"a few words from your lord and master" |
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ok, ok, i'm sure you're all VERY tired of discussing this, but while
it's still annoyingly "newsworthy", i might as well shoot my load on it.
this is sort of an update of the column i did
for this web site, on napster and file sharing, back in the june
edition. if some of the details seem redundant to anyone, it's because i
tried to write this with the less tech-savvy of you in mind. the first
piece i wrote on this subject, while having a far more humorous bent,
covers pretty much any part of my opinion that this one doesn't, so if
you're curious about anything i don't mention here, chances are it's in
the other article. caveat: while this piece is largely opinion based, i do not present my opinion on this subject as the alpha and the omega. ultimately, i'm just some guy, and as you might be able to tell from reading the first article i wrote on the subject, my opinions can, will, and have evolved, even changed on parts of this subject. i'm not against having that happen again, either. if anyone has any counterpoints, feel free to make them. challenge my viewpoint. i don't think i am, but i COULD be wrong. anyway, on with the show. as most of you who don't live under rocks know, a lot have things have happened in the napster/file sharing saga since i wrote my first article on the subject, and, as information has passed down the pipe to this writer, i've been able to form an even fuller opinion of the situation. some of my views have changed, others haven't. i am, and probably always will be in favor of fully legal, non-commercial file sharing of a number of types of data. for the sake of this discussion, we'll define "commercial" as "for financial gain". as an erstwhile retailer, i have lost occasional business from time to time due to file sharing, and as a musician, i expect to lose some more, but i'm STILL in favor of it, because of it's obvious advantages to the public at large, such as the even distribution of information and experience to people, regardless of their financial stature or social class. it might sound like a socialist line of thought in a capitalist society, but libraries have done ok so far, haven't they? i do, however, have some issues with napster, and their handling of their court case with the RIAA, which i will address below. in addition, i have also come up with some suggestions, maybe reasonable, maybe not, on how i feel the laws in the united states should be set and/or changed regarding certain kinds of intellectual property data, specifically music, but also other media such as DVD, computer software, and electronic books. i still feel that a lot of the major record labels, and major label artists rallying against "piracy" are merely being whiny bitches because their place in the pecking order is threatened, but, in at least dr. dre's case, he should really just shut the hell up already. his bitch eminem just made him some KIND money with that little "marshall mathers" record, and i don't wanna hear anyone say that "well, he could've sold 6 million copies in the first 2 months instead of JUST 5 million if there was no napster". bullshit. i'd be so bold as to suggest that about half eminem's fan base came from people trading his first record on file sharing clients. hands up here, how many of you downloaded "my name is..." from somewhere, before buying the CD? about one of metallica drummer lars ulrich's major arguments, specifically his "taping on a one to one basis is ok, but when it's millions of people, with this kind of sound quality..." whining: whether you feel that the volume and quality of such data transmission are "right" or "wrong", the floodgates are already open, lars. you can either call a bare minimum of 20 million potential CD buyers "thieves", or you can jump on board and figure out how to make the technology work for you and your band, without working against what i feel are the best interests of the public. it would serve you and your band well to pursue any legal action against non-commercial entities carefully, if at all. technology has drastically changed the world since "nothing else matters" was all over MTV, and the means in which we receive our information has, as well. criminalizing an action that has replaced radio and MTV for most regular computer users as their way to find out about new music and listen to old favorites is foolish, and will turn a large body of the listening audience against any of the purveyors of popular (and unpopular) culture who support such criminalization. right now, metallica are the poster children for this, whether that title's been earned or not. i would strongly suggest, to them, or anyone else thinking of pursuing similar actions: stick strictly to commercial targets in your legal cases, or you're going to make a whole lot of people not like you. on a more general note, relating to this point: if the home audio recording act of 1992, and the digital millenium copyright act don't already allow for "fair, non-commercial use of intellectual property data", they should both be amended as soon as possible to do so, or redrafted from the bottom up. here are the stipulations i would suggest:
as for my reasoning behind using the word "data" rather than just "music" in the last paragraph: these same rules could also applied to a number of forms of electronic "intellectual property" data. if it's a product that's sold more or less on an "as-is" basis (such as music CDs, electronic versions of books, console video games without online capabilities provided by an outside network, or DVDs, to name a few...), the same rules and regulations could, and should apply. computer software's a bit of a dicier issue, as your purchase price often includes tech support, bug fixes, and so on. there would have to be some rules applied (or left in their present state) to protect companies from abuse of the individual software licenses. however, if no ongoing technical support, developer-installed upgrades to your data, online network capabilities, etc., are being included or promised by the manufacturer in your purchase price, the world of copying and sharing their product on a non-commercial basis should be your oyster. besides, as has been stated ad nauseum: if the product's good enough, people will go back and buy an original, more often than not. on to napster, and my current, slightly more informed than 2 months ago opinion of their actions to date. napster, by every indication, aspires to be a for-profit company. (this is an argument even mentioned briefly by lars, in his on the site.) from my understanding of things, napster also describes their application software as a "service", and runs it from a centralized location, rather than releasing both their client and server software to the public and allowing their userbase to assume primary responsibility for finding and controlling the content of the various servers. these two major points (without even getting into any major detail of the "he said, she said" nonsense over their spat with metallica; i wasn't there when it happened) are what will probably hang them out to dry, legally and financially speaking, and will end up making shawn fanning look like he got caught "borrowing" his dad's car. the napster corporation recently raised 15 million dollars in venture capital, and they've also cut endorsement deals with the bands limp bizkit and the offspring. that's anything but "non-commercial", from where i stand. you don't attract venture capital people and corporate sponsorship with the words "we're going to take all of this data, and give it away for free. can we have 15 million dollars?" believe me, i've tried. in addition, the protection that most internet service providers and file transfer software vendors would seem to have legally at the moment in cases like this, title II* of the digital millennium copyright act (an admittedly bunk set of laws for the most part, that have little chance of standing up, as they're currently worded, in a prolonged legal battle), doesn't hold water here. title II limits the liability of providers who "passively transfer" unauthorized, copyrighted data, data that is described as "often untraceable" in the footnote below. napster's entire current business model is based on active, in the forefront, public file transfer, facilitated by query servers that they themselves run. according to facts that are in the public record at this point (such as the company's decision to ban 300,000 users who were trading metallica mp3s, upon receiving a list of the users from the band), we know that napster can not only obtain or keep their own records of transfer data, but they can also assert a certain degree of control over who trades what files on their centrally located servers. this, in my opinion, deflates the argument that the data transferred on napster is passive, largely untraceable and/or uncontrollable, and thus, it defeats the exemption from liability that title II would provide them. if you're going to openly make someone's copyrighted material available to the public on a regular basis with the intention of pulling a profit specifically (even if it's not exclusively) from that material, the copyright holder(s) (be it the creators, or the white devils they sold their soul to...) will come looking for a royalty payment sooner or later, and, by law, you're required to pay it. do i believe that napster should be punished legally, given the information that i have, despite what might be the best intentions on their part, and given my very accepting views toward peer-to-peer file sharing? you bet i do. by my watch, the people at napster owe approximately 14 months' worth of royalties for whatever copyrighted material has been transferred on their servers, since they willfully facilitated, or at the very least, turned a blind eye to the transfers with the intention of making a profit from the napster service/web site, as well as from endorsement deals like the aforementioned ones with limp bizkit and the offspring. as long as they continue to operate on a commercial, for-profit basis, they should be required to pay the copyright owners, be it metallica or the kid down the street who has an mp3.com site for his accordion music, their kickback (essentially all it is; we're grown-ups, and we can call a spade a spade here); and, they should also be held financially responsible for the back royalties they owe from their first 14 months of operation. what's a fair number for that royalty fee? i suppose that's for the courts (and the lawyers) to decide, but it'll be an important, precedent-setting number, for certain. i also believe that, in addition to the above faux pas, the napster corporation have been acting like rather large hypocrites by attempting to smokescreen their misdeeds and act as some moral figurehead for the file transfer world, when all they are is another company out to make a buck (and, in this case, a company that i believe is looking