When disco died, the record industry did not start taking new wave bands to court, demanding that they stop competing with the Bee Gees and kindred has-beens. It went hunting for every Ric Ocasek clone it could find, intent on exploiting the latest Next Big Thing until audiences found it as intolerable as disco.
More recently, much as one generation of listeners decided that it was tired of buying Donna Summer albums, another has decided that it would like to download music on demand from the Internet. With the big labels apparently uninterested in responding to this consumer preference, online alternatives emerged, sporting odd names like Gnutella, Scour, IMesh, CuteMX, and–most famously–Napster.
This time, rather than respond to audience demand, the industry called its lawyers.
Napster was created last year by Shawn Fanning, at the time a freshman at Northeastern University; he has since left school, hoping to turn the program he invented for the hell of it into a profit-making business. Before Napster, fans traded MP3s (the most popular digital music format) either directly, through e-mail, or through Web and FTP sites, most of which shut down after the music industry threatened litigation. Napster and Macster, the company’s program for Macintosh users, let you search the hard drives of other Napster and Macster users via a network of servers, then download recordings directly from the other computers.
Napster wasn’t the first effort to make file trading quicker, easier, and richer with options, but it was the first that worked well enough to take off: It has been downloaded millions of times–free of charge–and is especially popular in broadband-equipped offices and college dorms. (On some campuses, Napster has been so popular that users have clogged up the data lines, prompting some universities to ban, or try to ban, the program.)
For people without high-speed connections, though, this is a revolution in its buggy phase–in more ways than one. A download might take 30 minutes rather than three, and it’s not unusual–in my experience, it has happened far more often than not–for the transfer to break off before it’s done, presumably because the other party has turned off her computer. With these technical barriers limiting the range of people who can get much value out of the program, the range of music available has also suffered, though this seems to be improving with time. In addition, many files are mislabeled or incomplete.
Despite this, the music industry is up in arms –or, more precisely, in legal briefs.
Utopia or Oblivion
Like the Net itself, Napster and its progeny have provoked both utopian and apocalyptic rhetoric. By providing a relatively easy way to duplicate and distribute music without paying musicians, songwriters, labels, stores, or anyone else, these programs will, we’re told, either a) erase the incentive to write and record songs, thus destroying the glorious cornucopia that is the American music business, or b) liberate artists and consumers from the grips of the giant record combines, thus destroying the terrible empire that is the American music business.
Given the bugs in the system, those fears and hopes have more to do with the programs’ potential than with their effects thus far. One might expect musicians, songwriters, and labels to use this grace period to figure out how they’ll adapt to the Internet age, much as their forefathers came up with ways to profit from earlier technological revolutions.
When radio became a mass medium, for example, musicians and songwriters initially objected strenuously to anyone playing records on the air. By giving away music for free, they argued, stations undermined their ability to make a living. In the 1920s, radio stations refused to pay anything for the music they broadcast, a situation that ended only after the American Society of Composers, Authors, and Publishers took the matter to court; copyright owners subsequently received royalties each time their songs were aired. They soon discovered that they could profit from airplay in other ways: Radio turned out to be excellent advertising for records and concerts. Similarly, Napster enthusiasts often promise that their program could become "the new radio"–a way to get the word out about new music without fighting for a place on a restrictive radio (or video) playlist.
History thus suggests that online file-trading won’t kill the music industry. But it does have the potential to alter it radically, redistributing power to listeners and, perhaps, to artists. When the smoke clears, the music business will be stronger, in the sense that there will be more people making music, and making money from music, than ever before. The hierarchies that now dominate that business, however, will be shaken, flattened, chopped, and stewed.
So it’s no wonder that the commanding heights of industry, even as they struggle to adapt to the Internet, are trying harder to make the Internet adapt to them. With the counsel of the Recording Industry Association of America, the big labels have sued Napster, arguing that the program is infringing their copyrights and causing "industry harm"–i.e., reduced CD sales. The National Music Publishers Association has filed a similar suit of its own, as have the rock band Metallica and rapper Dr. Dre. (Defending his suit, Metallica drummer Lars Ulrich has commented that he finds it "sickening to know that our art is being traded like a commodity rather than the art that it is." One wonders why he sells his music at all, if it’s "being traded like a commodity" that bothers him so.) Other musicians, such as Limp Bizkit and Chuck D, have endorsed the program, with Chuck D crediting it for "creating new fan interest and establishing a new infrastructure for unknown artists to attract an audience."
Napster may or may not prevail in court, but its lawyers have come up with an interesting array of arguments. Under the Audio Home Recording Act of 1992, the company contends, any noncommercial copying of music is fair use and thus legal. Citing the law’s legislative history, Napster’s attorneys make a strong case that Congress "deemed taping CDs or records borrowed from friends, and giving copies of one’s own CDs or records to friends, to be synonymous with ‘personal use,’ ‘private copying,’ ‘home use,’ and ‘private use,’" all of which are explicitly legal.
For its part, the RIAA contends that there is a difference between a right to copy and a right to distribute, and that copying for your immediate friends is not the same as copying for "countless third party strangers." More powerfully, it notes that the Audio Home Recording Act isn’t supposed to apply to computers.