A Somewhat Legal Look at the Dawn and Dusk of the Napster Controversy

A Somewhat Legal Look at the Dawn and Dusk of the Napster Controversy

2001-09-01

Paul C. Rapp, Esq., a.k.a. Lee Harvey Blotto, on the legal, cultural, and economic dimensions of the Napster controversy circa Y2K.

What follows is a transcript of a talk I gave on April 4, 2000 at a symposium held by the Science and Technology Law Center at Albany Law School. The symposium was called “Internet Crimes and Civil Violations”; I was asked to talk about music and the Internet in that context. I had been excitedly following the growth of the Internet, and particularly the implications for music and art. The invitation to speak gave me an opportunity to try to put a bunch of disparate ideas together. I’m pretty sure I failed in doing that (and I sure didn’t talk much about “crimes and civil violations”!), but I think the transcript captures some of the excitement that was in the air at the time. MP3s were reaching a critical mass of popularity and Napster was just hitting most folks’ radar screens - I got the impression that most of the people at the Symposium were hearing about Napster for the first time. Gnutella was something like a week old. Everything was up in the air, and the landscape was changing daily. It was a great time, and it didn’t last.

The transcript was first published in the Albany Law School Science and Technology Law Center’s Albany Law Journal in February of 2001. For that publication, I wrote a brief introduction, summarizing the changes that had occurred in the ten months since I gave the talk. That introduction precedes the transcript below. For EBR, I’ve also added a postscript, a eulogy really, which follows the transcript.

introduction

It is now almost a year since I gave this presentation, and since then there’s been a lot of water over the dam. In early April 2000, Napster was familiar to music-crazed college students and Internet geeks, and few others. Within months, however, Napster was a household word, Shawn Fanning was on the cover of Time Magazine, and it seemed like everybody had an opinion whether Napster was a godsend or the end of civilization.

My goal in this lecture was to give a general overview of the legal and societal issues surrounding music and the Internet. A more narrowly-focused presentation of the precise legal issues involved would not only have been boring to present (and beyond boring to listen to) but would have missed what I believed was the real story: the struggle for access to information, music or otherwise, information that is increasingly and without precedent being hoarded and held for ransom by corporate interests. At the time I gave the lecture, I was truly uncertain of my position on these issues, although my anti-industry tendencies were entrenched and admitted. In the weeks following the lecture my position evolved quickly to full-strength support for Napster, after further reading, reflection, analysis of the frenzied rants on all sides of the issue and from fooling around with Napster, downloading music both long forgotten and newly discovered.

In editing the transcript of my talk, I tried to preserve the perspective of the first week of April 2000, and not inform the piece with everything that’s happened since. While it certainly makes the presentation dated in many ways, to do otherwise would corrupt what I did by allowing me to Monday-morning-quarterback my own views. Given the rapidity with which things are happening, moreover, I would have had a difficult time deciding when to finish, since it always looks like something groundbreaking is right around the corner.

As I write this, the Ninth Circuit has just issued its ruling on the emergency stay of the District Court’s injunction, and we await District Court Judge Patel’s reformulated injunction order, perhaps some fancy appellate footwork by Napster’s now-superstar legal counsel, and some desperate attempts by Napster to settle the matter. When all is said and done, it is very likely that Napster is going down for the count, considering the antagonism with which Judge Patel regards Napster, the general endorsement of her findings by the Ninth Circuit, and the grim prospects for a further appeal. Napster is, at the moment, twisting in the wind.

A troubling aspect of the Ninth Circuit’s decision is the Court’s almost-casual and unexamined conclusion that people who use Napster are guilty of copyright infringement. So we’re all criminals. That’s real nice.

One legal commentator has likened the situation to a power blackout. When the lights go out, he said, people go out and loot. Now that the lights are back on, via the Ninth Circuit’s decision, the looting will stop.

What a ludicrous and inane analogy! What sycophantic nonsense! I do not sense a grateful nation exhaling and welcoming a return to lawfulness. I only sense a smug industry quietly thanking its lawyers for having helped it dodge a big bullet again, and a distinct sense of loss by those who do not think that discovering and listening to music is a crime.

Napster’s demise, if it comes, when it comes, will be too bad for everybody. Napster has proven to be a wonderful resource, a thing of value and merit. And I don’t think there is anybody at the record companies that have missed any meals as a result of this trading of music among individuals. And nobody has stopped writing songs.

Albany, New York
February 26, 2001

problems with music, copyright law, and the internet

Although my talk is supposed to be about “music piracy on the Internet,” I’m not sure that there really is such a thing. And if there is such a thing, I think it’s of a limited nature. In other words, what I think I’m supposed to talk about, and what I am going to talk about, may not be piracy at all.

The word “pirate” brings to mind a black-bearded “Arrrr Matey” guy, somebody pulled out of a Patrick O’Brien novel, sailing the high seas, raping, looting, pillaging. In a music industry context, “music piracy” has usually referred to back-alley operators, who duplicate compact disks and cassettes in clandestine settings and then sell them on street corners, at truck stops, in bodegas. Music piracy has always been synonymous with music counterfeiting.

What’s been happening most notoriously and most recently on the Internet involves the trading and downloading of digital music files, largely for free and in a non-commercial environment. This is the stuff I am going to talk about. This is a different animal from counterfeiting; it may not even be copyright infringement.

