly acknowledged the example set for him by Eisenstein and the other great Russians, and the influence of German expressionism on his sensibility is highly visible in his 1928 effort, The Crowd. In the long run, though, the largest effect European films had on American directors was the example of authorship they offered. Well before the auteur theory was promulgated, many American moviemakers learned to envy the relative autonomy of their leading foreign counterparts, their ability to assert openly their particular ways of seeing on the screen. The European directors were able to win this freedom because the houses in which they worked were so rickety that there were no domineering house styles they had to overcome. In time, when the power of the American studios declined, American directors would assert their own claim to the right of authorship the Europeans had established.

ainly, however, in the years between the wars, the European industry functioned as a sort of farm system for Hollywood. The way it worked was caught rather nicely by Ralph Richardson. In 1938, as he and Laurence Olivier toiled in Q Planes, one of those hopeless, though not entirely unamusing, English attempts to compete with the Yanks, Olivier happened to mention on the set one day that he was entertaining an offer from Samuel Goldwyn to appear in Wuthering Heights. What should he do, he asked his best acting friend. To which Richardson replied: "Hollywood? Yes. Bit offame. Good."

In other words, one did things like Q Planes in part because they helped keep your presence alive on screen, fostering the hope that the Americans would eventually take notice, or perhaps take pity, and project it onto more and larger screens. Wuthering Heights, of course, did exactly that for Olivier, bringing him more than just a bit of fame. It brought him the worldwide recognition, the commercial clout, that made his Shakespeare films possible, gave him the power to undertake whatever stage roles he desired, and, finally, the prestige that was vital to the founding of England's national theater.

As with Olivier, so with dozens of other great stars and directors of the two decades

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Wuthering Heights (1939), Laurence Olivid sfirst Hollywood film, catapulted himjrom obscurity in England 10 international fame.

Co-star Merle Oberon was born in India.

between the wars. Having established themselves in their native lands, they were either swept up by offers from Hollywood that they couldn't refuse or, once Hitler came to power, fled there with at least some hope that their reputations had preceded them. Not all of them succeeded as Olivier did. But protectionism did at least permit the likes of Fritz Lang, Alfred Hitchcock and Jean Renoir to develop their talents and their international renown more or less coherently in familiar, emotionally and artistically sustaining surroundings.

World War II did not have quite the same effect on worldwide film production that the first great war did. Fragile though they were, the European industries were too large simply to be shut down for the duration. In any case, the Nazis were eager to create what amounted to a European cinematic union, relying in particular on their Italian allies and the conquered French to help them supply theaters everywhere they ruled. Joseph Goebbels, the German propaganda minister, particularly loved the Hollywood manner and encouraged the production of slick escapist fare.

It's eerie to see how closely many of the films made under Goebbels's aegis match the peppy, romantically patriotic mood of so many American movies of that time. To the mass media, all wars are alike-no matter which side they enlist with.

With the end of the war, a flood of pentup creative energy was suddenly released in film communities everywhere. One could see it most immediately in Italy, where filmmakers released from bondage to the fascist state and its frothy "white telephone" movies startled us with a neorealism (Open City, The Bicycle Thief) that sometimes shaded over into something like magical realism (Miracle in Milan). Not since the very earliest days of cinema had directors used the streets for their settings, the lives of ordinary people for their subjects, with this intensity.

It struck people with revelatory force, and opened us up to other kinds of exoticism. Within the first postwar decade of film we would confront the violence of Kurosawa's medieval Japan, the dour lusts of Bergman's Sweden, the social confusions of Ray's India. Meanwhile, in

Fram;ois Truf{aUf. Nathalie Baye in The Green Room (1978). Truf{aUf was one of the path breaking postwar French directors, who occasionally appeared in his ownjilms.

Paris, around the office of the film magazine Cahiers du Cinema, the New Wave was beginning to form.

We need to pause over that for a moment, for this is where "cinephilia" found its voice and its theoretical foundation.

Curiously, the first thing to animate the young cinephiles (most of whom would soon be cineastes) at Cahiers was the release in France of all the American movies that they had been denied by the war. This obviously represented something like unfair competition. But what did that matter to Franc;ois Truffaut, Jean-Luc Godard, Jacques Rivette and Eric Rohmer? This flood of film struck them with an energizing force that these pictures could not have achieved had they appeared over several years in a routine release pattern.

They drank in the work of directors such as Hitchcock, Howard Hawks and Raoul Walsh, and many others who had been dismissed as mere entertainers in the United States, and their enthusiastic commentaries would eventually prove instrumental in rescuing the reputations of these artists. Moreover, the French cinephiles' openness to all kinds of cinematic experience set a critical example for much of the world.

More important, the French directors began contemplating nothing less than a revolutionary reform of French cinema.

They didn't necessarily want it to imitate American styles and subject matter (though the cross-references in films they eventually made are countless), but rather to embrace its populist spirit. French movies, in their view, were too devoted to literary subject matter, stiffened with bourgeois cultural aspirations. Le cinema de papa, they called it. They found a model to inform their work in their cinema's prewar history, in the work of Jean Renoir. More significantly, their attitudes-and by the mid-1950s, their films-both shaped and reflected the way all of us began to approach movies. I don't know if I had heard of Cahiers du Cinema in those days, but what it stood for was somehow seeping into American movie culture, and rising up out of it as well.

Local issues aside, the Parisian cinephiles were beginning to articulate ideas and attitudes that were less coherently held by the first postwar generation the world over.

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hen I left college in 1956 and moved to ew York, some of my cinematic provincialism had al-

ready been rubbed off me. I had endured the long lines that typically surrounded the one theater in Madison, Wisconsin, that played the new foreign films. I had faithfully attended the film series at the student union that grounded us in the classics of world cinema, everything from Intolerance to Rules of the Game. I had helped found the university's first film society, which funded itself largely through slightly scandalous means, such as receipts from screenings of Leni Reifenstahl's Olympiad and, of course, Ecstasy, since the sight of a famous woman naked was not yet the routine guilty pleasure it has become.

Despite all my sophistication, I was not entirely prepared for the riches I found in New York. There were three theaters within walking distance of my Greenwich Village apartment playing both new and old foreign films almost exclusively, with plenty more doing the same thing just a subway ride away. I'm not going to claim that we were a generation of aesthetes.

Going to these movies in those days was, in some sense, morally bracing, a complex pleasure rather than a simple one like seeing an American film. But struggling to comprehend exotic cultures, trying to catch the beat of new filmic rhythms, soberly talking all this through, earnestly weighing, judging, opining, was also a wonderfully heady experience. If you will forgive the oxymoron, we felt part of a democratically self-selected elite that was in some way reshaping the culture.

And, you know what? We were. In the period between 1950 and the early 1970s, the number of theaters playing "art" films in the United States rose from 100 to more than 700. By 1958, the number of films imported to the United States actually exceeded the number produced domestically, a situation that would persist for another decade. By 1964, Hollywood, which had troubles that far exceeded those posed by foreign competition (the loss of its theater chains to antitrust action, the loss of its mass audience to television, the loss of corporate autonomy to independent, star-driven production), was asking U.S. Congress to do what govemments abroad had done for their movie producers: grant subsidies.

By 1974, Hollywood's hometown paper, the Los Angeles Times, was calling for a tariff to protect American producers against imported films.

I didn't know or care about any of this at the time. Neither did anyone else I knew. We continued to go to American movies, of course, despite the fact that a hugely creative period-the era of film noir, of socially conscious realism, of often mordant social criticism-was largely cut off by the introduction of Cinemascope in 1953 and its demand for elephantine spectacle. But we continued to hope for the best from American movies, and were sometimes rewarded by something like The Sweet Smell of Success, which appeared in 1957. I want to stress that we were not, most of us, self-consciously elitist. I thought then, and I think now, that a truly healthy movie culture is one in which some kind of balance is maintained between populism, which is where the roots of the medium are, and elitism, which is where its artistic future is usually predicted. It's when people like Godard start saying things like "films are made for one or maybe two people" that we are in the deepest imaginable trouble.

The films we cinephiles talked about most earnestly, most excitedly, through the late 1950s and well into the 1970s admittedly were not great crowd pleasers: The 400 Blows and Breathless and Jules and Jim and Hiroshima, Mon Amour.

Also The Seventh Seal and Wild Strawberries.

Also Rashomon and Throne of Blood. Also La Dolce Vita and 80 and L' Avventura.

Also The Loneliness of the Long Distance Runner and Billy Liar and Room at the Top. And, eventually, Loves of a Blonde and Closely Watched Trains.

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ut what a miraculous list that is!

What a range of styles and subject matter it encompasses! How easily it could be extended into the hundreds. And, I cannot resist adding, how many of these films-notably those created by the New Wave, otherwise so rebellious against tradition-owed their existence to state subsidies and protections. Especially in the

later years of this period, it's also appropriate to observe that many of our most acclaimed imports owed their existence to investments by major American studios, which now judged that those 700 art houses constituted a real market.

Not that the health of this market was solely dependent on the studios. There was in those days a small army of knowledgeable independent distributors, many of whom had been in the import trade for years, many of whom established relationships with foreign film artists that extended faithfully over many years, much as book publishers once maintained longterm relationships with their authors.

These relationships were imitated by audiences. I mean, we went to "the new Fellini" or "the new Bergman," whatever our friends or the critics might have said about them. It was one of the obligations we owed to the art.

Journalism, too, began to feel that obligation. As Hollywood films approached the nadir of their popularity in the late 1960s, magazines and newspapers began, ironically, to expand and upgrade their coverage of movies. There was a feeling that old-line critics such as Bosley Crowther, for several decades the New York Times's lead reviewer, were just not coping with the Godardian jump cut, that younger, more flexible sensibilities were required.

I was one of those sensibilities, hired by Life, which then had the largest weekly circulation in America, to review pretty much whatever I cared to in its pages. I believed, based on my own formative moviegoing experiences, that such a creature as "the common viewer," kin to Virginia Woolf's "common reader," existed, and that it was my job to write for that by-no-means mythical creature. He or she was, I imagined, someone very much like me, possessed of a good general knowledge of the movies, conversant with their history and with what was going on with them now, not merely in Hollywood, but everywhere.

I assumed that this knowledge was not specialized, that it coexisted with a similar knowledge of literature and (according to taste) some of the other arts. I also assumed that we shared a certain enlightened, liberal-ish turn of mind in matters

political, psychological and sociological.

Oh, all right, call us middlebrows.

But call us also a community-a community capable of sustaining, through our interest, coherent artistic careers for the great filmmakers of the world. That community began to break up sometime in the 1970s. The reasons for this are many, but perhaps the most important is that Hollywood recovered from its long swoon.

It was, in part, reclaiming our interest with movies such as Bonnie and Clyde (which owed much to the New Wave), The Godfather pictures, and Chinatown. But several other, bigger things changed the commercial equation for Hollywood. The most important was that it had by this time learned to stop worrying and love television. Producing for it and licensing films to it for extraordinary fees, the studios found the economic stability they had been seeking since the loss of their theater chains. The opening of the home video market in the 1980s iced that cake. And the steady rise in the American studios' foreign grosses placed the candles on it.

The number of screens playing imports here is now perhaps two percent of the total. "We are kept on reservations, like the Cherokee or the Navajo," the French director Bertrand Tavernier said not long ago. Occasionally, foreign films of the non-feel-good sort escape the reservation, but only if they can be publicized as shocking (like Trainspotting) or if they raise political issues that stir journalistic interest (like films from mainland China, which must overcome totalitarian restraints to reach the West).

But, on the whole, foreign "product" fails here and does less well than it once did at home. We are witnessing everywhere the ultimate triumph of Neal Gabler's Republic of Entertainment. Or should we call it, finally, by its rightful name: The Tyranny of Entertainment? was t inevitable, of course, that the revered figures of the worldwide cinematic renaissance that began in the 1950s should age, fall ill, retire and die. It was inevitable that some of them, before their time, should succumb to distractions, as Godard did. That's not the problem. The

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problem is that sometime about a quarter of a century ago it became impossible for their would-be successors to build the kind of coherent careers these artists once enjoyed. Susan Sontag justifiably wonders if the likes of Krzysztof Zanussi, Theo Angelopoulos, Bela Tarr and Aleksandr Sokurov-all contemporary directors working at a level that once would have made them names to be reckoned with in the international film world--can persist, let alone prosper, in today's film world. No one anywhere can conveniently see their work, save by haunting the film festivals.

Only a very few viewers can develop an intelligent sense of these directors' themes, their development as artists. And who is left for them to talk to?

try to get substantial space for an essay on a serious, subtitled movie today-and devotes itself more and more to industry economic gossip about last week's grosses, next week's executive shuffle. In the film schools, in the college community in general, there is no interest in the movie past, which for most students today seems to begin and end with Star Wars. In short, there is nothing resembling the film culture as we once knew it.

And if, by chance, Star Wars did not exist and someone set out to make it today, that person would not know, as George Lucas did, to look to Kurosawa's Hidden Fortress for ideas and inspiration. Nor would that person help subsidize one of the Japanese master's late works, Kagemusha,

Toshiro Mifune in Akira Kurosawa's Throne of Blood (1957), a Japanese version of Shakespeare's Macbeth.

Kurosawa had tremendous influence on international cinema, and was copied from Hollywood to Bollywood. George Lucas and Martin Scorsese subsidized one of the Japanese master's late works, Kagemusha, out of gratitude and lifelong admiration.

They are caught up, as we all are, in a machine that is best described as a viciously reciprocating engine. Without major artistic figures around which its interests may coalesce, the old cinephile community becomes distracted, wanders off. Without such a community to address, without the faithful audience it once promised, serious filmmakers cannot build steadily functioning careers, steadily developing bodies of work.

Certainly the most important of all artists' rights-the right to fail-is denied them. Meanwhile, the independent film distributors who are vital to the health of the cinephile community falter and fail. Journalism loses interest-just

as Lucas and Martin Scorsese did out of gratitude and lifelong admiration.

Perhaps, out of generational loyalty, I sentimentalize the lost cinematic community of my formative years. Possibly, in offering these generalizations, I exaggerate the consequences of its demise. Yet, it seems to me that the dismal figures don't profoundly lie. And that the evidence of decline, of irrecoverable loss, is placed before us every week on the screen. In what we see. In what we no longer see.

D About the Author: Richard Schickel is the movie reviewer for Time magazine. His latest work is a collection of essays, Matinee Idylls:

Reflections on the Movies.

-=ade e live in an age of endings. We have heard about the end of ideology, the end of history, the end of the novel, etc., for each of which impressive arguments were advanced. Now arrives the end of film-not of cinephilia, but of the film medium itself as we know it. The arguments in this case are not abstract or ideational: they are matters of technology, many of which are already proved.

This subject has been reported sketchily here and there, but at last it is fully addressed-by Godfrey Cheshire, the film critic of the New York Press, in a two-part article. "The Death of Filmffhe Decay of Cinema," in its several thousand words, is more important than most recent books I have seen on the current state of film, and it certainly calls for more discussion than do those books.

Cheshire, informed in film history and coolly impassioned, begins with a definition of terms: "film refers to the traditional technology of motion pictures," "movies here refers to motion pictures as entertainment," "cinema refers to movies understood (and practiced) as an art." The weight of his essay is on the first of these, but inevitably the other two are also involved.

"Film, like the telegraph and the Gatling gun, is 19th-century machinery," says Cheshire, underscoring the fact that, despite improvements and the development of sound and color, the technology of film has fundamentally remained the same for a century: photography and the projection of photographs. This is changing. In the future, he maintains with plentiful examples, film will not be anything like what we now call film: it will consist of electronic images digitally managed and beamed via satellite to theaters.

"The original picture is converted to digital information, which reconverts as three colors that are beamed through the projector's lenses and recombined on the screen.

In late June 1999-a date to set beside May 1895 [when films were first shown to a paying public in the United States] among little-heralded sea changes in the technologies of popular culture-the new system went

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on display in Los Angeles, New Jersey and New York." Cheshire has seen An Ideal Husband thus conveyed and projected, and as a "video-phobe," he has to confess that it looked "great."

The advantages of this system are clear: it eliminates the cost of making and shipping individual prints-sometimes thousands of prints of one film-and it also eliminates the damage that happens to prints, breaking and snipping and scratching and general wear and tear. (Also, I'd note, it lessens the chances for sloppy projection, the slowness in changing reels, the muzzy focus, the wacky sound.)

The hundredth projection via beaming would not be in any way worse than the first.

But there are prices to be paid. Films will soon be made with "computer-generated imagery" (CGI) to facilitate beamed distribution, and CGI makes it very easy to alter films. If a film doesn't do well at the boxoffice in a Friday opening, says Cheshire, "there can be a new version ready for Saturday's matinees. And if that doesn't work, another version for Sunday." What this possibility does to the idea of a filmmaker's vision is chilling. The venerable concept of textual integrity, derived from literature, which even now has a will-o' -thewisp aspect in the film world, begins to verge on the absurd.

Cheshire thinks that this new system of distribution predicates a lowered level of film production, that theaters will be filled with the equivalents of the most banal TV programs-game shows, scruffy talk shows, etc., done more lavishly. I can't see that this automatically follows. First, let's note that the general level of films now is not dizzyingly high; second, why would the audience for low-grade TV go to a theater and buy tickets as long as comparable stuff, even if not as huge or as garish, is available at home, free or for cable charges? The networks would have to conspire with the motion-picture studios to keep popular shows off the air so that the public was forced into (high-priced) theaters in order to see them. In our present era of merger-madness, this is not flatly inconceivable, but it might well bring about government action.

Anyway, things will be bad enough if the

general level of film programming merely others, are vigorously explored in his essay. stays the same as it is now.

We can soothe ourselves with the fact that In any case, for me the greater, more spir- prophecies, even when as well-grounded as it-shaking threat is the matter of CGI, which these, rarely eventuate precisely. But it already is commonly used to touch up tradi- seems quite likely that film as we have known it has had its primacy. It will contintional filmmaking. It's common knowledge that, for just a few instances, the heads of ue, just as the composition and the perforthe two leading actors in Titanic were mance of opera continues though opera is no imposed digitally on the bodies of doubles longer the immense public attraction that it in some of the rough action scenes, and that was in past centuries. Film as we know it figures were inserted digitally (by the pro- will possibly need as much cosseting as ducers) in Eyes Wide Shut to mask copulat- opera now needs.

What will happen, I have to wonder, to the ings in the orgy sequence and thus ensure an R rating. When CGI becomes the rule, what new directing talents that could blossom will happen to actors, to acting? Actors may only in our kind of film? Conjecture that be essential as models, but what people of Griffith or Eisenstein had been born 50 years personality and talent will make a practice earlier, before film's invention, and what of supplying their persons and performances would history know of a mediocre stockcompany actor-playwright or a moderately as raw material for digital deconstruction and re-assembly? If talents are not attracted, gifted theater designer-director? As for film who will do the "preliminary" performances for the first draft of the film? Will live actors become superfluous? If so, will audiences develop affection and response for fabricated actors? If they do, whether those performers are remodeled real people or concoctions from scratch, will Technician A be hailed as the creator of a better Julia Roberts and Technician B for a super De Niro?

In short, what will become of, in Cheshire's sense, cinema?

That all this can happen is now a matter of fact; that it will happen is a matter of probability. So much money can be saved, as against the present system, and Old-fashioned realism. Lauren Bacall and Humphrey made, as per the new one, that the Bogart, The Big Sleep (1946). odds against change are small.

