The Napster Revolution and the Law

Intellectual property is the glue that holds together the suddenly antiquated corporate order

When a French mob a few thousand strong stormed the Bastille in 1789, it was the start of a revolution that swept away the ancien regime of nobles and king, marking the death knell for feudalism. In 2000, with Napster and its ilk, Internet users more than twenty million strong are storming another bastion of what is now the old regime. All they are doing is exchanging music that can be found in one another's collections. But by that they threaten to undermine corporate control by means of intellectual property laws.

Soon perhaps, the once mighty record companies will lie in ruins, no longer able to restrict what may be listened to, no longer able to determine musical tastes. And the revolution may soon spread much further than that, for intellectual property is the glue that holds together the now suddenly antiquated corporate order.

As in the French Revolution, today's stripping away of power, however it ends up happening, is all but inevitable, even - you could say - necessary. Who will benefit the most is a different question. In the aftermath of 1789, it wasn't the masses themselves who came out on top, in a democracy of equals; instead it was the bourgeoisie, the merchants and factory owners - the employer class. Today the winners in the Napster wars may turn out to be less the fans themselves than the stars whose sounds they are rushing to hear.

Napster, of course, is an easy-to-use combination of website and software, devised about a year ago by a nineteen-year old. With it, all those with any digital audio works stored in their computers can pool what they have into what amounts one giant library of all recorded sound. Anyone tied in can search for and then download and listen to just about any piece of music, talk, or noise ever recorded, including versions and works not obtainable in shops or catalogues. In this entire process, no money changes hands.

Napster isn't the only software around for allowing the free sharing of music; Gnutella, Scour, Freenet and a number of others each work differently but have much the same effect. And if advances in Internet bandwidth and related technology continue as expected, soon the quality of music or even video exchangeable may be as good as that on the best CD's or theatrical films. While low sound quality and convenience now induce many Napster users to buy CDs of the music they've first heard via the Internet, those won't remain significant motives for buying.The record companies are right to quake with fear.

Of course, these giant firms are not just quaking, but mounting an all out counterattack, trying to utilize law courts, police powers, encryption technologies, and whatever else they can think of. The main focus of their attack on Napster now is a lawsuit calling for Napster to be shut down, which already has come very close to success. Their case is based on the straightforward argument that unauthorized copying of what is copyrighted amounts to theft.

(Though the argument itself is straightforward, the extension of the standard copyright law it requires is anything but. Up to now, copying for non-commercial purposes was generally permitted, and quite common, as when one tapes a CD track to assemble a preferred score for dancing or exercising. Also, if you happen to have a record or CD, the copyright laws do not forbid you from playing it as loud as you like, for the benefit not only of friends, but even passing strangers. Napster merely extends those rights.)

How to tell who is right

So the question is: Does Napster facilitate stealing, as the record companies and many musical artists think? Or are its proponents right that it simply allows what is natural? As John Perry Barlow elegantly put it in earlier days of the Internet, "information wants to be free." But the problem with both sides in this dispute is that they take for granted that claims about the nature of property lie outside history, as would-be eternal truths - as laws of nature. Information doesn't, by itself, want to be anything; likewise, the birds and bees and flowers know nothing of copyright.

A far better way to make sense of the Napster controversy is to see that notions of property are human constructs, and have evolved in history, just as economies have, and, in fact, with them. Repeatedly, old forms have given way to new ones that operated quite differently,just as feudalism gave way to market capitalism.

These days, after the fall of the Soviet Union, some argue that we have reached "the end of history." How can we believe that claim, in the light of the rapid changes we witness and take part in daily, including Napster? On the contrary, we have excellent reason to think we are in the midst of a huge historical change, one that is as deep as it is pervasive, one that can undermine most of the economic laws we take for granted. Where we will emerge, we ought to expect, is like nothing we have ever known before.

The very fact that we now have an intensifying debate over property reveals how far the economic changes have already come. A debate between different notions of property is also inevitably a struggle over the nature of the whole social order and what it will take to be a member of the class that dominates it. By the time that struggle breaks into the open, much of the new development has already occurred. By then, many in society feel a new ease with the new kind of property; a simple way of dealing with it that would seem very natural if only what was left of the old institutions didn't continue to dominate thought.