Non-commercial digital downloading is all the rage on college campuses; the disputes we’re starting to hear about could be viewed, and have been described, as primarily a spat between college students and record companies. It’s more than that. College kids just happen to be the first ones to jump on the trend, and they represent a major demographic for the record companies.

But the issues raised and the precedents that may be set in this battle are of considerable and enduring importance. The major record companies are seeing their traditional methods of distributing music challenged, marginalized, undermined, and rendered irrelevant. They see technologies they don’t understand and can’t control. There’s a lot more to this than just goofy kids and record companies.

What these kids are doing with their computers in their dorm rooms may not be piracy, or even theft. What they are doing, however, raises important questions about the nature of the copyright of digital information and the viability of the existing copyright laws to deal with the Internet. Necessarily implicated as well are the structure and the practices and future of not just the music industry, but all information-related industries.

As battle lines have formed and preliminary arguments have been made, I’ve been watching from the sidelines and haven’t yet developed any firm opinions about what’s going on with digital downloads. I’d hoped that in preparing for this presentation I might be able to resolve, for myself, some of the questions raised by all of this.

Not that I’m unbiased. In fact, I am wildly biased against the music industry. I played in a band called “Blotto” in the early 1980’s. For five years we made repeated runs at the “palace gate” of the music industry: the major labels. We released our first home grown record on our own record label in 1980 and our song “I Wanna Be A Lifeguard” got played constantly all summer on commercial radio in New York City and elsewhere, and the music industry said no to us. We couldn’t buy a record deal. We put out another record later the same year with a couple more songs that got played on the radio, and still the record companies said no. Then, starting in 1981, we had three music videos, one right after another, put into rotation on this new thing called Music Television, or MTV. We were touring like crazy, playing in front of thousands of people, and the record companies continued to say no to us. In 1982 one of the largest record labels in the world put us in a recording studio with the Rolling Stones’s producer for a night. We recorded a couple of songs. A week or so later, the label president informed us that his company was “going in a different direction than Blotto,” so we weren’t going to get an offer. We asked the guy to return what we’d submitted to him, so we could use the stuff to pitch somebody else, and he said he couldn’t do it - we were his kids’ favorite band and it would’ve broken their little hearts to part with our stuff. Well, duh?

With these new issues about digital music, much has been said about the arrogance, the myopia of the major labels. My bandmates and I saw it and felt its effects, painfully and firsthand, twenty years ago.

Shortly after this last debacle, we all gave up on the music biz and got “real jobs.” I went to law school, which meant I’d traded being the butt of one set of jokes for being the butt of others. Ah, maybe I should be thanking the music industry for getting me off the road, off the stage and onto a “respectable” career path. Whatever.

But enough self-indulgent whining about personal show-biz failure! If what I say from here strikes you as over-the-top vituperative, well, now you know why. Back to the topic at hand.

What’s happening on the Internet involves “MP3” technology, which facilitates the easy and quick transmission of music over the Internet. MP3 is an audio compression device. MP3 is to music and sound what a zip file or an Acrobat file is to text. Digitized audio information, typically from a CD, is compressed to an MP3 file, to about one-tenth its original file size. While the sonic qualities of the original CD file are compromised, the process provides some useful benefits. The file does not take up nearly as much room on a hard drive, so you can collect numerous songs without jamming up your computer. Additionally and importantly, MP3 files are easily transferable over the Internet. You can attach a song to an e-mail. You can easily download MP3 files from servers found on the Internet and keep a library of songs in your computer. And this trading and collecting of downloadable music has proliferated over the last couple of years with continuing increases in computer memory and speed and the advent of high speed Internet service.

To give you some idea how quickly this technology has developed and spread, in 1994 Aerosmith offered one new song that could be downloaded for free by CompuServe customers, an advance release from a new album. I don’t remember what the format of this was - it was some ancestor of MP3. Depending on things like modem and computer speed, downloading this four minute song took anywhere from thirty minutes to over three hours. The file took up an immense amount of space on 1994-era computer hard drives. Playing the song back was cumbersome, and even more importantly, the playback was, by all reports, lousy.

Today, it takes just a few minutes to load an MP3 file onto your hard drive, and depending on the quality of the download and of your playback system, an MP3 can sound almost respectable.

Parenthetically, I’ve heard it said that an MP3 file rivals the sound quality of a compact disk. This hasn’t been my experience. It stands to reason that when a good portion of the information in a CD file is dumped during the compression process that the compressed result won’t sound as good. While MP3 files are apparently just fine for casual listening for a lot of people, I find MP3s brittle and tiresome.

Nonetheless, in a short time, MP3s have proven incredibly popular. The MP3 format has ascended to prominence very quickly. I started hearing about MP3s about a year and a half ago; today there are millions of MP3 files being transferred every day over the Internet. One telling indication of MP3’s popularity is the fact that the term “MP3” has supplanted the word “sex” as the most popular search term on the major Internet search engines.

Among the revolutionary things about MP3s and other compression programs is this: now every garage band, every fledgling songwriter, has the opportunity to present music to the world over the Internet. Somebody afraid to leave the house can sing into a computer, compress the recording into an MP3 file, and send the song out. There are no longer the traditional, monolithic, and impenetrable barriers of record companies, record stores, and radio programmers necessarily standing between the artist and the listener.

