Steal This Music: Debating the Future of Napster

"Steal This Book is, in a way, a manual of survival in the prison that is Amerika ... It shows you where and exactly how to place the dynamite that will destroy the walls ... Whether the ways it describes to rip-off shit are legal or illegal is irrelevant ... To steal from a brother or sister is evil. To not steal from the institutions that are the pillars of the Pig Empire is equally immoral." -- Abbie HoffmanHoffman penned those fighting words in 1970 while chilling in Cook County Jail, yet 30 years later they ring prophetic. But this revolution isn't about Richard Nixon or the Vietnam War, it's about music in the age of the Internet.The dynamite is the digital delivery of music, including Napster, a controversial software application that allows its users to probe fellow users' hard drives for MP3 files, often pirated ones, and download them for free.The walls are the traditional powerbrokers of the music industry, "the Pig Empire," as Hoffman referred to institutions: the record companies, the song publishers, the distributors, the stores. With millions of dollars at stake, the powerbrokers are understandably shaken, as free and instantaneous music via the Interent destroys the system that's been in place for a century.But left in the cyberrubble are the musicians -- "the brothers and sisters" -- whose work is being pilfered en masse. Napster proponents, which includes some musicians, claim the Internet swap meet allows them to hear music they wouldn't otherwise, and provides artists with an excellent promotional tool. Napster critics say that piracy isn't just cutting into the record company's profits, it's gutting the musicians themselves."The fundamental point is to look at what you do for a living and ask yourself what if someone removed my ability to get paid for doing that," says songwriter Jason Wilber, who has released a solo record on indie label Flat Earth. "You can't expect the plumber to fix the sink for free. Music is the same."Last December the Recording Industry Association of America (RIAA) filed suit in federal court against Napster for encouraging copyright violations. The decision, due at the earliest, this summer, will set a historic legal precedent and could determine the path digital music takes. It will also raise questions of who owns music, who pays for it and who is responsible when its stolen. And if the answer to all those questions is no one, then how, or in what form, will music -- and musicians -- survive?What's driving Napster's popularity?"Napster is about access, instant gratification and leveling the playing field," says Parker. "It is one of the staple items of commerce. When used responsibly, its [popularity] is based on word-of-mouth." Some Napster fans see digital music distribution as karmic retribution against the record industry for its part in ripping off artists; Napster allows indie bands a chance to circumvent the evil record machine and directly reach their fans. But for others technology and convenience -- on high-speed bandwidths downloads take just minutes -- speaks louder than any ethics."I'm a fan of Napster," says Ari Sass, co-founder of insound.com, a site which simulates a music community, providing a place to shop, chat, read, learn and listen to MP3 files on-line. "It's a great resource for people and gives independent bands ability to get their music played. MP3 is a dumping ground. It will never break a band because there's no opinion or editorial compnetnt to it. Napster has more of community element."Independent artists, Napster fans say, benefit from increased exposure on the 'Net and often don't make money off royalties anyway. Napster user Chris Rall says that if a small local band had an MP3 and "it got pirated to death, that could possibly be the best thing that could ever happen to that band as a result of exposure they could get."Napster user David Galbranson, who says he still purchases full albums, says he's not "cheating any artists out of money, they're often local or regional artists whose stuff isn't available for purchase. I taped songs off the radio when I was a kid and now I'm 'taping' them via Napster. Give us some credit. We aren't all out ot cheat our favorite band out of a royalty check."But what some people are overlooking is that bands often sell records on tour. And if a fan can see a show, then go home and download the album, why buy it out of the back of the band's van?"The technology is great, the problem is with the way people are using it," says Wilber. "It's not legal and its not ethical. People are viewing the Internet the same way as giving a cassette to friend. Clearly it's a totally different thing. The physical obstacle has been removed."The other technological danger of swapping illegal files is the CD burner. After downloading an album's worth of MP3s, someone can in turn, burn those tracks onto a disc, which would preclude any need to run down to the record shop.Rob Westcott, who manages the Mary Janes, took some of the band's songs off MP3 for fear that too much of their record was being downloaded, which could hurt sales of album. "It was up for promotional purposes," he said. "It would be offensive to have a record that you're selling being pirated."Ironically Westcott has downloaded the Billy Bragg/Wilco album Mermaid Avenue and converted it to CD for a couple of dollars. "Why would I not do that? That's the whole thing. I don't know what to think."Although Westcott says he won't buy that record, he plans to purchase the next release, due out later this year. "Part of it is that CDs are too expensive," he notes. "I'm not going spend $17 for a record, but I'm more likely to buy it at $11."John Simson, the RIAA's senior director of membership for the digtial performance rights collective, defends the record industry prices -- much of which gets inflated at the distribution or retail level. "You're getting an hour's worth of music that you can use forever. You pay $8 to see a movie and it's over. You spend $100 for sneakers that took $5 to make. Every business has it's markups to stay viable."Simson, likens the application to "a gun manufacturer who helps you find the victim and drives the getaway car."Although audience sentiment was clearly anti-record company -- labels have rightly earned a bad reputation for dealing dirty with artists -- Simson said the industry's offenses "don't justify a technology ripping them off."Musicians speak out about NapsterIf Napster or its clones survive -- which looks likely -- artists could have to rethink how they earn a living from music, perhaps in the form of subscriptions or patronage.Still, another school of thought says that Napster isn't going to harm the musician as the doomsayers predict."I'd be hard