''They're absolutely lying. There's no question that they're lying,''
May 17, 2000 5:14 AM   Subscribe

Hey, when in doubt, blame the customer... That always works in a retail business like music, right?

posted by aurelian at 9:16 AM on May 17, 2000

"Each and every one of them was offering Metallica MP3s for uploads." -- For uploads? I think Metallica might want to find a lawyer who understands the difference between upload and download. It might help their public image just a little bit.
posted by shmuel at 9:59 AM on May 17, 2000

What are you talking about?

1) They are lying.
2) They aren't customers. They're pirating music.

Maybe the music industry is clueless about this whole thing, but last time I checked pirating music was illegal.
posted by y6y6y6 at 9:59 AM on May 17, 2000

y6-3, What are YOU talking about?

1. Some of them AREN'T lying. A buddy of mine signed up for Napster ONE DAY before the cutoffs occurred. He had no MP3s on his computer. He was cut off.

2. Some of them are *customers* who don't know how to rip CDs to MP3s, but who do know how to search, double click, and download.
Or who found that on their high-speed connections, downloading is faster than ripping.
Or who don't want to lug their entire CD collection to work in order to rip all their favorite songs to MP3 and have them there, so they downloaded them through Napster instead.

3. Some of them were cut off only because they had legit Metallica MP3s in their MP3 folder. They may not have even known that their MP3s were available for other users to download-- I know two people who had Napster who didn't understand how it worked AT ALL and didn't realize other people could get music from their hard drives.

There are a lot of possibilities for why someone would use Napster, and not all of them involve pirating music.
posted by wiremommy at 10:09 AM on May 17, 2000

I personnally know a few people who were banned, and neither of them have, or had Metallica on their servers. I have also heard similar stories from other people, so don't give me this shit that they are all lying, cause there are always some who get nailed, when they are innocent.
posted by da5id at 10:11 AM on May 17, 2000

Whether or not they were customers before, what are the odds of these guys ever being Metallica customers in the future?
posted by harmful at 10:11 AM on May 17, 2000

Besides the fact that there are 30,000 people willing to allow themselves to be prosecuted for pirating by submitting their name and information to Metallica.
For some, they want to try and bluff Metallica, but I have a feeling for a lot of others, they have no clue as to why they were banned.
posted by da5id at 10:15 AM on May 17, 2000

the bottom line is: 'How can you accuse someone of illegally traing mp3s if you don't what they have in their CD and tape collection.' For all we know, those 300,000 users could own every single Metallica album in their cd collection and just be too lazy (or not have the software) to rip their own copies. Just because someone has an mp3 on their hard drive does not make then a theif.
posted by Doomsday at 10:48 AM on May 17, 2000

"They're lying..."

That's libel, isn't it?

Subpoena the entire readership of USA Today as witnesses. Um. On second thoughts, subpoena the readership of Metafilter, and they'd stand a better chance.
posted by holgate at 11:21 AM on May 17, 2000

Actually, by United States law, unless the MP3 on their hard drive was purchased as an MP3, it does make them a thief. Otherwise they copied it from another source, and have therefore violated copyright law. If every single one of the 300,000+ users own every single Metallica album in their CD collection, they are allowed to own one CD copy of every single Metallica album and nothing more.

Only the original owner of the work has the right to copy it in any form for any reason. "All rights reserved" means that the copyright owner reserves the rights as listed under U.S. copyright law concerning the distribution and copying of the material.

When you buy an authorized copy of a work, you're entitled to that copy and nothing else. The law states you may not copy, lend, lease or rent that copy unless you're a library or archive. However, you may sell your copy to someone else, but you still can't copy it.

"Fair use" is also determined by the copyright owner. You may copy portions of a work you do not hold copyright on for things like critiques, news reporting, teaching, research, etc. But if you copy too much of the work in the eyes of the copyright holder, you could be liable.

Anyway, the question here is not "is Metallica within their rights to do what they've done," because they are and no one's disputing that, not even Napster.

The question is, do the current copyright laws make sense in this new environment, and if they don't, how do we fix them and still provide protection for copyright owners, regardless of whether we feel one owner is more justified to receive compensation over another? If the artist in question were not a multi-platinum megagroup but instead some indie rockers from Fresno trying to protect what little power they have over their own creation, would this argument be different?

