TCS Daily


Metallica Rocks - and the Band Owns Intellectual Property, Too!

By James V. DeLong - May 15, 2000 12:00 AM

Pop a CD into a computer and any of several programs (the most popular is called RealJukeBox) can convert the music into a format called MP3 and allow it to be replayed, either over the computer or after download to a special player.

Like any other computer program, music in MP3 format can also be transferred between computers, and after its invention sites sprang up containing libraries of music. Some of this was public domain, some was put up by artists seeking exposure, and some was pirated.

College students are big customers. They have the taste and the time. They also have the bandwidth; music takes lots of this and university computer systems have it. The poky telephone lines of the standard residence are too frustrating.

Now, a new step has been taken, as central libraries are rendered unnecessary. A college student invented Napster, a program that allows users to set up a network for exchanging music. Participants load music onto their own computers and then swap with each other. Each becomes a central server for its little share of the whole. The company called Napster provides only the connections, allowing the participants to search for the music they want on all the computers on the network.

Under either system, nobody, except whoever buys the first CD, pays any royalties, and the recording industry and the artists are going bananas. The industry just won a trial court copyright infringement verdict against MP3.com, and another action against Napster.com has been ordered to trial. But it is like whacking moles. An even more decentralized sharing system called Gnutella is evolving rapidly, and more are in the wings.

There are some legitimate uses of this technology. One can view downloading music from a CD that one already owns as fair, in the same way that no one thinks twice about taping a TV program. And most of us who buy a CD would cheerfully make a copy to use somewhere else, such as the office or car, rather than buy another. Most of us would also copy a song to share with a friend, or to use in creating a medley of personal favorites.

When you get into massive networks of exchanges between strangers, however, the morality shifts, because the purpose of these enterprises is to systematize large-scale piracy of intellectual property.

Morally, the participants have little justification. Their rationales come down to arguments that they already buy a lot of CDs, or that they would not pay money to get every song they steal, so the artists are not losing as much as they think. Or to that residue of the '60s' counterculture, "information should be free."

Participants also argue that many artists, especially new ones trying to build a following, want to make their music available for free. This is true, but it is not a choice that the downloader can make for the artist. The group Metallica, for example, most emphatically wants to maintain control over when and how it gives away its product, and is suing Napster, charging that at least 335,000 people have downloaded the band's music, royalty free.

In court, the "free music" proponents might win a few battles, given the complexities of some of the legal doctrines of fair use and contributory infringement, and the steps the companies are taking to at least appear interested in respecting copyright. But it is certain as anything can be in the law that the record companies and the artists will not be left defenseless against wholesale appropriation of their stock in trade. Especially because doing so would, and in not too long a time, destroy the production of the very property that the downloaders covet, like a horde of barbarians that sacks a city and then complains about a lack of culture.

However, it is equally certain that MP3 will survive in some form. Copyright law is clear that the mere fact that a technology can be used to foster illicit activity does not justify its suppression if the technology also has legitimate uses. MP3 has many of these, including the distribution of works in the public domain, the aforementioned free distribution at the option of the artist, and, perhaps, storing one's own music.

The exact formula needed for a reconciliation of these colliding certainties is not clear. In some form or other, the record companies and the artists will be allowed to keep piracy from becoming too easy and cheap, but they will not be allowed to take the ruthless steps necessary to suppress it entirely, and it is likely that no one will end up completely happy.

Over the longer term, though, the industry is only buying time and trying to protect the product that is already out there. Legal protection is all very well, but if valuable property is left lying around unprotected, it will get stolen, and insofar as the Internet and MP3 are concerned, CDs are just lying around. Even if the government attempted to suppress MP3, it would fail miserably.

Just as the open range of the West could not be protected and nurtured until the invention of barbed wire, the only effective protections for intellectual property on the Internet will be technological - coding and encryption. Only when the barbed wire of the digital age is in place will the full potential of the Internet be realized, including the creative restructuring of the music business that is inherent in technologies such as MP3, Napster, and heaven knows what that is now being dreamed up by some college student somewhere.

Oh, by the way - if you want to download the Napster program so you can join the network, be sure you follow the rules. The program bears a notice:

"Copyright 1999-2000 Napster, Inc. All rights reserved."
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