The Napster Debate
Posted by Tim Stiglitz and Winter Kelly on Apr 18, 2002 - 11:49:00 AM
LOS ANGELES— The file sharing debate
Let me first say that I am restricting my comments to the "sharing" of music files, software, and other copyrighted works in general by means of downloading, uploading, transmitting or distributing of copyrighted works.
I will organize on these points:
1. "Sharing" is not an accurate term to use.
2. Using copyrighted files without permission is infringement
3. Market harm is apparent.
1. "Sharing" is not an accurate term to use. How, in the deliberate misappropriation of a copyrighted work, is the conduct to be construed as anything but a selfish and calculated act of pirated infringement? It seems that "sharing" is a term applied to soften the impact of what is really happening: creators are being ripped off! "Sharing", however it is used, cannot in this context mean anything but a bad act. Period. This is buttressed by the fact that "sharing", if properly understood in the wide sense, is really a term describing a continued bad act that seems to spiral from computer to computer, never-ending. What is ironic is that the kinder and gentler term, "sharing", really is not so innocent, and in practical effect, helps us to understand the cumulative impact of this problem.
2. Using copyrighted files without permission is infringement. In a recent decision, that of A & M Records, Inc. v. Napster, Inc., Judge Patel held that: (1) plaintiffs established prima facie case of direct copyright infringement; (2) downloading and uploading of MP3 music files by Napster users was not fair use.
3. Market harm. To determine whether the Napster technology qualified for a "fair use" exemption, Judge Patel examined each of the four considerations of Section 107. Each determination cut across a finding of fair use.
1. Though Napster does not now earn revenues, it is a commercial service with the intent of building a positive base to enable subscription fees or attract a corporate buyer. Napster technology now provides duplicative reproductions.
2. The act of creating a musical composition or sound recording entails creative abilities and is not rote.
3. The copying of music files entitles substantial reproduction of the entire work.
4. Napster harms the potential market for the copyrighted work by reducing CD sales and raising barriers to the label's entry into the market for digital downloading.
Screenshot of Napster.
By Brookie Brooks
Your Favorite Song?
Have you ever listened to a song that is played repeatedly on the radio? You ended up deciding it was too good to let this one pass without owning it. So you research to find the name, you go to Tower Records to purchase this one great song and find you can only purchase the whole CD. There are some singles available, but they are usually distorted remixes or very selected titles, and of course, your favorite song is not among them. So, you figure, is one song worth $18.99? Then you figure, you went through all the trouble to go shopping for it and the other songs might be as good, so you buy it.
As you are driving home, you hurriedly unwrap it, finding that the sticky little protection tape is so difficult to undo. You almost crash a few times trying to get it open, and finally you succeed, although you break the cheap CD plastic container because you are so anxious to hear that one song that you so desperately loved all these last few weeks. You listen on the way home...
... Then all you hear is a horrible sound. You have a difficult time labeling this as "music". You begin to question your better judgment of managing your finances, as you justify, "Is it worth the price because you will now know the words?"
You go back to the cheap plastic container the song came in, you look for the words to the song, only to find they are not included because the "artist" considers their music more valuable if you do not know what words they are saying. Finally, you look at the index to find out which number this song is, you skip ahead to get to your song, and you listen.
Somehow it sounded better on the radio.
Oh well, you are out $18.99 plus tax, plus miles on your car, and everything else that goes with it. You did not get the words; in fact, you did not get anything besides the song you already hear between commercials on the radio.
Finally, you see that your favorite song's artist is going to be in concert. Since you have forced yourself to listen to the other music, you find the repetitious beats somewhat tolerable now. So, you rush out to get tickets, learning that you have to go through scalpers to get halfway decent seats. You pay $300 to take your date out and sit in a somewhat good row, and then you find your favorite song's artist does not bother singing the song they became so popular for. In fact, the artist rattles on about 25 minutes of music, while stoned, and then says goodbye. After fans beg for an encore, the band comes out and sings a little tune, which is just a tease of what the audience wants. You seem to not care because your favorite song was not even played. You wonder why anyone else even came to the concert if they did not like that one favorite song. You are half annoyed as you sit in bumper-bumper traffic (rather a parking lot for miles) leaving the venue at 9 p.m., wondering where else you can take your date, because you really blew it by choosing that concert, but then you realize you blew all your money, so you hope that she is happy going home early.
OK, so what now? You learn that liking some music is not worth your time or energy. Nevertheless, you like the way the music makes you feel. After all, you see your favorite artists talk about how they love music and they just want to share it all with you. In fact, much of what you like and listen to is therapy for the artist. You listen to all their problems, which become your problems and they escape the outrageous therapy bills, while you do not.
There is nothing more annoying than experiencing the above. I can tell you I have many CD albums that sit upon my shelf never being used. These artists claim they make music because they enjoy it, because God gave them a gift. Just why are so many artists appearing stoned off the wall on these award shows? Why are they so exclusive because they can gain fame with just one hit? Usually it is a hit that is so edited and so polished that if you heard them in real life, it is nothing what you hear on the album; or by showing off their belly button in seductive attire while lip syncing a made to order song by computer equipment. Now, they seem too good that they will not even sing on Jay Leno unless they make their demands. Or Christina Aguilera won't appear if her demands are not met, which include 30 bottles of Evian, M&Ms, as well as other treats in her dressing room.
How much does it cost them to produce the albums that we are paying nearly $20 (and sometimes more) for? PENNIES. It costs pennies to manufacture and reproduce.
In the age of Napster and all the other websites (which will remain nameless!) that group together music lovers to share files, we no longer have to put up with the bureaucratic poop that so many years we (and our parents and grandparents) have had to. We now have the luxury of burning our own music CDs, picking and choosing which are the best songs. Most of what we share was paid for. But think of it this way. You buy a CD. 15 songs. One or two you actually like, the rest you do not, so you share it, so you get your money's worth.
This is only fair. We have been conned into believing, thanks to Michael Greene at the 2002 Grammy Awards and others that this is stealing. It is not stealing. It is sharing. Don't tell me that you don't copy your favorite movies or TV shows onto a VCR tape. Do you think you are breaking copyright laws? Maybe! However, the fact is, this is our world, now. It is not as if you are making money off it. You are simply taping it to listen or watch later for your own personal enjoyment.
Who caps the price on concert tickets? Barbara Streisand charges outrageous prices from her audience for a few hours of singing. Who died and made her God? The point is all this fame and power has leverage now. No longer are the days where we have to stand in line for three days at a Tower Records hoping for front seats (or at least seats where your nose won't bleed). No longer are the days we have to buy a CD with a bunch of nonsensical beats and words to just get one song we cannot even make out the words to.
Now, we have the Internet. If we want lyrics, we got them. If we want one song from Britney Spears, we have it. If we want to know the history of the artist, we have it. We now can control where our hard-earned money really goes. And if we think the artist is worthy, we will actually buy a full CD from the music store, or go to their concert. This time though, they will probably think twice about leaving early or canceling, otherwise, it could cut into their salary. This is the way it should be!
GOD BLESS THE INTERNET!
Serving Bel Air, Benedict Canyon, Beverly Hills. Brentwood, Laurel Canyon, Los Feliz, Malibu, Pacific Palisades, Melrose, Santa Monica, Sherman Oaks, Studio City, Topanga, Canyon, Westwood & Hollywood Hills.