Rants

Why Napster's Survival is in Your Best Interest

The pending and chilling Federal decision against Napster is grossly misguided and has the potential to precipitate a domino effect that jeopardizes fundamental American democratic ideals. One reason why the courts should not be making a decision to decide Napster's fate is because the entire U.S. legal system is based on the protection of property. This is why criminals can be prosecuted for stealing, and why a price tag can be put on something as intangible as a reputation. The legal system in the United States is, understandably, in place to preserve and protect the capitalist forces that drive this country. The lawsuits against Napster right now are over copyright, intellectual property, and the notion that the company is stealing from record companies every moment of the day that it operates. I begin my argument by making a case for Napster, and then delve into the potential consequences we inadvertently set ourselves up for by banning the service.

There is nothing wrong with the idea of a copyright. It gives an intellectual the right to profit from their own creations, and deserves a fair degree of protection under our legal code. In fact, I will even copyright this work under the assumption that I want to prevent others from copying my ideas here and profiting from them. And indeed, because of Napster, copyrighted works are being pirated, copied, and widely distributed worldwide. However, to charge Napster with a copyright violation is an oversimplification. It only acts as an intermediary; none of the copyrighted songs swapped on its network are housed in its servers. The service acts only as service which connects users from one hard drive to the next. It's merely a loophole -- albeit a significant one never before seen in human history -- that this particular service manages to let users share with a mass audience (as opposed to simply sharing a VHS-dub with your next door neighbor). Because no one has ever had a technology as widespread and cheap as Napster, we really are in a bind over what to do about it. Since Napster is far more complicated than what it appears to do on the surface, battling it out in the courts, again, oversimplifies the issue. For now, think of Napster as an online club in which people with common interests can come online and share their common likes. That's been happening for years now, and that's where the crux of this argument begins.

There are an estimated 64 million users registered with Napster. Surely, not all of them are run- of-the-muck criminals that society might typically associate with crime. To the contrary, since Napster is an online service, it requires that users have a computer, a speaker system and an Internet service provider. These are all things that are expensive to start with, and are still out of the grasp of many people both in the United States and worldwide. So the Napster client is far more likely to be affluent — the same people who regularly pay their phone and electric bills and don't steal cable. So why is Napster OK in the minds of its users? London Free Press writer Sharon Osvald has an idea. She suggests that the majority of people don't think that there's anything wrong with Napster. She wrote that "downloading a song doesn't pose much of a stretch on the moral muscle." She also used an analogy to a public library — if anyone can check out a book and read it for free, why isn't Napster allowed to do the same? That's a valid argument. If copyrighted works exist in the public domain (ex: public libraries, which today contain audio and video works) and can be accessed for free (with only one person having paid for the work, and then shares it with countless others) then why on earth are the Barnes and Nobles, Border's Bookstores and Amazon.coms thriving? Primarily because people will sample to their heart's content, but there are still fewer things more fulfilling to the American psyche than actually owning an object for personal gratification.

That leads us to the next question: how much money is Napster preventing the record companies from making? I will suggest none. So will the Boston Globe's Renee Graham who notes that "there is no proof that Napster has hurt the music industry." Consider that there's no coincidence that "several artists last year, including Eminem, Limp Bizkit, and Britney Spears, sold more than 1 million CDs during their debut weeks," Graham notes. Interestingly, those phenomenal CD sales are coming from the biggest demographic using Napster — teens-to-twenty-something's. The very people who are downloading copyrighted works on Napster are also buying the full sets in (no pun intended) record numbers. Graham also adds that "Napster has been a tremendous boon because it has allowed fans to sample music before buying it — the Dave Matthews Band put its latest single ‘I Did' on Napster weeks before their album ‘Everyday' was released, and the CD still sold more than 700,000 copies in its first week." And given that the average cost of a CD is anywhere between $14-18 today, that's a net gain of $11.2 million dollars in a single week. Not too bad, and certainly not the type of sales that are going to force layoffs at the record labels anytime soon. And at those prices, again the record companies are targeting the affluent.

Indeed, the record companies concede that those numbers may indeed still bring them a profit, but they argue by asking us to imagine how much they are still losing to people who download an entire album off of Napster. Again, I will suggest none. When I download a song off of Napster, it is generally because I don't have any desire to buy the whole album. And since I wasn't planning on buying the album in the first place and therefore would never have spent the money, a record label neither gains nor loses anything from me having a copy of the song on my hard drive. I might even become a fan of a particular artist, and keep my eyes open for future albums or coinciding merchandise. Nothing gained is nothing lost is nothing gained. Simple.

