Case: Napster on Port 80: Shoreline: copyright issues

Note | November 2002 Napster has come and gone. However, the peer-to-peer exchange of files is more popular and this page still gets traffic, so it must have some interest, though it is increasingly out of date.

This is the end of the music business as we know it, but the beginning of the musician business (And even, with luck, ... the audience business.) because this technology will let any musician get his musical message out to millions of people. ...

While scarcity may increase the value of physical goods, such as CD's, the opposite applies to information. In a dematerialized information economy, there is an equally strong relationship between familiarity and value.

For some reason, humans absolutely require music, and they were providing for the material needs of musicians for tens of thousands of years before copyright law, just as they will do so for tens of thousands of years after this brief and anomalous period has been forgotten.

The controversy over free Internet music is striking a sour note among local musicians and listeners.

After the RIAA has been so obviously mistaken about so many other things in the past, maybe they're wrong about one more thing... perhaps I'm not a criminal after all.

Facing MP3's Music
Napster.com's CEO Weathers A Legal Storm To Fill A Need For Consumers
By Brian Caulfield
Internet World Online, April 15, 2000

Napster CEO Eileen Richardson tells record execs to get real: It's not piracy, it's progress.

Learn more: at The Industry Standard's home page, search for Napster, which they have covered thoroughly.

Courtney Love does the math
Salon, June 14, 2000

Courtney Love takes raw meat right to the lion's den in this unedited transcript of her speech to the Digital Hollywood online entertainment conference, New York, May 16, 2000. Some excerpts (links added):

What is piracy? Piracy is the act of stealing an artist's work without any intention of paying for it. I'm not talking about Napster-type software. ... I'm talking about major label recording contracts. ...

It's not piracy when kids swap music over the Internet using Napster or Gnutella or Freenet or iMesh or beaming their CDs into a My.MP3.com or MyPlay.com music locker. It's piracy when those guys that run those companies make side deals with the cartel lawyers and label heads so that they can be "the labels' friend," and not the artists'.

The present system keeps artists from finding an audience because it has too many artificial scarcities: limited radio promotion, limited bin space in stores and a limited number of spots on the record company roster.

The digital world has no scarcities. There are countless ways to reach an audience. Radio is no longer the only place to hear a new song. And tiny mall record stores aren't the only place to buy a new CD.

There's an unbelievable opportunity for new companies that dare to get it right.

Music is a service to its consumers, not a product. I live on tips. Giving music away for free is what artists have been doing naturally all their lives.

What's this Napster stuff all about? If you think Love is crazy, what about the Harvard Law professor who agrees with her?

Expert Report of Professor Lawrence Lessig Pursuant to Federal Rule of Civil Procedure 26(A)(2)(B).

In particular, in my view (1) Napster has a potential for substantial, non-infringing use; (2) plaintiffs could take reasonable steps to minimize any harm to them caused by this technology; and (3) eliminating this particular technology -- a step that no court has ever taken with respect to any Internet technology -- is not likely to have any substantial effect in reducing any harm that plaintiffs suffer.

"Our nation's business economy has been built on the notion of fair and free competition," New York State Attorney General Eliot Spitzer said. "When there is illegal activity to fix prices -- as was the case here -- the consumer is always the loser."

The music industry will soon regret that they killed Napster. Napster's 20 million users are nothing if not interested music fans -- and via Napster, the record labels could at least potentially get in touch with those fans. ... With the right deal, record companies could have used the Napster database as a tremendous research and direct-marketing resource. ...

Another possibility: ... many Napster users would have been willing to pay a fee in order to download songs, via Napster, from a big server that could guarantee quick delivery of the MP3s they wanted. The record companies certainly could have made a tidy profit running such servers and charging for access.

But that's all history now. ...

Meanwhile, copyright will continue to be eroded by the free trade of intellectual property on the Net. It won't happen this year, and it may not even happen this decade, but copyright will eventually go the way of primogeniture and jus primae noctis -- barbaric medieval laws now thankfully dead. And then, those who profit from copyright (who have always been corporations, not artists or writers) will be out in the cold.