This message ©2000 Lance Arthur / All rights reserved
posted by honkzilla at 11:38 AM on May 17, 2000

So, if I own a CD but want to copy it to tape in order to listen to it in my non-CD-player-equipped car, I'm not allowed to do that? I was under the impression that this was legal, so long as I don't sell or give away this copy or anything.
If what you're saying is true, then EVERY SINGLE mp3 out there is illegal, because even if I rip my personal CDs to my hard drive for just my personal enjoyment, I'm violating copyright laws.
posted by zempf at 11:57 AM on May 17, 2000

It'd be interesting to see how many banned Napster users were based outside the US. And while yer CD may say "this recording is governed by US copyright law", I'm sure there are some place where Napster goes, that the Berne Convention doesn't.

What's slightly disturbing is that the DMCA transforms the status of "ownership" for more traditional media (ie CDs) into that of software apps: that is, you licence it rather than owning it. Personally, I think that leads to the kind of stagnation that you get in London property values, where the aristocracy retains the freehold and the tenants sell 99-year leases. Or where Disney decides that while the fairy tales it rips off are in the public domain, Mickey Mouse needs another half-century of copyright protection.

Copyright was always based around the idea that it would benefit the actual creator: the original limit in Britain was 21 years, so that if the writer died, the money could be used to support his wife and kids. But corporations don't die of natural causes. More's the pity.
posted by holgate at 12:11 PM on May 17, 2000

(Disclaimer: I am not a lawyer)

No, by the letter of the law, you're not allowed to do that unless you have the permission of the copyright owner to do so. Yes, you're supposed to buy another copy on tape for your car.

The recording industry has largely looked the other way regarding home recording of tapes (and now CD burning, Minidisc, MP3, VHS and whatnot) because they figured, and not unrealistically, that they couldn't enforce it anyway and it worked on their behalf because it was more or less limited to home use to single users. As the argument goes among some supporters of open copying, "it's not all that widespread, it doesn't hurt the bottom line, and maybe tape trading will bring our artists to the attention of people who wouldn't otherwise hear them."

But the landscape has altered dramatically, especially with Napster. Now, your home-recorded copies aren't held captive on tapes, you can open them up to anyone with a modem and a computer. This could conceivably be more harmful to recognized, platinum-selling artists with mass distribution more than your favorite garage band nobody's heard of because every free copy of a work means they didn't sell it. The distribution channel loses value, the work loses value, etc.

The fear is, and again it's probably justified, that this is just the beginning and one provision of copyright law is that unless you enforce your copyrights, you're giving tacit authorization to lose your copyrights. If you never say, "Stop that!" and slap a few hands, doing so in the future in almost impossible because the courts will likely find that if you didn't do so earlier, the latest attempt is prejudicial and they'll disallow it and, oops, you just lost your rights.

So Metallica is taking steps now to enforce their rights regarding ownership of their creative works in the belief that this is the tip of the digital iceberg, so to speak, and if they do nothing now, allowing anyone to copy their work, post it publicly and trade it with no compensation to the artist, they may lose it once digital distribution becomes widespread and people are uploading and downloading copyrighted material will-nilly because they don't know (or don't care) that it's illegal.
posted by honkzilla at 12:20 PM on May 17, 2000

"The question is, do the current copyright laws make sense in this new environment, and if they don't, how do we fix them and still provide protection for copyright owners" - Copied without Lance Arthur's Permission -

I don't see it that way. Laws are going to have to change and adapt. Some groups like Motley Crue are giving away their MP3's on their site for promotional use. Their new album comes out next month, you bet your bippy they're putting out samples....and hardcore fans like me will WANT to buy the CD and buy tickets to catch them & Megadeth on tour this summer. Singer/Frontman Vince Neil is a VP in a "Biker Apparel" business... and he's gonna make a shitload of money from loyal fans, who appreciate his giving a little back (How Elektra records may feel, will be a different story).

I do agree with what Lars said on Charlie Rose: "We should have been given a choice *not* to participate". Hey no problem, you don't want to get with the program, that's cool.

It's a lot like drug dealers. Give 'em a sample, get 'em hooked...and reel 'em in. While this may open moral issues in itself, my point is...it works.

