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Napster Aftermath: Fan Vs. Corporate Rights
The Napster court fight has become an unprecedently significant focal point for many competing interests -- corporations, fans, some artists -- grappling with intellectual property and copyright issues in the Net. It's also underscored the vulnerability and alienation of the tech culture, which may scorn Washington-style politicians, lawmakers and corporate lobbyists, but still is very much at their mercy.
The only real winners, of course, are the lawyers, as usual, and the handful of companies rich enough to pay and benefit them. The idea that individual artists are now safer and better protected by their good friends at RIAA, Sony, Bertelsmann (BMG), and AOL/Time-Warner may be the saddest and most wondrously naive legacy of the Napster flap. Maybe Little Red Riding Hood should have gotten into bed with the wolf, after all.
Everybody reading this knows who the real losers are -- the Net, music-lovers and sharers, artists not under contract to large conglomerates, individual consumers, and the notion of the Internet as a free and unrestricted space that connects individuals to information in culture in new and powerful ways. Rolled over by this ruling are the fans who've experienced years of extraordinary access to a shared culture, and have experienced access to music as an ingrained part of their lives and culture.
One legal expert after another has warned that the implications of RIAA's suit against Napster go far beyond music and will directly affect the sharing of other media as well. The ruling will definitely set the tone for how intellectual property is defined on the Internet, as it now stands, and pending further appeals, intellectual property will belong to a handful of super-corporations who can afford to acquire and defend copyrights. It also has implications for the open source and Free software movement, which have sparked a new and growing movement towards open media and new models of revenue for the information industry as well as for software. If the Napster judge's notions of copyright hold up, walls and fences will spring up all over the Net and the Web.
For more than a decade, music and other media fans have experienced an unprecedented period of free access to culture, particularly music -- a tradition many are now calling piracy. An entire generation has grown up learning, collecting and loving music, and entertainment companies have seen their profits continue to soar -- the much aggrieved recording industry posted a record $15 billion in profits last year. The recording industry has spent tens of millions of dollars in legal and public relations fees to turn this social evolution into a crime.
Lost in the mega-bucks brawling over copyright and intellectual property is the individual fan -- Napster says 20 milion people have downloaded its software -- who is not represented in court. But these people have some legitimate claims in this issue, although their concerns have been almost totally ignored. Conglomerates have also spent tens of millions of dollars on lobbyists who influence Congress, and now own most of the media outlets who cover Net issues like copyright. Fans and music lovers, like citizens, have no lobbyists in Congress.
Constitutional scholars will be brawling about this for years, but a convincing case can be made that new laws like the Digital Millenium Copyright Act, the basis for many recent legal actions against so-called copyright violators -- are a corporatist perversion of the whole idea behind copyright and intellectual property.
The framers of the Constitution were seeking to protect artists and authors when they enacted copyright laws. Their notion was that without some protection against copying and theft, writers would have no incentive to create new works. Copying books was difficult, and it was simple to enforce and prosecution laws against it. The Net is another story -- it's the biggest Xerox machine in the world, and it's almost impossible to completely shut down the copyrighting of intellectual property. Common sense would dictate that new ways of protecting artists and corporations be found that recognized the new reality of the Net.
Even then, people like Thomas Jefferson preached radical notions of open media. He feared the ownership of ideas: "that ideas should freely spread from one to another all over the globe, for the moral and mutual instruction of man .."
What Jefferson was describing was the reality of the modern-day Internet, especially the rapidly-proliferating open source and open media idea: an environment using point-to-point, distributed architecture to move ideas freely and all over the world. Clearly, artists need to be paid for their work, and authors protected from theft. But there's no evidence that the entities copyright laws were meant to protect were billion dollar media corporatations with a distinctly unfair unadvantage over individuals when it comes to defining and enforcing copyright conventions.
In the last few years, spurred mostly by the proliferation of culture-sharing sites on the Web, media companies have launched a brilliantly successful blitzkrieg on behalf of corporate and "artistic" rights to control intellectual property, culminating in the DMCA and the spate of recent legal actions against Napster and individual music downloaders. No such campaign has been launched on behalf of music fans, who were literally bled dry for decades not just for artistic compensation but for fat corporate profits.
According to MIT's Henry Jenkins, writing in MIT's Technology Review, [http://www.techreview.com/articles/ma00/viewpoint.htm] no case involving fan rights has ever reached the courts. No civil-liberties organization has offered money or other support to fans who are denied access to their culture by corporate lawyers. Copyright and trademarks are now deemed legal "rights" granted to property owners, while fair use is a "defense" which can only be asserted in response to copyright infringement accusations. Most people caught in copyright battles, or on the receiving end of hundreds of thousands of warning letters being issues in response to the DMCA lack the financial resources or the political acumen to take on vast entertainment conglomerates in court.
And one of the most insidious consequences of the DMCA and the entertaining industry's war against sites like Napster is the elimination of the notion of "fair use" which gave fans and users some limited protection against absolute copyright enforcement. Fair use is the right to use copyrighted material, regardless of the wishes of the creator or owner of the material. A copyright gives the owner certain rights; fair use limits them. Under the right of fair use, you can quote from this column to criticize it, quote sections from it, and reproduce them to attack, support me, or disseminate my views. In these and other ways, you have the right to use this column independently of how I say it ought to be used,and that doesn't make you a "thief" or a "pirate." Copyright was never meant to be "absolute," or even long-standing, especially when it comes to intellectual, rather than physical property.