Similarly, and of the gravest concern to the music industry, people can take a favorite song from a CD, put it on their hard drive in the MP3 format and send it over the Internet to friends who can then own a copy of the song without having to buy an entire $15 CD for themselves. And there’s what has the music industry going nuts. If one person can buy the latest CD by, say, Sheryl Crow, and send the Big Hit on the CD to ten friends, now 11 people have Sheryl Crow’s Big Hit based on a single CD purchase. If those ten friends all send the music to ten of their friends, we have a hundred and one satisfied customers. And the record company and the artist have been paid for just one CD.

Now, the concept of sharing purchased music isn’t particularly new. I remember guys from my early 1970s college days with big reel-to-reel tape decks in their dorm rooms, proudly announcing that they weren’t ever going to buy another album, and then asking me conspiratorially if they could maybe borrow my new BeBop Deluxe album for an hour or so. And cassette decks seemed like manna from heaven, until the realization set in that the original records always sounded much better than the cassette copy. And if you tried to make a cassette copy of a cassette copy, well, forget about it.

MP3s, like all digital media, are infinitely and perfectly reproducible - there is no degradation of sound quality in successive copies of the same file. Your friend’s copy of your MP3 will be identical to yours. So will your friend’s friend’s friend’s. So while the concept of making free copies is not new, the idea of infinite numbers of perfect copies zooming around and replicating at cyber-speed is a new twist on an old theme.

This, obviously, does not amuse the record companies. The industry is looking at the creation of a massive, unprecedented, democratic, streamlined, simple, fast, and, most significantly, de-commercialized music distribution system. The music companies have spent millions of dollars and dozens of years to build their distribution system: the pressing plants, the warehouses, the stores. And it’s being bypassed.

And the wagons are circling. The music industry, over the past several years, has experienced unprecedented corporate consolidation. There were some eight major record labels a few years ago; soon there will be only four. This consolidation has resulted in a uniformity in the industry’s response to the perceived dangers lurking on the internet, and a marked lack of creativity in that response.

In addition, this concentration of power has greatly affected the content of the music that the majors have offered to the public. In short, there is less variety and much less volume, in terms of the number of titles and artists, in the music being offered. Artists have been handed their walking papers, dropped by labels that have decided to concentrate on chart-topping, manufactured content providers like Brittany Spears and N’Synch. Any college kid with an ear to the ground of popular music has a favorite band that has gotten the boot. Classical and jazz divisions are being eviscerated. The industry looks less like a vehicle to deliver culture and more like, well, an industry, one devoted to the lowest common denominator and to hell with everything else.

It’s little wonder, then, that the music industry’s cries of righteous indignation about the horrors of the Internet have been met with unstifled yawns and a few snickers of disgust. The industry has made itself into the boogey-man, and music aficionados, especially college kids, could care less whether the industry lives or dies.

A fundamental reason why there is an MP3 phenomenon is that the music industry has failed, refused, to pick up the ball. There is no way to receive the vast majority of major label music digitally over the Internet except for free. Even if you wanted to buy major label music over the Internet, you can’t, because the major labels have yet to offer their music digitally in a downloadable format.

Instead, the music industry has reacted to the MP3 “revolution” in a couple of ways. First, about a year ago, the Recording Industry of Association of America (the RIAA is a music industry association dominated by the major labels) announced the Secured Digital Music Initiative, or “SDMI.” The industry unveiled SDMI with great fanfare, a Manhattan Project-like spectacle in which all kinds of industry people - hardware people, software people, and marketing people - were going to meet in a great orgy of corporate creativity and cooperation. They would figure out how to deal with this Internet thing, the digital distribution of music, the threat posed by MP3s, and so on. The purpose of SDMI was, and purportedly still is, to develop guidelines and standards by which music can be transmitted over the Internet “securely,” that is, in a way that provides the music industry with proper remuneration and that does not allow for copying.

When SDMI was launched in February 1999, the announced goal was that the specifications were going be in place quickly and the software and hardware necessary to download and play digital music would be available to consumers in time for the 1999 Christmas season. It is now April 2000. Not much happening. I looked at the SDMI web site yesterday. While the SDMI organization has issued a couple of general principles about what they think they are doing, SDMI has failed, so far, to set the stage for dictating how the future music business is going to work.

The organization’s website, SDMI.org, contains schedules of meetings and conferences in exotic places, Paris, Hawaii, and Tokyo; subcommittees and sub-subcommittees issuing reports and protocols about this and that. It’s like an ant farm, all of this frantic activity, and an unproductive little ant farm at that.

Despite SDMI and its promise of some brave industry lock-step into the future, one sees from time to time one of the major music companies announcing that they have entered into a “strategic partnership” with some software developer for the purpose of developing some sort of digital music delivery system. Some of these partnerships are explicitly devoted to creating “SDMI compliant” delivery systems (whatever that is supposed to mean), while others are silent about SDMI. And despite these partnerships, and despite the grandiose announcements, nothing of substance has been offered to the public.

What the majors are trying to do, one assumes, is to find a way, somehow, to sell music over the Internet, and to deliver music in such a way that the buyer can’t turn around and zip it off to her friends for free. The majors would love to develop an air-tight system that allows little or no reproduction of the music once it is delivered to the buyer. They would like you to have one copy that you can’t do anything with but listen to in one place, and maybe for a limited number of times. They would like, in essence, stronger control of digital music than they ever had over non-digital music. And, thank God, they haven’t figured out how to do it yet.

