|THE SMITH CENTER||for Private Enterprise Studies|
by Aaron Maus, San Leandro High School
Ist Place Essay Contest Winner, June 2001
From the first day it opened its online doors, Napster.com has been an accessory to intellectual property theft by aiding eight-three million Americans in stealing copyrighted songs. Although this is not the first time the issue of intellectual property theft has been brought into the public eye, with the speed and accessibility of the internet the issue involving Napster.com is most important. With limited options available, the music industry is uncertain whether or not there is a solution to the Napster problem.
This is not the first time in our history that Americans have been faced with the issue of intellectual property rights; and it was not so long ago when new technologies began to infringe upon people's rights. In 1984 Sony created, and sold the VCR, or the videocassette recorder. This new technology enabled people to record programs and movies directly from the television. The television industry was worried that people were stealing their programs, so they sued Sony. The case rose to the Supreme Court. Sony argued that the VCR was intended to record programs for later viewing and that they were not at fault. The court ruled for Sony, saying that:
...even if the VCR is used to infringe the studio's copyrights, the manufacturer isn't be liable for contributory infringement because the VCR also has "legitimate, nonobjectionable uses." In fact, the court held, a device won't subject its manufacturer to contributory infringement liability so long as it is "merely capable of substantial noninfringing uses."1
The issue of intellectual property theft facing Americans today is very similar but not quite as simple as in the case of 1984. The music industry knows that Napster.com and other online music swapping companies are not directly stealing the copyrighted songs and are not directly at fault. That is why the several large music companies suing Napster.com are suing for contributory infringement. They argue that by creating and releasing technology which lets people swap copyrighted songs, Napster.com is helping people to steal copyrighted material, and contributing to the infringement of their intellectual property rights. In its defense Napster argues that its software is capable of substantial noninfringing uses. Napster says its users are "space shifting"2 (downloading music they already have on CD) or sampling music before they buy the actual CD. In July, 2000 the case was ruled on by a Federal judge in San Francisco. The Federal Judge ordered Napster to halt all trading of copyrighted songs. Napster.com said that to do this it would have to close down entirely. They took the case to the Appeals Court, where the orders of the Federal Judge were stayed, saying that "the case involved 'issues of first impression.'"3 That means the case involves issues which have not been addressed before and are more complicated than previously thought. Even as the proceedings continue the record label companies are trying all they can to secure their rights.
"Legislation changes slowly, but technology changes at warp speed. Don't bring the hackers to court, beat them at their own game."4 This is only one of several different opinions about how the music industry should combat Napster.com. Many companies seem to like this approach and are trying to develop newer technologies at hurried paces to fight Napster.com. "One approach that was discussed was to give the Mp3 music files a built-in expiration date and making it impossible to put the files onto a CD."5 This method of protection sounds plausible and possible. The problem with this solution is that it treats people like common criminals; and whether they are or are not, people will leave Napster.com and use other services, if treated as such.6
"MediaDefender claims the answer lies in "spoofing," a method in which a peer-to-peer entertainment network is flooded with fake files of a certain title. If an end user tries to download that title, he receives a "spoof" that has the same title as the requested song or video, but actually contains a message warning the user that he has attempted to break copyright law"7
This solution will work but is limited in its power to regulate the trading of copyrighted music. The problem is that the "spoof files" 8 do not stop the music swappers; they merely hamper and inconvenience the person. Emusic.com is also taking action against the music trading community.
"EMusic said it would deploy a new technology to identify its music and send an instant message to song-swapping offenders to stop in their tracks and quit trading the tunes within 24 hours."9
If the offenders do not stop then their names will be given to Napster and they will be blocked from Napster. This method has been nicknamed "acoustic fingerprinting."10 This may work, but even if successful the blocked offenders can always go other places to trade music. Some companies are taking a different but not surprising approach to the Napster.com dilemma: business deals. The German publishing company Bertelsmann is one such company. While originally one of the companies who were suing Napster.com, Bertlelsmann signed a deal with Napster.com. "Under the deal, BMG will pull out of the Napster case as soon as the company develops a for-pay version of the service that accommodates the rights of copyright holders."11 Whether or not this solution will be successful has yet to be seen. "The entertainment industry has come up with three solution: legal actions, business deals, and encryption. None very successful yet."12
So far no one has come up with a viable solution to the heated issue of intellectual property rights. For lack of a resolution many companies such as Bertelsmann are making compromises. One very unpopular compromise is for Napster.com to charge money for its services.
