July 4, 2000

11:01 PM

Napster Says RIAA Trying to Stifle Technology.Aw yeah, it's nice to see Napster get on the offensive. Armed with data showing that CD sales have increased with the rise in mp3 trading, Napster is now alleging that record companies are against the software because it reduces their 100% control of the music distribution business. But will a court allow Napster to go on while their users walk the fair-use tightrope?
posted by mathowie (23 comments total)

Aww I hate DAT! I just had this whole long drawn out thing about this and lost it cuz I clicked on the 'go back' thingy and went back to edit it and it was all gone. Oh well. I'll summarize. Probably just as well. It was long and you guys probably wouldn't want to read the rambling version.

The Reuters report that Matt's referring to has this at the bottom of it:

"Whether or not it's lawful for users to share music one on one, it is entirely different for a commercial entity to create a business that induces users to do that,'' Sherman said. "The courts have repeatedly rebuffed attempts by businesses to hide behind the 'fair use' privileges of their customers,'' he said."

Let's say you own a bar. Let's say you bought some kickass dubbing equiptment for a song. You have a wholesale distributor for CDRs and can buy them at pennies a disk. You've had a DJ spinning disks but that alone hasn't been enough to bring in any clientele, and you don't have the space to put up a stage and bring in local bands. But you do have this dubbing equiptment. You decide to start a swap meet kinda thing. You charge people five bucks at the door. They bring in any CDs or cassettes they want, and for no charge they can swap music with others who come to your establishment. You provide the CDRs free of charge. Cuz you made such a deal on the equiptment, you figure you can absorb the costs from the cover charge and whatever you sell in alcohol. Is this illegal?

Let's say you don't own a bar. All you got is your computer and your CD collection. You host a party and twenty of your closest friends come over with their CDs and computers and you all have a swap meet party. BYOB. No money changing hands. Is this illegal?

Let's go back to the bar scenario. Instead of the dubbing equiptment and CDRs, you buy a couple thousand dollars' worth of the latest music, and offer to let people borrow CDs for a few days for a fee. Maybe a one-time fee of club membership or something. Or they can come in with five CDs they don't want anymore and can leave with one they do want and they don't even have to bring it back. Come to think of it there's a store not too far from me that has a deal like that. Is this legal?

Libraries make audio materials available to borrow for a few days. How's that legal if Napster's not? How can libraries let people borrow books if this is illegal? What's the difference? Libraries sure haven't hurt book sales.

If I just dub an album I have for a friend cuz he hasn't heard it yet, is that legal? Maybe maybe not but it's impossible to police that even if it is illegal. Blockbuster buys videotapes and then rents them out to people. If any of the above scenarios are illegal, how come Blockbuster can do this? Blockbusters sell CDs now but they don't rent them out. Why is there a difference?

I mean where's the line drawn here?

[believe me. This version's shorter than the one I accidently deleted. =) ]
posted by ZachsMind at 11:53 PM on July 4, 2000

Speaking as a sort-of musician, I can see where the bands wouldn't want to lose money. But they're not losing money - CD sales are up according to recent stats! The only place that sales have gone down in are college areas, but can you really blame the college kids? They're having enough trouble paying for their education, and now with the technology to download and share music for free, why spend $18 on a CD on which perhaps only one or two songs appeal to them?

I'm not clear on the whole legal issue because there are so many loopholes and contridictions, which I think is why this whole thing wasn't settled ages ago.
posted by elf_baby at 3:45 AM on July 5, 2000

I played with Napster for maybe an hour. It was cute, but giving the world access to my computer just bugged me. If they can pull off my music files, what else are they pulling off that they're not telling you about? Ok, I'm paraniod at times. Not that I've ever housed some nuclear secret that I really need to keep private, but it's just my gut instinct to not let things go unchecked.

A few friends are really into Napster. I asked them about this whole debate, their answer was, "Sure it's stealing, but I'd never buy these songs anyway." Not that this helps the recording industry any.

I can see a little bit of both sides of this issue. If I found a song via Napster that I liked, I'd be more inclined to buy the CD. At the same time, should they be allowed to distribute music so openly? Probably not.

