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Share and Steal Alike

After some heated discussions in July on the Napster copyright infringement case, I wrote to a friend. He replied with the following, "Once you step back from all the emotion surrounding the Napster case, there can't be any other way of looking at it: it was theft, pure and simple."

He was right. Emotions had taken over. So, I decided not to write this then, when the injunction was issued and desperate Napster users were copying all the music they could before a midnight deadline. Or when Napster was granted a reprieve and Technology was declared the victor, defeating Big Bad Old Business.

A few weeks later, my opinions haven't changed. It still is stealing, as another friend called it. It gives me hope that both these friends make their living of this thing called "IT". There are still those who can differentiate between technological capability and human sensibilities.

In case you have been away, or are like me, not interested in listening to inferior quality recordings on a PC, Napster is a for-profit venture in (where else) the Silicon Valley. It provides free software that lets you look for your favorite music on lots of other people's machines. Then, if you like what you see and hear, you can make a copy and listen to it whenever you want. Cool, huh?

Not quite. Inviting others to take a look at your music library is fine, especially if they can do it without going through your CD racks. But, unless you have obtained permission from the copyright owners, you cannot legally distribute that music to anyone. Which is what Napster users do, distribute copies of copyrighted music on a massive scale without the copyright holders' consent.

It is just a minor technicality, that copyright thing, Napster fans and those living in their own digital universe might say.

Fortunately, some artists and those who have permission to distribute their works didn't see it that way. Representatives of the US recording industry have sued Napster for copyright infringement. In July, Judge Miriam Hall Patel of San Francisco ordered that Napster shut down while the case was pending. And that is when temperatures started to rise.

Napster users hit the ceiling and when they landed, they sat down in front of their PCs and started taking everything they could before the plug was pulled. In between this time-consuming cyber-looting, they chatted away online and occasionally appeared in old-fashioned newsprint. They extolled the virtues of Napster's wave-of-the-future software and attacked the record industry's business practices. Ultimately, the order against Napster was stayed and once again, all was well in the music-lovers' digital world.

Decisions regarding the court-ordered shutdown and copyright infringement won't be in for a while, but I am pretty sure of the outcome. Napster and technology will win, copyright protections will lose. Not because Napster will have shown it did nothing illegal, but because those who have a major stake in technology will convince the court that this is the world we live in now. Technology cannot be stopped; it is here to stay, for better or worse.

Perhaps it is time for the insanity defense to be replaced by the technology plea?

Emphasising the technology angle at every opportunity in this case, is deliberate. It is a condescending way for some to say, "You don't understand what it's all about." That is the argument that won Napster a reprieve. The issues raised in this case relating to the Internet are just too complex to understand, it seems.

If one needed more evidence that Napster, its executives and lawyers might not have a clue, this is it. Copyright infringement is not about the Internet. The definition of theft has not changed with digital media. Making a profit by promoting copyright infringement is not about technology.

Here is what "they" don't get. That it is not hard to see through their digital smoke and mirrors.

First, there is this myth that nothing like Napster has been seen or done before. Funny, Napster sounds a lot like union catalogues shared by many libraries, the "brick and mortar" kind. Users can browse the collections of other libraries and borrow material from across campus or the country. And, if it falls under Fair Use, they can make copies as well. Legally.

Next, there is the new Napster vocabulary: swapping, sampling and sharing. It makes Napster users sound so generous and their activities so innocuous. But, are they really?

People were "swapping" possessions long before Napster; you give me yours and I'll give you mine. But when they did it, something was actually handed over to someone. They gave it up for something they wanted or valued more. Do Napster users? No. They keep the original CD and give away a "ripped" into "bits" copy. Not only do they keep the original song recordings... oh, excuse me, they swap "files", not songs... but they also keep the copy. That way there is always one in stock for others to come and take.

Sounds like distribution to me. "I have all these songs. I've made copies for you, come and get 'em."