"A recent poll of Napster users in the U.S. shows that 80% would not pay 5 dollars a month for service."13 According to this poll charging money online would virtually destroy Napster.com by driving away all the users. Napster is founded upon the idea that people are willing to share, so if the music companies try to control what songs can and cannot be shared then people will stop swapping Mp3s or use another site to do their trading.14 So if Napster.com becomes "user-unfriendly" people will leave and take their business to free underground sites and direct peer-to-peer sharing. If this happens the music industry will be even worse off than before. Peer-to-peer sharing and illegal sites are much harder to combat than one or two large companies that serve millions of people. Shutting down Napster.com and Mp3.com would severely lessen the music swapping, but peer-to-peer trading can only be stopped one-by-one.15 This would be time consuming and impractical. So instead of slow legal action, and useless encryption why not "let the market figure out what people want, how they want it, and how much they will pay for it."16
Not everyone is against Napster.com and the sharing of music online. Many artists and companies like Bertelsmann hope to gain by working with Napster.com instead of working against it. "Some 17,000 new artists, not signed by major labels, have authorized distribution of their songs through Napster."17 These new artists who support Napster.com like the idea of people having access to their songs; Napster.com is distributing their music for them. Many of the artists who make the majority of their money in concert also support Napster.com. Some people support it while other people criticize it; but however you look at it, Napster.com is contributing to the infringement on the rights of artists around the world.
1. John Hart and Jim Burger, "Will Appeals Court Exercise Napster
and Other Demons?" The Wall Street Journal, November 9, 2000.
2. Hart and Burger.
3. Hart and Burger.
4. Almar Latour, "Media Defender Says Music Industry Can Beat Napster At Its Own Game," The Wall Street Journal, November 13, 2000.
5. Jason Fry and Kristin Hussey, "Napster Sees a Little Light, but it's still probably a train," The Wall Street Journal, November 3, 2000.
6. Fry and Hussey.
9. Associated Press "Online music site Emusic.com urges Napster to curb song trading," The Wall Street Journal, November 24, 2000.
10. Associated Press.
11. "BMG and Napster: If you can't beat 'em, buy 'em!" Time Magazine, (2000).
13. From Wall Street Journal Europe, "The song remains the same," The Wall Street Journal, November 6, 2000.
14. Karl Toro, "Meet the Napster," Time Magazine (2000).
16. "Napster World," The Wall Street Journal, November 3, 2000.
17. Hart and Burger.
John Hart and Jim Burger, "Will Appeals Court Exercise Napster and Other Demons?" The Wall Street Journal, (November 9, 2000.)
Almar Latour, "Media Defender Says Music Industry Can Beat Napster At Its Own Game," The Wall Street Journal, (November 13, 2000.)
Jason Fry and Kristin Hussey, "Napster Sees a Little Light, But It's Still Probably a Train," The Wall Street Journal, (November 3, 2000).
Associated Press "Online Music Site EMusic.com Urges Napster to Curb Song Trading," The Wall Street Journal, (November 24, 2000).
"BMG and Napster: If You Can't Beat 'em, Buy 'em!" Time Magazine, (November 24, 2000).
From Wall Street Journal Europe, "The Song Remains the Same," The Wall Street Journal, (November 6, 2000).
Karl Toro, "Meet the Napster," Time Magazine (November 3, 2000).
"Napster World," The Wall Street Journal, (November 3, 2000)
Andy Kessler, "Can Napster Survive Its Brush With Legitimacy?" The Wall Street Journal, (November 6, 2000).
"Napster Co-Founder To Join Start-Up Round1," The Wall Street Journal, (November 15, 2000).
Lyda Sabet, "Long Live Napster," The Wall Street Journal, (November 6, 2000).