There have been some baby steps taken by the majors to enter the digital download market. I read recently that two of the major labels, BMG and Sony, will soon each offer a few songs for digital download in some unspecified “secure” formats. Incredibly, BMG announced it may be selling files in as many as six different digital formats.

These companies intend to charge three or four dollars for each downloaded song. In other words, these labels are planning to charge more for a downloaded song than for the pro-rated value of the song on a CD you can buy in a store.

This is, of course, incredible and ridiculous. With digital downloads the physical packaging and distribution of the music is eliminated - no more stores with surly, uninformed clerks, no more disks, no more annoying clear plastic boxes that tend to break the first time you open them, and no more little fine-print booklets that nobody looks at more than once. The financial transaction and the delivery of the download can be done without human intervention. These things all represent significant cost savings.

The labels, however, have apparently decided that they are somehow justified in charging a premium for an automated digital transfer. And they have also decided that only limited music will be made available and then in a confusing array of formats, each of which will require a different software program, and some of which will no doubt be incompatible with the others. This “effort” hardly rates as serious or even rational and strategic. Unless, perhaps, the game is to simply to stall the technology by generating so much confusion that people will decide to stick with buying trusty CDs for as long as possible.

More telling than the ineffectual SDMI and the anemic attempts to enter the digital download market is that the music industry has aggressively passed laws and filed lawsuits to try to kill new technologies it perceives as threatening. In early 1999, the RIAA sued a small company, Diamond Multi Media. Diamond Multi Media had begun manufacturing this little contraption called a “Rio,” a Walkman-like device for playing MP3 files. You can download MP3 files into the Rio, put it into your pocket, and walk around listening to your MP3s on headphones.

For the music industry, the Rio brought life to the then largely theoretical MP3 threat. With one fell swoop, the MP3 phenomenon was moving beyond computer nerds downloading files and sitting at their computers listening to songs - now it involved something user-friendly and portable. MP3s were no longer exotic ? the Rio represented MP3s going mainstream.

The music industry freaked, sued Diamond Multi Media, and lost. The RIAA based its claims against the Rio on the Audio Home Recording Act of 1992 (AHRA). The AHRA is one of several strange recent amendments to the Copyright Act that the recording industry has force-fed to Congress - this one was ostensibly to stem the tide of the digital audio tape, the late 80’s Big Threat. The AHRA is dense and borderline unreadable, and occupies its own new chapter in the Copyright Code. Unfortunately for the recording industry, the highly technical aspects of the law that were specifically designed to kill digital audio tape technology simply did not apply to the Rio. The District Court threw the case out and the Ninth Circuit agreed. While there is considerable detail to these decisions, the essence is this: the AHRA, designed by the industry and rammed through Congress to stifle a particular technology, was ill-suited to stifle the next technology.

With the Rio case, the RIAA succeeded in little more than providing a huge free publicity platform for portable MP3 devices and increasing public awareness of MP3s in general. RIAA’s lawsuit politicized the MP3 debate, especially on college campuses, and an already suspect industry got a lot of egg on its face.

Following the dismissal of the Rio lawsuit, MP3 players very quickly became available by a myriad of manufacturers in various shapes and sizes; the devices are becoming increasingly more versatile and powerful. Now you can buy, for instance, MP3 players that can hook into your personal stereo and MP3 devices for your car. A hardware industry is off and running, based upon and driven by MP3 technology, and it is completely beyond the control of the major record companies, and wholly antithetical to its interests.

There is a second very recent development, potentially more ominous for the record companies. Last year, a college freshman in Chicago wrote his first computer program, something he hoped would facilitate his ability to trade MP3 files over the Internet with his friends. This program allowed people who had MP3 files on their hard drives to log onto a central web site and mingle with other people who had MP3s on their hard drives. The program allowed people to “meet” online, display their music libraries, and then connect directly with each other to trade MP3 files.

This program was based on a simple and pragmatic idea ? and this college kid conceptualized the program and then ran out and bought a book to learn how to code it. This program is called “Napster,” and there is a website located at Napster.com where you can go and search for particular songs or for particular artists. If anybody on-line at the same time you’re logged on has a song, you can have it, too. The young guy who wrote the program now has corporate officers, business plans, offices in Palo Alto, venture capitalists, and lawsuits.

If the simple idea of MP3s on a little portable gizmo caused concern to the music industry, Napster has caused absolute terror. By its ease of use and its ability to allow huge numbers of people to congregate and download music, Napster has allowed the trickle of MP3 downloads to become a raging river.

An aside: Napster use has become so prevalent among college students that it’s causing problems with university computer infrastructures. The combination of Napster and college systems’ ultra-high speed Internet connections and huge data storage capabilities has resulted in some monumental crashes. College servers are getting jammed by the increased traffic of Napster users, and central storage facilities getting filled with students’ libraries of music. Kids, before they go to bed, sign onto Napster, input their daily wish list of music, and then go to sleep, while their computer dutifully connects with computers all over the world, collecting tunes.

Unlike the record companies, which are concerned about what they consider to be music piracy, college administrators are concerned about the integrity of their computer systems. As a result, some colleges have sought to block student access to Napster.com. These efforts have been marginally successful; given the hacking culture that pervades most college campuses, as soon as some college administrator installs a block, some kid inevitably figures out a way to circumvent the ban, posts the code, and the cycle starts again.

But back to the music industry and its problems with Napster. The RIAA has recently sued Napster, claiming that it is nothing more than a “burglar’s tool” that helps people to “pirate” music files. Music royalty organizations and publishing companies that share in the flow of dollars when CDs are sold or music is publicly performed have joined RIAA’s suit.

