Steal This Song

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Tonight's the night. After months of indecision you've decided to offer your hand in matrimony to that special someone. You've purchased the ring and chosen the ideal spot to pop the question--the only remaining detail is selecting the perfect song to accompany your proposal. After scanning your record collection for Chad and Jeremy's The Ark--"Painted Dayglow Smile" is "your song"--you remember you loaned the record to your brother-in-law last week. What to do?

Napster, the popular file-sharing service for swapping MP3s online, operates with the help of a centralized server that maintains a database of all the MP3 files that users with Napster clients make available to other Napster users. Here's how it works:

1. Long John Silver installs a copy of a Napster client--Macster is one such for Macintosh, although Napster is working on a Mac client as we go to press--and establishes a free account with Napster.
2. Although Macster doesn't currently support this capability, a PC-packing Long John can place MP3 files he's willing to share with others in a particular folder. When John logs on to the Napster server, the server software adds a list of these files to its database.
3. When John initiates a search--based on song title or artist--Napster's server scans the database and returns a list of computers where a song can be found.
4. Once John picks a computer to download the song from, a network link is established between his computer and the one that contains the song he's after, and the song is copied from the remote computer to John's hard drive.
5. With the MP3 file secure on John's hard drive, he can then play it with an MP3 player such as SoundJam MP, Audion, or QuickTime.
6. If John wishes to take his tunes with him when he travels the high seas, he can download them to a portable MP3 player such as the Rio 500, or convert the files into AIFF files and then turn them into audio CDs with the help of a CD-R writer.

Simply fire up your Mac, launch a copy of a program called Macster, type Chad and Jeremy into the Artist search field, and cross your fingers. Sure enough, you discover that "Painted Dayglow Smile" is available for download from three different computers. With a double-click, the song is delivered to your Mac in a matter of minutes--at no cost and just in time for its strains to be heard as your beloved crosses the threshold.

As romantic as this scenario seems, there's one minor catch: your actions may be illegal--illegal enough, in fact, that if the recording industry has its way, Internet services such as Napster ( ) that allow people to swap songs online could be shut down in short order. (See the sidebar "The Long Arm of the (Copyright) Law" for an analysis of the legal issues involved.)

This seemingly innocent act of trading music online has sparked a remarkable controversy that has pitted fans against bands, artists against the recording industry, and the recording industry against an Internet start-up. Yet if this trend continues, it's likely to change the way artists and their representatives make money and how you lay your hands on everything from music to software to movies.

Most people still get their hands on music the old-fashioned way--by trooping down to their local retailer and buying it. Web-savvy folks might purchase CDs online, but it's fundamentally the same concept--paying for the right to use tangible media. But a number of factors are conspiring to change this model.

Means to an End

Fast Enough for You

Cut Down to Size

Holding On

The web-site notices go something like this: "We respect copyright law and expect our users to do the same. You agree you will not use our service to infringe intellectual property rights of others." The chance that the average Web user knows whether she's infringing someone's copyright, however, is another story--it's a complex balancing act, especially when a site leads her directly to copyrighted work to download.

What does this mean to you? When you download music or offer your MP3 files for others to copy over the Internet (through Napster, for example), you're copying and distributing songs (owned by the writers or music publishers) and sound recordings (owned by the record companies)--that's two copyrighted works for each recording. If you don't have permission from the true copyright owners, you're probably breaking the law. If they want to come after you, start counting your money--legal fees and damages could cost you more than $150,000. (Most penalties are civil and not criminal, so there's not much fear of being thrown in jail.)

Although sharing music with friends is considered to be personal use and is legal, sharing it with the public through big file-swapping sites means you're probably infringing copyright. If you draw attention to yourself by sharing thousands of files, copyright owners may come after you. You leave digital fingerprints on the Internet, namely IP and e-mail addresses, and your actions can be traced. But so far, the representatives of copyright holders, such as the RIAA, have targeted the people who make the tools that let you swap MP3s, rather than the people who use those tools.

Online service providers are allowed, by this law, to refer or link users to copyrighted work or simply store it for users (such as hosting Web sites with MP3 files), among other things--as long as they meet certain conditions. They can do so--and this is critical--without fear of copyright infringement.

