Napster Will Not Be Stopped

29 September 2000

By Stentor Danielson

Napster users can rock on, at least for a little while. The 9th circuit court of appeals declined last week to lift a stay on an order that would shut down the popular file-swapping service. However, this hardly settles the debate over whether Napster frees artists and fans from the tyranny of the record labels or blatantly infringes copyright laws. But the real fault in this case lies not with Napster but with its users. Unfortunately, direct attacks on those users or the software that facilitates their misdeeds are bound to fail.

Under current law, most of what goes on on Napster is illegal. Some artists have offered free music and encouraged its distribution to widen their fan base (the Brunching Shuttlecocks even ran a contest in which the winner was randomly selected from users with their "The Björk Song" available for sharing). But most music being copied through Napster was created and recorded with the expectation of copyright protection.

Copyright defends the principle that, if you contribute to society, you get something for it in return. If an artist sings a song (or writes a book or paints a picture) that entertains us, copyright makes sure that he or she gets something for his or her trouble. Services like Napster allow users to benefit from music without creating the benefits artists expect when they made the music.

The suggestion that monetary gain is a concern for musicians -- that they're not doing it solely for the fans -- is repellent to many, and used as a justification for disregarding the claims of bands who have objected to copyright infringement. While the Red Raider Pep Band may just be playing for fun, professional musicians need to earn a living, to give them the freedom to continue to make music rather than going to the office every day. So they are right to be worried that something like Napster is offering to distribute their work for free.

True, many musicians -- especially big-name acts like Napster foes Metallica and Dr. Dre -- will not feel a real financial pinch. Napster is unlikely to flood our streets with out-of-work pop divas any time soon. But the ethical issue remains that Napster users are getting something for nothing while artists are getting nothing for something.

Napsterites like to point out that similar charges were raised against recordable cassette tapes, which were deemed legal. What they fail to point out is that distributing bootleg tapes is still illegal, and a small tax is levied on every blank tape to compensate for the piracy the buyer might commit.

Napster itself is technically not violating the law. The service has no control over what files are swapped. This does not make its users' activities right or legal. But it does mean that simple prosecution will not be effective against digital piracy.

We can't expect the Mp3 Police to raid households looking for illegal music files. The cost of prosecuting a single casual user outweighs the damage that any one person does in a sharing scheme like Napster. So arresting the actual criminals is out of the question.

Even if Napster is felled as a facilitator of crime, it will not end the problem. Other similar sites, such as Gnutella, stand ready to pick up Napster's stranded clientele. Some are based on decentralized data storage techniques that, once set in motion, couldn't be stopped by the creators even if they wanted to.

So the recording industry needs to find a way to adapt to the ease with which the Internet allows digital reproduction. It will be more successful in making Napster obsolete than making it illegal. Having survived the crises of recordable cassettes and radio (the music industry fought against musical broadcasts), the recording industry should be able to solve this new challenge, and make Napster the boon that fans think it is. To do that they need a new technological or business model that takes into account the popularity of the mp3 format.

One solution being pondered is a type of encoding such as Liquid Audio that would block a file from being copied or played illegally. This is one of the most promising ideas on the table, but even it has flaws. It wouldn't protect music already recorded. And it would be only a matter of time before some opportunistic hacker found a way to sidestep the protection.

Another possibility is the user fees plan that BMG Entertainment says it offered Napster. The plan resembles the small tax levied on cassette tapes. Each user would pay a small monthly fee, which would be used to pay royalties to copyright holders. But this plan also leaves questions unanswered. How would the royalties be divided among record companies? And what kind of sanctions could be used to punish noncompliance, particularly against systems like Gnutella that even the creators can't control?

A third option was launched Tuesday by Lycos and BMG, who partnered up to create a service legally licensed to sell copyrighted work. They are also considering an alternative payment model in which users would pay a subscription for access to the catalog, rather than a track-by-track purchase.

Every minute and every dollar that the record industry spends trying to litigate its way back to the pre-Napster days is a minute and a dollar not spent looking for a real solution. And all the while, the industry is making enemies of the fans, dimming the possibility that a system that protects artists' rights while facing the reality of file sharing will be accepted by the public.

I'd like to be able to offer a definitive solution to the problem, but I simply don't know enough about computers and digital media. What I can do is issue two reminders. To Napster users: sharing copyrighted files is ethically wrong and illegal. And to the recording industry: you'll never defeat the Napster phenomenon.

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All material © 2000-2001 by Eemeet Meeker Online Enterprises, to the extent that slapping up a copyright notice constitutes actual copyright protection.