Napster also encourages "sampling". I wish the ice cream store down the road believed in sampling a la Napster. Maybe then I'd get a cone with two scoops (for free) instead of just a tiny spoonful. Of course, to be totally like Napster, that pistachio flavor could be reproduced whenever I wanted another cone. Samples have been offered for products longer than many Napster users have been around. But, maybe they haven't heard of book excerpts. Maybe their world consists of "bytes" and "images", a box and a screen.

They do know about CDs available at listening stations in stores. In case they are wondering, that's sampling. You listen and leave. You don't listen, make a copy and walk out of the store.

And then there is "sharing". I wonder what these magnanimous souls would do if a stranger showed up and announced, "Hey, I heard you have, like, the most awesome music. I'll just listen to it all and copy whatever I like, okay?"

I am told there are some out there who would enthusiastically engage in such en masse copying. But I think even they would balk at the infringement upon their personal space and time. Thanks to Napster (ie, technology), such physical limitations to sharing are eliminated. When people can browse and copy music without moving more than a few fingers, who wouldn't be generous? After all, it's not like anyone has to give up his time, money or energy to do this kind of charity work.

Beyond the vocabulary, however, there is a little matter of misleading people. Hiding behind its cool software was perhaps Napster's best bet to deflect attention from what they have known all along -- it isn't just about the software. According to Judge Patel's opinion (available on the WWW), Napster [the defendant] was aware it was making copyrighted works available:

"Defendant's internal documents also demonstrate that its executives knew Napster users were engaging in unauthorised downloading and uploading of copyrighted music."

Yet, when it was ordered to yank copyrighted works, Napster claimed it couldn't identify them. It knows there is copyrighted material, but doesn't know which files? Maybe Napster execs should have browsed their own files. A local newspaper reported that files "shared" by Napster's own read like a who's who of the recording industry. Some estimates indicate that over 85 per cent of the files copied via Napster are of copyrighted recordings.

So, it knew pirated copies were available, but Napster says the copying is legal under Fair Use provisions -- the music files were for personal use. Once again, Napster forgot to get rid of the smoking gun. Judge Patel writes:

"Although Napster was the brainchild of a college student who wanted to facilitate music-swapping by his roommate… it is far from a simple tool of distribution among friends and family. According to defendant's internal documents, there will be 75 million Napster users by the end of 2000… At one point, defendant estimated that even without marketing, its "viral service" was growing by more than 200 per cent per month. Approximately 10,000 music files are shared per second using Napster, and every second more than 100 users attempt to connect to the system."

I suppose it is possible to have 75 million close friends. And, as a Napster file might sing, "We are fam-i-ly."

Napster also argued that it gives new and unknown artists much-needed exposure. But, Napster didn't get into the act until well after the lawsuit was filed and: "An early version of the Napster website advertised the ease with which users could find their favourite popular music without "wading through page after page of unknown artists.""

And while Napster publicly claimed it would not hurt the recording industry, Judge Patel found that: "Defendant's internal documents indicate that it seeks to take over, or at least threaten, plaintiffs' role in the promotion and distribution of music."

Perhaps Napster's wunderkinds should stick to software. And buy a good paper-shredder.

Napster probably thought its fans would drown out what seems to be the real story. Its justifications aren't surprising. Napster's creator and users are made up mainly of the wired young adult population. Isn't this the generation that grew up receiving almost anything it asked for, its video/audio entertainment whims bankrolled by baby boomer parents? Why wouldn't they still expect to get what they want without paying for it?

These 18 to 20-somethings are now calling for boycotts and protesting against the high price of CDs. That is why Napster is important. Some say this is a new generation of activists. When polled, however, this apathetic group says it won't vote and has little interest in civic duty. But take away their music and suddenly they are change-agents? Where were these voices when mommy and daddy paid those high prices?

They sound more like spoiled brats than activists. If they can figure out a way to get something for nothing, it's theirs for the taking. Napster did, so it is okay. These are the people trying to convince the rest of us we don't understand "technology"?

They stand on shaky ground, I think. A draft of an op-ed piece was recently sent to a discussion list. Its title, "The Day the Music Died-II", referred to Don McLean's classic, American Pie. The day the music died was when rock legend Buddy Holly and two other rock sensations of the time were killed in a plane crash.