I don't hear unsigned artists or people screwed by record companies screaming foul about this...they love the way the new system works.

It's the new(actually old) way to do business...people can either grap their copyrighted work with both fists and look like a bad guy... or they can learn how something for "nothing" can bring a pretty sweet return.

(Feel free to pass this quote as your "Words of Wisdom" on your site, y'all!)
posted by EricBrooksDotCom at 12:24 PM on May 17, 2000

But, by that same logic, it also means that to enforce their rights, they must now sue 30,000+ individual fans. That's 30,000+ indivdual lawsuits. If they fail to do that, then they will be absolutely powerless in this struggle. Should be interesting.
posted by fooljay at 12:29 PM on May 17, 2000

Oh and also, let's say I am one of those 30000 fans. What proof does Metallica have that I was breaking the law? Did they do a search on Metallica and come up with search results that said I have a file called "Enter Sandman.mp3"?? That's not good enough, because that is a recording of me sleeping.

Or, did they download a song form each individual user to make sure that it was their material?

And if they did the latter, what residual proof do they have that they followed this procedure with an MP3 being distributed from my account? Do they have indivdual MP3s that they downloaded? That says nothing of its origin. Do they have screen shots -- or better -- video, of them verifiying the illegal activities?

Again, this should be interesting.
posted by fooljay at 12:34 PM on May 17, 2000

Let's face it, Intellectual Property gets pissed on all the time. Technology is just increasing the girth and flow of this disregard.

I believe that people should be compensated for their work, but I think the old system is not compatable with today's tech. We can either let the lawyers continue to reap the benefits of this never ending battle or trust that there are enough responsible people out there to support artist, writers, movie-makers, etc.

Maybe most people are a lost worse then I think. Lars certain thinks everyone in the US is a greedy bastard.
posted by john at 12:50 PM on May 17, 2000

(Disclaimer: I am also not a lawyer.)

Lance: "one provision of copyright law is that unless you enforce your copyrights, you're giving tacit authorization to lose your copyrights"

I don't claim to know copyright/trademark law, but I thought this provision only applied to trademarks, not copyrights. In other words, you have to protect your trademark if you want future protection, but copyright is a different story, which you may selectively enforce. But what do I know. I'll ask my smart wife.
posted by daveadams at 1:18 PM on May 17, 2000

Guys... just a little enlightenment from a bitter, former musical-type who wishes every fatcat record company pain and suffering....

When Lars talks about "rights" and "ownership", he's not talking about copyright (that's if you decide to pass off "Enter Sandman" or "Unforgiven" as your own)...he's talking about "Publishing rights"...where the *real* money is.

When you hear a Beatles song on the radio, the Fab4 (Paul, George, Ringo & Yoko) ain't getting a dime... Michael Jackson is throwing some kid off his lap to get that check to the bank before it closes.

When you sign with a record company, the first thing you are expected to give away is your "publishing rights" (ie: Your Soul). So where's Clive Davis, Berry Gordy and Tommy Mottola in all this? Aren't they losing money????

No they're sitting there laughing their asses off at stooges like Mettalica and Dr. Dre throwing their careers away going after that 3 cents they lose with every MP3 distributed.

They *know* MP3 is good business, and they'll figure out how to make money off it soon enough. In the meantime, cutting down to buying only two Rolex's a week, and filling their fleet of limos with "Regular" instead of "Premium Unleaded" Gasoline suits them just fine.
posted by EricBrooksDotCom at 1:36 PM on May 17, 2000

I'm very hesitant to jump back in here after being slapped about (mostly fair I admit) after my first post. This is a very inflammatory issue. This is just my opinion, and I don't know enough about the inner workings of the music, or copyright law to speak as any sort authority. But......

"We can either let the lawyers continue to reap the benefits of this never ending battle or trust that there are enough responsible people out there to support artist, writers, movie-makers, etc. "

Napster and it's clones piss me off because for the most part the only people who will make money in the long run are lawyers. I would rather geeks would work with monoliths like Big Music so that everyone BUT lawyers could benefit. Everyone is so busy flipping off the music industry and ignoring the hypocrisy going on. "Some of them aren't lying." Some of them are customers." Whatever. This wouldn't be an issue if people were using it for music they'd paid for. You're only making lawyers happy with this position.

