Try as I might, I can’t work up much sympathy for Metallica, the Recording Industry of America (RIAA), any or all of the major recording studios, or anyone remotely connected to the music industry in its suit against Napster, Inc.
I’m no constitutional anarchist; I believe in law and the rights of artists to protect their intellectual property. This is what I keep telling myself.
But, personal history is against me because I keep remembering all those times I went to the record store and shelled out small fortunes for CDs that had one or two good songs — three if I was lucky — the rest all fluff and filler. That’s when all those radical Marxist voices from my college days start whispering in my head.
Big Music accomplished what I thought could not be done. It brought the Sixties back into focus for me. Power to the people.
Music Industry Backlash
I am certainly not alone. Polls show that most people think the RIAA is the bully in this case. Results of a PC Data poll released earlier this week show that only 16 percent of respondents agreed with RIAA’s position in the lawsuit.
Music lovers might be expected to oppose the labels, but plenty of non-downloaders are echoing the same theme: The music industry moguls brought this on themselves. Fine, the intuitive part of my brain says. My emotions tell me to side with the Great Oppressed. But what about the legal specifics of the case? Does Napster have a leg to stand on?
Well, uh…actually… No. Probably not.
The crux of the legal argument is in the interpretation of the Digital Millennium Copyright Act and specifically, in the very intent of copyright protection. Attorneys for Napster argue that copyright laws are meant to protect the consumer, whereas RIAA lawyers maintain they are designed to protect the artist. (How about a law to protect the artist from the RIAA?)
Napster uses the Supreme Court decision in the Betamax case to make its point. As you may recall, the nation’s highest court rejected the entertainment industry’s appalling efforts to keep the VCR off the market.
The Court concluded that copyright law is primarily about “promoting progress” in the arts and sciences. Translated — Napster says — what that means is that you and I and all the other saps who have been overpaying for music all these years have the right to tape it for ourselves.
Black and White Issues
Opposing attorneys say forget all that VCR stuff, that’s just a clever, legal ruse meant to confuse the issue. If an artist records a song, he should be paid for it. “This is not a case with tough, legal issues,” Metallica attorney Howard King said.
And indeed, Napster has not disputed what the law says. The company’s defense is that it bears no responsibility or liability for the actions of the millions of users who have downloaded copyrighted music without paying for it. Essentially, Napster is saying that if a law is being broken, the individuals making the copies are the ones who are breaking it. Go sue them.
Help for Obscure Artists
Napster maintains that its service actually helps the recording industry. The company cites facts and figures showing that more people are buying CDs and tapes in spite of the increased availability of free digital downloads.
That may be so, but there is no way to know how much the free music services are hurting traditional retail sales because the number of people who use Napster and similar services is skyrocketing. In other words, if there were no Napster, would CD and tape sales be even higher?
Common sense says if you can get a song for free, why should you go out and pay for it?
Wider Range of Choice
Napster also trumpets the fact that its service gives exposure to lesser-known artists. Only a small fraction of all musicians — around two percent — land major recording contracts. Without the marketing and promotion that big labels provide, smaller artists may never get the break they need.
Napster gives new artists a forum to promote their music, while giving the rest of us exposure to artists we might otherwise never discover. The company said more than 5,000 artists signed up in just a few weeks to approve distribution of their music through Napster’s service. In essence, Napster gives us the power of agents. That seems a little like “promoting progress” in the arts.
Nevertheless, what Napster does is almost certainly illegal, and unless massive pressure from consumers persuades politicians to revamp copyright law, the service will probably go down in flames of glory — or at the very least, be reduced to a pale and subdued version of itself. It is strange knowing the good guy is morally right, but legally wrong. But it’s not the first time that has happened.
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