Some filmmakers would very likely contin- acting, I can only shiver for its future.

An irony overarches this whole matter. ue in the present way, p31ticularly the socalled independents, firstly, because the Film was the first art born out of technology, changeover will be expensive and indepen- the first humanist cultural enterprise to arise dent filmmakers won't be able to afford it, from the onrush of science in the 19th cenand, secondly, because most of them are tury. Now, a hundred years later, a new techartists, not scions of George Lucas who nology threatens to swallow that humanist think of film basically as a technological technological enterprise. The souls of those lab. Nonetheless, prepare. Cheshire says: "If old-time theater folk who lamented the you have a child who is a toddler, the arrival of film-as a threat to their profeschances are excellent that you will one day sion-may be smiling grimly at what they have to explain what film was, and how dif- see as poetic justice.

D ferent theaters were before digital projection brought live TV ..and a dazzling array of About the Author: Stanley Kauffmann, a other novelties into them." leading critic and writer, reviews films for the New Republic.

All of Cheshire's points cited above, and

bout a month before Satyajit Ray died on April 23, 1992, the Academy of Motion Picture Arts and Sciences awarded a special Oscar to the filmmaker in recognition of his "rare mastery of the art of motion pictures and for his profound humanitarian outlook, which had an indelible influence on filmmakers and audiences throughout the world." There have been few more moving moments in Oscar history than the sight of an ailing Ray accepting the lifetime achievement award from a hospital bed in Calcutta.The image is now part of film lore. That night the world watched Satyajit Ray, his once-impressive physique shrunken but the rich baritone intact, speak about his fondness of American movies.

Above: A scene ji-om John Ford's The Grapes of Wrath, based on the novel hy John Steinbeck and starring Henry Fonda (right foreground). Ford was a major influence on Satyajit Ray.

Artist/photographer Gopi Gajwani says it was a "great privilege" to be present at Satyajit Ray's last film shoot.

These previously unpublished photos show the ailing master at work in a Calcutta studio filming Saka Prasakha.

He said he was surprised at getting an award from Hollywood because few of his films have had wide distribution in America. Later, writing in the Washington Post, Desson Howe recalled the moment.

"He [Ray] was really excited. That was obvious. It was then I realized he wasn't just a great film director. He was an overgrown film fan too."

The average American moviegoer today may be unfamiliar with his works, but the reaction of the American cinephile was always one of admiration ever since the days of Pather Panchali, Ray's 1955 debut film which catapulted the Bengali director to the forefront of world cinema.

Directors like Akira Kurosawa, James Ivory and Martin Scorsese have acknowledged their debt to Ray. "One of the great cinematic experiences of my life," wrote Scorsese in a tribute to Ray in 1991, "was in the very early 1960s, when I watched the complete 'Apu Trilogy' in a New York theater.. ..1 was 18 or 19 years old and had grown up in a very parochial society of Italian-Americans, and yet I was deeply moved by what Ray showed of people so far from my own experience."

Scorsese and other prominent American filmmakers including Elia Kazan, Sidney Lumet, George Lucas and Milos Forman were behind the campaign initiated by Ismail Merchant to award the special Oscar to Ray. And peers apart, the response of the usually toughto-please American movie critics has been one of eloquent praise for almost every Ray film released in the United States. Yet, that year, few among the knowledgeable circles would have missed the irony of the Academy having to scour Europe to find usable clips for its Oscar night tribute: there was almost nothing available in the United States.

(Since then, however, the situation has improved vastly. Most of Ray's films are now widely available from American mail-order home video catalogs. And thanks to Ismail Merchant, among the keenest fans of Ray, the entire Ray legacy is in the process of being restored.

Nine of Ray's restored films, including the Apu Trilogy, Jalsaghar, Devi and

Charulata, were screened in the United States as part of a retrospective in 1995.)

By his own admission, Ray made films that are the antithesis of conventional Hollywood films in style and content. At a retrospective of his films at New York's Museum of Modem Art in 1981, Ray spoke candidly of his long association with the United States. He observed that some of the best reviews of his films had been written by American critics. "My films being about India and more specifically about Bengal; I never imagined that they would be able to cross the cultural barrier ....The fact that this has happened has been one of my most rewarding experiences." He also paid tribute to " ...the American cinema of the 1930s, ,40s and '50s, which taught me almost everything I knew about filmmaking at the time. When I say I learnt from the American cinema, I mean that I learnt both what to do and what not to do." ay's involvement with American cinema began much before he turned filmmaker and continued in varying degrees of separation throughout his life. Cinema-the Bengali variety and Hollywood-cast its spell on Satyajit Ray while still in school, but more in the sense of a fan of Hollywood stars than as a student of filmmaking. As he described in My Years With Apu, his book relating the story behind the making of his first three films, Ray became an avid reader of magazines like Picturegoer, Photoplay and Film Pictorial, gorging himself on Hollywood gossip. Deanna Durbin was a particular favorite as were Fred Astaire and Ginger Rogers, all of whose films he saw several times. It was later, in college, that Ray found his interest shifting from stars to the directors. "I could clearly see that my intense interest in Greta Garbo, Marlene Dietrich, Gary Cooper, Cary Grant was giving way to an interest in Ernst Lubitsch, John Ford, Frank Capra, William Wyler, George Stevens, et al. It was a most exciting period," he wrote.

From then onward the journey of Satyajit Ray from a callow film fan to a

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serious student of cinema-he and some like-minded friends started a film appreciation society in Calcutta-to one of cinema's most admired auteurs was rapid. "I had discovered a new world," he wrote.

Now when he watched a Hollywood film he was "no longer interested just in what the stars were doing, but also observing how the camera was being deployed, when the cuts came, how the narrative unfolded, what were the characteristics that distinguished the work of one director from another." He began studying Hollywood directors to detennine the way "Ford was different from Wyler, or Wyler from Capra, or Capra from Stevens." In Shyam Benegal's 1984 documentary on the filmmaker, Ray elaborated more on those early influences: "I saw whatever John Ford films I could get to see and then, even later, the early '40s or late '30s, Hollywood comedies and the Hollywood thrillers, very hard-edged films like Billy Wilder's of the early '40s-Double Indemnity, Lost Weekend-and comedies like Major and Minor, Lee McCarey's comedies with Cary Grant and Irene Dunne, which were very fine ...and the Frank Capra films of the '30s hke It Happened One Night and Mr. Smith Goes to Washington and all the others."

One regret, Ray mentioned, was missing Citizen Kane when it was shown in Calcutta because he was away studying at Santiniketan.

Ray's meeting with Jean Renoir in 1949 was a turning point. It would set him on the path to turning filmmaker himself. The French director, at that time based in Hollywood, had come to Calcutta to scout locations and interview actors for The River. Although Ray was not involved in the film, he managed to accompany Renoir during his stay and pestered him with questions about his films. He also managed to discuss the brief outline of Pather Panchali-he was already toying with the idea of making a film. Ray later wrote: "What really fascinated me was his way of looking at things-landscapes, people, houses and a hut, clustering banana trees by a pond with water hyacinths in them .... His responses were eye-openers. Undoubt-

Sharmila Tagore and Soumitra Chatteljee in Satyajit Ray's Apur Sansar (1959).

edly, it was Renoir who planted the idea of making a film in my mind. He actually asked me if I were interested in becoming a filmmaker. I found myself saying 'yes.''' Then in 1950 Ray went to England and "in three months I saw more than 90 films," he would say. It was Vittorio DeSica's The Bicycle Thief that finally convinced him to go ahead with the making of Pather Panchali.

During the last phase of the film's production Satyajit Ray managed to meet one of the Hollywood directors he greatly admired. John Huston, the maker of such classics as The Maltese Falcon and The Treasure of the Sierre Madre, visited Calcutta in search of locations for The Man Who Would Be King. Ray hastily arranged some silent rough cuts of Pather Panchali for Huston's reviewing.

According to Ray, Huston thought it "a fine, sincere piece of filmmaking." Just before his death in 1987, Huston recalled that "I recognized the footage as the work of a great filmmaker. I liked Ray enormously on first encounter. Everything he did and said supported my feelings on viewing the film."

With the success of Pather Panchali both in Bengal and abroad, Ray had truly arrived in international cinema. But the film enjoyed its biggest success in the United States. It ran for eight months in

a New York theater. Reviews by and large ranged from the generally appreciative to ecstatic, although Ray recalled that Bosley Crowther, the powerful film critic of the New York Times, termed the film as "so amateurish that 'it would barely pass for a rough cut in Hollywood.'''

Andrew Robinson, Ray's biographer, noted that although Crowther was later compelled to recant, seeing the tremendous public response, "he could never quite accept the fact that Pather Panchali owed little or nothing to Hollywood and so could not be judged

by Hollywood's criteria."

With his reputation established, Ray paid his fIrst visit to the U.S. where he met a number of directors and writers, writes Robinson. In New York he had long discussions with Elia Kazan, Paddy Chayevsky and Sidney Lumet, and in Hollywood he talked to Stanley Kubrick, George Stevens and Billy Wilder. "You won a prize at Cannes?" were Wilder's opening words to Ray. "Well, I guess you are an artist. But I'm not. I'm just a commercial man, and I like it that way."

Although Ray would tour all the major studios, he felt that the divide between the East and the West was as unfathomable as ever, despite the success of Pather Panchali. All his later films too would receive the same treatment in America:

lavish praise from the critics and serious film audiences, but lack of interest elsewhere. On his part, though, Ray continued to make the kind of humanistic cinema that transcends categories. His credo: "Art wedded to truth must in the end have its reward." What he sought, he said, was the "the exploration of the truth of human behavior and the revelation of that truth through the medium of actors."

In the Hollywood movie culture that had developed, he would have been out of place. But his affection for Hollywood directors and films of his formative years would remain unaffected. In a tribute to director John Ford, a favorite filmmaker since his school days, reprinted in SPAN, July 1974, Ray wrote: "Much of the best things in a Ford film have the mysterious quality of poetry .... In no other director's work is the confidence in one's mastery so evident as in the best work of John Ford." He went on to add: "For those who look for 'commitment' in the cinema, in the new, fashionable sense of the term, the work of Ford ... will have nothing to offer. But for those who look for art, for poetry, for a clean, healthy, robust attitude to life and human relationships John Ford is among the most rewarding of directors."

It is Ray's quiet humanity apart from his formidable cinematic talent, that shines through the 40-odd feature films he made in his career spanning almost four decades. They provide a remarkable insight into the understanding of relations between diverse cultures. In his Satyajit Ray Memorial lecture in Calcutta in December 1995, Nobel laureate economist Amartya Sen spoke eloquently on Ray's universalism and how his ideas remain pertinent to the great cultural debates in the contemporary world. He said: "In emphasizing the need to honor the individuality of each culture, Ray saw no reason for closing the doors to the outside world ....Satyajit Ray taught us this and the lesson is profoundly important for India. And for Asia, and for the world." It was this ideal that the Hollywood fraternity recognized and honored that night in 1992.

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.•. merica is rocked by social violence, and some people think ~Hollywood is to blame. They point to the sex and smutty talk, drug use and gun love onscreen. The moguls hide behind a rickety rating system that stokes more fury than it slakes. Church groups attack it as a sham; critics on the left complain that it eviscerates mature films. "The censors have spent all their time protecting children against adult movies," says the Nation. "They might better protect adults against childish movies."

As it is in the late 1990s, so it was in the early 1930s. The same clamor, with different causes and results. Back then, the social eruptions came not from random acts of carnage but from an economic collapse that whacked the country. The fIlms of the early '30s are full of clues to America's mood in the first long ache of the Great Depression: frantic, feisty, obsessed with getting a job, a buck and ahead by any means necessary. Today's typical fIlm is a fairy tale; the '30s pictures played like tabloid journalismthe March of Crime. Gangsters, gold diggers, ruthless businessmen, wage slaves and the not-working class all jumped out of the headlines and onto the screen.

To rein in the wild horses of this art-industry, Hollywood in 1930 charged Will Hays, a former Postmaster General, with establishing and enforcing standards for screen stories and behavior. At times the regulators used diplomacy: one official, objecting to gruesome screams in Murders in the Rue Morgue, suggested "reducing the constant loud shrieking to lower moans and an occasional modified shriek." At other times they took the stem approach, telling Howard Hughes he was forbidden to make the gangster film Scarface. The producer's response, in a memo to director Howard Hawks: "Screw the Hays Office. Start the picture and make it as realistic, as exciting, as grisly as possible." Within four years the Hays system was kaput, and a new, tough Production Code was installed.

Overnight, Hollywood movies went from jazzy to genteel C..)

By 1930, movies had learned to talk and, with the help of Broadway-bred writers, did so in a sassy vernacular that singed sensitive ears. And the films were acted with a feral intelligence. James Cagney, Jean Harlow, Mae West, Barbara Stanwyck were street-level stars with insolent accents and attitudes. "There we were, like an uncensored movie," says Harlow

of one tryst in Red-Headed Woman (she fornicates her way up the social ladder, gets found out and lands in Paris with a new sugar daddy and a stud chauffeur). These guys and dolls could dish it out and just as surely take it. Even glamour types felt the sting of the Depression. In Blonde Venus, Marlene Dietrich sells her virtue for the price of a meal for herself and her child: 85 cents.

For desperate times, desperate titles. Heroes for Sale, in which Richard Barthelmess endures war injuries, morphine addiction and betrayal by every military, judicial and corporate authority, was joined on marquees by Beauty for Sale, Girlsfor Sale, Scandal for Sale. The fIlms painted, in brisk, garish strokes, America's can-do optimism twisted into gotlahave greed. "What could I do?" asks Stanwyck about an office liaison in Baby Face. "He's my boss, and I had to earn my living." She's bad, but the Depression made her do it.

Maybe the Depression made Hollywood do it. Most of the studios were losing money by 1932 (RKO declared bankruptcy), and racy films brought in the money. But they also fanned the ire of state and local censorship boards. In 1934 the new Production Code had teeth, and under Joseph I. Breen, a former newspaperman, it bit hard. Dialogue was denatured from snappy to sappy; gowns hid what they once revealed; evil lost a lot of its seductive plausibility. And as studios sought to rerelease their pre-Code films, Breen insisted that cuts be made in the master negative, thus censoring some movies forever. Yet when he retired in 1954, Hollywood gave him an Oscar for Life Achievement. The plaque read: "To our industry's benevolent conscience."

The industry today has no conscience. Nor does the current cinema possess half the wit, elan and social acuity of Hollywood in the dirty '30s. Those films were more than the sum of their smirks. They were expressions of an industry scrambling for survival, like their amoral heroes for sale, and doing it in a style-raffish, dynamic, truly adult-that we've hardly seen since.

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About the Author: Richmd Corliss is the film critic of Time magazine.

Walter Reuther

W(Q)[Ri~~[M@DCC[L~~~ G=lJ~[Ri(Q ~~ ffifAlen with queasy stomachs had no U\"lU place one afternoon last week on the overpass at the No.4 gate of Hemy Ford's great River Rouge plant." So began Time's account of the Battle of the Overpass, the confrontation that made May 26, 1937, a red-letter day in labor history and brought to national attention a young United Auto Workers (UAW) official named Walter P. Reuther.

That morning Reuther and his colleagues suspected the day's events could escalate into something historic as they prepared to hand out organizing leaflets (slogan: "Unionism, Not Fordism") to the plant's workers. Reuther had put on his Sunday suit, complete with vest, gold watch and chain. He had invited newspapermen, priests and local officials to be witnesses.

When Reuther and three other officials arrived at the gate, Ford company police charged at them and delivered a brutal, prolonged beating. Pictures of the battered victims were published across the U.S., a huge PR victory that would slowly but surely lead, several years later, to UAW organization at the plant.

The pictures, ironically, capture the wrong image of Walter Reuther. While he arrived on the national scene as a scuffler with blood on his face, he would evolve into one of labor's most dynamic and innovative leaders, as well as a humanitarian whose impact ranged well beyond his field. His achievements were guided by his oft expressed philosophy of human endeavor: "There is no greater calling than to serve your fellow men. There is no greater contribution than to help the weak. There is no greater satisfaction than to have done it well." Reuther believed it wholeheartedly and, as they say, walked the talk.

He was nurtured to a devoted commitment to unionism. His father, a brewery-

wagon driver and union leader in Wheeling, West Virginia, had the family regularly discuss the role of unions, as well as social and economic issues. Like thousands of others who lived in poor regions such as West ViTginia, Walter and two of his brothers, Roy and Victor, migrated to the Detroit area to find jobs in the auto industry. Not surprisingly, they became actively involved in the budding United Automobile, Aircraft and Agricultural Implement Workers Union.

Reuther was 29 in 1936, when he became president of Local 174. It was a tumultuous period in labor history, when the UA W literally fought for survival.

Reuther became one of the union's generals, directing a series of sit-down strikes and other guerrilla tactics to try to organize auto plants. He soon gained na-

Jubilation after Reuther consolidated control of the United Auto Workers union in 1947. He won improved benefits for union members.

tional prominence and even entry into President Roosevelt's White House. He and his wife May also became great friends of Eleanor Roosevelt's. It's not difficult to see why he was welcome. In 1940, a year before Pearl Harbor, he proposed converting available capacity in auto plants to military production.

Echoing FDR's "Arsenal of Democracy" stance, he urged that the industry turn out "500 planes a day." His plan was harshly criticized by the corporations, which were unwilling to give up any part of their profitable business. When the Japanese attacked Pearl Harbor, the rapid conversion to military production validated Reuther's vision.

The foremost champion of blue-collar workers in 20th century America, Waiter Reuther put labor unions on the map. He negotiated benefits packages that are taken for granted by today's workers. He represented the clean side of labor unions-unlike some union bosses with mafiastyle operations-and his agenda went beyond unionism into social concerns.

At the 1946 UAW convention, Reuther emerged as president in a closely fought race, on a platform against Soviet communist "outside interference" and for a new, more socially conscious approach to collective bargaining. He pledged to work for "a labor movement whose philosophy demands that it fight for the welfare of the public at large .... We won the war. The task now is to win the peace." Two years later, a would-be assassin, for reasons still unknown, fired shots through Reuther's kitchen window, shattering his right arm.

During the postwar boom, Reuther campaigned for wage increases, winning a major victory in a 1948 settlement with General Motors that established the concept of an annual wage increase (annual improvement factor) tied to a quarterly cost of living allowance. The AIF-COLA formula has, over the years, been a pillar of progress in enhancing workers' living standards and ensuring protection of the purchasing power of the earned dollar against the impact of inflation.

After his breakthroughs on wages, Reuther pressed for improved benefits. He had a penchant for slogans, and they often became rallying cries for the union's programs. "Too Old to Work-Too Young to Die" was one, used to negotiate pension plans. "Thirty and Out" was aimed at a contract clause permitting retirement after 30 years of service, regardless of age. "We Live by the Year-We Should Be Paid by the Year" was behind the demand for a guaranteed annual wage. The ultimate bargaining victory was the Supplementary Unemployment Benefit, which now mandates a 95 percent replacement of wages in the event of layoffs.

Reuther kept pressing for new and better benefits, and over time, the union won the things that employees today take for granted. Year by year, workers gained, among others, comprehensive health-care

programs, tuition-refund programs, life insurance, profit sharing, severance pay, prepaid legal-service plans, bereavement pay, jury-duty pay-plus improvements in vacations, holidays and rest time. The negotiation of decent working, health and safety conditions, coupled with a sound grievance procedure, added immeasurably to the personal sense of dignity and self-respect of the worker.

