THE NAPSTER IMPACT
by Alex Garacotche 15 march 2002

Napster has built a system that allows users who log onto Napster' s servers to obtain MP3 music files that are stored on the computers of other users who are connected to the Napster system at the same time. Napster provides advanced search capabilities, as well as direct hyperlinks to the MP3 files housed on its users' computers. At any single point in time, millions of users may be logged onto Napster trading millions of sound recordings. According to the RIAA (Recording Industry Association of America), “The overwhelming majority of the MP3 files offered on Napster are infringing(...). Napster is thus enabling and encouraging the illegal copying and distribution of copyrighted music.” RIAA says.1 However, it seems that Napster is considering itself first as a new revolutionary Internet directory service empowering individuals to distribute free information: Napster holds lists of files proposed by people online but does not hold the files themselves. How Napster is bringing new solutions to the spreading of the information over the internet ? Napster’ s principles point out the fact that people using the service are not infringing copyright laws in a way that there is none commercial basis, “Non-commercial sharing of music among individuals is common, legal, and accepted.” 2.The tolerable spreading of music between friends and family under the notion of “fair use” of the U.S. copyright laws has been brought up to the Internet. Why can we say that since Napster, the very nature of the music industry, and all copyrighted creative work for that matter (books, movies, et cetera), has changed forever ? “Napster is unfair to the artists and musicians who have invested their time, effort and money to create music.” RIAA says.3 Can we say that the music artists and the blossoming of the culture are in danger ?
(how) Is RIAA really protecting them ?




Among its other functions, the Napster directory service makes software available that allows users to search a directory that lists the names of files available to be shared by other users who are then online, and choose whether or not to create a folder on their disk drive where files they wish to share are available to others. Each of those files is listed, and that list becomes part of the Napster directory. In that way, Napster, which does not store any copyrighted files, becomes then similar to any web search engines on the Internet like Altavista, Google or to literally hundreds of other websites. Besides, the Napster directory system allows ordinary individuals to contribute to a collective directory, in which everyone connected to the Internet can both supply and access information, and where the information available is indexed in real time. This is in stark contrast to the current predominant Internet architecture of large centralised file storage servers whose contents are catalogued by software “robots”. “The greatest innovation in the Napster architecture is its decentralisation of the information sharing and indexing process.”4


In 1992, the Audio Home Recording Act (AHRA) allowed digital copying of music. It has triggered the same issues regarding the ‘intellectual property’, but the primary purpose of the AHRA was to facilitate the personal use: “the purpose of the Act is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, non-commercial use.” 5 . In that way, The AHRA covers devices designed or marketed for the primary purpose of making digital musical recordings and provides these devices, and their manufacturers, with some protection from contributory copyright infringement claims. Those covered devices are required to incorporate technology to prevent serial copying and have to pay a royalty to copyright owners. Why cannot we consider that Napster is simply one of this device ? The MP3 technology is aimed at compressing digital audio files, creating files smaller, requiring less disk drive space, less memory and less network transmission time, it has become the standard for Internet applications. The Rio (Diamond Multimedia System, DMS) is a portable handheld device capable of receiving, storing and replaying digital audio MP3 files. To operate the Rio, a user downloads digital audio files from a personal computer to the Rio's hard drive. During the lawsuit of DMS against RIAA in 1999, the Rio has not been subject to the AHRA‘s Serial Copy Management System (“SCMS”) and royalty provisions because it does not possess any digital audio output capability and is not a digital audio recording device. “The Rio merely makes copies in order to render portable, or "space shift", those files that already reside on a user's hard drive. ... Such copying is paradigmatic non-commercial personal use entirely consistent with the purposes of the Act."6 Napster’ s users are copying MP3 files from hard drive to hard drive in a non-commercial way and for a personal use. Therefore, if a consumer can copy an MP3 file from his or her hard drive without violating the copyright laws, it is self evident that Napster’ s Internet directory service does not violate the copyright laws either. After the motion picture association’ s battle against VCRs in the 1980s, the Office of Technology Assessment (OTA) has released a report on home taping, which deemed taping CDs or records borrowed from friends, and giving copies of one’s own CDs or records to friends, to be synonymous with “personal use”, “private copying”, “home use,” and “private use.” The only difference between the activity noted in the OTA report and that done through Napster is that today sharing is done on the Internet.