There are laws in place to protect our right to copy. In the Law of Public Communication, Fifth Edition, author Kent Middleton summarizes the Fair Use clause of copyright law by writing, "the fair use doctrine attempts to balance the competing social interests of encouraging creativity by granting a copyright while allowing limited copying for comment and criticism." That's why copying is permitted. In the specific case of Napster, following other clauses within the complicated copyright laws, the court's decision should be, as outlined by the law, based on the impact this copying has on the market for the copyrighted work. As I have just demonstrated, Napster's effect is negligible.

Then, there's the problem of the recording companies in the first place. Why are they running scared from Napster? Why must they seek the protection of Federal courts in order to continue running their businesses? Twice magazine's Greg Scoblete outlined arguments made at the Consumer Electronics Association's Digital Download conference during the second week of March, 2001 in Maryland. The article noted, "Jonathan Potter, executive director of the Digital Media Association, energetically criticized the MPAA and RIAA for shortsightedness when it came to the Internet and said, ‘What Napster did was take advantage of a market vacuum created by the music industry when they chose to ignore the Internet.'" And Manus Cooney, the Napster Vice President of corporate and public policy, was quoted as saying, "The problem is largely that copyright law existed before this new technology and the vagaries and intricacies of the law are being used to bludgeon new technology. The RIAA has engaged in a policy of sue, sue, sue until they figure out how to come to grips with technology. And that's not a good strategy." Yes, the recording labels are giants running blind. They have a perception that 64 million Napster users are scurrying around the Napster service, and taking millions of dollars worth of potential sales with them. The idea that they need to stop Napster, rather than adapt to Napster, is simply foolhardy and does nothing to help society, or to further their bottom line.

Now, it's time to evaluate the threats to our democracy without such a service. A particularly compelling argument is laid out in the February, 2001 edition of Discover magazine. In it, author Matt Mahurin details the grave implications democracy would face if the courts kill off Napster. He first asks us to remember that there are only two options here: the first is to let Napster be, with free file sharing and the likes, the second is to "enforce a frightening level of control of informational movement." Remember also that if Napster is banned, that sets a legal precedent(defined by Middleton as "an established rule of law set by a previous court opinion") which means that all Napster-like software is also banned. Granted, the Internet has always been known for its pirating grounds, and one would reasonably suspect that dozens of similar sites would pop up (Aimster, AudioGalaxy, Napigator and BearShare already purport to do this). With that comes an enormous legal challenge: None of these services are operated off of a single networked server like Napster. In order to stop file swapping, the record companies would literally have to find and sue every single one of the millions of people engaged in song-swapping online. With the courts ready to ban Napster-style networks (in a misguided effort to protect the commerce of the record companies) they are also willing to back the labels with new copyright protections. By that I mean the record companies would then be forced into creating end-to-end solutions. Mahurin proposes that they would use that method "so they could enforce copy protection all the way to the end of the chain of delivery, which in the case of music, meant the audio speaker..." and that eventually, "it was illegal to build speakers that could respond to old-fashioned analog inputs. Instead, manufacturers made speakers that responded to digital inputs so they could play only music authorized to be heard at a given time and place." He then gravely warns us that "this shouldn't sound far-fetched. It happening already." As a simple and recent example, Consumer Electronicsnoted in its July 19, 2000 edition that consumer devices from Philips will include end-to-end protection for all of its video recorders. And the music industry is actively working towards a standardized Secure Digital Music Iniative (SMDI) in which future digital electronic equipment would only play MP3s or other media files if listener is properly authorized to do so. The SMDI is close at hand, since the Digital Millennium Copyright Act mandates that built-in copyright protection be standard on all future digital equipment. The act also makes illegal any code- cracking to defeat this built-in technology. The technology companies are forced into compliance, lest they be held inadvertently responsible for pirating using their products.