The DMCA generally defines online service providers as those who provide online services or Internet access. But to protect themselves from lawsuits, they have to follow rules such as terminating accounts of subscribers who are repeat copy-right infringers.

What does this mean for Napster and similar technologies that may come later? Their future is uncertain, but if people continue developing technologies and learn to work with copyright owners, the Internet will offer more quality music that costs much less than traditional CDs. Now that's innovation. –SUSAN P. BUTLER

Most of the music available via Napster is illegally posted. But some bands (such as Phish, used in this example) allow fans to record their concerts and trade those recordings freely. This still doesn't make their albums fair game, however. Here's a quick look at what can be legal and illegal in a single Macster search.

While the ways, means, and motive are in place, they have little to do with the furor surrounding this subject. We know the technology works, but what we haven't agreed on is whether using it is legal or morally justifiable--and if there's some middle ground that will satisfy everyone involved.

Currently, Napster Inc., based in San Mateo, California, is the lightning rod for this controversy. Although an outfit called was the first to be taken to court for allegedly storing MP3 files illegally on its servers, Napster has generated the bulk of the press. Here's why:

It's in the Way That You Use It

(See for the complete interview.)

Q. What made you file suit against Napster?  A.  This Napster thing came completely out of nowhere. We were recording a song for the Mission: Impossible 2 soundtrack, and we got word that there were five or six versions, works in progress, playing on radio stations--and we weren't even finished with it. We found out our song was being traded on Napster, and we had to put our foot down. The Internet in general is not the issue; the issue is who dictates what goes on with your work.

Q. Do you think the Internet is a realistic way for new bands to get known?  A.  There's only so much attention each band could get on the Internet. The role of a record company is to promote and publicize one band over another. If somebody in a garage down the street from me wants to make their music available over the Internet, that's their choice.

Q. In your suit, you've asked for huge financial compensation from Napster. Has Napster really had any effect on your bottom line?  A.  We've sold about a thousand gazillion records and we're glad that we're set for life. The stuff that's being lost on the Internet, it's pocket change--it's meaningless. But where is it going to be in five years? This is something that could really be out of control.

We're paying more money to our lawyer--$500 an hour--than we're losing on the Internet. If people think this is about greed, then they should think again.

Q. What do you think of the bands--Limp Bizkit, the Offspring, Public Enemy--that have come out in favor of Napster?  A.  If they're saying, "Napster's my friend," I think they're shortsighted and they're ignorant to the big, big picture. I think they will find themselves on the short end when the tide starts turning. They're trying to make this Metallica versus the fans. But it's really Metallica versus Napster.

Q. Even if you take out Napster, there's Gnutella and plenty of other sites that are hopping on the free-music bandwagon. What difference is your suit really going to make?  A.  If you can knock a provider out of business, then you can send a message to the others. Somebody is spending a lot of money hoping Napster will be an IPO or will be bought out by AOL. The people who work for Napster are bringing home paychecks--they aren't working for free.

If free-music providers can get with the legislative community, I'm sure something can be worked out that would be OK for everyone. I think Congress will be holding big hearings that will make the 6 o'clock news--and there'll be this f****r from Metallica telling these Internet companies what they should do.

When someone shares files on his or her drive, the Napster client sends a list of those files to Napster's central server. That list is incorporated into a huge database of song titles and artists--no actual MP3 files are stored on the server, just a directory of the MP3 files that Napster users are offering for download.

Campus Life

Battle of the Bands

While some artists, such as Limp Bizkit, the Offspring, Public Enemy's Chuck D (see our interview with CHUCK D elsewhere in this feature), and many independent bands, support having their music freely distributed, others--and the music industry at large--don't. For example, Metallica filed suit against Yale and Indiana University, in addition to Napster, alleging copyright infringement and racketeering. Once Yale and Indiana University banned Napster, the institutions were dropped from the lawsuit. (See our interview with Metallica's LARS ULRICH.)

(See for the complete interview.)

Q. Tell me why you support Napster.  A.  Napster's the radio of the 21st century. I just think it develops a whole new paradigm, and there's no legitimate proof it cuts into the traditional market for music. The industry has always prided itself on driving on the enthusiasm of the audience. Now they're having to fight against the enthusiasm of the audience.