An outstanding report “The problem with music” by Steve Albini who is an independent and corporate rock record producer, is showing the incomes of both label and band, after having produced and promoted one disc. The labels’ contract based Albini saying, clearly indicates the complete unfair division of the benefits of a such production: 2% for the band. “(...)many artists don't have a problem with Napster, (...) -- much of their revenue isn't derived from album sales anyhow, at least not in the early "starving artist" days; most bands have an account that tracks to sales of new albums against revenues from live performances and future record sales as a loss that they must pay back anyhow to cover recording and studio costs, marketing and distribution. So, most artists don't make much money on album sales to begin with.”7 Napster is then not going against the culture blossoming or even against the artists, but is certainly weakening a very lucrative commercial sector. However, 20 years after the VCR’ s battle, the movie industry now reaps more than half of its profits from that technology. A study conducted by Warner in 1998 concluded that the availability of MP3s on the Internet had no impact on sales. Another Warner study in 1999, following the release of a Tom Petty track in MP3 format on the Internet prior to the album’s street release, concluded that “it is clear that the first week sales (of the new album) were considerably higher than the first week for Petty’ s previous album. Napster has in that way a promotional attraction that brings new hopes to the unknown artists. They can then promote their music at the same scale of importance than the ‘major produced’ bands which were so far monopolising the media such as radio and TV. “A&M records admits that only 2% of all recording artists are signed to the “major” labels.(...)have recognised belatedly that Napster’ s innovative file sharing technology represents an effective system for electronic music distribution. Having recognised that, they now seek to extend the copyright monopoly in order to eliminate or control that form of distribution for themselves.”8 RIAA’ legal manoeuvring against Napster is less for enforcing intellectual property rights than to control the flow of competing unsigned artists’ music into the electronic marketplace, and the means of and business model for distributing music over the Internet. Copyright infringement argument in that case, is a misuse of the copyright concept. “The original intend of copyright law was to promote a public good, not a private one...” .9



Based on the liberty of information and expression, Napster’ s one-to-one file sharing and Internet directory service has ignited a revolution in the way of spreading information on to the Internet. “The whole Internet could be re-architected by Napster-like technology.” 10 He has also and overall in total legality, increased in a significant way the so-far tolerated ‘friends and family fair use’ of copyrighted material: 20 millions people are using Napster. Besides, many studies have demonstrated that Napster is encouraging the communication between artists and audience in re-establishing (or establishing) the equality of music diffusion through our media. Napster has taken advantage of a too-slow process for recording industry to implant itself into an electronic market. It has questioned not only the recordings industry role in the production process but its influence on the consumer. Thereby, Napster has disclosed also a not-so-new implication of the Recording Industry in the misusing of the copyright laws in order to protect the monopoly of the major labels on the market of records. New discussions will occur about how to protect or renforce the protection of the intellectual property in the future. But as a musician or artist, I would like to know how will artists be considered within the entire digital world in the future and protected from the well organised powerfull machine of the lucrative market of arts ?

1. Recordings Industry Association of America http://www.riaa.com/Napster.cfm
2. DAVID BOIES (pro hac vice) BOIES, SCHILLER & FLEXNER LLP http://dl.napster.com/opposition.pdf3.
3. Recordings Industry Association of America http://www.riaa.com/Napster.cfm
4. LAURENCE F. PULGRAM5.http://dl.napster.com/opposition.pdf3.
5. DAVID L. HAYES http://legacy.dl.b3.org/ahra/v3e.html
6. PHILLIPS NIZER http://www.phillipsnizer.com/int-audfile.htm
7. ARIK JOHNSON http://www.aurorawdc.com/arj_cics_napster1.htm
8. FENWICK & WEST LLP http://dl.napster.com/opposition.pdf3.
9. NEGATIVLAND http://www.negativland.com/riaa/index.html
10. ANDY GROVE, former Chairman of Intel.

ALSO:
a good example of the riaa using the (misuse of) copyright laws to protect their financial interest:
www.negativland.com
/albini.html
/riaa




Alex Garacotche
viewable on line at http://www.idoia.com

Essay for the module GLOBAL DIGITAL COMMUNICATION led by James Coupe.
DIGITAL ARTS, Thames Valley University LONDON uk.