The theory of the lawsuit is that Napster, by facilitating this mass and non-commercial trading of music files, is guilty of vicarious, contributory infringement of the copyrights of the owners of the recordings. The industry would like to shut the Napster site down and hold its owners responsible for millions, if not billions, of dollars of penalties under the Copyright Act.

Just last week, the band Metallica started its own lawsuit in San Francisco. Metallica sued not only Napster, but also the University of Southern California, Yale University, and Indiana University for allowing students to use Napster. Lars Ulrich, Metallica’s drummer, said the following upon the filing of their lawsuit: “We take our craft, whether it be the music, lyrics, or the photos and artwork, very seriously, as do most artists. It is therefore sickening to know our art is being traded like a commodity rather than the art that it is.”

Wow! Enter, sandman, and when you do, please bring a dose of humility and a sense of balance for our little friend Lars!

Puff Daddy has also checked in, noting that Napster represented the “ultimate dis of the Notorious B.I.G.” Good Lord.

At the same time, however, a large number of artists, and a larger number of music fans, disillusioned with the music industry and invigorated by the egalitarian potential of the movement of music over the Internet, have voiced their support for Napster.

Despite all of the acrimony and legal ugliness, the basic concept behind the Napster program is universally hailed as brilliant. For example, scientists working on the human genome project announced that Napster technology was exactly what they’ve been looking for as a way to share large amounts of data over long distances.

Even if the industry succeeds in killing Napster in court or otherwise, they will not have won the war. There are other, more ominous, things out there.

Recently, a couple of software designers with America Online developed a variant on the Napster idea, called “Gnutella.” Like Napster, it allows trading of files among individuals. With Napster, however, if you want to participate in the trading process, you have to log onto Napster.com. The Gnutella program, on the other hand, is decentralized ? Gnutella files are available various places on the web, are harder to detect, and one does not need to go to and through a central source to access them. The Gnutella developers posted the code to the program on their website within twenty four hours.

American Online shut down the site, but in that time, hundreds of copies of the code were made by computer geeks around the world. This code is being been collaboratively updated and improved by freelance programmers, much as the Linux operating system has been developed. I suspect that there soon will be Gnutella sites for various types of music, and the program, which I understand is tricky and far from bug-free, will become increasingly user-friendly over time. Gnutella will ultimately be worse for the record companies than Napster ever could be, as Gnutella can grow and develop virally and exponentially, and appears to be impervious to being shut down by legal process. Gnutella and its progeny may well be the music industry’s worst nightmare.

When you add up MP3s, Napster, Gnutella, and everything else, it’s clear that the cat’s out of the bag and rolling in toothpaste that you won’t get back in the tube, even if you were successful in getting it off the cat.

There is one other high profile lawsuit of note right now - in April 2000 - that I should mention: the MP3.com lawsuit. MP3.com is a company that runs a site that allows artists to post their music in the MP3 format, to be either sold online or given away. When music files are sold, the standard deal is that MP3.com splits the proceeds of each sale with the artist. MP3.com seems to be a very well run and wildly successful enterprise, as it facilitates direct access by artists to the public, at virtually no cost, and with no corporate gate-keeper. And it’s all perfectly legit.

MP3.com has not been involved in this piracy-counterfeiting-infringement debate until recently, when the site offered a new service, “MyMP3.com.” For this service, MP3.com bought an estimated forty-five thousand mostly-major label compact disks and loaded them all on to their computers in MP3 format. If you can prove to MP3.com that you already own a copy of a particular compact disk, MyMP3.com allows you to listen to the songs on that disk from MP3.com’s huge database. You can listen to their copy of music you already own.

The announcement of the MyMP3 service brought a firestorm of immediate copyright infringement lawsuits. The music industry would like to detach the fact that you already own and paid for the music from the fact that you happen to be listening to it from a different source.

Well, is this infringement or not? What MP3.com is looking for is something similar to the Supreme Court’s “time shift” decision in the Sony v. Universal Studios case from the early 80’s. The Sony case involved the movie and television studios’ attempt to kill the videocassette recorder, the Big Threat of the late 70s. They failed, quite obviously. The Supreme Court held in Sony that the home taping of movies and television shows was just “time shifting” and not copyright infringement, or more precisely, a fair use of the studios’ copyrights. People tape things from TV to watch later. Nobody gets hurt. There is, in effect, nobody ripping anybody off. What is going on with MyMP3.com appears analogous, but rather than time shifting, MyMP3.com involves space shifting. MP3.com has to convince a court that this is a cognizable theory. This conceptual leap from “time” to “space” may be a little much for a judge, particularly a judge at the trial court level, to make, I don’t know. It will be, in any event, fascinating to see just what type of analysis the court puts on MP3.com’s defense, and whether the Court has any interest in jumping into the conceptual nature of the law of copyright, rather than simply applying a strict and literal interpretation of the law. Such a jump will be necessary, I think, for MP3.com to prevail.

I am not entirely sure that the MP3.com case is going to have the far-reaching, or at least the near-term, effects that the Napster case will have on issues regarding the structure of the music industry, and the ownership of copyrights, and the way people interact with music and the Internet. The issues presented in the MP3.com case are fairly narrow, given the somewhat odd facts of the case. (Somebody actually went and copied 45,000 CD’s? Hey now!). The Napster case, on the other hand, is for all of the marbles.