As to the Blockbuster or Library issue, I think it's a good point. However, aren't there codings in both VHS and DVD recordings that try to prevent people from copying them? Will or can this sort of technology be moved into audio recordings? Don't forget that Blockbuster does purchase those videos that they rent out.

I would like to see the recording industry and Napster join forces rather than fight. Why not let Napster do what they do, but keep good track of the goings on so the recording industry can watch usage and trends. Wouldn't this help them out in the long run. I can even see at some point an email coming to you saying, "We see you've downloaded a bunch of Metallica recently, wouldn't you like to buy the CD at the discounted price of $xxx? Just go here and it's yours." They may not make every sale, but it's worth a shot.

But, in summary...Napster baaaaaad, Money gooooood



posted by jdiaz at 3:57 AM on July 5, 2000

jdiaz is correct, the videotapes and DVDs that Blockbuster rents out are encoded - as best the technology will allow them to be - to prevent "unauthorized duplication." CDs, of course, are not.

Anyway, I'm not sure I understand on what basis Zach's hauling in Blockbuster in the first place. Nothing in the copyright agreements prohibits Blockbuster from renting those films to you, while the language of the copyright agreements for CDs and cassettes - which are the issue here - clearly does. In both cases, duplication is explicitly prohibited.

No matter how they want to position it from a PR standpoint, there really can't be any disputing that Napster users are on the wrong side of the law. You want to change how the copyright agreements work to allow unlimited duplication and distribution of material you don't own? Fine. Organize on the Internet and file a class action suit against the recording companies and the RIAA and take your best shot in court. That's what courts are for. I don't have any real opinion about whether "music wants to be free" or whatever bull$hit we sling to justify Napster's use, but I do have an opinion that the law is the Law and should be respected.
posted by m.polo at 5:22 AM on July 5, 2000

Actually, the interesting part of Napster's defense is that they're saying that it *is* in dispute that Napster users are on the wrong side of the law -- that, according to a semi-obscure antitrust law, abuse of copyright ownership for monopoly or anticompetitive purposes (like artifically inflating the cost of CDs through collusion) leaves one without the right to that copyright. So, according to Napster's brief, record companies have forfeited their copyright and therefore have no claim to the songs that Napster's users are downloading. At least, according to the intepretations I read.

I've no idea whether or not that will win in court -- I suspect not -- but it's a totally fascinating defense. And the record companies have abused copyright law (and the artists whose copyrights they keep, for that matter) for so long that they deserve to get their asses kicked around a little.

And imho, it's not really a question of whether or not "music wants to be free" -- that's a rather immature way to phrase a particularly complex issue -- rather, it's a question of how our legal system (and copyright law specifically) has been pushed, pulled, and prodded in directions it was never intended to go. See Adam's recent blueblog entry for a better argued version of this.
posted by monstro at 6:36 AM on July 5, 2000

So if I wanna dub a copy of a CD for a friend I should be sent to jail. Cool. Thanks for clearing that up for me.

That's the most absurd thing I've ever heard.

The only reason Napster should be shot down is if someone can prove beyond a reasonable doubt that their actions are adversely affecting the music industry. The truth is the exact opposite has happened. Not just Napster. Modern technology as a whole is opening doors for musicians and artists, but corporate interests only want those doors shut. Why? Control.

I've never been more interested in music in my life. Admittedly that's not because of Napster. MP3c got me interested in my local scene back last September. I'm fired up about it now. A lot of very impressive music is coming out of Dallas, and I've lived here for years and never knew about it. So the technology of the Internet opened my eyes to my own backyard.

This is a matter of control and power for RIAA. There are no victums here. The RIAA doesn't understand the technology and is running scared per their ignorance. Personally I'm tired of the record industry deciding what makes the top forty pop charts. I think the people should find out for themselves what's out there instead of being spoonfed from Nashville and Los Angeles and New York.