Reuther's activism couldn't be contained by the collective-bargaining arena.

One of many social problems that spurred him to action was the despoiling of the Great Lakes, particularly Lake Erie, a dying body of water that has been substantially revived by the cleanup effort he supported. At home, he helped mobilize volunteers to restore Paint Creek, a stream running through his community.

He became actively involved in developing low-cost housing units in Detroit's inner city, including the Martin Luther King If. complex in downtown Detroit.

Long before medical costs became a national issue, Reuther was advocating universal health care. He organized the Committee of One Hundred to put the issue on the national agenda and set the stage for congressional action. At the same time, he helped establish one of the early HMOs (Health Management Organizations), an association that eventually became the Health Alliance Plan, a major health-care provider in the metropolitan Detroit area. Whether testifying before Congress or elsewhere, Reuther threw his weight behind the public issues of the day.

He called for a Citizens Crusade Against Poverty, federal aid to housing and education, the peaceful use of atomic energy and a national minimum wage.

Trade unions have a mixed record in civil rights-but not Reuther, who from early on was an ardent advocate. He organized the Citizens Committee for

Equal Opportunity and worked closely with Martin Luther King Ir. Reuther was one of the few non-African Americans invited to speak at the March on Washington in 1963. A favorite anecdote concerned his introduction to the crowd.

Standing close to the podium were two elderly women. As he was introduced, one of the women was overheard asking her friend, "Who is Walter Reuther?"

The response: "Walter Reuther? He's the white Martin Luther King."

In 1955, as president of the Congress of Industrial Organizations, Reuther negotiated a historic merger with the American Federation of Labor, headed by George Meany. Reuther then headed up the AFLCIO's Industrial Union Department, but 13 years later, sharp differences over policy and programs led to the UAW's withdrawal from the organization-it would stay out until reaffiliating in 1981.

For Reuther, unionism was not confined simply to improving life at the workplace. He viewed the role of the union as a social movement aimed at uplifting the community within the guarantees of democratic values. After his untimely death, with May, in a plane crash in 1970, waves of downsizing devastated cities and created problems for labor that still exist today. You can just imagine him wading into the fight against wanton job destruction, done for the sake of propping up corporate balance sheets.

One of his favorite slogans was "Progress with the Community-Not at the Expense of the Community." What is unmistakably clear is that Reuther, in his lifetime, fulfilled his own philosophy of human endeavor.

D About the Author: Irving Bluestone. refired UAW vice president, is professor of labor studies at Wayne State University in Detroit, Michigan.

"There's no reason for them to build that wall," said Larry Nordby. "All it does is block your way."

In the dim light, I squinted once more at the facade before me, dryly cataloged on Nordby's chart as Miscellaneous Structure 14.

Eight feet tall, five feet wide, the wall had been wrought of flat, shaped sandstone slabs mortared together with brown mud, in which I could see the finger marks of the ancient builders.

We were standing in a back corridor at Cliff Palace, the centerpiece of Mesa Verde National Park in southwestern Colorado.

Erected by the Anasazi more than 700 years ago, this stone-andmud village, which fills a huge natural alcove in the canyon wall, is the largest cliff dwelling in the United States. Cliff Palace, in fact, is America's most famous ruin.

"Something dramatic happened right around A.D. 1280," Nordby went on. "Let me show you what you had to do after that date to get from one side of this wall to the other." Tagging at his heels, 1 followed the archaeologist as he strolled from passageway to plaza, his right hand regularly tapping a zigzag series of partitions cunningly built into contiguous rooms uninterrupted by door or window. "To do it, you have to come clear outside," ordby explained as we emerged into the September sunlight.

Then I followed him along the mirror zigzag that, after five minutes, delivered me to the end of the other side of Miscellaneous Structure 14.

"The wall splits Cliff Palace," Nordby concluded. "It divides the place into completely separate parts."

The great Anasazi ruin, tucked in an obscure side canyon beneath the juniper-and-pinon-covered mesa, was discovered by Anglos around 1888. Pothunters and archaeologists dug its treasures before the turn of the century. By ] 906, Mesa Verde had been embraced by the national park system, which launched a vigorous campaign to restore and stabilize the magnificent village. Today, some 170,000 visitors a year queue up on the overlook above Cliff Palace, then take the ranger-led tour of the site.

One might think that, after 110 years of visitation and study, everything that could be known about Cliff Palace had been duly recorded in scholarly monographs. Yet before Larry Nordby arrived on the scene in 1995, no one had ever noticed the zigzag wall dividing the village. The fact is that, for a variety of reasons, Cliff Palace remains poorly understood. Nordby is the first archaeologist to seriously study the ruin in more than 80 years.

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About the time Ottoman Turks were raiding North India as prelude to the Delhi Sultanate and Genghis Khan was uniting the Mongol tribes, the Anasazis occupied fort-like cliff dwellings at Mesa Verde, in Colorado. What caused the Anasazi civilization to disappear around the dawn of the 14th century is a mystery that is once again luring archaeologists to Cliff Palace.

What Nordby was coming up with last September, toward the end of his third field season at Cliff Palace, is beginning to overturn much of the conventional wisdom about the place. The implications for our understanding of those enigmatic ancients, the Anasazi, are dramatic.

For millennia the hunter-gatherers who would become the Anasazi ranged across the Southwest, brilliantly adapted to an all-butwaterless wilderness of stern plateaus and rugged canyons. By AD. 600 they had become semi-sedentary, planting corn, beans and squash; they had given up the spearthrower in favor of the bow and arrow, and had begun to make pottery. Still later they climbed out of their subterranean pit houses to live in blocks of back-to-back rooms, like the ones in Cliff Palace; their boldest villages towered as high as five stories.

Only toward the end of the 12th century A.D., however, did the Anasazi start to move in wholesale fashion into the natural sandstone alcoves, where they built cliff dwellings. Why they did so remains a puzzle: many cliff dwellings look grimly defensive, requiring scary climbs up log ladders or sculpted hand-and-toe trails to enter, but others, such as Cliff Palace, can be easily walked into from the slope below.

By the middle of the 13th century, all across the Colorado Plateau the Anasazi were in trouble. Scholars tirelessly debate the causes of that crisis. The people may have hunted most of the game to near extinction and cut down most of the trees for firewood; erosion gouged out arroyos that lowered the water table and ruined crops; a severe drought beginning in 1276 may have triggered wideFar left: This 1934 pholo shows self-laughl archaeologisl Al Lancasler (second/rom Ie/I) al the ruin o/Ihe square towa Lancaster led a team thaI restored Ihe towa Left: The /our-slory tower as it looks loday. The T-shaped window has been reconstructed/rom the lower ruins.

spread famine. In any case, thanks to the exquisite precision of tree-ring dating, we know that the whole of the Colorado Plateau was abruptly abandoned within three or four years after 1295. And we know that the Anasazi never came back.

Despite more than a century's worth of theories and explanations, the abandonment remains the central Anasazi conundrum.

Cliff Palace was built largely in the last 60 years of the 13th century. The most masterly of the structures were put up in the final 15 years before the builders walked away.

The Anasazi did not vanish: we know that their descendants live today in places ranging from the Hopi reservation in northern Arizona to the pueblos of Isleta and Taos along the Rio Grande of ew Mexico. (Present-day Pueblo people do not use

the word "Anasazi." They have their own names for their forebears: they would prefer that others use the term "ancestral Puebloans." To them, Cliff Palace is not a ruin. And for them it is not abandoned. The spirits of their ancestors still inhabit the site and are linked to modem-day Puebloans.) But just what relationship the inhabitants of any present-day pueblo bear to the former denizens of Mesa Verde is a hopelessly muddled question. The twin disruptions of the abandonment, and three centuries later the Spanish conquest, wreaked havoc with native cultures.

Puebloans today fiercely guard as secret lore their old migration and origin stories, but they make it clear that Cliff Palace is a part of theil" tradition. Some scholars are skeptical about the worth of oral tradition over as long a span as seven centUIies. And the ar-

Left: The towers and uncovered ceremonial chambers of Cliff Palace, the Anasazi masterpiece in Colorado, may have served a populace that came here only on special occasions.

Above: The same site is shown in this photograph probably taken in the 1890s, before Jesse Walter Fewkes undertook repairs in 1909.

Right: Brenda Magouirk and her husband, Michael Nelson, map a kiva. The hole in the center of the .floor is afire pit.

chaeological links between Mesa Verde and the latter-day Puebloans are only beginning to be figured out.

Cliff Palace had been the first Anasazi ruin I had ever visited, on a family vacation when I was 11. On that halcyon summer day in 1954, given free run of the place, my siblings and I had crawled into tiny living rooms and clambered down into kivas (circular subterranean chambers thought to be ceremonial) as we played at being cliff dwellers. But as visitation soared in the 1960s and '70s, the U.S. National Park Service felt it had to close off more and more of the ruin. Returning to Cliff Palace as an adult, I felt an odd dismay: the numinous Anasazi lair of my youth had turned into some kind of museum diorama. On a visit in 1994, as I did research for a book about the Anasazi, I clutched

a ticket issued at the visitor's center and, joining a group of 60 other tourists, walked along a cement-paved gauntlet that wound among a handful of rooms and kivas. The tour lasted only an hour. In principle I sympathized with all the pressures the Park Service has to juggle, but 40 years after the place had sung to my spirit, Cliff Palace seemed dead.

Now, luxuriating in the privilege of reentering the inner labyrinth of the stone city, I felt Cliff Palace come alive again. I was assailed with twinges of deja vu as I trod dark corridors between rooms and scuttled around bedrock boulders, exactly as I had more than four decades before. Despite his familiarity with the ruin and his dispassionate professionalism, Nordby himself occasionally stopped to admire the buildings, as when he paused

in a discourse about stone-shaping styles, stared up at a threestory tower and murmured, "You know, it's extraordinary that this thing is still standing after 700 years."

As far as we know, the Anglo discovery of Cliff Palace took place one afternoon in December 1888, as two cowboys from the nearby town of Mancos, Richard Wetherill and Charlie Mason, out chasing stray calves in a snowstorm, rode to the opposite rim of the side canyon and suddenly beheld the ruined village. Three years later, Wetherill, his brothers and Mason guided a young Swedish nobleman to the site to excavate among the tumbled room blocks. GustafNordenskiold had come to Colorado hoping to cure the tuberculosis that would soon take his life, only to be fascinated by everything to do with the Anasazi. Though crude by today's standards, Nordenskiold's work was as sophisticated as any dig undertaken in the United States in the 1890s. The Swede also wrote the first monograph ever published about the Anasazi, The Cliff Dwellers of the Mesa Verde, a work that stands up well more than a century later. Nordenskiold was smitten by the "wild and gloomy gorge" in which the ruin lay, by the "mysterious twilight of the cavern," by "the round towers and high walls rising out of the heaps of stones ...defying in their sheltered site the ravages of time."

In 1909, Jesse Walter Fewkes, one of the foremost archaeologists of his day, set out to excavate and stabilize Cliff Palace. In his Smithsonian Institution Bureau of American Ethnology bulletin, Fewkes declared that "the writer was able to repair completely this great ruin and to leave it in such condition that tourists and students visiting it may learn much more about cliffdwellings than was possible before the work was undertaken."

Fewkes also made a cursory interpretation of the site, although his report unfolds chiefly as a room-by-room survey. In keeping with the practice of his day, Fewkes set great store in analogies he had picked up as an ethnographer among the Hopi. Thus, counting 23 kivas at Cliff Palace, he announced, "They belonged to the men of different clans" (as kivas do today among the Hopi)-this, even though no one has ever demonstrated that the Anasazi of the 13th century even had a clans hip structure.

Fewkes labeled the ruin with suggestive names, such as the old quarter, the plaza quarter and the Speaker-Chief's House. He admitted that these were arbitrary designations, but then let himself slip into circular reasoning as when, discussing a feature of a certain kiva, he wrote, "This banquette probably was designed for the use of the speaker -chief," Further-and very deft-stabilization of Cliff Palace was performed by Al Lancaster, a self-taught Park Service archaeologist, in the 1930s. But, remarkably enough, Fewkes' 1911 Antiquities of the Mesa Verde National Park remains the last major research publication about America's grandest ruin. Under a succession of park superintendents, preserving Mesa Verde's Above: An ancient cream and red interior features abstract art.

Right: Light streams through windows where the top of the square tower meets the rock overhang.

Earlier archaeologists had assumed that any Anasazi room of a hundreds of ruins and presenting a select group of them to the celtain size had been living quarters. Nordby imposed a stricter cripublic took precedence over doing new research. terion: searching diligently for the hearths and smoke plumes that This climate began to change with the advent of a new superproved a room had been cooked in, he and colleague Joel Brisbin intendent, Larry Wiese, in 1993. Wiese in turn brought Nordby came up with only 25 to 28 bona fide residential cubicles. Nearly all into the park. For the first time in more than 80 years, an archaeological team set out to comprehend the phenomenon that is Cliff the other 125-odd rooms, they concluded, were apparently used for vmious kinds of storage, grain grinding or communal gatherings.

Palace with all the latest research tools available.

This meant to Nordby that far fewer people had lived permaBy 1995, however, excavation had virtually become a dirty word among archaeologists in the Southwest. Nordby had no nently in Cliff Palace than anyone had previously guessed. Earlier hope of turning a single spadeful of dirt. Instead, he hoped to estimates of the population of the village had ranged up to a thoubring to Cliff Palace a battery of techniques he had developed sand souls. Nordby had come to believe that only about a hundred over the years at other Anasazi sites. people had lived here. The team could find in the great ruin only three mealing rooms~those distinctive torture chambers where In Nordby's lab at ranger headquarters, Don Corbeil, the team's historical architect, showed me some of the fruits of the survey. day after day women had knelt and pulverized coru on their Thousands of photographs, field drawings and floor plans of every metates. "How could you grind enough com to feed a thousand man-made surface in the sprawling ruin had been fed into the com- people, or even five hundred?" Nordby asked rhetorically.

What, then, was Cliff Palace all about? Why did a village with puter. Punching a few keys, Corbeil brought up Room 21 for my perhaps only a hundred residents need some 20 kivas for its inhabiscrutiny. 'The room was built around 1273 A.D.," Corbeil recited.

"The east wall is 1.9 meters long, with a maximum height of 1.96 tants' ceremonies and social gatherings? Why so many storage meters. The stop rod below the lintel in the doorway is made of cot- rooms? What, besides the life-giving com, had been stored in them?

Gradually, a speculative answer grew in tonwood. That socket probably once held a Nordby's brain. He explained it to me: roof beam of juniper."

"What I think is that there was a caretaker Corbeil banged out another instruction: Architect Corbeil is population here, a smaller group to keep suddenly I saw Cliff Palace as a whole, with excited about the the site in good shape for a larger populasquiggly lines in different colors running tion that came only several times a year." riot across the screen. "If I want," said site's potential: Yet why would this be so? Such a notion Corbeil, with the zeal of an acolyte, "I can "What we have here of Anasazi social organization went highlight every piece of juniper in the ruin. is a vast layer cake against nearly all the accepted ideas, Or I can isolate only the rooms built between which held that, by and large, the ancients 1220 and 1250. What we have is a vast layer of information." were a radically democratic people, with cake of information." each village autonomous from its neighLater, inside Cliff Palace, I listened as bors, each family looking out for its own Nordby explained the different methods used welfare. The puzzle gnawed away in the back of Nordby's mind. to prepare the stone slabs from which the village had been built, Then, one day in 1996, he noticed the dividing wall. such as "pecking" and "bidirectional facial chipping." He pointed The overall design of Cliff Palace betrays no master plan: like out a "cold joint" in the mortar, an overlap where the construction gang had called it a day more than 700 years ago. I leamed the dif- most Anasazi cliff dwellings, it looks as though, decade after decade, rooms and towers were added haphazardly. But in the ference between a "smoke plume" and an "oxidation plume," structures built around 1280, in the last remodeling phase at Cliff smudges left in the corners of rooms by long-ago cooking fires.

Though Cliff Palace is uniformly granted to be the largest cliff Palace, Nordby began to see striking symmetries. Rooms 59 and 64, for instance, are virtual mirror images of each other; large, dwelling in America, even the room count has been a question.

Many textbooks assert that the village comprises 220 rooms; but square chambers, they share a common wall that happens to be a segment of the wall that partitioned the ruin. He saw that Kiva a Nordby's rigorous tally had come up with a mere 150 enclosed spaces. Because stabilization of the ruin had seemed to early sa- and Kiva R made a matched pair, one on either side of the dividvants an entirely separate business from excavation, neither Jesse ing line. And they were built between 1278 and 1280.

The most striking buildings in Cliff Palace are the SpeakerFewkes nor Al Lancaster kept detailed records of their restoration work. Today, consequently, it is not always easy to tell which walls Chief's House and the square tower. The latter, four stories high, of Cliff Palace had been erected by the Anasazi, which by Anglo is decorated in dazzling abstract paintings. The Speaker-Chief's crews in the 1910s or '30s. Nordby, however, had been able to de- House is a three-story complex with two plazas, a grinding room, Kiva Q and a circular tower. The two masterly edifices stand on duce the signature of a "Fewkes patch" and of a "Lancaster patch."

He pointed out to me examples of each. "Pretty bad, huh?" he either side of the dividing wall.

Nordby needed further corroboration to be sure that his hunger winced at Fewkes' repairs: "Look at those ugly trowel marks." But Lancaster's craft was so skillful that even with Nordby's commenfor symmetry was more than a wishful delusion. At the very back of the ruin, 20 feet above the bedrock floor, stretches the tary I could not readily tell it from the handiwork of the ancients.

Ledge-a balcony in the overhanging roof of the alcove, into which the Anasazi had wedged a string of squat buildings. In the 13th century, the inhabitants had gained the Ledge via a ladder propped on the top of the circular tower, but it had been decades since any archaeologist had prowled through those rooms.

Nordby hauled a long ladder into the site and climbed up to the eerie confines of the Ledge.

What he found startled him: at either end of the Ledge the Anasazi had built the largest rooms of all in Cliff Palace, two on the right, one on the left, seemingly affiliated with the two sectors of the divided village. They were probably used to store surplus food. The rooms do not appear on any of the maps made by previous researchers.

What really clinched the divided society idea came last summer. A plaster expert, Frank Matero, had come to Mesa Verde to study the mortar in Cliff Palace. One day Matero said to Nordby, "You know, I was down in Kiva Q today, and I noticed that the plaster divides the kiva into symmetrical halves."

"My eyes must have gotten as big as basketballs," Nordby told me as he recalled that moment. "The location was perfect: Kiva Q lies smack in the middle of Cliff Palace. And no residential rooms surround it." Now the archaeologist walked me over to the kiva. Sure enough, two different colors of plaster had been used to coat the interior of the chamber. The line where the colors met was so precise that I could trace it as it ran through the middle of a square niche in the kiva wall. Yet as far as we know, no one had ever noticed this peculiarity before Frank Matero.

What, then, did the symmetries and the dividing wall suggest was going on in Cliff Palace around 1280? Like all good archaeologists, Nordby is reluctant to venture out on a speculative limb that colleagues might delight in sawing off. But the scholar had begun to wonder whether he was detecting the architectural footprints of a social division along the lines of what anthropologists call moieties-twinned affiliations at a larger level than clan or kinship, which helped organize a society and define each member's role within it. (At Laguna Pueblo in New Mexico, for example, the people divide themselves into winter and summer "sides.")