Yes, the death of three people is the same as asking a college kid (or a s/w engineer) to pay for his music.

In this new world, clicking has replaced thinking, something for nothing is an unalienable right and bad publicity (at least that's what lawsuits used to bring) is good marketing strategy. Napster lost all credibility when its users "sampled" and "shared" for hours after the shut down was ordered, but think of all this free advertising.

Maybe there is a reason why Napster users do what they do and think this way. But, when one of the more prominent voices of the Silicon Valley joins in the theft-promoting chorus, it is not only inexplicable, but also reckless. Dan Gilmor, technology columnist for the San Jose Mercury News, recently reduced the Napster case to an indictment against the American recording industry. Forget copyright infringement; the industry deserves what it gets. Or, as Gilmor whined on July 27, 2000, "I won't shed a tear when the walls come tumbling down on a greedy, corrupt business. I don't know what will replace it, but I'm not sure how it could be much worse."

As a reminder to Mr Gilmor and others who justify their pro-Napster stance using the same argument, the first sentence of Judge Patel's opinion reads, "The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorised worldwide distribution of copyrighted music and sound recordings."

Note that the case against Napster is neither about pricing policies nor about how the industry treats recording artists. But, isn't it ironic that what Napster and its users supposedly set out to do was, in part, accomplished recently the good-old-fashioned non-techie way? Several US states have charged the industry with price-fixing after some discount retailers (brick and mortar) asked that the matter be investigated.

Those enamoured with technology hope we will turn a blind eye to the real issues. I question their motives. I suppose if mundane things like the law, copyright and intellectual property rights were centerstage, a lot of people may not be able to make a lot of money. We can't stifle innovation or anything to do with technology, no matter what else is bulldozed over. Gilmor says on August 6, "To understand why Napster and its clones may be the most significant development in software since the graphical Web browser, you have to forget about music, copyright and piracy. Those are the issues at the forefront of a huge -- and important -- battle that pits the music industry against Napster Inc., the company. But they are minor matters next to the concept's deeper meaning."

Minor. Art, artists, copyright, bootlegging. Let's just "ooh" and "aah" over technology instead. But, copyright wasn't a minor matter when the punk rock band Offspring decided to sell T-shirts with the Napster logo, without asking Napster first. In fact, Napster demanded that Offspring stop. Excuse me? A business that distributes copyrighted material without permission was upset when its name was used? Of course, Napster quickly reached an agreement with the band, realising this wasn't a "cool" thing for a cool people to do.

These are the whiz kids that VCs have decided deserve millions in funding? The leaders society has appointed to take the rest of us to the Promised Land?

I'll tell you what's cool. That when it comes to generosity, the West lags far behind the East. For years India and some countries on the other side of the world have been looked down upon for turning a blind eye to video piracy and bootlegged CDs. Isn't it neat that Americans and others can now point a finger at themselves? Unless, of course, "sharing" is only a crime when brown folks do it.

There is no doubt that copyright, Fair Use and current business models will have to adapt to this new medium. It's been an ongoing process for years in the US, with changes already legislated in the Digital Millennium Copyright Act. Kudos to a group of tenacious librarians who have been fighting to preserve Fair Use for all of us while still recognising the rights of those create, no matter what, no matter how, no matter where. And, even though it is irrelevant to the Napster case, people in the digital media are finding new ways to do business. They didn't need an upstart like Napster to show them the way.

The bottomline is that all the players need to be at the table as these issues are sorted out. Including the techies. They need to come out of their cubicles for a change and listen. The way I see it, techies are here to make possible what the rest of us want to do, dream of doing -- the creators, distributors and customers. We need to keep reminding techies of their role in our future. If we don't, we run the risk of being led down the digital garden path.

Reeta Sinha is a librarian at the Hoover Institution, Stanford University. She can be reached at reetasinha@yahoo.com

EXTERNAL LINKS:

Meet the Napster
Napster: Music's Friend or Foe?

Reeta Sinha