posted by ZachsMind at 6:50 AM on July 5, 2000

Napster (for the record, I've never used it) would not have become as successful as it has if it weren't fulfilling a need that the recording industry isn't. Of course there are always going to be people who want something for nothing. However, I suspect that a lot of Napster users would be willing to pay a buck or two for individual songs if the record companies were willing to sell them in that format. Alas, the RIAA is determined to milk elf_baby's "spend $18 on a CD on which perhaps only one or two songs appeal to them" model for all it's worth. Since there are so few CD's on which I can find ten minutes of music I enjoy (my rule of thumb as to whether a CD is worth the standard price), I choose to spend my entertainment money elsewhere. I sympathize with those who choose to copy music instead. Regardless of the questionable legality of Napster, I agree with their claims that the RIAA's war on MP3 has more to do with control of distribution than with "protecting artists".
posted by harmful at 6:54 AM on July 5, 2000

Blueblog rocks. I like how the guy writes. Thanks for the heads up, Monstro.
posted by ZachsMind at 6:59 AM on July 5, 2000

what's funny to me is how much the press, riaa, and everyone is investing in the napster case. it's too late. the genie is out of the bottle. if we don't have napster we have gnutella. no gnutella? we have something else. music is now free, whether the recording industry likes it or not.
posted by owillis at 7:17 AM on July 5, 2000

Napster has no case whatsoever. Theft is theft, regardless if it's good or bad for the industry.
posted by Succa at 7:23 AM on July 5, 2000

Copyright is dead, it just doesn't know it yet.

The accountant mentality that artists should be paid for every play is absurd. To believe you own an idea, song, or whatever after it have been uttered or played is equally absurd.

posted by john at 8:17 AM on July 5, 2000

>> So if I wanna dub a copy of a CD for a friend I should be sent to jail. Cool. Thanks for clearing that up for me. That's the most absurd thing I've ever heard. <<

It may be absurd to you, Zach, but the fact is that is the Law - although I assume you are over-stating the probable punishment for comic effect. I believe you are subject to fines, etc., for that duplicate you make for your friend. It may just be "accountant mentality" to Napsterites, but I reiterate: you and everyone who disagrees with the copyright law have legal recourse should you choose to pursue it. Or, of course, you could just continue to steal property that doesn't belong to you...
posted by m.polo at 8:36 AM on July 5, 2000

I have to agree with owillis. Music is now free, gnutella and napster are just getting all the press... Trading MP3's is just like warez, you CAN NOT stop it. Whether people trade on IRC, ICQ, AIM or illegal servers -- NO ONE CAN STOP it. Sure, try a new encryption scheme and it will be broken in no time -- just like the DVD encryption.

I believe there is a new business model on the horizon for the music industry. Whether they like it or not.
posted by chiXy at 10:15 AM on July 5, 2000

chiXy, you're exactly right. the RIAA should be spending less time fighting the future, and more time turning the inevitable to their benefit. The industry winner is not going to be the group or the company that proves the law is on their side, it's going to be the one who takes best advantage of the situation in terms of a business model.
posted by sixfoot6 at 10:42 AM on July 5, 2000

owillis has it right on the money - if you will forgive the pun. The technology is now out there, and as long as it's there, people will use it, and there will always be alternatives to Napster. Music is now free, whether legally or illegally.
posted by elf_baby at 11:03 AM on July 5, 2000

(note: this is most definitely not directed at any one person, it's a mini-rant triggered by this thread)

Great, marvellous, free music for all!

Oh, wait, one thing. What's in it for the musicians again? Certainly not money.

Excuse me for not jumping for joy, but if there's no profit in productivity, there's going to be no productivity. If there's no productivity, there's no music. Now aren't you happy you got that Hot New Brittany Single all for free?

Freedom of information of any stripes is all fine and good, but there still needs to be some method for those producing, developing, refining and dissiminating the music to put food on their plate.

Being a starving artist may give you lots of credibility, but for some reason or other my bank doesn't consider that reasonable collateral.

RIAA is wrong, yes. Napster is wrong, yes. A middle ground that rewards people for entertaining us is what's necessary, not this bi-polar, black & white, good vs. evil shit.

Every time you download an mp3 via Napster, or I download one from Gnutella (I never claimed to be pristine) or Random Sally User downloads one from Freenet or when Future Biff User downloads one from the next piracy tool, you're taking money out of peoples' hands.