"With all the stress the people are exposed to by 1280," Nordby ventured, "that's when things start to get tough. That's when social dislocations start to happen. I imagine that Cliff Palace, with its small caretaker population, was some kind of redistribution center of goods-maybe surplus corn-for a larger population that came to receive it. For the first time, there's a new pressure for someone to take charge: you can't just have 300 people in a room all shouting out what they want.

"I imagine the dual division of Cliff Palace around 1280 was an attempt to manage that stress. Growing population and increased contact with one's neighbors dictate that people either compete or collaborate. One way to collaborate is to develop seats of powerat Cliff Palace, these may have been the Speaker-Chief's House or the square tower. There the leaders in charge might have made decisions regarding the distribution of any precious goods."

Whatever the truth of the matter, the whole system had col-

lapsed. By A.D. 1300, probably not a single Anasazi still dwelt in the great village inside the arching alcove. The Puebloans had fled the Colorado Plateau and started life over near the Rio Grande.

During my visit last September, Nordby had invited a group of Pueblo representatives to tour Cliff Palace, to offer their insights and see the kind of work he was undertaking. At lunch I talked with Peter Pino, tribal administrator at Zia Pueblo, north of Albuquerque.

"The thing I really like about Nordby's approach," said Pino, "is that he's doing research without excavating. We Native Americans always thought this was possible, but the archaeologists told us that it wasn't possible to analyze a site without digging. We would say, 'Don't you have enough pots, enough bone tools? Why do you need anymore?'"

I asked Pino about Zia affiliations with Mesa Verde. Zia Pueblo lies 150 air miles southeast of Cliff Palace. "Every December 29, in our council meeting, our migration story gets told and retold," Pino said. "It takes four or five hours to tell. There are more than a hundred names of places our ancestors passed on their way to Zia. One of the places they name is this place here. We call it Ka-chaka-frU-fi-the Vast Area with Many Houses."

Larry Nordby joined us at the table on the terrace. A century of antagonism between Puebloan peoples and archaeologists is one of the sadder legacies of research in the Southwest, so I was astonished at the conversation that ensued between the tribal administrator and the scientist. Pi no was inviting ordby to bring his investigative apparatus-tape measure, sketch pad, camera, computer, the works-to Zia to see what science could add to their saga.

"When the Spanish came in 1540," said Pino, "we lived in five different villages. We had a population of7,OOO to 15,000 people.

Today, we're only 860. We still know where the other four villages are. Our traditional stories don't talk about time periods.

One day can equal a 100 years. We could utilize your work." The Puebloan nodded at the archaeologist. "You could give us dates within 50 or a 100 years."

As Pino went on to describe one of the ancestral sites that few if any Anglos had ever seen-a cliffside ruin guarded by a pair of eagle petroglyphs-I marveled at the exchange. It was entirely possible that Peter Pino's forefathers had built Cliff Palace. The Spanish had ruthlessly suppressed Pueblo religion, driving it underground. Two generations of Anglo ethnographers had taken what they could of the people's secret oral traditions, only to see a third generation of archaeologists reject that wisdom as superstitious folklore. Yet here, in a Park Service cafeteria, a descendant of the Anasazi and a scientist trained in Western skepticism were reaching across seven centuries of silence to join hands.

Thanks to them, and their colleagues in the new collaboration between archaeologists and Native Americans that this lunchtime chat might p0l1end, the truth of what happened so long ago at 0 Cliff Palace might begin to creep into the light.

About the Author: David Roherrs is author of a hook In Search of Old Ones: Exploring the Anasazi World of the Southwest.

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ON THE LIGHTER SIDE

~£.\!\ Reprinted with permission from the Saturday Evening Post Society, a division ofBFL & MS, Inc. © 1998.

ABSURDITIES nJune 1993, while flipping through his mail, Jack Singer noticed an envelope from an unfamiliar law firm. Singer, an eye surgeon in Vermont, knew of no outstanding complaints against him, but the hazards of unexpected malpractice claims always lurk for any physician. He quickly opened the letter.

Singer was indeed facing a lawsuit-not for some perceived failure but, ironically, because of his success. He had recently perfected a novel technique for removing cataracts, featuring a specially shaped incision that requires no stitches to heal.

According to the letter, a surgeon in Sun City, Arizona, named Samuel Pallin had recently patented the same operation.

Legalistic language notified Singer that if he continued to perform the no-stitch cataract operation, he would have to pay Pallin royalties of as much as $10,000 a year.

Singer, who had already begun teaching the new procedure to his fellow ophthalmologists, was stunned as he skimmed the letter. What would the profession come to if practitioners could own the rights to medical procedures? Could such a seeming extortion possibly be legal? At first Singer thought the matter might be a mistake, a misunderstanding between two colleagues that could be cleared up by a personal response. He soon learned otherwise.

The case would eventually cost Singer, his clinic and the supporters who contributed to his legal defense fund more than half a million dollars in legal fees.

Unfortunately, Singer's ordeal is'far from being unique. In an era of unprecedented technological development, freely shared knowledge is becoming an endangered species. American politi-

I

cians and pundits still spout platitudes about how public education and public access to information are the bedrock of a democratic society. But reality belies the rhetoric. These "" days, hospitals are battling with investigators over the right to control new treatments, universities are hauling faculty members into court to establish who will profit from their research, and genetic engineering firms are fighting over proprietary rights to techniques and materials. And private claims to formerly public information are appearing not only in medicine and biomedical science, but also in agriculture, software development and many other fields. Even Shakespearean scholars have gone to court over who owns the rights to a particular interpretation of Hamlet.

It used to be that only tangible innovations could be patented.

Until 1870 the U.S. Patent Office required patent applicants to submit physical models of their inventions. That rule anchored the patent system in reality, by reflecting the standard that a patent should cover some thing that yields a material result.

Today the patent system has moved so far away from such a concrete interpretation that the idea of requiring a model is almost unthinkable. The term intellectual property has emerged to describe the kinds of abstract ideas being patented. Rather than protecting a particular innovation, the current system often authorizes exclusive control of a broad concept. According to Wallace Judd, the manager of training development at Netscape Communications Corporation in Mountain View, California, it is the difference between a patent on a particular improved mousetrap and a monopoly on the idea of trapping mice.

When Agracetus, a biotechnology firm based in Middleton, Wisconsin, managed to insert genes into cotton in 1988, the company sought patent protection not for its modified cotton plant or for its novel process, but for all cotton genetically engineered by any means. The U.S. Patent and Trademark Office (the agency was renamed in 1975) initially said yes, then changed its mind after a chorus of objections from industry representatives and investigators at the Department of Agriculture, among others. The ensuing legal battle has yet to be resolved.

A team of investigators at the National Institutes of Health in Bethesda, Maryland, made medical history in 1990 by employing a new method to successfully treat two girls with a rare genetic disorder. Soon afterward, they parlayed the experiment into a patent on all so-called ex vivo human gene therapy, a technique that holds untold promise for treating a panoply of medical conditions, from cystic fibrosis to cancer to AIDS. That patent has since changed hands, and physicians have watched, dumbstruck, as exclusive rights to an entire new field of medicine have been

sold to the highest bidder-ultimately, the giant pharmaceutical firm Novartis in Basel, Switzerland.

The multibillion-dollar international effort to map the human genome puts the system to one of its most difficult tests: Should investigators be allowed to own the segments they decode? Even biologists who support the idea of patenting useful products derived from the human genome often denounce the patenting of the genes themselves. Many biologists envision a potentially ghastly scenario, in which large corporations literally own the rights to the genetic legacy of the human species. orporations, of course, have long registered their pithy slogans and catchy jingles as company trademarks-and threatened lawsuits to prevent others from using them.

But such ownership claims have pressed into unprecedented realms. The Qualitex Company in Chicago managed to acquire exclusive rights to a color: the "special shade of green-gold" dye for the pads they manufacture for dry-cleaning presses.

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Remarkably, the validity of the claim was tested and affirmed by for instance, has no claim to the apples you harvest in the future, the U.S. Supreme Court. How could the court rule otherwise, nor the right to prevent you from planting seeds from those apples to grow more trees of your own. In the 1980s, though, as Justice Stephen G. Breyer asked in the decision, when companies techniques of genetic engineering were applied to plant breeding, had already been allowed to own sounds (such as the three such long-held traditions began to be strained. Viewed for milchimes that accompany the peacock logo of the NBC television network) and even fragrances (such as the scent in which one lennia as the means to a crop, seed is gradually coming to be seen as an embodiment of intellectual property-a blueprint, in other company steeps its sewing thread)?

The examples may seem fanciful, but the climate they create is words, that carries value of its own.

Hope Shand, the research director at Rural Advancement Fund insidious. The Mattei Corporation in Mattei, California, for inInternational-USA, a nonprofit farmers' advocacy organization stance, has taken a publishing firm to court for creating a hobby based in Pittsboro, North Carolina, recalls just a few years ago magazine for Barbie enthusiasts. Mattei argues that its tradehearing the chair of the House Agriculture Committee dismiss as mark-ownership claims on Barbie extend even to publications a paranoid fantasy the idea that farmers would ever be prevented about the doll. The esteemed English mathematician Sir Roger from saving their own seeds. But that is exPenrose of the University of Oxford, claiming rights to a nonrepeating geometric pattern he actly what has taken place. The Supreme Court ruled against the Winterboers. Even discovered, is suing the Kimberly-Clark ,;"It's'like saying you more devastatingly, at around the same time, Corporation in Irving, Texas, for putting the have a secret method Congress amended the Plant Variety pattern on its Kleenex brand of quilted toilet for distinguishing the Protection Act to remove the so-called paper. And in 1995 Richard Stallman, a comgender of patients farmer's exemption. Now it has become illeputer programmer and a well-known critic of gal for American farmers to sell or save seeds the patent system, testified in patent office hen they take their. i from proprietary crop varieties without rehearings that, to test the system, a colleague of clothes off for a ceiving permission from breeders and paying his managed to win a patent for one of physical. That's an Kirchhoff's laws, an observation about elecroyalties. invention?"

In effect, the U.S. Government has begun tric current first made in 1845 and now stated sanctioning a new form of sharecropping, as in virtually every textbook of elementary farmers become little more than renters of physics. plant germ plasm. "What we're seeing," says Shand, "is nothing The overarching challenge is clear: society can improve public ShOit of a new kind of 'bioserfdom.' Only this time, instead of access to every kind of information, or it can let parochial private controlling the land, the new feudal lords-the large agrochemiinterests shape the future. The first task is to recognize that a confluence of forces is forging a new global economy based on the cal firms-gain their power and wealth by owning the informaprivate capture of knowledge. And that new regime is swiftly be- tion contained within the new high-tech seed varieties." ing applied across many disparate fields, which are changing forn medicine, information disputes can become questions of ever due to high technology. One such field is agriculture. life and death. CellPro, Inc., a small firm in Bothell, Washington, developed a treatment, approved by the U.S. enny and Becky Winterboer farm 325 hectares of com and soybeans in the northwest comer of Iowa. In addition to Food and Drug Administration in 1996, that could help arrest growing soybeans to sell for food and livestock feed, the the progress of some of the most deadly cancers, including couple sold part of their crop to neighbors for seed. Such sales breast cancer and lymphoma. But another company, Baxter are traditional; Denny's family has farmed that way in Iowa for International, Inc., in Deerfield, Illinois, claimed it already owned a broad license on the relevant technology-a device for four generations. isolating particular cells that are key to a patient's recovery In December 1990, though, one of those neighborly seed sales from a bone-marrow transplant. While shepherding its own reaped a lawsuit for the Winterboers, filed by the Asgrow Seed comparable product through the lengthy FDA approval process, Company in Kalamazoo, Michigan, then a division of Upjohn.

Baxter sought to block CellPro from marketing its lifesaving By selling the seeds, the company claimed, the Winterboers were treatment. The courts have ruled against CeliPro, which filed stealing Asgrow's intellectual property: specifically, the regisfor bankruptcy last year. tered seed varieties A 1937 and A2234. Asgrow claimed propriSuch cases highlight the problematic question of what in medetary rights not only over those seeds, but over all future soybean icine should be patentable. Patent regulations once distinguished generations derived from them. between devices such as catheters and X-ray machines, which The ensuing legal battle between Asgrow and the Winterboers raised such thorny issues that it eventually made its way to the were deemed eminently patentable, and procedures such as blood transfusions or cardiopulmonary resuscitation, which were not.

U.S. Supreme Court. Historically, the purveyors of agricultural goods such as seeds ~r plants have not been able to control how That distinction began to erode as long ago as 1954, however, when a patent was awarded for a technique for treating hemorgrowers used the goods. Someone who sells you an apple tree,

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rhoids. By early 1996 the patent office was awarding as many as a hundred patents a month for medical procedures.

The irony is that what gets patented is often not even particularly novel or noteworthy. In the early 1990s, for instance, radiologists across the United States received letters demanding royalties on a common technique used to determine the sex of a fetus with ultrasound. The procedure, which enjoys 20 years of patent protection, boils down to visually distinguishing male from female genitalia. Not surprisingly, the American College of Radiology has condemned the patent. Many in the field have publicly ridiculed it.

As the radiologist Christopher R. Merritt of Thomas Jefferson University in Philadelphia says, "It's like saying you have a secret method for distinguishing the gender of patients when they take their clothes off for a physical. That's an invention?"

By 1995 a similar case-the one described earlier, involving the ophthalmologists Singer and Pallin-caught the attention of Greg Ganske, an Iowa physician and Republican member of Congress. To Ganske, the prospect of physicians suing one another over their procedures seemed obviously to contradict the ethical code that doctors have embraced since the days of Hippocrates: to share knowledge freely whenever it can benefit patients. Ganske introduced legislation limiting patents on medical procedures, but the measure failed after an outcry from biotechnology companies, which feared for their livelihoods. In 1996 a compromise was finally passed: physicians can still patent medical procedures, but they now cannot bring infringement cases against other physicians.

The compromise did nothing, however, to resolve the deeper underlying issues: Is the delivery of health care a public service or a business? Should patent owners and their lawyers be allowed to profit from carving up medical knowledge into privately held parcels? Which aspects of medicine must be held in common for the greater good? n the spring of 1996 a small company calling itself E-data Corporation sent a letter to 25,000 firms, with a warning: If your firm was conducting business over the Internet, you were potentially infringing on a broad patent on Internet commerce held by E-data. According to the letter, the remedy was simple: Sign a licensing agreement-which included an annual royalty fee of as much as $50,000-and you would be excused from past offenses.

Refuse to sign, and you were courting a lawsuit.

How did E-data ever obtain a patent on something as broad as financial transactions on the Internet? The story begins in 1985, when the computer programmer Charles Freeny won a patent by outlining a system in which products, such as a magazine article or a piece of music, could be purchased online and delivered electronically. It was a prescient idea, but even Freeny could not have envisioned the patent's universal applicability to the mushrooming on-line commerce of the World Wide Web. In 1989, unsure of what his patent might ever be worth, he sold it for $200,000.

Freeny's patent resurfaced with a vengeance in 1994, when it was bought by a group of investors who hired a businessman named Arnold Freilich to run their new company, E-data. The

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investors also hired the patent lawyer David Fink, whom Freilich fondly describes as "the pit bull of patent infringement." Early on, Freilich and two associates were lampooned in the trade press as "three men and a patent." But the joking abruptly ceased when many financial analysts recognized that E-data's strategy might well succeed in exacting royalties from every company that wanted to buy and sell in cyberspace. In a heady three weeks that year, E-data's stock price soared from $1.63 to $11 a share.

Presumably judging it easier (and cheaper) to pay than to fight, several firms, including IBM and Adobe Systems, Inc., agreed to license the patent. Meanwhile, though, the vast majority of firms opted to see whether E-data's patent would hold up in court. So far E-data has filed lawsuits against 43 companies, including CompuServe Corporation, Dun and Bradstreet, Broderbund Software, Inc., Intuit, Inc., and Ziff-Davis, Inc. "Part of our marketing strategy was to sue everybody and get noticed," Freilich says.

The targeted firms have been forced to sink millions of dollars into fighting the case in court. At issue is not merely whether Freeny was the first person ever to think of online commerce-a highly dubious proposition. The broader question at stake is whether anyone should be able to own exclusive rights to such a sweeping concept. ven a nation that champions private property can endorse a national park system that preserves some land for shared use.

Zoning and antitrust laws-both direct curbs on unfettered private ownership--have also been essential and effective tools for fostering a more healthy and equitable system of private enterprise. But no analogous mechanisms yet exist in the knowledge market.

Unlike land or other forms of tangible property, knowledge is not depleted by use. On the contrary, books, software programs and medical procedures lose their value and utility when they are not used. The development of new knowledge often requires a significant initial investment of capital, and of course those costly efforts merit recompense. But unlike traditional assets, once a new piece of knowledge exists, it incurs virtually no marginal costs from its ongoing use and dissemination.

What is needed are guidelines, to determine where the analogy between the ownership of knowledge and the ownership of tangible property breaks down, and to define when the public interest should override free-market tactics. Vital knowledge resources must be shared whenever possible so they can benefit all, rather than enrich a select few. Unless society tackles the issue head-on, the privatization of knowledge assets will choke productivity, magnify inequities and erode our democratic institutions.

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About the Author: Seth Shulman is a science journalist whose work has fi'equently appeared in Technology Review, Nature, Discover and other publications. This article was adapted from his recent book, Owning the Future: Staking Claims on the Knowledge Frontier.

water was for the privileged few and more precious than gold.

The early 19th century saw the growth of Bombay port and the hazardous overland trade route, of which Jaisalmer was a part, lost its importance. Many of its inhabitants left in search of greener pastures. Insulated from the outside world, Jaisalmer was frozen in a kind of time warp.

It was this aspect that made for its Second Coming. This magnificent fort, the medieval ambience-narrow, winding streets, beautiful, old-world structures had a mesmeric appeal. Jaisalmer became an exotic, sought-after tourist attraction. And "development" began. Electricity and tap water was supplied.

Martand Singh, vice chairman of the Indian National Trust for Art and Cultural Heritage (INTACH), however, insists that the greater change is ecological. "It's not a desert any longer," he says. "After the Indira Gandhi Canal brought irrigation to large sections of the desert, there is an abundance of greenery. The countryside around Jodhpur and Jaisalmer has potato

Altered climate has made preservation of this national treasure urgentand more difficult.

But work is in progress, partly with funds donated

by American Express. And the restoration has led to a desert culture center, which opens this autumn.

plantations." And many believe that this greening has led to the climate change.

Annual rainfall has increased from 138 ml in 1990, to 360 ml in 1995. One day, May 31,1997, 22 ml of rainfall was recorded in just three hours!

The drainage and sewer systems are hopelessly inadequate to meet the demands of a growing population and increased water supply. Water has weakened the foundations of the fort, and affected the built structures as well. A report prepared by Ahmedabad-based conservation architect, Kulbhushan Jain, for INTACH states that "most buildings have been designed for an arid climate and are unable to withstand this excess water. Many houses have collapsed and parts of the king's and the queen's palaces have seen the same fate."

O.P. Agarwal, who heads INTACH's archaeological heritage division, adds that there is also the problem of encroachments. "Most tourists want to stay at the fort and, as a result, practically every house has been turned into a guesthouse or a hotel, resulting in a large floating population. Everything has its repercussions," he says. Responding to the urgency of the situation INTACH sought to put Jaisalmer on the world's 100 most endangered sites and in 1996, it was declared endangered.

