They were giants in their field, hugely successful and massively profitable businesses. They dominated their sector and had done for years. They were acknowledged as masters and experts. They controlled the supply of their product and had a captive audience willing – or forced – to buy at their price. If not an oligopoly, they came pretty close. They had seen upstarts try to muscle in on their market position but they had such market muscle that they could control them. But then something happened. It wasn't the technology, it was the cultural practice and discourse that surrounded it which shattered their dominance.
And this discourse of unseated music companies will be the same for the demise of the big law firms' hegemony. The logic of peer-to-peer (P2P) will do to the supply of legal advice what it has done to the supply of music. Make no mistake, the record giants may have knobbled Napster in the courts and in Bertelsmann's case in the boardroom through a buyout, but the cultural practice and philosophy of P2P and Open Source will win out. They are the future of the shaky world of the internet, which promised untold wealth to get-rich-quick bucket shops and mail order operations but has ended up as the most fundamental shift in the balance of economic and discursive power in our lifetimes.
Two things are important to note at this stage. First, the moral and legal issues surrounding file-sharing and copyright breach are a side issue. It is not the details of what is shared and what is paid for that is the issue. The real point is the sharing, the network effect. It is this that is the real threat to powerful supply chains and hegemonic structures. It is this process that redraws the balance.
Second, the technology itself is irrelevant. P2P and Open Source are as much about mindset as they are about megabytes. They are the new hacker mentality and they have moved from the fringes of anarchism to the heart of business and the network economy. P2P currently happens via the web, it happened once via Usenet, it may move to mobile networks or whatever else the telcos and AOL Time Warner might dream up.
|“This is a profound set of ideas and cultural practices that are driving the only bits of the network economy that show any promise”|
In a nutshell, P2P is a type of transient internet network that allows a group of computer users with the same programme to connect with each other and directly access files from one another's hard drives. Open Source, the other half of the networking pincer, is a form of software development that disparate groups of programmers work on and share codes, publishing the results for free and developing each other's work.
Both are flourishing, despite the best efforts of powerful corporations (record companies and software giants) and their lawyers. Rivals of the crippled Napster continue to show huge increases in the number of users, and Linux now has the support of IBM and Hewlett Packard in its battle with Microsoft for the server market.
Law firms may take an interest in these developments from the perspective of continuing copyright and antitrust battles, but perhaps they should look deeper at the discourse of which these movements are a manifestation, because it is that which could well undermine their own position. It is a discourse of networking, sharing, building and common ownership, development and responsibility. This is not simply the return of the Grateful Dead hippy rhetoric that surrounded the early days of the internet, this is a much more profound set of ideas and cultural practices that are driving the only bits of the network economy that show any promise.
The underlying philosophy is not one of ripping off the giant companies or even attacking them per se. It is the firm belief that there are better and more efficient ways of handling software development or developing music.
Many IT people see the Linux operating system as more stable, more flexible and more powerful than its Microsoft rival. Using the analogy of bees or ants, the argument goes that working together creates a more powerful whole than a centralised operation. Similarly, many musicians and critics see the P2P revolution as enabling new bands to emerge faster and more effectively than they could through the EMI factory, and that it is enabling the public to get access to that music quicker and more easily.
The argument continues that the old software giants have failed to harness the idea of a network of programmers or the development potential of a real community, and the record giants have failed to grasp the marketing and commercial potential of the new reach, attempting to clamp down on a buzz effect they could have ridden on the back of.
The Cluetrain Manifesto famously tells the take of Sun Microsystems' attempts to stamp on staff contributions to 'outside' Java development forums, little realising the damage it was doing to the company, but more importantly the positive work that was coming out of the P2P communications.
Ah, but show me the money… In many ways this is the wrong request. It could be answered with statistics that show the increase in CD sales since Napster or the way in which Linux has become a standard around which new initiatives are being developed. It could be countered with clever spreadsheets showing the benefit of such network marketing. But fundamentally, the issue is that P2P/Open Source is the inevitable next step in the evolution of the internet. It is happening now and it is unstoppable.
You can tie Napster down but other sites pop up. You can take out a patent infringement suit against one aspect of a piece of software, even jail the developer such as in the case of Dmitry Sklyarov, but there are plenty more programmers with half finished codes willing to step in.
But surely this cannot apply to the law. You have specialist knowledge and years of training and experience. Not anyone can be a lawyer. No company is going to jeopardise their big takeover by logging onto hehwantsomelegaladvice.com.
This may be true, but we are not talking about some fly-by-night pseudo lawyer on the internet, we are talking about networks of legal professionals, state and private networks, public and private databases coming together to form the sort of intelligent operation that no artificial intelligence programme could emulate or single firm could make available.
Many firms have begun to take tentative steps into DIY law for their clients. Legal documents in kit form, online guides to particular practice areas, initial discussions with virtual assistants and, of course, deal rooms and client service sites. These provide the building blocks for true networking, where clients can create a legal service to meet their needs, either with or without the firms.
And this is the key point. The more firms bow to client pressure or logistical necessity and give them power and access to knowledge, the more those clients will demand. Firms may try to keep control, but then they will see the newly empowered clients go across the City, or across the sea.
Demanding a more responsive and flexible service from the firm is just the start. The inevitable end result is that big clients will begin to do it for themselves. They will form P2P networks, share experience, even arguments, ideas and precedents. Yes, it is unlikely that AOL is going to share its monopoly battle experiences with News Corporation, but it may pool those experiences in a P2P environment.
The spaces are being set up. eLaw.com and juritas.com in the US offer pleadings, agreements, correspondence, affidavits and expert witness testimonies. Still on a centralised site lacking the robust and productive potential of a distributed system, but still a shared resource.
Dolphinsearch.com and tacit.com are designed to let firms capture and recycle their collective experience. They could equally do the same for clients.
Imagine a distributed environment where clients trade legal information and knowledge. Add a few lawyers to the discussion, a few DIY documents, and you not only take away a lot of billable hours but you build up a discourse where the traditional monolithic law firm is as irrelevant as the big record company.
No, they might not be able to sign off the last clause on that multibillion dollar merger via a P2P network, but they will never approach the 'expert' who can in the same way, and if there is someone on the network who can… well the link is severed completely.
But do not worry, it might never happen. In-house counsel (highly experienced, qualified and knowledgeable lawyers after all) may always be happy to come to your door, cheque and cap in hand rather than enter or create their own network to share and then develop new, more flexible, practical, powerful and cost-effective legalware of their own.
P2P is not a music fan's fad and Open Source is not a hacker's dig at Microsoft, they are the outcomes of networks. Communities are not the benign and inactive targets of dotcom business plans, they are active collections of people exposed to the network effect who have seen the future and are not willing to let it go. Those firms desperate to hold on to their hegemony and unwilling to embrace or even enable the network effect must hope they keep talking about music and software.