There's no point in bullshitting to yourself about how you're at the forefront of a revolution, how people are going to have to learn. You, me, and every other person who pirates is stealing. If you don't like being a theif, stop but do not try to justify it by standing behind some flag you and the other disillusioned mooches out there are waving as your call to revolution.
posted by cCranium at 1:17 PM on July 5, 2000

Wrong. You are not taking money out of anyone's hands.

I downloaded the latest bootleg mp3 from Billy Joel. I liked it. I bought the CD. Why? Cuz I like the CD cover and I like supporting Joel's music.

I've downloaded a lot of crap through MP3.COM in the past year. I now have a bunch of their DAMCD's and also commercial CDs from the artists that I liked. I tried a few tunes from a certain artist and if I liked the guy's (or gal's) stuff, I bought his CD.

I used to not go out to gigs or concerts. Now I do about twice a week on average. I'm spending more money in my local community than I used to, seeing bands I was first exposed to online.

This is NOT taking money out of anyone's hands. It is instigating a new renaissance of music appreciation. It will generate new revenue and kick in a revolution. RIAA is holding up the floodgates. They're not trying to save the musicians. They're trying to protect their own control over the industry.

Because I've never been interested in Prince or Madonna or Brittney Spears. Now I have an alternative. And that is what the RIAA is afraid of: That hundreds of thousands of people will stop blinding listening to whatever they tell you to listen to.
posted by ZachsMind at 3:53 PM on July 5, 2000

Want to know how to make money creating music in an environment where music is freely distributed at zero cost?

Read Jon Kelsey and Bruce Schneier's Street Performer Protocal. (Both work for Counterpane Internet Security Inc, and Bruce is the author of the introductory Crytography bible Applied Cryptography.)

In short, an musician, author our other creator offers to release their next song/album/book effectively into the public domain after a certain amount of money has been pledged into an escrowed account. People get charged only after enough has been pledged and the product is released.

The artist still has promotional expenses upfront to develop a market for the product, but after that, there is no distribution costs and legal hassles.

posted by ccoryell at 4:56 PM on July 5, 2000

Hate to say this, buy IMNSHO (as a content creator), Zach's right, cCranium is wrong.

The stats support the theory that "pirating" of music is *increasing* the amount of music purchased, or at least not *reducing* it. Most of the anecdotal evidence supports this too, but of course, you'd expect that.

I'll provide the opposite:

I have 183 songs in my Napster library (you may have some of them by now, too: look for " == " as a separator in the file name :-).

Without exception, they're stuff that would be impossible to find, or would be the only cut on the CD I'd be buying. Most of the are one-hits from 10 years ago, that probably aren't even in print, much less in stock, or things like TV themes. Anybody for "Good Girls Don't" by The Knack? Or "Night Moves", the sole solo hit by Phil Collins' "Separate Lives" partner, Marilyn Martin?

How about 9 different versions of "Somewhere Over The Rainbow"? :-)

Is this strictly legal? No, of course not. Is it morally wrong? Well, you ask a dozen musicians.

I pretty much guarantee you that the more money they've made, the less likely they are to be happy about it. What does *that* tell you?
posted by baylink at 7:03 PM on July 5, 2000

zach & baylink:

I never said it was Bad, I just want people to stop claiming they aren't pirates, or they're doing it to further some movement. Idealistically I'd LOVE to believe that, but I know too many people who are leeching, leeching, leeching.

Show me a study that directly correlates an increase in CD sales with the increase in availability of MP3s and I may actually begin to believe you. CD sales have increased, but so has disposable income in young people in the past decade.

Hell, for that matter, so has the number of times per year I'm having sex. Me having sex must be good for CD sales!

The vast majority of users on MeFi are clueful, and aren't hiding behind some undefinable revolution, but the vast majority of napster users are in it for the free music, with no concern about buying a CD, or supporting a user, and it irritates me.

I pretty much guarantee you that the more money they've made, the less likely they are to be happy about it. What does *that* tell you?

It tells me that there's definetely something wrong with the current state of the music industry, that's not a point I'm willing to argue.

It tells me that technologies like Napster are headed in the right direction, which is encouraging.

It tells me that unknown musicians want some way to lose the 'un' and get their name out there.