I’d like to step away from the legal arena and try a little longer view of what’s going on here.

At the opposite extreme from the music industry’s quest to tightly control its copyrighted information are what I’ll call the information libertarians, folks like John Perry Barlow and his organization, the Electronic Frontier Foundation (EFF). EFF’s basic tenet may best reside in the phrase “information wants to be free.” This phrase simply illustrates how intellectual properties are different than other types of property.

If I have a copy of a song and I make a copy for you, I haven’t given up my copy - both of us now can enjoy the song. This is fundamentally different than with physical, personal property - I have a pipewrench, you take it from me; I no longer have the pipewrench, you do. Unlike physical property, information, be it textual, musical, or visual, is typically capable of and tends toward low- or no-cost reproduction. It’s like a gas - if it’s not artificially contained, it gets out. And this is especially true with digital media, which can be perfectly copied an infinite number of times.

This difference is one reason why the conceptual basis for the copyright laws must be viewed as sublimely different than other laws of ownership. And also why copyright ownership has always been leaky and imperfect - a leakiness that may be to everybody’s benefit. In this light, the recent actions of the music industry are attempts to overreach the intent and practical realities of the copyright laws and the (perhaps) natural order of information - to put legal and digital padlocks on information that wants to be free, and to bring ownership of intellectual property more in line with traditional (i.e., greedy) notions of ownership of tangible, physical things.

Related to what I’ve termed the information libertarians (I’ve seen them referred to as “copy-leftists”) are the hackers. Consider a hacker credo, something that appeared a while ago in Wired magazine: “We reject kings and presidents and voting. We believe in rough consensus and running code.” Not exactly anarchy, but not far from it.

Indeed, there are an awful lot of immensely talented people out there writing code and posting programs with this political/personal agenda, who believe in and are motivated by concepts of informational freedom and decry corporate control of just about anything. They believe and intend to prove that the combination of the digitization of information and the inherent ability of the Internet to move the information around detaches the information from the “real world,” and places it in a virtual world where the rules are absolutely and irrevocably different, and where concepts of ownership are secondary to those of access and use.

And a chief reason why this “movement,” if it could even be called that, is imbued with such fervor and passion is the underlying belief that any attempts by the music industry or anybody else to secure or capture digital intellectual property rights for statutory owners will necessarily result in unacceptable assaults on everybody else’s privacy and freedom of speech. We see, for example, the music industry leading the charge and busting MP3-collecting college students for what they have on their hard drives, and we have Metallica, of all people, telling colleges to monitor what students are downloading and thereby control what students are listening to and how they listen to it. We are confronted with a clash of intellectual property rights and personal freedoms. One of these has to give.

Quoting John Perry Barlow from a speech he gave at Harvard earlier this year, “the greatest constraint on your future liberties may come not from government, but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.”

The people driving these arguments are not, as you probably can infer, people making a stink so that they can download Brittany Spears songs onto their Compaq Presario. These people have larger, more fundamental, and more interesting axes to grind.

For a fascinating and disturbing view I recommend Lawrence Lessig’s new book, Code. Lessig, a Harvard Law Professor, looks at the Internet’s basic structure, its place in society, and the factors that will likely shape the interplay of the Internet, government, and individual privacy in the future. Lessig believes that a likely scenario will be not direct, immediate government intervention, but rather that the commercial sector will be primarily responsible for erosions of personal privacy and freedom on the Internet. If and when things get too out of hand, the commercial sector will ask government to come in to regulate and, perhaps, reshape the Internet - and this regulation and reshaping will have profound and irrevocable implications for privacy and other public policy.

I’ve been reading these theoretical arguments, legal briefs, and articles and trying to decide, both as a lawyer and an artist, what to think, whether my angry failed-artist-thoughts can be reconciled with the presumably rational and dispassionate lawyer-thoughts. A strange thing happened to me a couple of nights ago that has informed my internal debate. I decided that if I was going to stand up here and talk to you about Napster, I’d better familiarize myself with it first hand. So I downloaded and installed the Napster program from Napster.com, and then did what I’m sure everybody who has ever released a recording does next: I typed the name of my band into the Napster search engine. I initially thought to myself, “I wonder if Blotto is getting ripped off? I wonder if people are out there getting these old Blotto songs for free, reaching into my pocket, stealing from me, just like they are stealing from Lars Ulrich? Wouldn’t that be an awful thing?” Then, as I was watching the word “searching” blinking on and off, I had this thought: “What if there’s no Blotto out there? If there’s nobody trading my band’s music? If nobody was ripping me off? Wouldn’t that really suck?”

After a few terrifying seconds, the search revealed that several people had copies of “I Wanna Be a Lifeguard” up and available for download, for all the world to share. And I was thrilled to see the song available. My band’s song was indeed out there, being listened to, moving around. That, to me, was infinitely better than the alternative.

This gave currency to another Barlow concept ? that the law of supply and demand doesn’t necessarily apply to information - that information becomes more valuable the more of it that’s out there moving around. Looking at those postings of Blotto songs on Napster, I realized he’s right. Blotto, the entity, the band, has more inherent value, I think, given the fact that Blotto songs were available on Napster. The number of songs available and the number of times people downloaded the songs were an indication of the songs’ and the band’s value to people. The problem becomes, then, how do we realize something like money out of this inherent value ? especially since the direct flow of dollars from the sale of music is being subverted?