But the DMCA and recent court rulings against music-sharing eliminate any idea that the downloading of music constituted "fair use" of artistic work. Some fans and legal scholars have argued that sites like Napster, Gnutella, Free.net and Scour.net promote the sale of music, especially for personal use. A marketing professor at the Wharton School of the University of Pennsylvania commissioned one study that fond that over 91% of Napster users buy as much or more music than before they used Napster, with 28% purchasing more. Lawyers for Time Warner, Inc., Sony and Bertelsmann, represented by the RIAA, cited studies that found that 22% of Napster users said that because of Napster, they didn't buy CDs any more or bought fewer CD's. In the United States, it's possible to get studies supporting any conceivable point-of-view.
It seems logical that there is a significant amount of "fair use" involved in the downloading of music. It also seems logical that people who can download new CD's for free won't pay $16 for them, and perhaps shouldn't have to. At the same time, even music industry lobbyists concede that free music sites, from MP3.com to Napster to Gnutella, have provided new artists with new forums for their work, permitted music lovers to experiment with new forms of music, and generated tremendous interest in music that is contributing, directly or indirectly, to record music industry sales.
Rather than seek some new legal middle-ground -- sites that offer some free as well as paid music, for example, or experiment with new ways to provide artists with revenue -- the music industry has sought and won the most extreme legal remedies, ones that will continue to be undermined by new technologies and the evolution of new music-sharing sites, some legal and above-ground, some not. What seems inconceivable is that tens of millions of young music fans are going to return to a system where they can only listen to music they pay exorbitant prices for. That isn't going to happen.
But what does seem to be happening is that media companies are hijacking culture, and using artistic compensation as a smokescreen.
As Jenkins points out in his article, if Shakespeare, Lewis Carroll and the authors of the Bible were covered by the DMCA, none of their works would have received a fraction of the attention or influence they've generated.
Fans are more than consumers. They are entitled to have some rights, just as artists and corporations are. They pay the freight, especially in cyberspace, which has seen a mind-boggling flowering of fan zines, sites, mailing lists and Web pages. Fans are critics, journalists, and story-tellers. They are constituents in their own folklore and have rights of access to their own culture. Virtually all discussions of intellectual property in cyberspace are about responding to corporate and political anxieties about controlling text, images, sounds and information.
This leaves the fan out in the cold. Most of them can't afford to take on the lawyers for Viacom or Fox.
As Jenkins points out in his article, if Shakespeare, Lewis Carroll and the authors of the Bible were covered by the DMCA, none of their works would have received a fraction of the attention or influence they've generated.
That's because during those times, you couldn't copy their entire work to your Zip Disk, take it to the office, and transfer it to Taiwan over your 100 Mbit/s LAN connection to the company T-3.
Why do you think DMCA and similar protective coverage originated? Why is Napster all of the sudden there when we've been taping songs off the radio for years? Because MP3 and CD burners are the printing press of digital music.
It's only when we've lost everything, that we are free to do anything...
We believe this is one answer to the MP3 situation and have started a website at www.fairtunes.com that allows you to do exactly that. It is the Stephen King model implemented for music. We allow you to securely send any amount of money using your credit to ANY artist.
But do we live in a society that can adjust to a voluntary system when we've lived so long in a system that has always set the price for us? Can we handle the freedom that Napster gives us? Can we be trusted to use Napster responsibly? Young kids will always pirate music, and we accept that, but is voluntary payment an option for everyone else?
Matt.
I can't wait until they ban any file transfering because it could be used for pirating software. I can't stand administering ftpd! :)
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2B1ASK1
One of the reasons Napster was so successful was that there was a large user base, hence a larger selection of files. By having so many alternatives to Napster, aren't you diluting the music pool? I'm not saying this is your fault, but I think fewer (hence larger) communites should be engouraged to have a larger collection of resources. I'm not going to have 5-6 different clients open, and I'm sure others won't as well.
Being with you, it's just one epiphany after another
Lets see..
..DING!
"Media corporations"...DING!
"Popular Culture"...DING!
"Copyright issue:...DING!
"Betrayl"..DING!
"Political Vulnerability"...DING!
"Tech Culture"...DING!
"Alienation"...DING!
"Information in culture"..DING!
"Shared culture"..DING!
"Lives and culture"...DING!
"Open media" DING**DING!!!
"Corporatist perversion" DING!
"New Reality" DING!
"Hijacking Culture"
"Media Companies" (twice!) DING!
As Katz points out, the media corporations control popular culture with political vulnerable Columbine issues, and copyright betrayls. Then again, the political corporations control popular media culture with vulnerable Columbine issues. Some might argue that Columbine political controls make corporate media culture issue betrayls as well.
I could write better drivel with a Perl script that randomly assembled blocks of text from Katz's buzzword-bingo writing style. Spare me.
Bowie J. Poag
Bowie J. Poag
I have setup a page in protest of the RIAA at www.riaaboycott.org please visit the site and if you agree with what's there, sign the petiton! Oh, and I'm not making any money off this or anything (actually I'm spending $15 a month), I'm just trying to get something done instead of bitching for a change. Thanks :)
-colin
-Colin
tilts the copyright issue dramatically in favor of media corporations, who now virtually own popular culture
Wait just a second here. Corporations *created* popular culture. You can't go back now and claim that we want corporate-created popular culture but without the corporations.
In any town, you'll find many great bands, for example, that make you wonder why you don't hear them on the radio. And nobody's ever heard of those bands, except locals, and the locals often put them down for being, well, local. They play for half empty coffeehouses and provide background noise in clubs. But if one of these bands was promoted and hyped as being underground and pushed into rotation on MTV, then it would enter pop culture and people would be clamoring to hear them. And those same people want to be able to nab MP3s of that band's music. So now, after Moby, for example, has hit is big, you can't act like "screw the record company, screw the ticket agents, screw the suits," because they provided Moby to the masses.
If you want to be anti-corporate, then you need to walk the talk. Go local. Don't watch TV. Stop drinking Coke. Don't waste time armchair second-guessing what Apple or RedHat or Microsoft do.