In 1997, a portion of the fort wall collapsed and killed six. More recently, another portion collapsed. Quite obviously Jaisalmer is in jeopardy. It is not only the fort and a few havelis that need to be saved, the town needs to be looked at afresh, and growth permitted in a carefully planned manner. Upgradation of sewerage system, repair of the fort wall and reuse of all historic buildings will have to be undertaken.

The fort walls are under the protection of the Archaeological Survey of India. 0 other agency can undertake their repair or upkeep. Conservation efforts would have to be focused on other structures. In 1996, INTACH received a grant of $100,000 toward a restoration and conservation exercise from American Express Travel Related Services, through the World Monuments Watch, a program of the

World Monument Fund. Announcing the the structure was extremely fragile. Dust, debris, bats and birds were other obstacles. launch of the Jaisalmer Conservation Initiative, Sanjay Rishi, vice president and The team working at the time recall that often they entered the structure with a prayer, country manager, American Express for Iittle could be predicted on whether they Travel Related Services, said, "It is a matwould come back in one piece or not. It's ter of great pride to be associated with the preservation of India's rich cultural been over a year since the exercise started heritage." He hoped that the grant would and the structure is now stable. "not only support the launch of the conMore significant was the attitudinal servation program but more impo11antly, change that emerged. PaI1S of the palace serve as a device to draw public attenhad completely collapsed and a lot of tion to this very critical issue." The rubble lay on the streets. As cleaning Jaisal mer Fort is u one of the 37 sites ~ worldwide selected for j funding by American!

Express under the ~ World Monuments Watch (WMW). Responding to this, Martand Singh pointed out that while such issues should be addressed at the community level, "international concern can be a catalyst for setting the process in mo- -. tion." As the world's largest travel-related company, Sujit Mittra, Kumar Pada, the palace oj the princes. where restoration work director of public afhas not been done. Opposile page: A \'iew ojJaisalmer Fort and fairs and communisurrounding medievallown. cation (A SEAN and Indian subcontinent), American Express, progressed, there was a very positive resays the company "feels a sense of responsponse from the community, who could see sibility to communities where travelers firsthand the benefits of conservation.

According to a member of the team, "there go, a responsibility to ensure that these was a major involvement of the people. places are culturally preserved."

The workers felt personally involved and Identification of the site to be worked on hinged on two factors-permission to work was done with great dedication."

Several agencies now work in Jaisalmer. do so, and a re-use strategy. Fortunately, around this time the former ruler of And their work is made easier because the locals are less skeptical. Jaisalmer in Jaisalmer, Maharawal Brijraj Singh, strongly felt the need to protect his her- Jeopardy, a U.K.-based organization is itage and create an awareness of its impornow involved in the upgradation of the tance. He readily gave permission for the streetscape. The Jaisalmer Heritage Trust. restoration of Rani ka Mahal (the queen's chaired by the Maharawal, looks both at palace), when he was told it would finally preserving built heritage and working on be used as an interpretation center, showdevelopment projects. It hopes to act as a nodal agency, providing services and inforcasing the history, lifestyle, arts and culture of the region. mation and also reach out to a national and international audience concerned with The work was very challenging because I

Before resrorarion: a curved gallery with collapsed.floor; and rhe gallery after restorarion of floor and walls.

Below: Courtyard in Rani ka Mahal before restoration; the courtyard aper restorarion offloor and srairway.

preservation and sustainable development.

But a lot more needs to be done in the only living fort in India. Many of the buildings are in urgent need of repair and their present state leaves the visitors with a very poor impression. "It provides a very sad commentary on the state of preservation of our vital heritage," says Ashis Banerjee, member secretary, INTACH. "Authorities at various levels in charge of these properties need to wake up immediately and if necessary look for partnerships with other organizations who are willing to help in various ways to ensure proper conservation."

Out of the fort restoration came the Heritage Interpretation Centre, which is scheduled to open in November. It focuses on desert culture and will not only enhance the visitor's experience but also expose the visitor to what needs to be preserved. Using ecology as a leitmotif, the history, arts and crafts, architecture and lifestyle wi II be reflected in the different sections.

Craftsmen will be able to exhibit their skills, and seminars and workshops will make for an interactive experience. Cumulatively, the center will provide a glance at the past and hopefully a vision for the future.

0 About the Author: Sumita Mehta, a travel wrirer and former assisrant editor of the Sunday Times of India, is a consultant with INTACH.

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Corporate governance is a buzzword in boardrooms, as companies hammer out effective business practices for the expanding international marketplace. Dr. Carolyn Kay Brancato is director of the Conference Board's Global Corporate Governance Research Center, an organization that has, since 1916. promoted the role of business in society. She has also written two books on cOlporate governance and has lectured on the topic around the world. She recently made her second visit to India to participate in management seminars organized by the U.S. Public Affairs Section in conjunction with the Management Development Institute, Gurgaon, and the Indian Institute of Management, Lucknow. She interacted with members of the Young Entrepreneurs Organization and the All India Management Association. She also talked with SPAN.

How do you find the corporate climate in India today, compared to your visit in 1996?

I'm so impressed with the level of awareness today and how it has increased in last three years. It's astounding how sophisticated people have become on this issue of corporate governance in just three years, with liberalization, with the moves that India has made to integrate itself with the global economy. I think the executives here recognize that they are going to have to integrate their capital flow into the global economy. The only way to get global capital is to start doing what is necessary to attract global investors and their confidence. Good governance is required

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to engender the confidence of these investors. And I think that's what is driving the whole move toward corporate governance, to position companies to be able to attract external capital, whether or not it is domestic Indian investors or global investors. Three years have made all the difference in the world.

What do you see as the chief logistical problems that come up when companies throw open their doors to international participation?

The companies that are used to having a very closely held shareholder base, perhaps dominated by families and the banks

that have been financing through retained earnings, internal or very closely-held sources of financing, will have to have an entirely different mindset. Interestingly enough, we had this type of corporate structure in America at the turn of the century. Think of the Rockefellers. We had a lot of big families, closely-held companies, cross shareholdings, which were very tightly woven. In the course of the last century, really since the advent of our securities regulatory laws in the 1930s, we've had more and more dispersed shareholders. The shareholder ownership base was widely dispersed, the managers becoming more of a professional manager class rather than owner-manager. We still have variance of structure left over. Not every company is in the same structure.

If you need a dispersed shareholder base you are going to have to make some changes, some logistical changes, to create a structure that will afford you the opportunity of getting this dispersed shareholder base. And these are indicators of confidence: board processes, auditing, accountability to shareholders, enabling shareholders to vote, actually making certain that they are part of the process.

That's a very new concept here.

In the United States doing this has taken a whole series of gradual shifts along a continuum. Corporate governance relates not so much to different cultures or countries but different ownership structures of corporations. You find large family-owned businesses in Brazil, with high-tech, widely dispersed shareholder ownership; in Bangalore you have the whole spectrum; you have it in Germany-not so much family,

but more closely-held banking, insider boards and so on. And then you have newer companies that are widely dispersed shareholder models. So it's a continuum and each step along the continuum is a slightly different ownership structure and requires slightly different corporate governance responses because the expectation of your shareholders changes with this difference in governance structures. Where the family is the shareholder and the board and the manager, it's all one. But every country has this same spectrum, more or less.

How important are shareholders in how a company does business? Some changes in corporate governance are market-driven, some are voluntary or regulatory, but what is the ideal mix?

Good corporate governance is a way to improve the efficiency of the company by making sure that the roles are understood: who's doing what; the role of the board versus the role of the management. These are some fundamental things that can get pretty mucked up. You can look at governance as a way to improve efficiency. You have an ordered structure and compliance and certain things that happen as a result of reporting back and making sure that things are reported back at certain intervals, like your strategic plan. Are you on track with your strategic plan? That's a board function. Management should be reporting back to the board, the board should be looking at the strategic plan, making comments, reviewing and making periodic changes and adjustments. So, once a company looks at corporate governance as something that will improve its value, improve its management, its entire management structure and systems, it will look upon corporate governance differently. Rather than just ticking off these boxes, two in this column and three in that column. It's an efficiency structure. But there is no one real structure that's good for every company because, it depends on the roles of the shareholders, the board and the management and, the employees who come very importantly into this equation, as do customers and suppliers who continue to generate the overall sense of growth of the company.

I wouldn't say that there is one particular structure. The investors who have been pressing for checks and balances want to make sure that this management system is working effectively. They don't want to be caught in audit fraud, or have problems because there is a lack of transparency: where they don't get their reporting information, the information is incorrect, there is failure to report material items that have been changing, or the management has been doing something to mess about with the minority shareholder rights. This can frequently happen and is a very common situation when you have a big stake holder-whether it's a government, or a big family or whatever-where 40-50 percent, maybe 51 percent is held by a big entity. The protection of the minority shareholder rights, if that big entity decides to switch or sell off some assets becomes an issue.

We had some cases like that of Eramet in France. Eramet was privatized and one of the big investors was very concerned because the French Government did a switch. They said this is a privatized company, put your money in, we're still going to own this block. But, by the way, we are going to switch this mine with that mine. That one is not so valuable but we are going to retain the ownership in the one that's more valuable. So, the investor said no. We have only a very small minority interest here, but it's our minority interest. It made a big splash, it was in the Wall Street Journal. The French Government backed off. So the protection of minority shareholder rights is very important because even if just a chunk of that company is owned by the shareholders, they want to make sure that their rights are protected. They are going to get some good value for their investment and the management won't lock up and do something in its own interest. In this case, it is the French Government's interests, as opposed to their interests.

Rather than a particular system, I would say corporate governance is a process of a model that includes accountability to shareholders, transparency and disclosure. And board processes are very important.

What other kinds of influence can shareholders have on company policy, in areas such as environmental concerns?

Different shareholders press companies for different things. And companies sometimes feel uncomfortable because they think, oh, I've satisfied this one and you're coming knocking on my door with another demand. So, it is a little frustrating for companies to keep track of who's who in the investor community. But it is interesting how some of these environmental issues turn out to be economic issues in the long run. The whole strategic management process as we view it at the Conference Board is to examine a company not only from the point of view of its next quarter's bottom line but over sustainable value. You'll look at environmental regulations; R&D; is it a company that is likely to sustain itself in the future? If it's just simply going to come up against regulations and pay fine after fine in the environmental area, it's not going to be economic. Twenty-five years ago people were looking at environmental clean-up just as a cost. Now I think some companies have realized that if they change their processes to be more efficient they will actually spew out less of whatever they are spewing out. So there is a certain move to look at the sustainability of the company economically and factor in some of these non-tangibles.

Are human rights issues, such as child labor, also included in that?

The Teacher's Insurance, Investment and Annuity and College Equities Retirement Fund is worth $250 billion.

Now, they represent the college teachers in United States, and law professors and anybody at the upper reaches of academia-all the pension funds. They have a social investment fund. They have regular funds that you can put your pension money toward, or you can direct it toward a socially responsible fund. And they will then make certain criteria and spin off funds to become socially directed. But it gets complicated.

There was a meeting at which Mobil Oil was being asked by a lot of investors to pull out of igeria couple of years ago,

because of the terrible political problems.

And the CEO of Mobil met with the Council of Institutional Investors in Washington and I'll never forget it. The way he put it was, "We built an entire infrastructure in this country. We have health facilities, educational facilities, we built roads, we have training, we have education for the work force" and so on. And he said the political situation is such that we have lives at stake here. "If we pull out, fust of all, we will have no potential for positive impact on the government.

There will be lives at risk." And most of the investors were really not prepared to press them to do that.

It was very interesting, because unlike apartheid which was already in place, where investors could say, if you continue this we won't invest, we will pull out and these are consequences.

In the case of South Africa, people said we don't like it. There was still debate over whether or not you should have a presence there to make voice for dissent known, but they made a decision and yes, a lot of funds were not made available for investment. But in Nigeria a political situation had developed. If we pull out, what are the ramifications of that? And the funders never pressed them to pull out once having learned the potential for risk of life and limb.

How do you see India's future in developing solid international partnerships and strength in global business?

My sense is that India is trying to catch up very quickly in its securities market infrastructure, which is really the area I'm focused on. Bringing infrastructure to SEBI in the early '90s was very positive, as was increasing stock surveillance for insider trading. When I was here in 1996 they were just contracting with a major consulting firm to help get their settlement procedures in place so that if you bought a share of stock you knew you could get the share of stock back. Prior to then, shares just were not accounted for in some cases.

So settlement is very important. There have been tremendous strides-this takes a long time to put into effect. And we in the U.S. put ours in effect early in the '30s, and have been modifying it for 70

years. So what India has been trying to do in to years is good. They are making a lot of progress.

Think of a company like Infosys which has gone public in the U.S.-they have listing on NASDAQ AMEX, and it's wonderful, because they have really shown the rest of the Indian executives that you can account for your financials according to U.S. GAAP-the Generally Accepted Accounting Principles, which is what you need to be listed on the U.S. market-you can go through the filing procedures, you can put yourself under the surveillance of the U.S. markets, and if you do, you really move to a higher level. So some companies have said we want to leapfrog over what is going on locally, we want to go global. We want to be a presence in the global market. That is very important for the perception inside and outside of India.

I think that there is still lot of resistance to the notion that the markets should be as regulated as they need to be in order to inspire global confidence. There is an underlying sense that stock markets are inherently speculative. I gather from just a general perception that people are really mystified about the level of surveillance that we have in the U.S. to ensure the confidence of our markets. They find this difficult to grasp. But it's so important.

Someone said to me, "If you could trade on this information you got from a company, you could make a fortune." I said, 'That would mean my whole livelihood ....! could be carted off to jail tomorrow." Because there is a 20-year adjudicatory process here, people don't see prosecution as an immediate risk. And there is this underlying sense that stock markets are just speculative places. And I think until people change to the mindset that the stock market is really a very formal, capital-raising, efficient mechanism, but you have to play by extremely strict and honorable rules, until then the domestic market will continue to lag a bit in terms of its perception in the rest of the world.

India is not alone. I did a program in Mexico with a number of Mexican domestic companies, and I said, "Why don't you pay your senior executives in stock, not only compensation but stock?" And

they said, "We don't want stock. We don't trust our market." So until you can see markets highly regulated so they are fair, they will never be the capital-raising mechanisms that the developing countries need them to be.

What recommendations would you make for faster growth into and compliance with global market standards?

I think the professionalizing of the family-owned business is important, because of the tremendous concentration of family-owned businesses here. The familyowned businesses are about 90-95 percent of the spectrum of ownership pattern here.

You look at what you need in the familyowned business to professionalize it, to get it into a position to be more mainstream in the global markets, to get more independent directors, to get more outside checks and balances and auditing and transparency and so on. The Conference Board would sincerely like to do some follow up with some of the groups here, some of these groups who have familyowned businesses and who are sincerely interested in how they can professionalize themselves and avoid the inter-generational family conflicts about where they are heading.

But you know, if you take governance as an efficient system of management, you can say that this is the role of the board, this is the role of management, so even if the father is on the board and the son is in management, there is a pretty clear definition of who is doing what. The sides are relating more professionally to one another even in the context of the family.

And we've seen this happening in Brazil.

Brazil is actually a very good model for how family-owned businesses have professionalized.

And in Sweden the Wallenberg family: a highly closed situation, but they retained someone from the outside who could run the organization.

Katharine Graham at the Washington Post-she got an outside board member and outside professional to manage it. So there are ways in which these familyowned businesses can begin to professionalize and position themselves for participation in global markets.

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2K has uncovered a hidden side of computing. It's always been there, of course, and always will be. It's simply been obscured by the pleasures we get from our electronic tools and toys, and then lost in the zingy glow of techno-boosterism.

Y2K is showing everyone what technical people have been dealing with for years: the complex, muddled, bug-bitten systems we all depend on, and their nasty tendency toward the occasional disaster.

It's almost a betrayal. After being told for years that technology is the path to a highly evolved future, it's come as something of a shock to discover that a computer system is not a shining city on a hill-perfect and ever new-but something more akin to an old farmhouse built bit by bit over decades by nonunion carpenters.

The reaction has been anger, outrage even-how could all you programmers be so stupid? Y2K has challenged a belief in digital technology that has been almost religious. But it's not surprising. The public has had little understanding of the context in which Y2K exists. Glitches, patches, crashes-these are as inherent to the process of creating an intelligent electronic system as is the beauty of an elegant algorithm, the satisfaction of a finely tuned program, the gee-whiz pleasure of messages sent around the world at light speed. Until you understand that computers contain both of these aspects-elegance and error-you can't really understand Y2K. Technically speaking, the "millennium bug" is not a bug at all, but what is called a design flaw. Programmers are very sensitive to the difference, since a bug means the code is at fault (the program isn't doing what it was designed to do), and a design flaw means it's the designer's fault (the code is doing exactly what was specified in the design, but the design was wrong or inadequate). In. the case of the millennium bug, of course. the code was designed to use two-digit years, and that's precisely what it's doing. The problem comes if computers misread the two-digit numbers-OO, 01, et cetera. Should these be seen as 1900 and 190 I, or as 2000 and

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The real lesson of Y2K is that software operates just like any natural system: out of control

200 I? Two-digit dates were used originally to save space, since computer memory and disk storage were prohibitively expensive. The designers who chose to specify these two-digit "bugs" were not stupid, and perhaps they were not even wrong. By some estimates, the savings accrued by using two-digit years will have outweighed the entire cost of fixing the code for the year 2000.

But Y2K did not even begin its existence as a design flaw. Up until the mid1980s-almost 30 years after two-digit years were first put into use-what we now call Y2K would have been called an "engineering trade-off," and a good one. A trade-off: To get something you need, you give up something else you need less urgently: to get more space on disk and in memory, you give up the precision of the century indicators. Perfectly reasonable.

The correct decision. The surest sign of its COITectnessis what happened next: Twodigit years went on to have a long, successfullife as a "standard." Computer systems could not work without standards-an agreement among programs and systems about how they will exchange information.

Dates flowed from program to program, system to system, from tape to memory to paper, and back to disk-it all worked just fine for decades.

Though not for centuries. of course.

The near immortality of computer software has come as a shock to programmers. Ask anyone who was there: We never expected this stuff to still be around.

Bug, design flaw, side effect, engineering trade-off-programmers have many names for system defects, the way Eskimos have many words for snow. And for the same reason: They're very familiar with the thing and can detect its fine gradations. To be a programmer is to develop a carefully managed relationship with error. There's no getting around it.

You either make your accommodations with failure, or the work will become intolerable. Every program has a bug; every complex system has its blind spots.

Occasionally, given just the right set of circumstances, something will fail spectacularly. There is a Silicon Valley com-

• I

"Bugs are an unintended source of inspiration. Many times I've seen a bug in a game and thought, 'That's cool-I wouldn't have thought of that in a million years.' "

rt

"*"-"

So if the world comes to an end for a couple of days, it'll be OK. We've all had weekends like that. II -Reed

Hundt, former FCC chair

-Will

Wright, creator of SimCity and chief game designer at Maxis

pany, formerly called Failure Analysis (now Exponent), whose business consists of studying system disasters. The company's sign used to face the freeway like a warning to every technical person heading north out of Silicon Valley: FAILURE ANALYSIS, No one simply accepts the inevitability of elTors-no honest programmer wants to write a bug that will bring down a system.

Both engineers and technical managers have continually looked for ways to normalize the process, to make it more reliable, predictable-schedulable, at the very least.