Good question! For starters, if there are more people listening to Blotto because of Napster, I’m not going to lose a lot of sleep just because I’m not getting my 5 cent mechanical royalty every time somebody downloads a copy of one of our songs. Maybe people finding a couple of Blotto songs on Napster will have their curiosity piqued enough that they will go out and buy a Blotto CD. Maybe they’ll be more inclined to come see us play live somewhere. Maybe they’ll like a song enough that they’ll cover it in their own band, have a big hit, and make us rich. Unless of course, the popularity of their version of our song is by virtue of Napster. Oops. These are, of course, a whole lot of maybes, and maybes don’t pay the rent.

So what’s the answer? How do we define, to use the lexicon of those dot-com multi-zillionaires (at least they were multi-zillionaires ‘till 11 a.m last Friday when the market tanked), a business model for digital information, a way to realize and harness the inherent value of the exploding distribution of information? And how do we do it in a way that’s fair to copyright holders and insures ready and cheap access to everybody?

To the extent the music industry deigns to allow music on the web, its preferred method appears to be to charge for music on a pay as-you-go basis, with some locked-down security measures. Maybe music will come to you in encrypted digitized code that will self-destruct after one listen, like that little cassette at the beginning of the Mission Impossible TV show. Maybe you’ll be able to listen to a song four times before it disintegrates (it will count the plays for you!) Maybe if you try to copy the music you just bought or try to send it to a friend the music will just blow up. Maybe there will be what’s called a “watermark” on the digital file, and some way for the record company to trace and follow copies as they move around the Internet, and if your copy goes to too many places the Art Police will come after you and take your computer away and put you in Art Jail. Maybe certain compression programs will simply be outlawed, giving the Art Police more things to do and making the Art Jails even more crowded with people found in possession of the wrong computer program.

None of these alternatives strikes me as particularly appealing. I don’t know about you, but I want my music when and where I want it, period. I want it in my bathroom, I want it on my bedstand, I want it when I’m walking my dog, I want it in my car, and I certainly do not want to think about paying digicash to some corporation every time I listen to a song. I want the music to be transferable, I want to be able to bounce it from format to format, make copies for friends, and I don’t want anybody to tell me that I can’t.

Sure, somebody should make some money somehow in the sale of digital music, but how and how much? Some of the rhetorical defenses of Napster involve a general condemnation of the way record labels do business. Which I can certainly empathize with. I guess the rationale is that since these companies have been ripping us off for so long, MP3s and Napster as a means of payback are morally justified.

There is also the sense that major record companies have gamed the system by ramming laws through Congress like AHRA, the Digital Millennium Copyright Act of 1998 (DMCA), and, perhaps most onerously, the Sonny Bono Copyright Term Extension Act of 1996, which extended the length of copyright ownership by twenty years. (The Sonny Bono law was reportedly put in place at the behest of Disney, because the first Mickey Mouse-related copyrights were running out) These laws all tighten and strengthen the ownership of information, to the detriment of everybody else.

Another argument is that the very notion of being paid for making music is out-of-date, and that the whole idea was an aberration to begin with. Certainly, modern notions of copyright are only as old as recorded music itself - something less than one hundred years. Why should we assume these things are permanent, why accept that these things should be here forever, or even for another minute? Maybe it’s time to dump the ownership and royalty paradigm. Isn’t making music its own reward?

College kids are aware of this stuff; I have looked at on-line chats on the Internet and what is being discussed is this perceived corruption in and by the music industry, with an ultimate awareness of how little music company revenue actually makes it down to the artists whose music is being sold. The bottom line for these kids using Napster comes down to: “why shouldn’t we rip the record companies off?” and “we aren’t ripping the artists off because the record companies have already taken care of that.” I get a sense of “I want my MP3s, this is our Napster, and these big companies can go stick it.” And the fervor of these feelings suggests that Napster occupies much the same place in the hearts and minds of collegiate America that Vietnam occupied in the late ‘60’s.

Even more fundamentally, kids argue that this is their music and this is their culture. This is their social fabric, the sound track of their beings, and they don’t want four or five large corporations dictating to them how their music can be used, how they can get it, and how they have to pay for it.

One solution has been floated that music be distributed for free and that artists find peripheral ways to make money, such as touring, selling t-shirts, or getting corporate endorsements. In other words, we abandon much of copyright law because it just doesn’t make sense anymore in this brave new digital world, and we let other forms of commerce pick up the slack.

There are certainly models for this out there; the artist Moby has made a lot more money licensing his work for use in commercials and movies than he’s made selling records. Bands can make money from live performances. The Grateful Dead, for example, never sold huge amounts of records. They didn’t need to - they could announce a show at any stadium in the world and sell it out in a heartbeat. Touring these days is particularly lucrative when there’s a corporate sponsor underwriting the tour.

There are huge problems with this, of course. Taking away an artist’s ability to profit from the popular consumption of digital art, be it musical, visual, or literary, forces an artist to be something other than an artist in order to make a living. Finding some other way to make a living implies that the artist must then become, to some degree, a huckster, a carnival barker. The artist must publicly perform or sell t-shirts or cozy up to a corporation to make money. The artist must shape the art to fit these ancillary purposes.

