Feelings on Napster?

There is absolutely no question that distributing copyrighted materials without the authorization of the owner is illegal. The law is VERY clear on this point and anyone doing it is in violation. But regarding Napster, Perfectimage is right.

The question outstanding is whether Napster playing "middleman" is a violation of existing statute. One side says they facilitate the exchange of illegal goods, so are the same as a "fence." The other says their service doesn't cross that line, so is legal.

The courts haven't said what they think, though the only reason Napster is still active while the case is being decided is they plead hardship in response to the RIAA's motion for a cease and desist order. Very common legal practices, BTW, which in and of themselves prove nothing.

All in all this is a very emotionally charged subject. Sadly, that elicits arguments that have no legal basis. It matters not what terrible people the RIAA members have been in the past nor how much much they've ripped us all off. Look at the oil companies history. It matters not whether they've stifled artistic growth or alternative music. Any number of groups could be acussed of that. It doesn't matter how many people are doing it. Need I mention marijuana or speeding on the highways? No, none of that has any bearing on the subject except from an emotional perspective. They carry zero legal weight.

This is a politically charged issue as well. The RIAA wants the practice to stop. Ultimately it is about money. The RIAA wants to retain control of their property (it *is* theirs, btw) and the associated wealth and power it brings. There's an issue with the sheer numbers involved, literally millions of people. RIAA could start by making a few abusers acapegoats, but they know where that could lead. Forcing the closure of little Billy's MP3 site would create a horrific public relations problem. They'd be construed as bullies. Napster, OTOH, is a company, so it's OK to take them to court.

So, the issue at hand isn't whether violating copyright law is illegal; it is without question. Read the cover of any CD and then look up the laws they reference. There's no question about it. The issue being decided in court is whether Napster has done anything illegal. My guess is they will be found guilty on some level which is why they've already decided to crawl into bed with the devil by signing an agreement with BMG.

Ultimately the RIAA will win. They'll control all the Napsters one way or the other. They'll watermark everything is sight. They'll do whatever is necessary to ensure their survival by controlling their property. There's simply too much money and power at risk for them to not do anything and everything within their power to maintain control. Sadly, as is too often the case, the losers in the end will be the honest users. They'll get to pay for everyone elses' sins. Same as it ever was, same as it ever was...

fpeel: very good post, tho, i think you're a little too sure of where the copyright law presently stands vis-a-vis napster. BTW, i recognize your closing. it's a david byrne lyric. did you get his permission to use it? ;>)

Round and round we go. Fpeel (any relation to Mrs. Peel?) once again brings the courts into the picture (haven't we had enough of the courts showing us what's fair?) and again I say who cares? The record companies would have us believe that they're protecting the high holy copyrighted works of their oh so talented preformers. Oh really? Did you ever see the documentary film about the artist R. Crumb? In the film he tells the story of his most famous illustration, the cover for the Janis Joplin recording "Cheap Thrills". Oh yes it's copyrighted, by Columbia Records. They paid him $600 for his work, thank you and he hasn't seen another dime since. All perfectly legal and all rather unjust. Or how about this scenario: I own a vinyl copy of a Van Morrison recording, purchased legally many years ago. I'd like to have a digital verison of this record to play on my CD boombox while working in the garage. I download the mp3s from Napster and burn a CD on my computer. What law have I broken? Not paying twice for the same recording? There are users and abusers for just about anything, Napster included. I personally feel that many the younger people downloading songs from Napster would not have purchased the CDs but rather would be just as happy to listen to the radio. And there's people like myself, who have hugh music collections and use Napster as just another source for checking out some tunes.

fpeel - excellent post. I would point out, however, that there are two arguments being made. One is based in law and is probably more relevant to what happens to Napster. The other is based in ethics and so will probably have no tangible effects (grin). I think we agree 100% on the law of the matter, although it's my personaly opinion that Napster has legitamate legal uses and so should not be punished for people abusing their product (much like I believe that we shouldn't oulaw baloons just because some people like to suck nitrous). But I don't think that you can make a purely ethical argument while just appealing to civil and criminal law. Ralph - Crumb is a product of his own self destruction and not a very enlightening example. If he wanted more than $600.00 for his wok, then he should have charged more for it. As far as your Cheap Thrills LP is concerned, from what I remember the RIAA will allow you to make a copy of it to listen to in your garage as long as you don't give the copy away or try to sell it.

As other's have noted "lawful" and "legal" are not necessarily related to "ethical." That this is so true really bites, doesn't it? I once commented to a trial judge that what was transpiring in his court room wasn't justice. Not the expected rebuff, his response left a strong impression of coming from someone who had just been reminded of a lesson learned long ago, but one they still found disgusting. "Don't confuse the law and justice. They are not always the same." I still vividly remember suddenly seeing him as a new, still wet behind the ears, going to change the world attorney who had suddenly learned one of the sad realities of the world. Years later it obviously saddened him to inform me of this fact. But it is a fact, so let's not confuse what our ethics say is right and on which side the law falls.

To me the proper use of Napster-like services is allowing access to music not otherwise readily available for which the use of has been *authorized by the owner* for download. Used in that vein it would be a boon to the market and struggling artists alike. Sadly, that is not how it is normally used. The founders of Napster even offered that perspective in their initial defense. To their chagrin, log files from their company showed that even they were guilty of downloading music primarily from artists like Madonna and the Rolling Stones, not niche titles or arcane artists.

In specific response to Cornfedboy, I am *not* clear about Napster's position relative to the law except from an ethical perspective and know that doesn't mean squat when sorting out the legalities. The answers to that laundry list of issues will come from the courts. Current law is apparently equally unclear on the issue and will be until precedence is established or new statutes are passed and tested.

My belief is the courts will find primarily with RIAA because a) doing otherwise will create a terrific mess with respect to existing copyright law and b) no judge wants to have a decision overturned by a higher court. It is a given that the RIAA will persist until they win, be it with this case or another or by pressuring Congress to pass statutes protecting their property. The Napster case could indeed be just the tip of the iceberg.

Regarding the reference to David Byrne, that's a case of mistaken identity. Any sembalance my words might have had to a pre-existing work was purely coincidental...