They have talked perennially about cel1ification programs, whereby programmers would have to prove minimal proficiency in standard skills. They have welcomed the advent of reusable software components, or "objects," because components are supposed to make programming more accessible, a process more like assembling hardware than proving a mathematical theorem. They've tried elaborate development methodologies. But the work of programming has remained maddeningly undefinable, some mix of mathematics, sculpting, scrupulous accounting, and wily, ingenious plumbing.

In the popular imagination, the programmer is a kind of traveler into the unknown, venturing near the margin of mind and meatspace. Maybe. For moments. On some extraordinary projects, sometimes-a new operating system, a newly conceived class of software. For most of us, though, programming is not a dramatic confrontation between human and machine; it's a confused conversation with programmers we will never meet, a frustrating wrangle with some other programmer's code.

Most modern programming is done through what are called application programming interfaces, or APIs. Your job is

to write some code that will talk to another piece of code in a narrowly defined way using the specific methods offered by the interface, and only those methods. The interface is rarely documented well. The code on the other side of the interface is usually sealed in a proprietary black box.

And below that black box is another, and receding tower of below that another-a black boxes, each with its own errors. You can't envision the whole tower, you can't open the boxes, and what information you've been given about any individual box could be wrong. The experience is a little like looking at a madman's electronic bomb and trying to figure out which wire to cut. You try to do it carefully but sometimes things blow up.

At its core, programming remains irrational-a time-consuming, painstaking, error-stalked process, out of which comes a functional but flawed piece of work.

And it most likely will remain so as long as we are using computers whose basic design descends from ENIAC, a machine constructed to calculate the trajectory of artillery shells. A programmer is presented with a task that a program must accomplish. But it is a task as a human sees it: full of unexpressed knowledge, implicit associations, allusions to allusions. Its coherence comes from knowledge structures deep in the body, from experience, memory. Somehow all this must be expressed in the constricted language of the API, and all of the accumulated code must resolve into a set of instructions that can be performed by a machine that is, in essence, a giant calculator. It shouldn't be surprising if mistakes are made.

There is irrational ity at the core of programming, and there is irrational ity surrounding it from without. Factors external to the programmer-the whole enterprise of computing, its history and business practices-create an atmosphere in which flaws and oversights are that much more likely to occur.

The most irrational of all external factors, the one that makes the experience of programming feel most insane, is known as "aggressive scheduling." Whether software companies will acknowledge it or not, release schedules are normally driven

by market demand, not the actual time it ing with code we wish we'd done better the first time." would take to build a reasonably robust The problem of old code is many times system. The parts of the development process most often foreshortened are two worse in a large corporation or a governcrucial ones: design documentation and ment office, where whole subsystems may testing. I recently went to a party where a have been built 20 or 30 years ago. Most senior consultant-a woman who has of the original programmers are long gone, taking their knowledge with thembeen in the business for some 30 years, along with the programmers who folsomeone who founded and sold a signifilowed them, and ones after that. The code, cant software company-was explaining why she would no longer work with a cera sort of palimpsest by now, becomes diftain client. She had presented a software ficult to understand. Even if the company development schedule to the client, who had the time to replace it, it's no longer received it, read it, then turned it back to sure of everything the code does. So it is kept running behind wrappers of newer her, asking if she'd remake the schedule code-so-called middleware, or quickly so that it took exactly half the time. There were many veteran programmers in the room: they "I am one of the culprits who created the nodded along in weary problem. I used to write those programs recognition.

Even if programmers back in the '60s and '70s, and was so were given rational developproud of the fact that I was able to squeeze ment schedules, the systems they work on are increasa few elements of space by not having to ingly complex, patched toput '19' before the year." gether-and incoherent.

-Alan Greenspan, Federal Reserve chair Systems have become something like Russian developed user interfaces like the Webnesting dolls, with newer software wrapped around older software, which is which keeps the old code running, but as a wrapped around software that is older yet. fragile, precious object. The program runs, but is not understood; it can be used, We've come to see that code doesn't but not modified. Eventually, a complex evolve; it accumulates.

A young Web company founder I computer system becomes a journey backknow-very young; Scott Hassan of ward through time. Look into the center of the most slick-looking Web banking site, eGroups.com-suggests that all programs built a few months ago, and you're bound should be replaced every two years. He's probably right. It would be a great relief to to see a creaky database running on an aged mainframe. toss all our old code into that trash conAdding yet more complexity are the tainer where we dumped the computer we bought a couple of years ago. Maybe on electronic connections that have been the Web we can constantly replenish our built between systems: customers, supplicode: The developer never lets go of the ers, financial clearinghouses, whole supply chains interlinking their systems. One software; it sits there on the server available for constant change, and the users patched-together wrapped-up system exhave no choice but to take it as it comes. changes data with another patchedBut software does not follow Moore's together wrapped-up system-layer upon Law, doubling its power every 18 months. layer of software involved in a single It's still the product of a hardworked craft, transaction, until the possibility of failure increases exponentially. with too much meticulous effort already It's from deep in there-somewhere put into it. Even eGroups.com, founded in near the middle-most Russian doll in the 1998, finds itself stuck with code proinnermost layer of software-that the milgrammers have no time to redo. Said Carl Page, another of its founders, "We're liv- lennium bug originates. One system sends

half that time working in the Federal Reserve System, backbone of the world banking order everyone fears will collapse come the millennium. But until he joined the Fed's Y2K project, he had never much considered the real-world effects of his work. "I read an article about how the Federal Reserve would crash everything if it went bad," said the man I'll call Jim Fuller, who agreed to talk only on condition of anonymity. "It was the first time in my life I understood everything the Federal Reserve did." He'd taken a rare look up and down the supply chain; the job of fixing Y2K in the context of an enormous, linked economic machine was now a task that stretched out in all directions far beyond his control. It scared him.

"I discovered we were kind of important," he said uneasily.

If you can't stay focused on your code, another approach is to develop an odd sort of fatalism, a dark, defensive humor in the face of all the things you know can go wrong. Making fun of bugs is almost a sign of sophistication. It shows you know your way around a real system, that you won't shy back when things really start to fall apart. A friend of mine once worked as a software engineer at a Baby Bell. He liked to tell people how everyone in the company was amazed to pick up a handset and actually get a dial tone. It was almost a brag: Ha ha, my system's so screwed up you wouldn't believe it.

Now here comes a prob"One guy in our office keeps a wooden head lem that's no joke. Technical people can't help hearing at the top of his cube-the God of Debugging. He makes offerings to it daily." about the extreme consequences that will come -Maurice Doucet, director of down on the world if they engineering at MetaCreations don't find all the places Y2K is hiding. And they simultaneously know that it is impossible to find One approach is to ignore all thoughts all the problems in any system, let alone in about the consequences-to stay focused on the code on your desk. This is not that ones being used long beyond their useful life spans. Programmers feel under siege, difficult to do, since programmers get caught between the long-standing knowlhigh rewards for spending large amounts edge of error and fragility they've learned of time in front of a computer workstation, to live with, and the sudden, unrealistic where they're expected to maintain a very deep and narrow sort of concentration. A pressure to fix everything.

"Y2K is a sort of perverse payback few months ago, I talked to a systems programmer who'd barely looked over the from the universe for all the hasty and incomplete development efforts over the top of his cubicle for 30 years. He'd spent it on to the next, along with the many bugs and problems we already know about, and the untold numbers that remain to be discovered. One day-maybe when we switch to the new version of the Internet Protocol, or when some router somewhere is replaced-one day the undiscovered bugs will come to light and we'll have to worry about each of them in turn. The millennium bug is not unique; it's just the flaw we see now, the most convincing evidence yet of the human fallibility that lives inside every system.

It's hard to overstate just how common bugs are. Every week, the computer trade paper InfoWorld prints a little box called "The Bug Report," showing problems in commonly used software, some of them very serious. And the box itself is just a sampling from www.bugnet.com. where one day's search for bugs relating to "security" yielded a list of 68 links, many to other lists and to lists of links, reflecting what may be thousands of bugs related to this keyword alone. And that's just the ones that are known about and have been reported.

If you think about all the things that can go wrong, it'll drive you crazy. So technical people, who can't help knowing about the fragility of systems, have had to find some way to live with what they know.

What they've done is develop a normal sense of failure, an everyday relationship with potential disaster.

last 10 years," said the Y2K testing lead for a midsize brokerage. Also speaking on condition of anonymity, Lawrence Bell (a pseudonym) said it like an l-told-you-so, a chance for him to get back at every programmer and programming manager who ever sent him junky software.

Bell is a tall, impeccably groomed young man whose entire workday consists of looking for bugs. He's in QA, quality assurance, the place where glitches are brought to light, kept on lists, managed, prioritized and juggled-a complete department devoted to bugs. He has the tester's crisp manner, the precision of the quality seeker, in whom a certain amount of obsessive fussiness is a very good thing. Since Bell doesn't write code, and can't just concentrate on the program on his desk, he has no alternative but to affect a jaunty, fake cheer in the face of everything that can go wrong. "We have systems that have been developed in, shall we say, an 'uncontrolled' manner," he said.

The systems he's responsible for testing are classic journeys through time: new systems on Windows NT with graphical user interfaces, Unix relational databases on the sturdy client-server systems of the late '80s, command-line interfaces that were in vogue in the late '70s and early '80s, all the way back to an IBM midrange computer running programs "that nobody thinks about," said Bell, but "have to run or we're in trouble."

Bell's team is doing what they call "clean management": testing everything for Y2K problems, whether or not they suspect it has a date-related problem. In the course of it, as they go backward in time, they're coming across systems that have never been formally tested. "There was a day when things did not go through QA," said Bell, as if he were talking about another century. All this time, the untested systems have been out there, problems waiting to happen. "We find all sorts of functional bugs," he said affably. "Not Y2K. Just big old bugs."

Bell had all the complaints testers always have. Missing source code. No documentation. Third-party software vendors who won't give them information. Not enough people who know how the sys-

"To paraphrase Mark Twain, the difference between the right program and almost the right program is like the difference between lightning and a lightning bug. The difference is just a bug."

-Danny Hillis, . Th P tt th St In e a ern on e one tems were put together. Users who won't take the time to explain how they work with the system. And what he calls the "ominous task" of fixing one of the oldest, least documented systems-the crucial trade-clearing system running on the IBM machines. "If one of the mid-range computers goes down for a day, we're out of business without our backups," he said.

Still, quality assurance is the one place where the muddled side of computing is obvious, predominant, inescapable. Bell, as a good QA guy, is mostly inured to it all.

"Come the year 2000, a couple of systems will fail," he said nonchalantly. "But that's what happens with any implementation. It's the same thing we've been doing for years."

For Bell, it's no big deal that supposedly Y2K-compliant programs will be put into users' hands without thorough testing. He's comfortable with the idea that things can go very, very wrong and still not bring about the end of the world. Said Bell with a shrug, "It's just a big user test."

The only thing about Y2K that was really bothering Lawrence Bell was the programmers. There is a classic animosity between programmer and tester-after all, the tester's role in life is to find everything the programmer did wrong. But Y2K and its real-world time pressures seem to have escalated the conflict. Bell thought that QA would manage-"it won't be pretty but we'll do it"-but no thanks to the programmers who developed the applications. "The application folks are never there," said Bell, deeply annoyed. "We're not getting analysis from the developersit's really absurd."

The source of the hostility is documentation: Programmers are supposed to make a record of the code they've written.

Documentation is how QA people know what the system is supposed to do, and therefore how to test it. But programmers hate to write documentation, and so they simply avoid doing it. "The turnover is high," said Bell, "or the programmers who have been here a long time get promoted. They don't want to go back to this project

they wrote 10 years ago-and get punished for not documenting it."

Programmers have fun and leave us to clean up their messes, is Bell's attitude.

They want to go off to new programs, new challenges, and the really annoying thing is, they can. "They say, 'I want to do something new,''' said Bell, truly angry now, "and they get away with it."

"No more programmers working without adult supervision!"

This was declaimed by Ed Yardeni, chief economist for Deutsche Bank Securities, before a crowded hotel ballroom. On the opening day of the Year 2000 Symposium, August 10, 1998 (with cameras from 60 Minutes rolling), Yardeni explained how the millennium bug would bring about a world recession on the order of the 1973-74 downturn, and this would occur because the world's systems "were put together over 30 to 40 years without any adult supervision whatsoever." Blame the programmers. The mood at the conference was like that of a spumed lover: All those coddled boys in T-shirts and cool eyewear, formerly fetishized for their adolescent ways, have betrayed us.

It has become popular wisdom to say that Y2K is the result of "shortsightedness." It's a theme that has been taken up as a near moral issue, as if the people who created the faulty systems were somehow derelict as human beings.

In fact, some of the most successful and long-lived technologies suffer from extreme shortsightedness. The design of the original IBM PC, for example, assumed there would never be more than one user, who would never be running more than one program at a time, which would never see more than 256K of memory. The original Internet protocol, IP, limited the number of server addresses it could handle to

what seemed a very large number at the time, never imagining the explosive growth of the Web. I once worked on a Cobol program that had been running for more than 15 years. It was written before the great inflation of the late 1970s. By the time I saw it, in 1981, the million-dollar figure in all dollar amounts was too large for the program's internal storage format, and so multiple millions of dollars simply disappeared without a trace.

We are surrounded by shortsighted systems. Right at this moment, some other program is surely about to burst the bounds of its format for money or number of shares traded or count of items sold.

The Dow Jones Industrial Average will one day break 10,000, the price of gas will top $9.99, the systems we're renovating now may live long enough to need renovation again. Some system designer, reacting to the scarce computer resource of our day-not memory but bandwidth-is specifying a piece of code that we will one day look back on as folly.

At the Year 2000 Symposium where Yardeni spoke, there was a technical workshop about creating a "time machine"-a virtual time environment for testing "fixed" Y2K programs. One of the presenters, Carl Gehr of the Edge Infonnation Group, patiently explained that, when designing the test environment, "you have to specify an upper limit" for the year. While everyone scribbled notes, an awful thought occurred to me. "But what upper limit?" I said out loud. "Should we be worrying about the year 9000? 1O,001?"

Gehr stopped talking, heads came up from their notes, and the room went quiet.

It was as if this were the first time, in all the rush to fix their systems, the attendees had been able to stop, reflect, think about a faraway future. Finally, from the back of the room came a voice: "Good question."

(Jehr glanced over at his colleague, Marilyn Frankel, who was waiting to talk about temporary "fixes" for Y2K-affected code. "Marilyn will address that later, I'm sure," he said.

0 About the contributor the allthor that draws

Author: Ellen Ullman, a frequent ro Harper's and Salon maga:ines. is of Close to the Machine, a memoir on her 20 years as a programmer

Who Will Own Your Next Good Ideail cOl11inued

from

page 7

year music career that shaped the course of gospel, rhythm and blues, rock-and-roll, disco and funk (which he more or less invented). Spinning, falling on his knees, dropping into splits, he climaxed shows with an exuberant fake heart attack, after which he was carried offstage on a cape and "resurrected" by screaming fans.

Brown was one of the first African-American pop singers to wrest control of his career-including the copyright to his songs-from the white music establishment.

In the 1980s Brown's commercial star dimmed. But his music was heard more than ever before. because rappers by the dozen built their songs around recorded snippets-"samples," in the jargon, which are "looped," or played over and over-of such Brown hits as "Cold Sweat" and "Get on the Good Foot." Thirty years after the release of "Say It Loud (I'm Black and I'm Proud)," Brown's black-power anthem from 1968, bits and pieces of the song are still all over the airwaves. "It is impossible to listen to more than 15 minutes of rap radio on any given night in Boston without hearing a back beat, a guitar hook, or a snatch of vocals from 'Say It Loud,''' Mark Costello and David Foster Wallace wrote in Signifying Rappers, a critical study of the genre.

What does Brown think of his place on the cutting edge of intellectual-property regulation? I called him to find out. A receptionist patched me through to a cell phone. Brown was in a car and somewhat distracted; he had discerned clues to a fellow driver's mental condition and unwholesome fondness for his mother from his behavior at the wheel. I knew that the unlicensed copying of Brown's music had been curtailed in the aftelmath of a 1991 court decision, which prevented the rapper Biz Markie from distributing a record that sampled the singer Gilbert O'Sullivan without permission. I wanted to know what Mr. Please, Please, Please thought of the new software that allows people to put entire albums on the World Wide Web. The previous night, for instance, I had downloaded part of his landmark 1963 album, The James Brown Show Live at the Apollo, from a computer in Finland. "This technology," he said, "I hate it. Hate it!" Then he hung up.

"I feel for the guy," says Scott Burnett, the marketing vice president of Liquid Audio, a three-year-old company in Redwood City, California, that sells a system for distributing music over the Internet. "But James Brown-like a lot of other musicians-needs to say, 'I can't keep fending off the Internet. I need to embrace the Internet and deal with its vagaries. I need to find a way to leverage the Internet, given my situation as an artist, to help me make money. ,,, To help musicians safeguard their work in the digital age. Liquid Audio tucks inaudible copyright and licensing data into recorded music, a process called "digital watermarking." To watermark a piece of music, Liquid Audio takes advantage of a quirk of digital recording: its characteristically harsh tone. Even the most grating rock songs are full of smooth, continuous sounds; the sequences of zeroes and ones in digital recording can only approximate the flow, in somewhat the way the steps on a spiral staircase approximate the curve of a helix. To fill in the gaps, a studio will overpaint the recording with a thin wash of noise-a technique known as "dithering." Dithering, according to Rick Fleischman, the company's senior marketing director, "provides this extremely low-level noise

you can hide things in." By "sculpting" the dither, Liquid Audio can, in theory, encrypt up to 64 characters, including the International Standard Recording Code (a sort of serial number for recorded sound), a second code identifying the computer that watermarked the song, a third identifying the computer that downloaded it, and a fourth, added at the time of the sale, giving information about who bought the song.

Such schemes (more than a dozen companies are developing them) may make illicit copies of watelmarked works easy to identify, but copyright owners will have to sieve the Internet to find them. In a pilot effort Broadcast Music, Inc. (BMI), one of the major music-rights agencies, has begun sending out "spider" programs that crawl from Web site to Web site, cataloging sound files in a search for copyright infringers. Digimarc, a photo-watermarking company in Portland, Oregon. has a spider that combs cyberspace on Playhoy's behalf for unauthorized copies of Miss November. Similar spiders have been used for several years to construct Internet indexes such as AltaVista, Hot Bot and Lycos.

But the Web is so large that even the busiest spiders can barely catalog half of it. Copyright owners will thus be condemned to play an eternal game of catch-up, according to Mark Stefik, a researcher at Xerox PARC, the editor of Internet Dreams (1996). and the author of the forthcoming The Internet Edge. A real solution to piracy will require what he delicately refers to as "a hardware component."

In the age of the Internet, Stefik argues, the only way to foil piracy-indeed, the only way to charge for intellectual propertywill be to equip all televisions, telephones, computers, music players and electronic books with chips that regulate the flow of copyrighted material. "Kind of like having V-chips for copyright," he says. When I download The Sound and the Fury into my electronic book, the ©-chip will register the transaction, speeding my payment to the copyright owner and invisibly encoding the record in my copy of the text. If I lend the novel to my sister bye-mailing her a copy, my e-book will erase the original copy, so that only one is in circulation. The software won't permit my sister to dump the text into any e-book without a ©-chip, so the copy will always remain within a closed circle. Similar rules will apply to videos, music, journalism, databases. photographs and broadcast performances-any configuration of zeroes and ones that can be sold and delivered by wire. Current, if primitive, examples of what Stefik calls "copyright boxes" include Nintendo machines, whose proprietary hardware is meant to ensure that only Nintendoapproved games work on them, and digital audio tape (DAT) recorders, which contain a chip that prevents the copying of previously copied tapes.