In 1789, upstart but already pretty strong capitalism was sweeping out the no longer needed nobility, whose restrictions on trade, such as duties levied by every noble, had slowed capitalist advance. In 2000, what I call the attention economy is already strong and beginning to peel away its outmoded corporate cover, in favor of a system in which those who receive more attention than they pay dominate those who pay more attention than they receive, or, in other words, stars enthrall fans. Most simply put this change is occurring because in Western Europe, the United States, Japan, and other advanced regions, material goods, abundant as a result of mass production, are less scarce and thus less important than attention itself.

The earlier struggle between economic systems - or rather, between their chief beneficiaries - was prolonged, complex and often confusing. We should expect the same of the current one.

In the eighteenth century, what was then the old notion of property centered on the inherited feudal rights of the nobility, which had become increasingly cumbersome in practice. The new then was the simple ownership of commodities, meaning anything that could be bought and sold at will, including material goods, factories, and land. It's still true today that when we think of property, the examples that would come to mind first would likely be any of the huge variety of material goods that one can own. Accordingly, everything that is property is supposed to have some worth, some definite value on the market, because it goes without saying that anything that can be owned is also sellable for some price. Natural as that may seem to us, it wouldn't have seemed so at the height of Western European feudalism many hundreds of years ago.

The old,old ways give way to the old ways

In those heights (or should I say depths?) of feudalism, not much most people had or even aspired to could normally be sold, or would have found any market if it were put up for sale. Land, castles, churches, hovels, their ordinary furnishings, and most home-produced foodstuffs, titles of nobility, feudal loyalty, the peasants who resided on the lord's domains, these were all in a sense property, not to be sold, however, but only to be used or passed to down succeeding generations.

Even more important were the rights held by members of the nobility, such as the right to the services of a vassal, or lesser noble, and the right to establish a new person and his male descendants as new noble vassals. Property rights were thus rights less of possession than of "blood," privileges that accrued to you because of your descent and nothing else. What mattered was not the things you possessed but the privileges you were entitled to and so could bestow on your lessers and their descendants. Theft then was less a worry than cuckoldry, bastardy, or defeat and disgrace in battle.

Once the feudal order was widespread and firmly in place, it's success meant peaceful conditions that allowed the slow rise of commerce. Though noble protection and patronage was vital for most merchants and makers of goods at the beginning, it slowly became more of a handicap. The nobles were not particularly suited by training to prosper themselves in the new endeavors, so they attempted to capture the new wealth through application of their old privileges, by raising customs duties, taxes, and any other means they thought up. That was what eventually came to feel like a dead weight and helped incur popular wrath.

The divine right of copyright

Oddly enough, what we now think of as intellectual property arose in that same process. We tend to think of copyright, say, as fundamentally an issue of fairness to authors, musicians or other artists: they get to control what they created. In fact copyright first entered law in the early modern period, when the vestiges of feudalism were still powerful - including the notion of the divine rights of kings. Because they had all power, and implicitly owned everything, according to the feudal system, kings, could if they wanted delegate some of their infinite rights (or rather, privileges) to whichever of their subjects they chose. They could grant land, noble titles, and state-backed monopolies in any area of trade, and then the power of the state as representative of the monarch would be there to back up and enforce this grant.

As the historian Adrian Johns demonstrates in his hefty tome "The Nature of the Book," copyright was first established by English monarchs of the seventeenth century, shortly after printing had started as a business. It belonged not to authors but to particular master printers or booksellers, who obtained rights to print certain works through their guild, the Stationer's Company. It was the latter to whom the king had granted exclusive rights to do all private printing and bookselling, and copyright devolved from that grant. Copyright went hand in hand with another power of the king - censorship. Unlicensed works would include both "pirated" editions and those that were banned by the royal censors, so that the same agents would hunt down both sorts of violation.

Thus copyright began as a power exercised by the strong state, a holdover from the feudal period, which is normally considered anathema to the free market. Even more in its modern form, intellectual property can only be enforced by a state's power and invasiveness. Only in a situation such as the present, when one superpower dominates the world, can intellectual property truly be enforced outside the boundaries of the particular state that grants the right in each case.