It doesn't tell me that musicians of any kind want to work their asses off for no recompense.
posted by cCranium at 8:34 PM on July 5, 2000

Software piracy has been around for much longer and the computer game industry is about to make more money then the movie industry.

The undeniable fact is that people DO buy software they use even when they don't have to. The people that do not are few and nobody should care about them anyway since they wouldn't buy it in the first place.

This is no different for music, except that I think that people care more about music and are much more likely to support the artists they enjoy.

Piracy is when my money goes to someone other then the artist. To all those that had depended on that money, sorry. It's time for a career change. Blood-sucking has gone out of season.
posted by john at 8:42 PM on July 5, 2000

Re: if there's no profit in productivity, there's going to be no productivity. If there's no productivity, there's no music...

Uh, what are you basing this assertion on? Recording technology, and thus the birth of the record industry as we know it is-- let's round off and say a hundred years old. But music "productivity" goes back as far as we can discern, probably all the way back.

Okay, if you bring in patronage models, then you can push the "profit motive" back a few more centuries, but music goes back still further.

Any way you slice it, music was around before there were people willing to pay for it. If all the people willing to pay for music disappear-- and Napster is no more likely to cause that than the dual cassette recorder did --there will still be people making music, because musicians make music for reasons other than money.

Some people make music to communicate emotions or ideas-- Napster aids that. Some people make music just because it's fun-- Napster doesn't hurt that. If all the people who made music strictly because they thought they'd profit from it disappeared tomorrow (and they won't) we'd lose the Brittney Spearses and the Poisons of the world, and this might not be a bad thing for music overall.
posted by jbushnell at 4:17 PM on July 6, 2000

Musicians are not working for nothing. In the past, in order to get heard by the world, you had to work your ass off for little to nothing, in order to eventually get "discovered" and have a single played on radio stations, or cut a deal with some promoter.

Today, you can be your own promoter. You can set up a website and put some of your music out there. Anyone can get discovered. Personally. Not by some third party which makes promises it may not be able to keep.

I have discovered a lot of artists for myself. And I can tell others about it who will listen. And they can go make their own discoveries. I walked away from the Industry's idea of "popular" years ago. I had walked away from music entirely, listening to Public Radio in the car. Occasionally pulling out old cassettes when at home. I'd stopped buying new stuff. I'd stopped looking for new sounds.

Back last fall, that all changed. I met a girl named Leora Salo at a ren faire here in Texas. She asked me to check out her mp3 page on the 'Net. First I'd heard of mp3c.

Back in March I had accumulated so much music, I decided to have a 12 disk CD changer installed in my car. I'm taking money out of people's hands by downloading music off the 'Net? Tell that to Kickstand. I bought both their albums. Or Pinkston whose EP I picked up at one of their gigs after seeing their website. Or The Touch. I'm one of their biggest fans. Tarrytown. 3 Shot West. Gropius. Blackwood Avenue. Cold Fuzion. I wouldn't know about any of these guys if not for mp3s being available online.

Okay. Granted I don't use Napster to find out about local music. However, I did use Napster to learn about artists whose names I already knew, and I use those mp3s to help me decide whether or not I want to buy the albums of those artists.

Although granted I haven't actually bought much of that cuz quite frankly, what I'm hearing coming out of the local scene here in Dallas just sets my soul on fire more. It's coming straight at you raw. It's not music that is filtered down through committee and decided upon based on demographics or acceptable profit margins.

Y'know what artists like Metallica are really afraid of? They don't know who their competition is anymore. Because their competition could come from anywhere. There's a band in Russia (try their song LOVE) which makes Metallica sound like someone scratching on a chalkboard. And there's more artists all over the world that Nashville and California are suddenly competing with.

If anything, this will spread the money already going into the big industrial complex of music. It cuts out the middleman, or at the very least it expands the need for a middleman into a completely new arena.

Change is good. And for more people than it is now, change will be even more profitable. The only people who will suffer are the ones who can't adapt. Metallica was on its way out anyway. If they don't wise up and get with the program, they'll be forgotten. Last I checked, Motley Crue was on the top of the mp3c charts. But now they're not competing with Metallica. They're competing with Fisher and Cloning Einstein. It's a whole new world!
posted by ZachsMind at 9:07 PM on July 6, 2000