Copyright boxes could let copyright owners subdivide usage rights, creating new markets for information. If I want to download music by James Brown, for example, I could negotiate the terms at the Web site of his company, James Brown Enterprises.

By paying a little extra, I could obtain the right to send a copy of "Say It Loud" to my sister without deleting it from my computer.

By paying a little less, I could rent the music for a party next week, with the ©-chip expunging the music the morning after. I might buy a site license, so that everyone in the family could listen to

"Say It Loud." I might acquire only the right to listen myself, typing in a password to prove my identity every time I wanted to hear the Hardest Working Man in Show Business. Copyright boxes, Stefik says. "open up a lot of possibilities."

These possibilities, he concedes, will not be easy to achieve: "I don't see this as a debate about next week'" People may find ways to circumvent Š-chips; others may regard the chips as unworkably inconvenient. But perhaps the greatest obstacle. Stefik thinks, is attitude. A small but signi ficant group of technophiles scoffs at the whole idea of copylight boxes, believing that the Internet changes the role of intellectual property so much that the chips will be useless. Some Web denizens believe that the change is profound enough that efforts to safeguard copyright in the digital world actually work against the interests of a democratic society.

FREE SOFTWARE The first time I spoke with Richard Stallman, he took off most of his clothes. Clad only in his pants, he marched down a long, busy corridor in MIT's Laboratory for Computer Science. His destination was a room full of large computers, in which he had installed a NordicTrack exercise machine. In front of the exercise machine stood a big fan, which Stallman switched on. To keep the computers from overheating, the room was air-conditioned to about 20 degrees Celsius. When I mentioned the cold-catching potential of shirtless exercise in a frigid wind, Stallman replied that he did not like to sweat. Then he began talking about copyright. Still talking, he stepped onto the NordicTrack and began to exercise vigorously. The fan blew his long hair out behind him like a flag.

All the while he spoke with fluency, in neatly organized paragraphs, about copyright in the Information Age. Writers, he said, do not actually own their words. Computer programmers-Stallman is one-do not own a single line of their programs, and never have. Painters own only their canvases, and those only until they are sold. Far from recognizing any natural rights of authors, he said, copyright is a bargain between the public and publishers. in which the public consents to restrict its rights as a kind of bribe to publishers. "The Constitution doesn't care whether content owners

make money," Stallman claimed, puffing slightly.

"What's important is the public's right to learn."

I thought he was nuts. But the next time I spoke with him, I was contrite. I had since learned that many legal scholars share his views on the nature of copyright, and that he had devoted the past 14 years to putting his beliefs into practice. Richard Stallman is the only programmer ever to receive a MacArthur fellowship--one of the prizes known, to his embarrassment, as "genius" awards. Having created several essential programming tools. he could easily have cashed in. Instead he gave his work away and set up the Free Software Foundation, a loosely organized group dedicated to replacing proprietary software with programs that people can trade among themselves without copyright restrictions. A principal goal of the foundation is to attack current notions of intellectual property.

In the United States copyright was set up by a group of skeptics about copyright. The Founders knew how copyright had originated in Britain, and they didn't like it. In 1557 Queen Mary I gave control of all printing and book sales to a single guild, the Stationers' Company. Guild members bought manuscripts outright from writers and then had the exclusive right to print and sell them forever. The Crown even granted exclusive rights to print the works of long-dead writers like Plato and Virgil. In return the guild helped the Crown to censor "seditious and heretical books." Protected by its statutory monopoly, the guild charged such high prices that John Locke railed against "the company of ignorant and lazy stationers." Radically, Locke proposed that the guild should voluntarily allow anyone to publish writers who had been dead for more than a millennium. The guild ignored him.

Daniel Defoe led the charge to give writers some say in the literary trade. "A Book," he argued, "is the Author's Property, 'tis the Child of his Inventions, the Brat of his Brain." When publishers ignored writers' wishes, it was "every jot as unjust as lying with their Wives, and breaking-up their Houses." Parliament began withdrawing royal monopolies, whereupon the Stationers' Guild adroitly co-opted Defoe's call for authors' rights-booksellers would buy perpetual licenses to manuscripts, and everything would go as before. To the booksellers' dismay, Parliament agreed that writers should be given control of their works, but only for a limited time (14 years, with the option of renewing for another 14). The Statute of Anne. the first modem copyright law, was enacted in 1710.

The guild spent decades trying to recapture its monopoly. In a series of lawsuits booksellers argued that authors naturally own their works. that

I asked the man at a pirated-software store in a Hong Kong shopping mall if business was good.

"Yes," he said. He pointed to the crowd around us. "Better every day," he said.

booksellers can legitimately buy those works outright, and that the government cannot strip businesses of their property after 14 years or any other arbitrary length of time. The very notion, the wellknown jurist Richard Aston said, "is against natural reason and moral rectitude." Wait a minute, Samuel Johnson in effect retorted-if publishers own works forever, they can withhold them from the market, permanently diminishing the common store of knowledge. "For the general good of the world," Johnson believed, a writer's work "should be understood as ...belonging to the publick." Only in 1774 did the House of Lords declare that authors and publishers have no absolute property rights over their works.

To spur creativity, society dangles a carrot in the form of special rights to control distribution. The rights are temporary, meaning that the products of the mind always return to their real state: owned by no one, usable by everyone.

The Founders wholly approved. Products of the human mind "cannot, in nature, be a subject of property," Thomas Jefferson wrote. "He who receives an idea from me, receives instructions himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." Nonetheless, Jefferson saw benefits in awarding writers a short-term monopoly on their works. Monopolies were generally "among the greatest nuisances in Govelnment," James Madison agreed, but copyright was "too valuable to be wholly renounced." Anyway, if problems arose, it could always be abolished. Pamela Samuelson, an intellectualproperty specialist at the University of California at Berkeley, says that Jefferson, Madison and the other Founders regarded copyright as "a small evil done to accomplish a larger good." Like the Statute of Anne in Britain, the U.S. Copyright Act of 1790 gave writers of books, maps and charts a 14-year copyright, with the option of renewing for another 14.

The debate about whether authors and publishers owned literary works was far from over. Writers themselves, the Framers of the Constitution were sympathetic to creators' proprietary feelings. They admitted that writers own their work before it is published. So why is it no longer their property afterward? In the most important 19th-century legal treatise on copyright, Eaton S. Drone scoffed at the "absurd" notion that authors should automatically lose their property rights-it "cannot be defended on any principle." Mark Twain groaned, "Only one thing is impossible to God-to find any sense in any copyright law on this planet."

Sympathizing with creators, U.S. Congress has extended copyright to music, photographs, films, software codes, chip schematics, architectural drawings and many different kinds of "literary works." Although the Supreme Court consistently reaffirmed the primacy of the public over copyright owners, the distinction meant less as Congress heard the owners' pleas and gradually extended the length of copyright from 14 years to the life of the author plus 50 years. The copyright term was so much longer than the natural life of most books that, for all practical purposes, authors might as well have owned the rights in perpetuity.

Richard Stallman knew nothing of this when he began working at MlT, in the early 1970s. Programs had passed from hand to hand, with ingenious computer users like Stallman and his colleagues freely tinkering with and improving the code for the good

of all. By the end of the decade court decisions and legislation made software copyrightable, and computer-code software was increasingly under lock and key. "People were being stopped from changing, using and improving software," Stallman told me.

"They were forbidden to share."

In 1984 Stallman founded the Free Software Foundation, probably the first anti-copyright organization of the digital era. It spawned a movement. Today nonproprietary programs are used worldwide, though they are rarely encountered by ordinary people.

Few e-mail users have heard of Sendmail, for instance, although it routes and delivers most electronic mail around the Internet. Nor do most Net surfers know that half the "server" computers that make up the Web depend on free software called Apache. But the most important legacy of the Free Software Foundation may be something other than software: an abiding skepticism on the Internet about the sanctity of all intellectual property.

Perhaps the most widely known copyright skeptic is John Perry Barlow, who co-founded the Electronic Frontier Foundation, a civil-liberties group for cyberspace. Intellectual-property law "cannot be patched, retrofitted or expanded to contain digitized expression," Barlow declared in a widely read manifesto from 1994.

"These towers of outmoded boilerplate will be a smoking heap sometime in the next decade." Barlow's idea derives from his experiences writing for the Grateful Dead. Unlike most bands, the Dead allowed fans to record concerts and trade the tapes, which ended up increasing their audience. "Not that we really planned it, but it was the smartest thing we could have done," Barlow told me recently.

"We raised the sales of our records considerably because of it."

Expeliences like his, he said, show that copyright is not so much wrong as outmoded: "CopYlight's not about creation, which will happen anyway-it's about distribution." In Barlow's view, copylight made sense when companies had to set up elaborate industrial processes for "hauling forests into Waldenbooks or encapsulating music on CDs and distributing them to Tower Records." To make such investments feasible, unauthorized copying had to be stopped-that's why the Dead let fans trade homemade tapes of concerts but sent "nasty lawyers" after counterfeiters who duplicated and sold official recordings. In the future, Barlow told me, people will be able to download music and writing so easily that they will be reluctant to take the trouble to seek out hard copies, let alone want to pay for them. Musicians or writers who want to be heard or read will have to thumbtack their creations onto the Web for fans to download-free, Barlow insisted. Because distlibuting material on the Internet costs next to nothing, there will be no investment in equipment and shipping to protect. Record companies and publishers will be obviated, and the economic justification for copyright will vanish. Copyright boxes will be ineffectual: the Internet is not just full of people who scoff at copyright but also, as a practical matter, too large to police.

In 1993 Barlow and Mitch Kapor, the creator of the Lotus 1-23 spreadsheet, visited the Golden Shopping Centre, in Hong Kong. "Mitch, just as a thought experiment," Barlow recounted, "ordered the latest version of Lotus 1-2-3." The woman in the store told Kapor to come back in half an hour to get a pirated copy. Kapor told her that he had written the program. "The girl,"

Barlow said, "looked at him without the slightest trace of moral anxiety and said, 'Yeah, but you still want a copy, right?' " Some people may still try to control their works with copyright boxes, concedes Esther Dyson, a cyberpundit who puts out Release 1.0, an insiders' newsletter about technology. But they will have a tough time. Dyson has no truck with Stallman's notion that intellectual property is immoral. ("He doesn't have the right to say my property should be free. His can be free, if that's what he wants to do.") Nonetheless, she, too, believes that copyright will fade in importance. Even if creators can use Š-chips to forestall piracy, they will still have to compete for an audience with everyone else posting material on the Net-that is, with the entire world. Like television stations on cable systems with hundreds of channels, writers and musicians on the Internet will be so desperate for audiences that. Dyson says, they will be glad to be copied, because their increased notoriety will translate into lucrative personal-appearance fees. "It's a new world," Dyson says. "People will have to adjust."

Dyson's recent book, Release 2.0, sold for $25.

But in tomorrow's wired world, she believes, content providers will be paid for ancillary services or products. not for their works. "Maybe Steven King will post his books on the Internet-and start charging for readings. University professors publish works basically for free, and make money by teaching and by giving their institutions respectability with their names. Already some software companies are distributing software for free and charging for support. Consultants publish free newsletters in order to win clients." Not Dyson, though; she charges $695 a year for her newsletter, which is available only on paper and is delivered to subscribers by the U.S. Post Office. "It's not a mass-market thing," she explained to me. "It's not timely. it's timeless."

Even without charging for CDs. James Brown, a master of the stage, could survive by giving concerts. Less dynamic artists, the copyright doubters explain, would seek sponsors. After all, rich people paid artists to create the treasures of the Renaissance. "I don't think it's inconceivable that we can return to that," Barlow says. Corporations might package art with advertisements, the way Absolut vodka pays novelists to deck out its ads with short pieces of fiction that mention the company. "Look at the British Airways commercials," says Richard Saul WUlman, an "information architect" who runs the annual Technology, Entertainment and Design conference. a wateringhole for digerati. "Some of those ads fit all the def-

initions of great pieces of art. They move you in the way that you would say a great poem does, and they're advertisements for an airline. It's not such a huge step to a novel created by Coca-Cola."

"Most great works of art were not written for money." Dyson told me, explaining why she is not worried about artists' losing copyright revenues.

"Maybe I'm naive, but I think and hope that as this plays out, there will be less incentive for trashy stuff that is only marketed for money." In a world with little or no copyright "we could have more good things and be inundated by fewer bad ones."

Perhaps. But before embracing the loss of copyright it might be useful to consider what happened the last time a country, jettisoning all restrictions on literary property, let information go truly free.

INFORMATION ANXIETY Behind the prognostications of the anti-copyrightists is the assumption that we are living in a time of unprecedented change-a "radically new culture" created by the transition from "atoms to bits." in the words of Nicholas Negroponte. the head of the MIT Media Lab. The economic change wrought by the Intemet, according to Kevin Kelley, the executive editor of Wired, is "a tectonic upheaval in our commonwealth, a social shift that reorders our lives more than mere hardware or software ever can." The advent of the Web. Barlow told Harper's, is "the most transfomling technological event since the capture of fire."

Economists and historians tend to be exasperated by claims like these. "I do sometimes wonder where they get this stuff," Robert Damton, a historian at Princeton University, said to me recently. I wondered too. For instance, I asked Richard Saul Wurman about an intriguing assertion-"A weekday edition of the New York Times contains more information than the average person was likely to come across in a lifetime in 17th-century England"-that appears in extra-large italic letters on the first page of his book Information Anxiety.

"I forget where I got that, but I got it someplace." he said of this comparison, which has been repeated more than 200 times in the media since the book was published. "But it's easy to see that it's so. It's obvious." \-Vhen I described this exchange to Darnton. he made a noise that was the audible equivalent of hiking up his eyebrows. "Places like pre-revolu-

from the standpoint of society, a major goal of copyri ght is to smooth diversity's path, by giving creators special rights to exploit their work.

tionary Paris were just buzzing with all sorts of messages being exchanged through all sorts of media," he said. "It was highly wired, but without the wires." In the excitement of discovering faxes. e-mail and other new means of transmitting information, we forget that our ancestors used many other media that have now vanished.

Among lost ways of knowing, a favorite of Darnton's is the improvised political song that circulated through French cities, spreading the latest news like Baroque-era rap. "Children in the 18th century could sing songs about changes in government, royal mistresses and wars," he said. "Everyone could tell you a dozen political ditties based on one song." Worried about the plague of rhyming information, the government kept militating against the music of the streets. Talk today about the rising amount of information always refers to published documents, not private, irreproducible communications like these French songs. And who lives in a more meaning-saturated context, Darnton wondered: an American surfing through 50 channels of the same official press conference, or a Frenchman encircled by tunefully subversive variants on the day's events from a dozen different sources?

In his books The Literary Unde/ground of the Old Regime and The Forbidden Best-Sellers of Pre-Re1'0Iutionary France, Darnton has examined what took place as 18th-century France gradually lost the ability to restrict intellectual property--exactly what the digital pundits see coming today. Before the Revolution, all books, printers and booksellers had to have a royal stamp of approval. called a "privilege." In return for their lucrative monopoly, the French guild of printers and booksellers helped the police to suppress anything that upset royal sensibilities or ran contrary to their interests. Below the happy privileged few was a mob of underground printers, many across the border in Switzerland, who flooded France with pirated, pornographic and seditious literature.

And below them were the nation's thousands of writer~, most at the edge of starvation, trying to persuade underground booksellers to commission a scurrilous pamphlet, a collection of dirty poems, or a tract promoting atheism.

The bread and butter of the outlaws was pirating privileged works, especially bestsellers like the novels of Marie-Jeanne Laboras de Mezieres Riccoboni, a kind of ancien regime Danielle Steel. "When she put out a new novel," Damton says, "the pirates bribed workers at the [privileged] presses to give them freshly printed sheets." By cutting books into pieces and resetting each piece on a different press, the pirates often got their wares on the streets at the same time the legitimate edition appeared-an 18th-century version of the instant piracy that today's publishers fear will happen when books are available electronically. Darnton estimates that before the Revolution "about half' the books in France were illegal.

Nobody was happy. Privileged booksellers dett ed the underground, the underground loathed the privileged booksellers, and the government wanted to quash both the overweening guild and the pornoseditious underground. In 1777 the King threatened the monopoly by reducing the duration of publishers' privileges to the lifetime of the author. After writers died, their works would go into the public domain and anyone could print them. Like the British Stationers' Guild, the French booksellers fought back, cloaking .their self-interest in the claim that the decree trampled on authors'

rights to own their works. Once a writer sold a book to a publisher. the guild insisted, "No authority can take our property from us and give it to someone else."

The booksellers made this argument in January of 1789. just before Paris was engulfed by insurrection. Seven months later the revolutionary government ended the prtvilege sys.tem. No more restrictions: information was free. and anyone could print anything. The result? "Cultural anarchy:' according to Carla Hesse. a historian at the University of California at Berkeley. As Hesse recounts in Publishing and Cultural Politics in Revolutionary Paris, liberation from copyright turned every bookseller into a pirate.

Incredibly, identical versions of the same journal came out-the same headlines and articles printed by different publishers.

Trapped by his own advocacy of unfettered speech, Louis Prudhomme, the owner of the newspaper Revolutions de Paris, had no recourse when another Rh'olutions de Paris appeared.

Serious books, which have ever taken longer to sell, were especially vulnerable to piracy, and publishers stopped issuing them.

Instead they produced gossipy, libelous pamphlets, which flew off the shelves before anyone could counterfeit them. As for the great texts of the Enlightenment, Hesse writes, "once legalized and freed for all to copy and sell:' they "fell out of print."

Enter Marie-Jean-Antoine-Nicolas de Caritat, Marquis de Condorcet. Mathematician, philosopher, education refornler. passionate advocate for science and rationality, Condorcet greeted the Revolution jubilantly despite his aristocratic background. As far back as 1776 he had disputed the notion that authors could own their work. If someone plants a field. Condorcet said, the land can't be used by anyone else; but a writer's words can be used by millions of people without being lost to the originator. Anticipating the visions of digitophiles today, Condorcet limned a utopia in which the citizenry manipulated and circulated infonnation with absolute freedom. Confronted by the reality that lifting all restrictions on literary property had triggered a cultural race for the bottom, the marquis changed his mind. Early in 1790 he proposed giving authors power over their own work lasting until 10 years after their deaths.

The proposal-the basis for France's first modern copyright lawpassed in 1793, by which time Condorcet had been purged by the Revolution. He died in prison a year later.

Geoffrey Nunberg, a linguist at Xerox PARC and Stanford University, thinks that what happened in France helps to illustrate, among other things, today's confusion about the word "information." After the Revolution the sum of printed material in Paris soared, but that didn't mean there was more infOlmation. For centuries "information" was an innocuous noun that meant "news" or "instruction"--data that meant something. Nowadays the word. a mantra for Internauts like Barlow. Dyson and the editors of Wired, has acquired a talismanic power, conjuring up a mysterious domain in cyberspace, filled with irreducible atoms of data, that is somehow the key to power, riches and fame. The word acquired its technological aura in 1949, when Claude Shannon and WalTen Weaver published The Mathematical Theory o{ Communication. the book that popularized the term "information theory." People came to think that bits-the "information" in information theOI'y-are the same thing as the "information" that the telm ordinar-

ily describes. But they're not. "Infom1ation theory is about things like channels and noise and how many bits it takes to transfer texts over a noisy channel," Nunberg says. "It has nothing to say about content."