I think Napster with a realistic subscription model would be good for everyone. New bands could get music out cheaply, big bands could get paid, and consumers could get cheap clips. Bands could even opt to have their music available for free. I'd pay a few bucks a month for something like that.

If you stand up and tell Big Bands and the music industry to fuck off, you only guarantee that lawyers will be very, very happy. "Settle it in the courts" is such a sad solution. "But, by that same logic, it also means that to enforce their rights, they must now sue 30,000+ individual fans. " I'm sure lawyers are creaming their slacks hoping this will happen. The less Napster works with the music industry, the happier lawyers will be.

<disclaimer>You might be thinking that I don't like lawyers, but actually I just hate the industry and the process. I've known several admirable lawyers. Even dated one. But the mess that the 75% who are bad apples have gotten us in is shameful. How about insisting on common sense and fairness? Would that be so bad?</disclaimer>
posted by y6y6y6 at 2:04 PM on May 17, 2000

Re: making tapes from CDs...
Isn't there a 2% "duplication tax" on blank cassette tapes that kicks back to the record companies as a sop for the money they "lose" when you copy a CD onto tape?

Re: MP3s in general...
This phenom might also be viewed as a "market correction" because CDs cost too much. For example, most places sell cassette tapes for $11 and CDs for $16. Do CDs cost more to make than tapes? Not anymore. Then why the two different prices for the exact same material? Because CD is a more desirable format, so record companies know they can gouge you for it.
Or should we consider that extra $5 a "duplication tax" to cover the "losses" the record companies incur when you rip your CDs to MP3s?
Just a thought.
posted by wiremommy at 2:06 PM on May 17, 2000

Wiremommy, it's worth noting that CDs never cost that much to make. They're priced like that because the record companies used them to replace vinyl, and it currently costs somewhere under a dollar to actually make CDs in bulk. (Leading to one of the more ingenious of the many, many ways that labels screw bands: royalty rates based on vinyl prices, despite the increased profit margin.) All-around copyright heroes Negativland have written about this.

Jenny Toomey, the former singer for Tsunami and co-owner of Simple Machines Records (whom I find both more appealing and more credible than Lars) has compiled some of her thoughts on the subject of post-copyright music.
posted by snarkout at 3:01 PM on May 17, 2000

we, the consumer, have been getting screwed for decades by the music industry. Don't you think it's about time we turned around and started screwing them? I sure do. Maybe it's not legal to have mp3s on your HD, but those laws need to be revisited. Computers and the Internet have always created a danger to copyright law. It's a fact of life. From software piracy to music copying. I know it's starting to sound like a broken record but Metallica needs to "get with the program". Anyone who saw the Charlie Rose show will know what i'm talking about. I think Lars was sporting a variation of the extinct camero mullet. These guys are out of touch bangers.
posted by Doomsday at 4:11 PM on May 17, 2000

snarkout - excellent links. I liked those.

Doomsday - I agree with everything except the idea that the music industry is "screwing" the consumers. They use the same pricing strategy that most large businesses do. They charge the highest price that people are willing to pay. If they can make some side deals to make more money they will. This is how business works. It's how economics works.

Labels DO screw bands, everyone seems to agree about that, but that's not the issue here. ( At least not for me. I'm talking about labels vs consumers.)

People are pissed about high CD prices and that's one of the major causes for the backlash. But people have also been buying CDs at $16 for a long time. Do you expect them to slash prices just out of pure kindness?

But I agree that they are being really stupid about this Napster thing. Like I said, only the lawyers will win. Metalica and the music industry will lose this one big time.

At the same time I still think Napster & it's clones are also being stupid. The laws will change, but the free-for-all access to copyrighted material will still be illegal. Both sides should be working to find a new model instead of just tossing the problem to the courts. Legislating a solution is a really bad idea for everyone.
posted by y6y6y6 at 5:30 PM on May 17, 2000

Thanks, Y6. The problem is, as people have pointed out, a centralized system like Napster at least retains the possibility of having the consumers pay on a per-download basis; I think killing Napster is just going to move people over the Gnutella, and then the cat's totally out of the bag.