But in Mahurin's hypothetical presentation, people would still use traditional microphones to record audio from speakers and people still wanted to make their own recordings, and distribute them without any interference from an SMDI interface. He suggested that media companies would then seek to have a speaker that could distinguish even the sounds of a homemade song and that of a truly copyrighted material. Mahurin offers that the next step would be "In lieu of that, they asked for, and got, legislation that forced everyone to copyright, or at least register, every work of art, even those made by amateurs at home" and that eventually "every stream of sound had to present the right documentation to a pair of headphones or speakers — or the music couldn't be played." In order to regulate the few commercial copyrighted works, the corporate interests could conceivably dive us to a centralized registration agency. Who would run it? The government? A series of companies like the big three that monitor everyone's lines of credit? By the time all was said and done, all forms of communication — audio, visual, text or otherwise — needed to have a digital seal authorizing its use in its location. In its proposed settlement, Napster has already offered to create a "complex new system for the network that tracks the copyrights of songs and credits labels each time one is traded over the network," according to Dan Goodin of The Standard's February 20, 2001 edition. Also in the works already, and also part of Napster's proposed settlement, is the offer to "limit the recording quality of songs on its service to 128 kbps, a format that is roughly on par with the sound of compact disks," according to Goodin. He also notes that "users who want to convert, or ‘burn' Napster files to compact disks or ‘export' files to MP3 devices would have to make additional payments." The very service I am defending here may well be forced into cornering consumers into a situation where preventing the conversion of files to CDs or other media to comply with the low. It would be "unprecedented" according to Goodin. If that should happen, then I move to defend only the open-sharing format that was the original Napster.

This scenario is not altogether unlikely because so much of it is already happening, or well on its way. Again, at that Maryland consumer electronics conference, Gary Shapiro, the president of the Consumer Electronics Association explained that "We like Napster's service but are concerned with its impact on artists. But any restrictions on recording or other new technology must be justified and narrow." In an effort to protect some highly prized copyrighted works (Britney Spear's "I Did it Again" or Christina Aguilera's "Genie in a Bottle" or whatever pop sensations arrive on the scene over the next few years) our courts unwittingly set us up for a Big Brother society many of us never imagined possible. They did it because the fundamental argument is that Napster steals, and that stealing is wrong. But as I have laid out here, the situation is exponentially more complicated than that. And consider this frightening thought: We do have a fair use doctrine to allow us to use ideas, especially in intellectual and satirical settings. What these technologies on the horizon threaten to do is to prohibit any reproduction of copyrighted works, thus making a fair-use clause virtually useless. May I also remind you that there are many instances where copying is legal. Russell Moore wrote an editorial in the March 13, 2001 Anchorage Daily News in which he noted that "I buy almost all of my new music on records ... Copyright law allows me to have one copy of each album I own for archival purposes. I don't have the expensive equipment necessary to record CDs from my records, so I use Napster." He also argued that "Napster allows me to share MY MUSIC files with others, and I do so. If people weren't sharing files, then Napster simply wouldn't work." He concluded by noting that while "sharing these files makes it possible for others to break the law, it also makes it possible for people like me to use Napster for a legitimate purpose." That's an important point.

I would love to see Napster do what it had been doing. And perhaps there is a fair solution, maybe even a fee-based service that could spring up if this could be negotiated outside the context of the courts. Does Napster allow copyright infringement? Yes and no. Is it detrimental to the record companies? Yes and No. And since the issue is so much more complicated than stealing or not stealing, so much more than black-and-white, this issue should not be settled in the courts. I would suggest that perhaps some well-reasoned and openly-debated legislation could be proposed to offer up some solutions, but the recording industry (the RIAA specifically) gave more than $446,000 to political candidates and party committees in the 1999-2000 election cycle alone, according to a report published in the San Jose Mercury News. The industry as a whole gave $3.2 million dollars according to the Center for Responsive Politics. So our legislators can't be counted on to help the democracy (contrast: the corporation) continue to thrive.

My main solution is to challenge the record companies to: lower their prices, and offer incentives to buy their products. CD-ROM interactive games, lyrics, karaoke versions and the like could all be hits with the consumer, which would demand that they go out and purchase the entire bundle. Indeed, in our free-market capitalist society, Napster is the first competition that these media giants have ever faced. It's ironic that the courts, which purport to defend our money-making society, would try to kill off this essential democratic element.

Could there be a more sinister reason behind the record labels' desire to kill off Napster? The Internet has, for the first time, created mass channels of distribution. A local artist on Napster can now reach the same 64 million who use the service, and that is nothing short of a mass audience. Combined with the power of a web site and clever marketing, any musician now has the potential to enter the mass-distribution market that the media monopolies have traditionally held. That is also a form of competition, and I'd bet you that the record companies are uneasy about this, too, and don't like the way Napster can generate attention away from the pop superstars towards more grounded people who simply want to share their love of music, their ideas, and maybe make some money off of it in the process. I am left with some satisfaction, though. The Chicago Tribune reported that the Aimster network (which, as you may recall, uses a decentralized network for its song-swapping) has started encrypting its files. In a slap to the industry, if it "wants to monitor the network for copyrighted songs, it would have to crack that encryption. But that would violate an anti-code-cracking clause in the Digital Millennium Copyright Act, the federal law the industry practically begged Congress to pass." Just let Napster be — our country will be richer for it.

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