One sign that copyright as well as patents and trade secrets remain a feudal-like grant of rights, rather than something normal and natural in the world of commodities, is the arbitrariness of their duration. Copyrights now last for the life of the author plus seventy-five years, while patents last for twenty years. Why these times? By what rationale would half as long or twice as long, or forever or no time at all not be more natural? Both the durations currently in force were chosen by legislatures, as successors to kings. In this, intellectual property rights are quite different from ordinary property under the reign of free-market ideology. Under the latter, when you buy or make something, it is yours to do with what you will and to dispose of as you see fit. You can keep it as long as you want, or pass it on to heirs in perpetuity (barring estate taxes).

Intellectual property not only has time limits, but it cuts across the enjoyment of ordinary property. If you buy a chair or a tomato, you can photograph it from any angle, and do whatever you want with the photos. if you buy a book, on the other hand, copyright law forbids you to photograph or photocopy the pages and do what you will with the results.This clash with the more standard laws of marketable goods once again illustrates the anachronistic character of intellectual property as a leftover feudal-like constraint, granted by a monarch.

What of those who argue as if copyright stems from an inalienable and "natural" right of an artist to control the future of his or her work? According to that thought, if you own the copyright to a story you've written, you ought to be able to prevent its appearing with illustrations you think go against the spirit you intended. In point of fact few publishers of books or music honor such a notion, and if this right did exist, it would be quite out of keeping with the realities of free-market workings.

For why shouldn't it be extended not just to the work of recognized artists (recognized by whom? only the state, evidently) to all kinds of goods made by anyone? If I work in a spoon factory, why shouldn't the use of the spoons I make be restricted to what I think appropriate? Or if I am a farmer, why shouldn't I be able to control who eats the food I grow, and to what uses they put the energies they get from it? If I happen to be a pacifist for instance, shouldn't I be able to forbid my crops being used to feed soldiers? Or if I am homophobic, shouldn't I be able to forbid gay people eating them?

As these examples suggest, the idea that the maker of anything could enforce her will on the subsequent consumers is entirely at odds with the basic ways that markets work, and with the idea that once something is bought, it becomes the private property of the buyer, with the notion of privacy including the right to do what one wills with it. Not surprisingly, no modern, capitalistic state has ever granted general rights remotely like that version of full protections for artists. While such notions may seem consonant with the intellectual property laws that hang on as feudal remnants, it would be more accurate to view honoring the artist as an echo from the future - the period of a full-scale attention economy, for it is, as I will argue, a view that goes along with the homage fans owe to stars,

A time for things

In 1789, just a hundred days before the fall of the Bastille, the United States Constitution went into effect. A document striving to be modern, it explicitly and bravely forbade any titles of nobility, This country's later success argued strongly that any need for feudal relations was over. Still the document handed mostly to the Congress many of the privileges that had recently been assumed to be the divine right of kings. One of these is to be found in Article II, section 8 which enumerates many of the Congressional powers.

Paragraph [8}, coming just after a paragraph allowing the establishment of post offices, allows that Congress shall have power "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." This formulation makes clear that intellectual property remains a prerogative of the state, exercised for reasons of the state - in this case to promote "progress." There is nothing suggesting any inherent right of artists to control the future destiny of their works.

This passage in the US Constitution had to fit into the larger themes of a document that as much as any helped propel and endorse the new concept of property rights vested in buyable and sellable things, a world made as free as possible for commerce. These things of course were made primarily in workshops and a little later in factories, factories that would grow in size and complexity, but still for a long time produced mainly standardized, material, things.

Intellectual property laws once fitted roughly but comfortably into that general category because they were enforced, spottily, only by control over the material outputs of workshops or factories. When copyright was first introduced, for instance, and for long thereafter, copying a book entailed the laborious process of resetting the type from scratch, a considerable labor which was hard to hide - it would show up in the finished products, for even pirated books were still very evidently material things, material products.

While preservation of intellectual property rights in that sense was difficult, in that period it was manageable to some degree because it only required a knowledge of what was on sale on the market. The origins of most products of this kind, even illicit ones, was most often not hard to work out. The printing workshop or factory behind a pirated work would be easy to spot, if not by an actual stock of the books themselves, then by matching the peculiarities of the type used to that in the typesetters' cases.