Some artists don’t or can’t or shouldn’t have to do these things in order to get by. While many musicians already have this ancillary income thing down, it’s not a universal talent and it sure doesn’t follow naturally from being a song-writer or musician. And this is particularly unworkable in the literary context. Digital literary materials present the same troublesome copyright issues as music; like music, books can be easily copied and distributed over the web. So maybe writers should go and do readings, sell t-shirts, find some advertisers to pay for banner ads next to the online text, or sell their reader lists to some direct marketing outfit. Is there any real money in this? I’m not likely to wear a David Foster Wallace t-shirt; well, not very often. I really don’t think I’d regularly go and see some guy read his novel. Last year Don DeLillo, one of the great fiction writers, did a reading at the SUNY-Albany Writers’ Institute. His books are brilliant - him reading from them was God-awful. DeLillo certainly is not going to make his living traveling around doing dog and pony literary shows. And I suspect he wouldn’t sell many t-shirts, either. And he shouldn’t have to. He should be home writing, that’s what he’s good at, and that’s all he should have to do. That should be enough. And he should get paid for it.

So, again, what are the answers? First, are we talking about crimes here, about music piracy? I think not. It’s not piracy. It’s more like a mutiny, a mutiny against the large music companies’ modus operandi by their most important demographic of customers.

If there is really any piracy in the air here, however, it’s the piracy of the copyright code by the major corporate entertainment interests, which have leaned on Congress and corrupted the federal Copyright Act to secure control over information and to stifle new technologies. They have introduced concepts and elements into the Copyright Act that have little to do with the underlying basis and reasons for the Copyright Act. And this is all part of a massive information grab that has been hastened by the Internet and the steadily increasing dominance of Big Media.

And while I certainly do not have an answer to how the artist is going to get paid for the sale of digital media, I will voice my vote that artists should get paid somehow. And so while I despise the big record companies and their heavy-handed tactics, I can’t say that they’re completely wrong. They are certainly more wrong, I think, than the EFF and the hundreds of thousands of college kids gleefully downloading songs every day. So, as with any good controversy, the answer, is lurking somewhere in the middle - if there is an answer. I could be equally confident and comfortable arguing this debate on either side, although I’d be a lot more passionate and persuasive arguing against the music industry’s interests. And I’d have a lot more fun doing it.

I’m not ready to chuck notions of copyright just because a means exists for mass reproduction and distribution of intellectual property. In general, I think that people need to get paid for the things that they create, which is one (but certainly not the only and probably not even the most important) reason why people create in the first place. And the money incentive to encourage the creation of art is the primary reason for copyright laws to begin with, as the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” So my head, to some small and embarrassing degree, sides with the music industry. However, my heart certainly goes out to the kids, the hackers, and the computer geeks out there valiantly challenging an entire industry, a bloated and arrogant industry that needs to answer the wake-up call of the digital age.

postscript

Well, we used to love Napster, but it’s all over now. Various forces, all related to and/or driven by the RIAA’s lawsuit, have succeeded in killing it ‘til it’s dead. As I write this, Napster is completely off line - supposedly in order to post a new Napster program that contains some sort of digital fingerprint technology, that analyzes the audio characteristics of every song being traded, and blocks those recognized as being off-limits for free trading. This is the audio equivalent of another interesting initiative that was quietly tested at the Superbowl last January, in which cameras at the turnstiles allowed real time comparisons of the facial characteristics of passers-by to those in a database of bad guys. Lenin would be proud. Ecstatic.

Even this bastardized Napster may never see the light of day, as Judge Patel made an insane ruling this week that this new filtering process needs to be provably 100% accurate. Appeals have been filed, but it’s a lot of scurrying about nothing. I’m not sure anybody cares anymore.

Napster’s been over for a while, starting last November when it was announced that it was cozying up with major label Bertelsmann. Since then, Napster has slowly but deliberately moved away from peer-to-peer trading and toward becoming a brand for major label subscription-based downloading. Which has nothing at all to do with Shawn Fanning’s earth-shaking invention, but is probably a welcome development for the venture capitalists who floated Napster in the first place. They’ve got a brand! They’ve got a new new product! They might even have some cash-flow!

But the new Napster may ultimately fail. Napster has certainly been abandoned by its core constituency, the college computer cognoscenti. And judging by the numbers of Napster users logged on just before it shut down last week, it’s been abandoned by pretty much everybody else, too. Yesterday’s announcement that the company settled with Metallica strips it of any shred of street cred Napster still possessed. Napster is suffering, or will soon, from the “Peter Frampton Syndrome”, a victim of its own massive popularity and subsequent embarrassing hubris and betrayal of those who made it what it is. Let’s put it this way: no self-respecting college student in America would be caught dead wearing a Napster T-shirt today.

The flight from Napster appears complete. The big roll-outs of major-label related subscription services, including Napster’s (which is supposed to begin this summer, but nobody’s holding their breath) will be marginally successful. And the slick, sealed tuna sandwich faux-hip marketing efforts that will announce the roll-outs will be truly duplicitous and sickening, given what’s gone down.

So it’s up to the renegades out there to keep the flame burning - I read every week or so that some new program is available (the most recent being Gnucleus, which facilitates downloads over Gnutella-based networks, or something). The intrepid and smart can still find anything available somewhere on the Internet for free ? and it’s probably only a matter of time before a ubiquitous and easy system of locating and downloading music files for free emerges. And this time it won’t be a sitting duck for the RIAA’s shiny corps of lawyers. And it will spread like wildfire. And then we’re off to the races again.

Albany, New York
July 14, 2001