History may just record Napster's demise as the record industry's last brilliantly self-destructive act.

Today's Internet sports an ever-growing roster of file sharing programs, all seeking to challenge Napster for the throne. Stay tuned - it's guaranteed to get ever more interesting.

O'Reilly & Associates first Peer-to-Peer conference happened this week in San Francisco, and managed to whip up a surprising amount of froth in the media. The buzz level was high at the show itself, too. O'Reilly organizers told me they expected about 500 to attend; instead, the show was sold out with over 900 attendees, all of them cramming excitedly into small ballrooms to hear various people hold forth on the arcana of P2P technologies. There were hundreds of press folks, of course, but the show's real attendees were, by and large, geeks. There was hardly a suit to be seen.

What a relief. Until I visited the show, I was under the impression that every remotely-marketable corner of the Internet had long since been overrun by MBAs and thirty-something venture capitalists with more attitude than technical smarts.

According to the statutory damages calculation and in light of last week's devastating ruling by the Ninth Circuit Court of Appeals against the upstart music-file-sharing service, Napster already is facing an astounding fine for the copyright infringement that has been committed on its watch.
Assuming that each of Napster's 50 million or so subscribers has copied only a single song via the service, Napster could be fined as much as $7.5 trillion. Multiply that figure by the actual number of illegal copies that have been made by Napster users, and, pretty soon, you're starting to talk about real money.

Three landmark cases are evidence of the erosion of individuals' rights to manipulate digital content. Wins against Napster, DeCSS and MP3.com show that the Digital Millenium Copyright Act is slowing the flow of information.

Dana Blankenhorn at ClickZ

Time Warner president Richard Parsons certainly put down the marker this week at the Jupiter Online Music Forum. "Digital music is illegal," he thundered, and music companies will use the legal system to force it underground for good. ...

A generation ago, remarks like those of Mr. Parsons and the backing of the government would have crushed dissent or at least generated anger. Instead, the collective response was "so what?"

The reason for that is simple, but mysterious to those who, like Mr. Parsons, don't understand the basic change the Internet has wrought. Majority rule isn't good enough anymore. Consensus rules the Net. And if you don't have consensus, you can't enforce anything. ...

As I've said before, Napster, Gnutella, and programs like them are basic protocols. You can no longer make them illegal than you can make FTP or email illegal. If music lovers are forced underground, millions will go there, and gladly. But they won't be forced into paying Time Warner one red cent if they really don't want to pay it. ...

It will be a bloody battle — companies will fail and people will go to jail because of silly men like Richard Parsons. But in the end, the music will belong to its makers, its listeners, and those who can negotiate win-win deals between them.

As a journalist, Dana Blankenhorn has sworn, like Thomas Jefferson, "eternal hostility against every form of tyranny over the mind of man." The time has long since come for those who love liberty - not just software, but liberty - to recognize that copyright is not unlimited and that it can't trump speech.

I want to be Napstered.

I want millions of people to exchange this column peer to peer. I want them to burn me on CDs and read me at parties. At even a few cents per column, I want to lose millions, make that billions of dollars in potential income to "pirates" who read my stuff without the publisher's permission and even sample it into other works. ...

So whom does Napster really hurt? It hurts established publishers and those whose fame and fortune are tied to established channels of distribution. Whom does it help? It helps anyone who is outside that system.

Metallica

The courts can't stop the advance of technology, and that's why consumers ... -- as well as analysts and many industry insiders -- say the record labels have to find a new way to deliver and profit from their wares.

"The Internet as a whole is designed as a linking tool,'' noted Peter Katz, an attorney from Hartsdale, N.Y., who runs the self-proclaimed "Ultimate Napster Resource Site'' on the Web. "For every Napster that you try to shut down, there will be 10 more.''

Musician Lars Ulrich demands Napster block access to the band's music by more than 300,000 users.


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modified: July 16, 2001 by Douglas Anderson http://RicciStreet.net/port80/shoreline/casenapster.htm

Case Study: Napster

Dana Blankenhorn at ClickZ

Metallica