Mind control

But surveillance only over things in the market place has little to do with what is currently imagined to be special about intellectual property as such. Trademarks, patents and copyrights are considered property of an intellectual kind because the laws that enforce them are ultimately supposed to protect ideas, thoughts, and other mental creations. That is why it is considered a violation of copyright to issue an audio tape of a novel without approval, even though the tape bears no physical resemblance whatever to the novel in printed form. For that reason too, technology available since the advent of home audio-taping and easy photocopying around 1970, has made piracy much less obviously theft, just because it is harder to survey or control as ordinary goods are. If copyright and the like are to be enforceable, then current technology forces the emphasis on protection of ideas or mental creations and experiences.

Where do ideas really exist as such? A record or CD sitting its case, or a book on the shelf, of even on a website, can only be of use, can only turn into ideas or musical experiences, when a listener's or a reader's mind is involved. Ideas ultimately can exist only in minds, and intellectual property laws interpreted as conveying ownership of ideas logically imply that that is where enforcement has to be.

Imagine, then, technology taken to its ultimate extreme - to the level (sounding like science fiction) at which humans have such subtle implants in their brains that they can transfer detailed ideas or musical or visual experiences from one to the other without having to use any visible external machinery at all. It would be close to mental telepathy. While this may never fully happen, today's technology is clearly headed ever nearer that ultimate limit.

As it is approached, the only means for enforcing intellectual property laws would be by utter mind control. Someone would have to investigate what is in every mind and determine whether the route by which each item got there was legitimate or not. That sounds pretty much impossible, surely, but also, by contemporary standards horribly, unacceptably invasive. Besides, this kind of invasion of the privacy of the mind would thoroughly undermine the understanding that lies at the very core of the market system.

That understanding is that a potential buyer of something can decide for him or herself, without revealing to the seller, just how much she or he wants something, and thus what is an acceptable amount to pay for it. No such calculation can proceed if the buyer is transparent either to the seller or to the state acting to enforce the rights of the seller. Thus, in the limiting case, enforcement of intellectual property rights becomes self-defeating and absurd. This kind of ownership cannot endure.

The attention economy

Yet there is another sense in which one can justly say that some contents of a mind - say, yours - are, "owned" by someone other than yourself. Take the ideas and thoughts I have just been putting forth and that you presumably have been taking in and thinking about. Insofar as you even try to take in these ideas, even if only for the sake of rejecting them, you have been paying attention to me, and so to that extent, I "own" the portion of your mind that has these thoughts. If they make any impact on you at all, then so do I, and the fact that have come from me will influence and probably increase your willingness to pay attention to me, or think about me, or even do me favors, in the future. That is, you are primed to pay me still more attention.

As I have explained in more detail in other writings, the leading kind of scarcity now, in the advanced countries, at least, is the scarcity of attention from other human beings, and more and more of life is organized around either trying to get some of it or paying it. Having attention amounts to having wealth, even though that wealth is not held in one's possession or in a bank but is distributed in many minds. It amounts to general wealth since having attention provides satisfaction of all kinds of desires. To repeat, we can call those with a great deal of attention, stars, and call those who tend to pay more attention than they get, fans. regardless of what mode of attention getting is involved, In a nutshell, that is the class structure of this new economy.

Fans may react in all sorts of ways, but as a whole they love the stars they read or watch or listen to or pay attention to in yet other ways, and will do for them, if not anything, then quite a bit. One of the most obvious thing fans typically do for artists is spread the word, playing records they particularly like to their friends and acquaintances, lending out books the same way, taking friends to see the work of their favorite visual artists, and today of course, urging friends to click on web sites that they like.

All this takes place without any money changing hands, yet the successful artists, the stars, build a powerful store of attention - attention that resides in the minds of their fans, spread all over the world. That is the stars' real and enduring property, a kind of property that if well taken care of will never stop paying dividends, requires no courts to enforce, and no laws to back it. (Identity theft or gross plagiarism are ways of "stealing" attention, but even these may probably be fought with publicity alone.)

It is precisely because we pay so much attention to the stars that we worry that they may not get their just rewards or have the right to control the fate of their output. Misguidedly, we often seem to think the way to deal with these concerns is through the intellectual property laws, when the it is the very fact of our paying attention that offers the stars their real strength and security, and our best chances to do that are often in conflict with intellectual property laws.

Capitalism's limit

As with the success of feudalism opening the way for the commerce that then led to feudalism's own overthrow, it was nothing other than the tremendous success of capitalism producing vast quantities of material goods that set the stage for the current conflict. First, necessary material goods are no longer scarce (at least in the developed countries) so we are increasingly governed by what truly is both necessary and scarce, namely attention itself; thus a new kind of economy inevitably grows in importance.