If you dig around in her section on insound, you can read several more of the "Jenny Toomey comes to grips with the post-copyright age" essays. Since high school, I've been a fan of the music her (now defunct) label has put out, so I'm a bit biased, but I find it troublesome that even musicians who aren't limo-driving zillionaires are worried about making a living; it makes me rethink my idea that labels like Merge, which have a closer connection to their fan base, and bands like the Poster Children, who put out their own music, are going to survive.
posted by snarkout at 8:07 PM on May 17, 2000

I may be wrong, but haven't Metallica done harm to the general position of music publishers by being so public? In the last couple of weeks I've heard more music coming from PCs at work than ever before, where did it come from? Almost everyone I've spoken to about this has suddenly heard of this great 'new' way to get free music, MP3. There are far more sites than Napster offering copyrighted music and awareness has been significantly raised since the start of this lawsuit.
posted by Markb at 1:25 AM on May 18, 2000


(Record labels) use the same pricing strategy that most large businesses do. They charge the highest price that people are willing to pay. If they can make some side deals to make more money they will. This is how business works. It's how economics works.

It depends on your value for "most". :)

Real-world business -- as opposed to laissez-faire theory -- has a tendency to do things far more on the basis of ego than sheer money. This shows up in all kinds of fields: real estate developers who build low-density 'burbs rather than high-density multi-use downtowns; software publishers who keep prices artifically high to reduce the user base and thus support costs; car makers who price electric cars artifically high to support their parts and repair businesses; etc.

The blunt truth is, nine times out of ten, you can make up in volume what you lose on margin. That is, lower your prices, and you'll sell sufficently more of a thing that you end up actually making more money, not less.

This is especially true of items (such as music and software) where the price of physical production is quite small.


Labels DO screw bands, everyone seems to agree about that, but that's not the issue here. ( At least not for me. I'm talking about labels vs consumers.)

Yes, it is the issue.

Look... the overwhelming majority -- 90-95+% -- of CDs lose money. Everybody in the industry knows this, and it's one of the alleged reasons for high prices, so that when something is successful, there's a cascade effect. Movies are the same way.

Basically, the top 50 or so albums pay the freight for everyone else. This has been true for decades, and is the industry's standard excuse for why backlists (older titles) are limited.

Where the band makes money -- just about always -- is in live performance. Think about the Grateful Dead, or Jimmy Buffett. No hits for years, but some of the wealthiest guys in the business, because of concert sales.

CDs are basically loss-leader promotional items, to publicize concerts. At least from the band's point of view.

The time to be worried isn't when you're being pirated... The time to be worried is when you're not being pirated, because it means there's no demand. This applies to software, as well. (Quick reality check: Who's the most pirated software company on the planet? How many pirated copies of all versions of Windows float on the warez groups? How many copies of OS/2? :)

This is what I meant about "blaming the customer". The people doing the most downloads are customers, almost certainly, of the band -- through concerts, misc merchandise, tee-shirts, you name it.

The only people who are at risk here are the labels. And frankly, fuck 'em. They've been trying to keep bands from interacting directly with fans for years, and now they're reaping what they've sown.


Like I said, only the lawyers will win.

I'm not convinced of that.

Current intellectual property law has about as much applicability to the real world as a Southern state's law that pi equals 3. Lawyers know the disconnect has been growing, and are scared to death of someone writing laws that actually reflect reality.

To forestall that, they're giving poor advice to clients... Sue here, sue there, sue everywhere.

But these are clearly desperation measures, meant to cash in for the short term, because long term prospects look so bad. Change is coming, and they know it.

posted by aurelian at 1:48 AM on May 18, 2000

There are way easier ways to get mp3s then Napster. Try going to audiogalaxy and firing up WS-FTP. just for fun, try searching for Metallica.
posted by Doomsday at 1:33 PM on May 18, 2000

The most intense music seems to always come from bands who are not doing it for the money. I think what this all means is simply that people who make music are going to have to do something else to make money and do their music as an avocation.

And thank God. When people start doing art for money it always seems to lose a little of the something that made it art in the first place. Sometimes it loses a lot of this and not just a little; sometimes, it becomes something other than "art" entirely. The amount of corruptibility varies, but the corruptibility always seems to be there.
posted by monde at 4:12 AM on May 23, 2000

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