pressed to find indie bands upset about Napster," says Sass, adding most of the downloads are singles, not albums. "Now for a major label artists with a huge singles market, it could have a huge impact on that."Yet few artists -- who aren't the most business-minded individuals anyway -- are aware of Napster. Last month Salon.com quoted Cliff Bernstein of Q Prime Management, who represents Metallica and the Red Hot Chili Peppers as saying, "My artists are busy touring, writing songs, making records. Most are just starting to figure it out."But as awareness grows, so does the outrage, as artists demand to be paid for their investment -- often years of work, practicing, touring and recording. "It pisses me off and I resent it," singer-songwriter Jonatha Brooke told Salon "I spent $15,000 on my website. I paid a publicist for a year and a half out of my own pocket. And now some kid's going to tell me my catalog should be free? They're just entrpreneurs setting themselves up to make a ton of money of other people's work."Not only can bands lose money on record sales, but songwriters can be out corresponding publishing money due on those sales. "It's hard to make the connection initially," says songwriter Jason Wilber. "But this is not a victimless crime."Ric Dube, senior editor of Webnoize, says that this change in the marketplace could force artists to rethink how to make money -- even if it's not much -- off their work. For example, Todd Rundgren charges his fans $20 to $60 a year for a package that includes three or four CDS, videos and access to online chats with him. "It's like a patron system," Dube says, adding that the system wouldn't work for all artists. "People who like Mariah Carey don't care about that. They just want the hits.""Do you know what it's like to pay the rent and buy the groceries as a musican?" asked singer-songwriter Carrie Newcomer, who has carved a successful folk career with Rounder/Philo Records.With Napster, which is funded by venture capitalists -- or "angel investors," as Parker calls them -- artists can't decide if they want to give their work away. But some industry observers say that this new technology, and its even more insidious clones such as Gnutella, which has no way of tracking pirates, could force music to be free. Webnoize's Ric Dube said music might be modeled on cable TV, where subscriber or other additional fees fund the artist.However, Leaffer points out that without an incentive -- in this case money -- artists won't be making any music. Most artists don't earn huge royalties from record sales, often earning their money through publishing deals or selling discs out of the back of their vans on tour."How will we encourage creation if no one gets paid?" Leaffer asked. "The next generation of things that will come along will be less decentralized. It will present a greater threat to the musicians getting paid."Lawsuit raises issues of ownershipMusic ownership, rights of distribution and accountability for copyright infringement are at the heart of the RIAA vs. Napster suit, which is ironic, considering artists have often battled the record industry over some of the same issues.Often the record company and band co-own the sound recording, (although some labels own the recordings outright) while a publisher and songwriter usually co-own a song."The law provides ownership over something they've created and spent money on," says the RIAA's John Simson. "Technology makes it easier to steal these things. A lot of struggling bands, the more they or their record company isn't not getting paid, the more likely they won't get to make another record."The RIAA is alleging that Napster is guilty of contributory infringement, meaning the software facilitates piracy. Although Parker wouldn't comment on the lawsuit, Napster CEO Eileen Robertson denied the charges in wired.com: "We don't own music, we don't own rights. We are building the railroad system to run the music."Napster lists a disclaimer on its site, warning users that copying or distributing files might violate U.S. or foreign laws. Further, Napster officials have sought refuge under a provision in the 1998 Digital Millenium Copyright Act that doesn't hold a service provider liable for the actions of third parties.Marshall Leaffer, a scholar of intellectual property law, says Napster (or any ISP) can be held liable if a copyright holder notifies them of an infringement by one of its users, and Napster doesn't pursue the allegation. (Napster apparently takes its software copyright ownership seriously, as a notice on the site states that "it may not be reproduced or modified in anyway without Napster's written permission.")Leaffer says a balance must be struck between encouraging technology and protecting ownership rights. "We're dealing with technology and we don't want to suppress technology with doctrines," Leaffer states. "The RIAA wasn't to control the distribution of music because they don't like to lose economic control over their products."Napster advocate Chad Paulson agrees that "something needs to be done about piracy. Some people they're just don't know that they're breaking the law, but there is a good chunk who using it for piracy and I believe those people should be prosecuted."Observers often compare the Napster controversy with the hubub over VHS; many thought the advent of home video would crush film industry. But the box office has flourished alongside that format.But Simson says the comparison is inaccurate. "Home video became a great vehicle after movies wer out. But this isn't an aftermarket vehicle. We're competting with things on the Web that haven't been released yet." If the Napster wins the suit, says Insound's Ari Sass, it will become an even more powerful medium than it is now. "It will be a step closer to making a boom."And even if the RIAA wins the suit, "it won't crush the idea of file swapping," says Webnoize's Ric Dube. "You're not going to be able to shut them all down. It will discourage the business model, but a 14-year-old kid will write their own code, they don't care about business, they just want the functionality."Already, a Napster clone, Gnutella, is removing accountabilty from the equation. Gnutella has no central server so it's practically impossible to track down.Sass says Napster's viability is threatened by legal action, but agrees that file-swapping is here for good. "I don't know how Napster can survive if they're getting too many lawsuits, if there's too much evidence against them that they are doing something illegal. But there will be smaller versions of Napster."No matter what happens, says Simson "It will be hard to put the genie back in the bottle."Additional research for this series by Dennis Scoville

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