Second, capitalist corporations can no longer survive just by churning out goods. If the free market actually prevailed today, with property thought of as mainly material in nature, business profits would be almost impossible to secure by now. It is so easy to copy most of the endless number of kinds of things made today, that, for almost any kind of good, competition would be fierce enough to eliminate almost all revenues beyond recovery of costs. Staying in the black for long would be as difficult for large corporations as its today for the average American farmer,who is always on the verge of bankruptcy.

Yet the world is filled with huge, hierarchically-run corporations. What keeps them going? What ensures them profitability more often than not? In large measure it is their success in holding onto and enforcing the concept of property which barely counted two centuries ago, the form that they pretend (and perhaps believe) is exactly like the old kind in which possession is what counts - none other than intellectual property, in fact, including patents, design patents, trademarks, trade secrets and, certainly not least, copyright. It is not too strong to say that without the effect of these laws, capitalism would have already collapsed - or at least required much more state support of some other kind.

Intellectual property enforcement works to sustain capitalism in a very simple way. It limits real competition, creating state-backed monopolies for brand-named goods, new technological devices, computer software, drugs, designer clothes, athletic shoes, fast-food chains, and many other services, and, of course almost all writings, movies, pictures and ... music, which are protected most specifically by copyright laws.

Altogether these categories include the vast majority of personal, and much of business consumption. When products and services are not newly designed or obviously the output of some recognized artist or author, they are most generally bought on the basis of advertising. But advertising itself relies on attention reflected from the media environment in which it occurs, and thus depends on the stars - the attention getting entertainers, writers, journalists or sports figures that pull attention to that particular spot.

Further, ads themselves have to attract attention to themselves by means other than the brand names they highlight. In other words businesses succeed today only by using the constraints of intellectual property to channel attention originally corralled by inventors, designers, editors, and other artists and creators. Businesses then use that channeled attention to process the money it draws forth through their own exchequers. Buyers are essentially fans enthralled by stars who are not free to take advantage of their attention directly but are under the thumbs of the intellectual property owners, the corporations.

Despite its apparent strength, then capitalism thus is increasingly besieged. Intellectual property rights are crucial for business - not for artists of any sort - yet their enforcement is more and more problematic. As newer technologies that better enable attention seeking, attention getting and attention paying come to the fore to honor the needs of the new economy, the pressure on the old will only increase.

Like the feudal nobles in France, corporate leaders are not going to give up power without a fight, nor recognize that are no longer needed. That is what the battles over Napster are really about. Let us look a bit more closely at the music industry to see the details of this battle now.

"Work for hire" and beyond

The US Constitution offered protection to authors, as we have seen. By extension, "authors" now can mean composers, singers and musicians. But over most of the 20th century such creators rarely had clear copyright in their works, because in order to get records made, promoted and distributed, they had to sell the rights to record companies. Today the record companies insist that recordings are "works for hire," a special category that means that no matter what, the musicians can never get their rights back.

Typically, the companies also require multi-record deals. Since they try to sign musicians when they are young and unsophisticated, they rarely encounter much difficulty in getting these restrictive contracts signed. Then the companies carefully control what further recordings they release, based on the benefits they foresee for themselves, not for the musicians. By dribbling works out slowly, they can keep the musicians from ever finishing their multi-record indentures.

Still, through recording their work, a small fraction of music artists do make considerable fortunes. Their largest gains usually come from concerts, specifically sales of tickets sales, T-shirts and other souvenirs to those of their fans who are dedicated enough to do what it takes to attend. The records themselves generally only draw the initial attention.

But, of course, many - if not most - musicians play for reasons other than money. These reasons must be paramount, since most musicians, like other artists and writers, have little chance of even making a living at it.There is the sheer love of music of course, and there is also a desire to be heard, to have an audience, and to have some kind of direct relationship with that audience - attention, in a word. If it were possible to gain the audience without the record company, and even without any money changing hands, many musicians and other artists would still be eager. Even in economic terms, this would be far from stupid, because they would be obtaining huge wealth in terms of the new attention economy

The love of fans for the stars of whatever kind is certainly nothing new. One thing that is relatively new is the vast size of the potential audience, now billions strong. Another is the opportunity of even a major star reaching out quite directly to her audience and asking for whatever she may want. We are not quite there perhaps, but we are very close to the point that a star, at least, needs no bank account to live very well, needs nothing but the attention of the fans, and that the fans can express their attention to the star, not with money but with directly satisfying whatever desire the star might have. Certainly today, a sufficiently popular star could use the Internet to ask fans for money, say to buy a new estate, and would probably get it straight away.