to avoid paying a large chunk of their overhead). in the process, they've made a lot of legitimate (or, if you disagree with my ethical stance and prefer, non-commerical) users of file sharing programs, like and including their own application, look like criminals in the eyes of the public. i'd consider their recent flirtations with societal martyrdom both irresponsible and immoral, in light of their well-documented, public wrongdoings. i think they should accept a bit more responsibility then they appear to have accepted thus far, before they present themselves any further as the christ figures of mp3. will napster be able to pay up, on their own? i doubt it. they could go with a subscriber-based service to cover the ongoing royalty fees, but i don't think they'd do 20 million users on a pay basis, not yet, anyways. that would still leave the VC people involved stuck with what's going to be an ungodly amount of lawyer fees and back royalties to pay off, even if they settle out of court with the RIAA for a lower number (which doesn't seem likely, given how the battle lines have been drawn so far). unfortunately, i see one sad, sorry, but nearly inevitable outcome here: "napster. an aol/time-warner/emi/netscape/nullsoft/moviefone/(god, what else do they own?) company." sure, steve case would piss off everyone from his shareholders (who'd have to foot yet another bill, short-term...), to the department of justice (who might be overheard soon after, saying "microwho? screw them, man, we gotta bust a cap in aol's ass!"), to his fellow RIAA members (what's the worst that could happen there? BMG throwing a tantrum, and refusing to sell warner product on CDnow? ha!), but the AOL corporate scum monolith has enough cash and the resources to force an idea like a subscriber-based napster to work. AOL 7.0 "deluxe" will probably end up keeping joe six-pack kneedeep in metallica mp3s for years to come (assuming lars plays ball and "allows" metallica on the service...), without having him dirty his hands on the "real" internet. they're on their way to owning 2 of the 5 major companies in the RIAA. i can't see sony, BMG, or universal being pigheaded enough to not take the money and run, but again, i could be wrong. barring the DOJ, who are still trying to figure out how to disable internet explorer as their default browser, i don't see anyone else stopping this one, not even micro$oft. amazing to think that all this evolved from a guy trying to sell modems for the atari 2600, isn't it? as for whether or not the napster corporation would "sell out" or not: let's face it, there's a damn good chance that shawn fanning's in over his head in a properly handled civil case, david boies or no, just on the basis of the "for-profit" business model, and he could take hank barry's venture capital down with the ship. he/they ultimately might not have a choice about selling out if a long legal battle ensues (look up the church of scientology v. cult awareness network lawsuit some time, if you get a chance. funny stuff...). the smart move, though it's certainly not the noble one by any means, is to sell napster to whoever's in the best position to get maximum market penetration, and can insure that you're not going to end up like preston tucker, or, perhaps even worse, like famous amos. (i know i'd rather die penniless and heartbroken than to be alive and not be allowed to call myself "famous amos" anymore!) besides, i happen to think he'd make a TERRIFIC AOL employee! look at the dude! i can totally see him in one of those commercials! actor #1: "i can keep in touch with my whole family!" actor #2: "instant messages rule!" fanning: "they bailed out my failed, quasi-legal internet startup! AOL really are #1!" and, while he's at it, he'll finally get a taste of what it feels like to be "under contract". =) for the record, regardless of their alleged no-no's, i VEHEMENTLY oppose shutting down napster merely for the sake of shutting it down. this very possible outcome of the case won't benefit anyone. what we do have in the napster case is a serious opportunity to learn, discuss, and decide how to handle internet and new media intellectual property law responsibly and fairly, and i hope that it's handled as such, rather than used as an excuse to make an example of some "dirty, filthy pirates" who dare to tell everyone that the emperor's naked. even if, in this case, they were selling offspring t-shirts while they were telling everyone. hopefully, cooler heads prevail, for once in the history of civilization.
oogiewawa!
* "Title II (of the DMCA) limits liability for online
service providers for their role in online copyright infringement. The
DMCA online service providers are exempted from copyright liability for
passively transferring information over the Internet. Since the source
of infringements is often untraceable, the Internet service provider was
an alternative defendant prior to this Act. The DMCA greatly reduces a
provider's exposure to damages, however its protections are limited and
it does not entirely exempt the provider from legal actions or
injunctive relief." (thanks to , who are the source of the above footnote, for providing the
best plain-english interpretations of the AHRA and DMCA i could find on
short notice while writing this. :D)
Scott Crawford can STILL be reached at sdcrawford@earthlink.net, or, if
you're feeling especially daring and your mommy and daddy say it's ok, go to
and visit his home on the web.
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