Q. What do you think of Metallica and the other big acts that have filed suit against Napster?  A.  Metallica shouldn't be getting into that lawyer or accountant mentality. I think most of the people who download Metallica music online are fans who are also buying their music in the stores.

Q. How is free music on the Web going to change the music business?  A.  You're going to see the global distribution of music, which is something the music industry promised but never could deliver. I think you're going to see people selling music for a lot cheaper--and not a certain set price for music. Downloadable music is the biggest musical phenomenon since the Beatles, and the music industry is slow to come to grips with that.

You have more music on the outside of the industry than on the inside, so fans will find a lot more music. There will be more money in the pot than ever before and there will be millions of hands in it. Artists are going to have to work a lot harder and not expect things to fall in their laps. Fat and happy rock 'n' rollers are only a select few who are supported by the four major labels, and the power of those four hands will be diluted by the power of a lot more hands.

Q. Do you have any problem with a company like Napster making money off your music and not giving you a cut? A.  I don't have any problem with that. I've signed with major labels and I haven't had any control over the money. At least this way, I know I can take advantage of the exposure.

Q. If everyone's giving your music away, how are you going to survive as an artist?  A.  There's a multibillion-dollar market for rap around the planet. I set up five major concert tours on the Web in the last two years. The day of the lazy artist is over, and I know how to make out. I have five studios. I have interests, so this all works out for me.

The members of Metallica were concerned enough about the alleged music piracy that they tracked down more than 300,000 users who had posted or copied their music, and provided those names to Napster along with the demand that Napster discontinue these users' accounts.

The Recording Industry Association of America (RIAA) ( ), an industry group that represents major record labels, also filed suit against Napster. As we went to press, a judge had decided not to dismiss the lawsuit against Napster, leaving open the possibility of a trial.

Although Napster claims it has no control over the files that users make available--the software displays a request that you post only legal MP3 files when you first install the client--the Metallica and RIAA suits maintain that because Napster retains a database of those MP3 files found on computers running Napster clients, the company knows that audio files are being pirated and is facilitating that piracy. Naturally, Napster disagrees.

Who Are You?

It's All Too Much

Regardless of how specific legal issues are resolved--or whether Napster will have ceased to exist by the time you read these words--the battle over sharing files on the Internet has just begun. Though Napster and, with their centralized servers, may be vulnerable to prosecution, those seeking to shut down Internet file sharing are likely to have a harder time targeting peer-to-peer technologies such as Gnutella.

The Direct Route

With no company hosting a central server, groups like the RIAA will have to target users who offer pirated music or software, rather than a specific company that facilitates that piracy. Obviously there are far too many people sharing these kinds of files to sue them all, but the RIAA may choose to make an example of large-scale pirates.

It Takes All Kinds . . . of Media

While prosecution of those who pirate copyrighted material may be a short-term solution, preventive measures may make Internet file sharing irrelevant. Specifically, the music industry is looking at ways to protect media--both online and in physical form--so that it cannot be copied.

DVD Is Not Free

Such schemes, however, wouldn't work without some cooperation among entertainment and technology companies, and that cooperation came in the form of the Secure Digital Music Initiative--a coordinated effort by the entertainment and technology industries to copy-protect media. But the plan doesn't stop with just CDs, DVDs, and other digital recording media. Companies are working on ways to protect online media from being pirated as well.

Controlled Distribution

In-Store Appearance

Where will this all lead? Moving copyrighted files across the Internet is both easy to do and easy to get away with--but it won't be for long. Though the RIAA and Metallica aren't likely to start getting people who download an MP3 or two tossed into the pokey, they will take steps other than prosecution to protect their rights and work. This means that stricter copy-protection schemes will be introduced in the near future. Yet this too is a short-term solution; though copy-protection measures will surely reduce piracy, savvy people will find a way to skirt them. With this in mind, the entertainment industry must eventually bow to the realities of this new wired world, shift its current distribution model, and seek alternative means of compensation--with actions such as advertising on online distribution centers, offering "bonus" material that can be purchased only online, and streaming "pay to play" content on demand.

When not engaged in journalistic pursuits, Contributing Editor CHRISTOPHER BREEN is a musician in the San Francisco Bay Area.

August, 2000 page: 68

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