James Norton
Much Ado about Napster
Napster is nothing new – and nothing special.
This may not sound fair. Napster's undeniably a nice piece of work, conceptually. And it gives its users the almost magical experience of building a complete music collection without expending much effort or any money.
But the idea of stealing someone else's intellectual property isn't anything particularly new.
"Black markets have arisen since the time when people had four rocks to trade with – they arise when there's instability," says Talal Shamoon, senior vice-president of Media for InterTrust Technologies, which specializes in digital rights management. "People will create value using things that aren't necessarily available in the clear." Napster has focused a fresh spotlight on a digital black-marketplace – and mentality – that has existed for well over a decade, when teens began swapping copyrighted software in the virtual backrooms of dial-in bulletin boards.
At 2400 baud, it can take a while to trade a game. And after your mom picks up the phone for the third time in an hour, it becomes clear it might make more sense just to walk down to Software Etc. and actually buy that copy of King's Quest II. But this didn't stop a lot of us from trying to get something for nothing.
A little less than a decade later, kids are still getting together to swap the fruits of other people's mental labor, thanks to gracious facilitators like Hotline.
Napster, which refused to be interviewed for this article, is just the sleek, modern analogue – a digital clubhouse for (mostly contraband) music files zipping back and forth across a vast international network.
In some ways, it's tempting to view the situation as a case of the virtual chickens coming home to roost. How much sympathy can consumers be expected to have for an industry that charges $16.99 for a piece of optical-quality polycarbonate plastic that costs only a few dollars to record, press and market?
But the competition between gray-market products (like Napster and Gnutella) and fully copyright-compliant distribution networks won't be governed by price alone. Like so much in life, the situation is a slurry of ever-shifting, ever-changing factors.
The price of music is undeniably important. If online music distributors offer prices that customers are comfortable with, the incentive to steal music decreases. Of course, there will always be college students.
Ease of access is an important factor – both for legitimate and illegitimate sources of music. The existence of a smart, user-friendly, legal music database will make piracy less attractive, just as Napster's brilliantly clean design and ease-of-use has made piracy fun again for millions of people.
The honesty of the individual consumer is quite relevant. Most people are at least somewhat honest, and will feel twinges of guilt when they know the music they download and enjoy is not in any way enriching the artist who created it. But honesty varies quite widely from person to person. Some people get a thrill from stealing hundreds of dollars worth of music. Other people, like my dad, register every piece of shareware they use.
Demand for a specific product is important. The more demand there is, the more pressure there will be on legitimate channels to provide it, and the more piracy will flourish as people feel the urge to get in on the latest craze without having to pay for it.
And, finally, the fear of law enforcement is very important. At this point, there has not been an organized crackdown on the aggressive, large-scale use of Napster to traffic in copyrighted, illegally copied MP3s. Fear of getting caught isn't much of a factor among its users.
Some predictions for the future:
1. The music industry will not collapse.
VCR piracy didn't destroy the cinema. Audio piracy hasn't destroyed the concert hall. And while it's fair to argue that Napster – and other MP3-distributing software like Gnutella – steal faster and better, the principle's the same.
Regardless of how much trading pirates do, there will be legitimate channels for people to purchase their music through, and people willing to do the purchasing.
2. Napster – and similar technologies – will not be completely destroyed.
Music company execs no doubt fantasize about firing a single jurisprudential torpedo directly into Napster's central server, causing a chain reaction that will wipe out online music piracy.
This is unlikely to happen.
Even if the recent ruling against MP3.com is a sign of things to come, no amount of legal action can completely eradicate software that allows people to copy and move files – including music files – across the Internet.
And precedent has shown that as a society, we tend to allow the existence of technology that lets people break copyrights. Witness the VCR, the Diamond Rio and the writable CD – all of which have passed through significant legal hurdles.
Can you blame a tool for the misdeeds of its owner? We seem to have said: "By and large, no." The blame rests on the lawbreaker, not the VCR, the camera, or the gun.
And all the legal firepower and online enforcement in the world will be insufficient to stop illegal music trading once and for all. Grassroots systems like Gnutella can use fluid, evolving networks of users instead of a central server. The files will keep moving, and the pirates will keep swapping their illicit electronic booty.
But being accessible isn't necessarily to the advantage of those who trade in stolen music.
"If the pirates are easy to find – the pirates are easy to find," says Gene Hoffman, CEO of EMusic.com, a business that makes a robust legitimate trade by selling MP3s over the Web.
Since time immemorial, pirates have had to maintain a precarious balance between being accessible enough to trade with, but not accessible enough that the authorities can drop by for a visit.
Napster is a wild, flash-in-the-pan exception to this rule.
3. Some people will continue trading stolen files until files no longer exist.
The Napstermania gripping us now will recede to the fringes as enforcement – and education – outstrip pure primal greed for free music. Once the penalities for large-scale music piracy become clear, it may be harder to find people swapping dozens of files at a time.
"It's just like speeding," says EMusic.com's Gene Hoffman.
"The reality is that everybody has the possibility to go as fast as they care to – but they know there are repercussions for different degrees of speeding. It's the same thing with downloadable music – if it's a file here or there, no one's going to care."
And if it's an enormous trove of copyrighted music, the police of the future might be interested, and aware of a socially and legally-appropriate response.
The reality is that technologies continue to evolve: as copyright enforcement moves forward, so does the means to get around it. Even the MP3 file itself is evolving - an open-source version named Ogg Vorbis is being put forth as an alternative to the proprietary (and old-fashioned) MP3.
Technologies like Gnutella are also likely to step in if Napster falters, providing an easy way to move contraband ones and zeros over the Internet.
"Gnutella is where everybody should have fear," says Paul Paray, the President and CEO of Cool License Corporation. "It involves any files on anyone's hard drive. It's a protocol – it's not something where you can lock up a central server and shut it down. Stopping it is going to involve technological means, rather than legal means."
4. Society will make a collective judgement that allows artists and producers to continue to be reimbursed for their work.
"It's a valid right for the original creator to determine under which conditions their content is accessed," says Andrew Farrow, the head of business development for Magex, a company that provides commerce solutions for online distributors of digital content.
"The creator has put a lifetime of expertise and creative energy into that piece of music and should be able to set the requirements for how it's accessed. It's not just about the first person who accesses it – it's the nth person after that."
Human beings make a lot of mistakes. Human society makes a lot of mistakes. But over time, we've come to some collective judgments. One of these is that theft is bad, and that ideas – which require real work and real effort to create and distribute – can be property, too.
"We're moving to an information economy," says Pete O'Dell, COO for Supertracks, an online music distribution company. "If one of the keynotes of a digital economy is that all content is free, there are some severe repercussions for the global economy."
Although one can faintly hear the legitimate businessperson's panic in Mr. O'Dell's words, he's right. And while there is an air of uncertainty hanging over those who trade in intangible stuff like music, many in the industry are optimistic.
"Ultimately society makes certain judgments – and history and practicality are on my side," says Mr. Farrow. For those who believe there should be a bond of trust between artistic creators and consumers, there's some rough weather ahead.
Should we worry about the health of the precious commercial link between artist and audience? Yes. But common sense says that the link will be preserved.