A whole new song

Large as the major record companies are, music probably accounts for less than one per cent of the world's Gross Domestic Product - a measure in terms of the old economy. But in terms of attention, music certainly gets a far bigger share: most of us listen to music a good part of every day. Instead of protecting the musicians, adhering the old system of copyright and the old methods of accounting denies musicians the economic power that is actually theirs. On average, it is an enormous, though understandable, mistake for them to side with the record industry against Napster and other innovations that would help the new economy into power. Because they make music more accessible these developments would also increase the percentage of attention and thus of wealth flowing to musicians as a group.

To put it another way, musicians along with movie actors, video-game designers, writers and others who create whatever gets attention, are in fact being greatly short-changed by the present system. Even those who seem rich in terms of money, are kept far from their just deserts, Rather than needing copyright, they are actually suffering under the power that this legal form as presently handled turns over to the corporations and their leaders.

Soon technology could end the need for the kinds of things that music companies, record distributors and radio broadcasters do. Stars will do without any of them to distribute their work to a wide audience. Of course new practices will be needed for artists to take advantage of the new situation. Some of these new arrangements are already at hand. Right now, today, any well-known musician, could allow fans to download songs at no cost from her web site, and do very well. She could live on money made from concerts. All the new fans she would acquire by allowing anyone with the Internet access to hear her music would add significantly to the takes from tours.

Alternatively, a musician or group could charge admission to performances on the Internet - to be held at some specific, pre-announced time. All their real fans, the world over would want to tune in at just that time, just to hear them "live over the Internet", and would gladly pay to do that. It's also not hard to envisage technology that would allow performers to see and hear the fans as they perform and fans to be aware of each other, just as in a current concert appearance.

Yet another option would be to issue recorded works over the web, and simply to ask fans to pay if they feel like it. The horror fiction writer Stephen King is recently started releasing a new novel on the web chapter by chapter, saying he would continue after the second installment only if 75% of the readers had paid him a dollar each for each chapter already seen. Some of his fans used his website to beg for the opportunity to pay more, so as to assure that the full work would get published regardless of the percentage of readers anteing up. It turned out that far more than 75% did pay.

Musicians could obviously adopt either of these models. They could call on fans to send a certain amount of moeny each before they issued more songs, or they could simply ask for a certain total amount and let fans know how much more was needed. More reticent artists could rely on fan clubs to set up sites to look after them. Endless other possible mechanisms would work with no connection to any large corporation.

If they only knew ...

How many artists understand all this isn't clear. Many worry about the loss of sales. Most of these "lost sales" wouldn't have occurred anyway, and the artists would have gotten minimal sums of money from those that did, compared with the record company's take. Like early capitalists who had started out under the protection or patronage of a nobleman, these artists feel dependent on their record companies and the intellectual property laws , and so fail to see how they might benefit from doing without them. But the audience will see.

I must add that, though most musicians should do better than now, some will certainly do worse, just as some tradespeople undoubtedly failed when their noble patrons fell to the guillotine. The same will be true for any other class of attention getter. And not all fans will find themselves better off either, though I suspect the majority will, with corporations not swallowing up attention that could otherwise be more widely shared.

The increasingly complex edifice that comprises intellectual property laws and their enforcement is already beginning to totter. Everyone, and certainly artists should be glad to see it succumb. Of course, we should look for ways of aiding those who will genuinely suffer should that happen, and to make sure that the arts and other kinds of innovations are actually encouraged as the transformation takes hold.

In the meantime, we should expect that the struggle over intellectual property will intensify before it ends; the "content providers" like the record companies will try to enlist the companies that control Internet pathways and providers; they will flood the world with propaganda on behalf of their existing rights, will lobby for new police protection to prevent what they insist is theft, and will do more besides. Right now, however, it seems quite apparent that the tide of history is against them.