In other words, digital technology may put transcripts and video clips of The Jerry Springer Show on thousands of Web sites, but that doesn't increase the world's store of meaning. Condorcet's aboLlt-face on the value of unfettered speech suggests that Americans should be careful about allowing the laws of intellectual property to weaken and fail: the debate essential to democracy depends on the national supply of substantive facts, argument and expression, not the per capita quota of zeroes and ones.

COPYRIGHT LOCKJAW Software manufacturers hide licenses inside the box because shopkeepers and customers alike would rebel against their terms if they were clearly stated at the time of sale.

I do not mean to suggest that ephemeral outrages like Jeny Springer are the problem. I'm sure that the hundreds of college students in my town who converge in domlitory lounges to hoot ironically at his show are having an aesthetically complex postmodern experience. The problem in post-privileged France was not the shallowness of what was produced (not that it was cause for joy either) but its homogeneity. Tabloid TV is okay, but not if all TV is tabloid TV. I emphasize this because I want to avoid anti-Web overtones. It doesn't take long on the Web to encounter the notion that the fat old-media dinosaur is at all costs trying to silence the vox populi whooshing through the wires of new media. Old media just don't get it-that's the new-media refrain.

An exemplary scene of communication failure occun'ed when I asked Esther Dyson about the social scientists who question her belief that we have more infomlation today than ever before. After all, having access to more data in the office doesn't necessarily imply that the worldwide sum of data is growing too. "Pardon me, but they're wrong," she said. Her tone suggested that she was exasperated at my denseness. "You couldn't sit in your office and get the things you need-it is very different today, I'm SOllY We're talking about hundreds of thousands of different people trying to push information on the Web." But if the global network is replacing the knowledge of previously disparate cultures with a single reference point, it could actually be diminishing the total.... "Pardon me, but infonnation is

growing," Dyson said. "We're in a radically different time now. It just is different." Then she asked if I had another question.

"The technology has changed," Hal Varian, an economist who is the dean of the School of Infomlation Management and Systems at Berkeley, acknowledges. "But that doesn't mean the laws of economics have been repealed." Varian and Carl Shapiro, another Berkeley economist, are the authors of Information Rules, a forthcoming guide to the "durable economic principles" that underlie the new technology. Yes, Varian says. the Internet means that content providers must compete for audiences in a new medium. But the situation is "hardly unprecedented." Businesses have overcome such problems in the past. Dyson's proposal that software finns give away programs and charge for every support call is "like the old story of giving away the razor to sell the blade," says Stanley Besen, the economist at Charles River Associates." othing really strange there."

Although such economic strategies have been around for decades, the authors of computer programs, newspaper articles and books have seldom employed them-or at least not with happy results.

If software companies made their money by charging for every support call, they would lack the incentive to produce reliable, easy-to-use products.

If editors of newspapers and magazines had to depend solely on advertisements and sponsorship, they would be even more vulnerable to conflicts of interest than they already are. If novelists had to make their living from public performances, Thomas Pynchon and J.D. Salinger would be penniless, and Salman Rushdie would be dead.

Content providers have instead relied on two other time-tested strategies. One is to shout for attention-as the Fox network does when it broadcasts videos of wild-animal attacks, or Matthew Drudge does when he prints lurid rumors about political figures in the online Drudge Report. A second strategy is to try to produce works with some special quality, and thereby attract a small, loyal audience. Highbrow artists adopt this method, and so does almost everyone who isn't purveying animal-attack videos: Charles Wuorinen, the atonal composer, and R. Crumb, the underground cartoonist, are two examples. This strategy produces most of the diversity. From the standpoint of society, a major goal of copyright is to smooth diversity's path, by giving creators special rights to exploit their work. If copyright becomes meaningless, the durable economic principles Varian speaks of will make it almost impossible to create works for small, specialized audiences, and an aw-

ful shrieking homogeneity will beset the culture.

Copyright works for the public good in another, equally important way: it prevents content owners from locking up the raw materials of culture. Too little copyright protection can be bad, but if copyright is overly strengthened-if what legal scholars like to call its "delicate balance" is disrupted -we face a different peril. What is that? I've found the prospect hard to describe to friends, because there aren't many familiar historical analogies.

Sometimes I call it Clickwrap World. Sometimes I call it 1984™. Whatever the name, it's what government and the copyright industry seem to be giving us. Alas, proposed changes in intellectualproperty law that are now before Congress and the states have the potential to make the Internet every bit as revolutionary as the cyberpundits say.

CLICKWRAP WORLD Copyright should not impede artistic efforts to explain our times.

Nor should we let it interfere with the relation between producers and consumers of art.

David Nimmer has a story. Imagine the year 2010, he says. The last Barnes & Noble-WaldenBorders-Broadway store in the United States has just closed. Now no offline book, music or video stores remain, except for a replica bookstore in Disneyland. Anyone who wants to obtain poems, essays or novels must download them from the Internet into an electronic book. Anyone who wants to watch a movie, listen to recorded music, or look at a reproduction of a painting must download it into the appropriate copyright box. But before getting books, music and films, people must first click on the "OK" button to accept the terms of the ubiquitous standard download contractthe "Gates from Hell Agreement," Nimmer and two co-authors call it in an article in the California Law Review.

The agreement prohibits the contractee from letting anyone else view the copyrighted material. If problems surface, the agreement authorizes private police officers to descend on users' houses to check for illicit printouts and copies. Should search victims whine about unwarranted search and seizure, the courts reply that they freely signed away those Fourth Amendment rights by clicking the "OK" button.

"Crazy, isn't it?" Nimmer says of this scenario.

"But that's what they're talking about." A former federal prosecutor, Nimmer is now at the Los Angeles firm of Irell and Manella, and is an author, with his late father, of Nimmer on Copyright, a widely cited treatise. A lawyer who represents entertainment, publishing and technology compa-

nies, Nimmer is an advocate for the rights of copyright holders. Yet he is greatly distressed by some of the proposed legislation. "You're talking not about copyright but about an attack on copyright," he says. ''I'm extremely bothered by where we might be heading."

Because the copyright industry has energetically campaigned for protection against illicit copying, U.S. Congress is knee-deep in copyright bills. One of the most important would bring the United States into conformity with a treaty adopted in 1996 by the World Intellectual Property Organization (WIPO). WIPO administers the Berne Convention, an international-copyright agreement enacted in 1887. The WIPO treaty, which is universally lauded, asks signatory nations to "provide adequate legal protection. against the circumvention of effective technological measures" against piracy. To implement this request, the Clinton Administration and many prominent Republicans have backed legislation that bans making or using any device that can evade any method of copy protection. In making the vague language of the treaty harshly specific, the Administration set off an explosion of protest.

Proponents of the legislation, who range from Jack Valenti, of the MPAA, to Mark Stefik, of PARC, regard it as essential to fighting piracyunless evading copyright protection is made illegal, copyright boxes will be futile. New "cable modems," Valenti says, "can haul down a two-hour motion picture in about two minutes. If we don't have a protective shield around our encrypted material, I don't have to tell you how dangerous that will be." Opponents such as Adam Eisgrau, of the American Library Association, and Pamela Samuelson, the Berkeley law professor, believe that the proposed legislation is more sweeping than needed to implement the treaty. Today students can go to the library, photocopy maps from an atlas, and hand in the copies with their homework. Such private, noncommercial copying is traditionally known as "fair use." If the electronic atlases of the future have Š-chips that make any copying impossible, libraries may not be able to help students in the same way without breaking the law; the penalties for circumventing copyright protection will apply even to fair use. One proponent, Allan Adler, of the Association of American Publishers, says that carving out exemptions for libraries and home users will give the legal go-ahead to manufacture devices to beat copyright protection, which will make the ban useless. Publishers will not abuse their sweeping new powers, he says, because they will have to compete with other publishers who

can offer books on more-favorable terms. Eisgrau argues in return that the technology is changing so rapidly that no one can predict the conditions of tomorrow's market. "So why put architecture into place that encourages abuse?" he asks. The Senate passed the implementing legislation in May 1998 by a 99-0 vote. But in the House the two sides. each driven by its own fear of the future, have been skiJ1l1ishing bitterly in committee. The fight continues.

By a voice vote in May 1998 the House did, however. pass a separate major copyright law: the Collections of Information Antipiracy Act. which makes databases copyrightable.

In 1991 the U.S. Supreme Court ruled unanimously that a company can copy a competitor's entire telephone directory without infringing copyright. because facts cannot be copyrighted. and the listings. though expensive to collect. are just facts. Economists decried the decision. which reduces the incentive to create databases. The database industry begged Congress for help. Opponents continue to fear that in the long run the Collections of InfOImation Act will effectively make the facts in databases copyrightablea big mess for everyone, especially reporters.

Remember the remarks from Samuel Johnson and Daniel Defoe cited above? As is common journalistic practice. I lifted them from someone else-in this case Mark Rose. of the University of California at Santa Barbara. who spent countless hours scouring 18th-century periodicals in researching his book Authors alld Owners: The fll\'emion of Copyright. My failure to attribute the quotations to Rose was discourteous but not illegal-fair use applies. If Rose had assembled those quotations into a database of pithy remarks about copyright, matters might change. Although the database-anti piracy act specificall y allows journalists and researchers to use isolated facts from databases without permission, opponents believe that the new law. by permitting prosecution. will make reporters and scientists reluctant to cite facts.

"Here we are. privatizing a large chunk of the world of fact.路' says James Boyle. a copyright specialist at the Washington College of Law at American University, "and The New York Times hasn't even written a story about it." The Senate has not yet considered the House bill.

Yet a third congressional action would extend the teJ1l1Sof copyright to the life of the author plus 70 years. the length now common in Europe. The proposed legislation would also protect works owned by corporations for as long as 9S years. The extension is fervently backed by the estates of songwriters. including Oscar Hammerstein II:

without it. "01' Man River" and other songs from the 1928 musical Show Boat. with music by Jerome Kern. might go out of copyright in 2003. To Hal Varian. of Berkeley, the extension doesn't make economic sense. because people generally discount future prospects; lengthening the term after death will not greatly motivate innovation.

Especially odd. in Varian's opinion. is the plan to grandfather in material that has already been created. In costbenefit temls, giving the company a longer time to use the material simply extends its monopoly without much offsetting benefit to the public. Neither the Senate nor the House has voted on the bill.

When these proposals appeared. in 1997. they aroused violent opposition from what Barlow proudly calls "a ragtag assembly of librarians, law professors and actual artists." He adds. "This will sound hyperbolic. but I really feel that the copyright industry. its congressional supporters. and the Clinton Administration were trying to propose that if you read a book, you were making a copy in your memory and should therefore pay a proper license." The underlying legislative problem is that "the movement is all in one direction."

James Boyle says. "There's no movement to contract copyright terms or increase fair use. And that isn't even starting to talk about Article 2B." In intellectual-property circles "Article 2B" is shorthand for proposed changes in that portion of the Uniform Commercial Code (UCC). The primary body of commercial law in the United States. the UCC traces its origins to the late 19th century, when representatives of the states. worried that Washington would preempt local governmental power. convened and agreed to draft standardized laws that would settle many interstate confusions and also keep Uncle Sam away. After enacting statutes governing areas such as divorce. stock transfers and business partnerships. the states ambitiously decided in the late 1940s to create a comprehensive national framework for buying and selling. Since 1974 the Uniform Commercial Code has held sway in every state (Louisiana hasn't endorsed all of it).

Article 2 of the UCC governs sales. If a customer in a store selects and pays for a shirt without exchanging a word with the salesclerk. can the shirt be returned because of a defect? Yes, because the transaction is covered by an implied contract. and the terms of that contract are set out in Article 2. Buyers automatically get an "implied warrant of merchantability"-a promise that the merchandise is fit for ordinary use.

Naturally. some businesses would rather not accept returned goods. To avoid Article 2. they must

The intellectual property regime is being overhauled by lawmakers in the United states. How we do it, according to the logic of the founding fathers, wi II playa big role in our future well-being.

disavow the warrant of merchantability.

Conspicuous signs saying ALL SALES "AS IS" will do the trick. ote the "conspicuous"the disclaimer can't be hidden. The annals of state courts are littered with suits in which sneaky sellers hid disclaimers in the glove compartments of cars or within packages of seeds.

Invariably, the merchants lost.

Now consider a customer who selects and pays for a computer program without exchanging a word with the salesclerk. Thinking that the software can be returned if defective, the customer drives home. opens the shrink-wrapped box. and-what's this? Inside the box is a limited wan'anty and a license agreement. The warranty for my copy of Windows95, for instance, disclaims all "implied wan'ants of merchantability."

Does this absolve Microsoft from Article 2? In 1991 the federal appellate judge John Wisdom said no. "Shrinkwrap licenses," as they are called, change the terms of the implied contract after it has been negotiated, violating the Uniform Commercial Code.

Manufacturers hide licenses inside the box because shopkeepers and customers alike would rebel against such terms if they were clearly stated at the time of sale. Despite the potential for alienating customers, the industry believes that the licenses are an essential weapon in the war against piracy. (" onsense," Nimmer says. 'This law called the Copyright Act gives them all the protection they need ...) Software producers also say that programs are so complex that they cannot be offered at a reasonable price with warranties of usability. Hence the dismay with which software companies greeted Judge Wisdom's decision against shrink wrap licenses. In 1996 another federal judge, Frank Easterbrook, ruled that the licenses were legitimate. But the conflicting decisions left the companies keen to overhaul Article 2.

An additional motive was the emergence of "clickwrap" licenses-the interposition of an onscreen disclaimer and an attendant "OK" button that users must click to accept its temlS before downloading intellectual property from the Web. Click wrap licenses. too. are controversial, because buyers cannot conceivably negotiate their terms. Such contracts have frequently been ruled inval id. Although a federal judge in Cal i Fornia, relying on Easterbrook's shrinkwrap decision, decided in April 1997 that

clickwrap agreements are enforceable, the software industry wanted the new Article 2B to remove all doubts.

In plain language, the proposed Article 2B legitimizes both shrink wrap and click wrap licenses. This in itself upsets consumer advocates. What dismays David Nimmer and other experts is that the licenses have already been used to claim such wide-reaching rights that their general application could have a major impact on the culture as a whole. "People don't understand what's going on, because it's software, and software is strange stuff to them." says Cem Kaner, a software developer and lawyer in Santa Clara, California. "But it's exactly the same as buying a book and being told that you can read il only in one room of the house and can't lend it to friends."

Microsoft Agent is a program that makes cute little animated figures. The license not only tells customers they can't "rent, lease or lend" the program but also informs them that they have no right to make the Figures "disparage" MicrosoFt. McAfee VirusScan, the leading anti-virus software. has a license term that is every writer's dream: nobody may publish a review of the program "without prior consent" from the company. But even that is surpassed by Digital Directory Assistance, maker of PhoneDisc, a CD-ROM containing millions of phone numbers and addresses. According to the license. the software can't be '路used ... in any way or form without prior written consent of Digital Directory Assistance, Inc." If agreements like these govern electronic books in the future. the 漏-chip inside will not permit the text to be transmitted unless the customer first accepts the click wrap license. Because current licenses typically forbid copying or lending intellectual property, Nimmmer fears that copyright owners will end up with all the protections of copyright while the public is forced to surrender its benefits-especially the right to lend privalely or copy within the limits of fair use the expressions of others. Any reader who wants to challenge the licenses for ovelTeaching copyright will be forced into litigation-a situation that inevitably redounds to the benefit of large companies that can afford to pay legal fees. "It's an end run around copyright," Nimmer says. "It provides a mechanism to put a stranglehold on information. and that in itself is a bad idea."

I submit that it is even worse than he thinks. Copyright, accord-

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ing to Martha Woodmansee, an English professor at Case Western Reserve University, is implicitly based on the "romantic notion of the author." During the Renaissance, she explains in The Author, Art and the Market, writers generally considered themselves vehicles for divine inspiration, and thus not entitled to benefit personally from their work. "Freely have I received," Martin Luther said of his writing, "freely given, and want nothing in return." In the 18th century the book trade grew; some writers changed their minds about making a living from the pen. Justifying the switch, the German philosophers Johann Fichte and Immanuel Kant evol ved the image of the artist as a sovereign being who creates beauty out of nothing but inspiration.

This picture, though lovely, is incomplete. Artist~ often combine the materials around them into new forms-inconveniently for copyright, which assumes solitary originality. As the critic Northrop Frye put it, "Poetry can only be made out of other poems; novels out of other novels." Shakespeare derived some of the language in Julius Caesar from an English translation of a French translation of Plutarch; he followed a printed history so closely for Henry V that scholars believe he had the book open on his desk as he wrote. In this century Eugene O'Neill gleaned Mourning Becomes Electra from Aeschylus. Charles Ives was an inveterate borrower; in his Fourth Symphony the second movement alone quotes at least two dozen tunes by other composers. Andy Warhol filled galleries with reproductions of Brillo boxes, Campbell's soup cans, and photographs of Marilyn Monroe. And so on.

Warhol's place in art history is uncertain, but in one respect he was right on target. In a time increasingly dominated by corporate products and commercial media, the raw materials out of which art is constructed seem certain to include those products and media. In the 1940s little girls bonded emotionally with anonymous dolls and had elaborate self-transformative fantasies about Cinderella, whose story they might have heard from their parents. Today girls bond with Barbie ™ and dream of the broadcast exploits of Sabrina the Teenage Witch™. Fans fill the Internet with homemade stories about Captain Kirk, Spiderman and Special Agent Fox Mulderskewed, present-day versions of the folktales our forebears con-

cocted about Wotan, Paul Bunyan and Coyote the Trickster. Five hundred channels watched six hours a day-how can art that truly reflects the times ignore it?

Copyright should not impede artistic efforts to explain our times.

Nor should we let it interfere with the relation between producers and consumers of art. Any work of art is a gift, at least in partsomething done not purely from motives of calculation. Knowing this, people approach works of al1 in a more receptive state than they do, say, advertisements. The same people who would unhesitatingly copy Microsoft Word at their jobs, the novelist Neal Stephenson said to me recently, "would no more bootleg a good novel than they would jump the turnstile at an art museum." Stephenson, the author of The Diamond Age, a witty, imaginative science-fiction novel about pirating an electronic book, and the forthcoming Cryptonomicon, believes that in the long run this relationship of respect and trust is the only safeguard that works of art have. It is also the reason they are worth safeguarding. What will the act of reading be like if evelY time I open a book I must negotiate the terms under which I read it? The combined changes in copyright law could lead us closer to what Michael Heller, a law professor at the University of Michigan, calls "the tragedy of the anticommons," in which creators and writers cannot easily connect, because they are divided by too many gates and too many tollkeepers.

It seems unlikely that in the foreseeable future all ties will be severed. But opposing pressures from the Internauts who want to open copyright up and the software companies and publishers who want to clamp it shut presage major change in the way our culture is created and experienced. Unfortunately, as Hal Varian points out, we will be changing laws today to fit a tomorrow we can as yet only guess at. The likelihood of guessing correctly now, he says, is "close to minima!." Yet it's easy to feel the pressure to make-and forcedecisions right away. As I write this, knowing that I am close to finished, I realize what will be one of the first questions my editors ask: whether they can put this article on the Web. D About the Author: Charles C. Mann is a Massachusetts-based contributing editor of Atlantic Monthly.

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