FLAGSTAFF, Arizona, May 19 -- By now, I'm sure you've heard about the tug-of-war over digital transfer of music via the Internet. There are several fights going on, but the most visible one is between Napster, a company that distributes a free program of the same name, and the music industry.
Napster was developed by a college kid named Shawn Fanning ("Napster" was his childhood nickname, according to an article in International Musician), who wanted an easy way to trade MP3 files (an MP3 file is a slightly lower-quality version of a song recorded and distributed on CD). Fanning came up with a cool little program that lets computer users swap MP3 files over the Internet. Napster has become extremely popular with college kids, who don't have a lot of money to spend on records.
The problem is that almost all the MP3 files they're trading are bootleg copies of commercially released music, made in violation of copyright law. Napster (the company, not the product) claims that this isn't true, and that in any case, they have no control over or responsibility for the material people are trading (despite the fact that they made the software that makes the trading possible).
How much of this is legit?
To get an idea what the fuss was about, I downloaded a copy of Napster, logged into the system, and took a look at what songs were currently available for trading. (When you log into Napster, you get access to whatever MP3 files are being made available by other logged-in users -- and you give them access to MP3 files on your own machine. So what's available at any given time depends on who's logged in and what they have.)
I tried searching for "guitar," and here's a sample of what I found:
Dave Matthews Band with Trey Anastasio of Phish on guitar
Toni Braxton - 03 - Spanish Guitar
Stevie Ray Vaughan - They Call Me Guitar Hurricane
Bread - The Guitar Man
Underworld - Dirty Epic (Dirty Guitar Mix)
Stevie Ray Vaughan - Acoustic Guitar Solo
Phish - While My Guitar Gently Weeps
Guns n Roses - November Rain
Classical Guitar - Spanish Dance No. 5
Cake - Guitar
Classical Guitar - Cavatina Theme From The Deer Hunter
Moby - 01 - Guitar Flut And String
Perfectly Good Guitar - John Hiatt
Brian Setzer Orchestra - Guitar Slinger
Joe Satriani, Eric Johnson, Steve Vai - My Guitar Wants To Kill You
Frank Zappa - Shut up 'n play your guitar
I'm not sure about a few of these (e.g., "Cake - Guitar," "Moby - Guitar Flut And String," and "Bread - The Guitar Man"). It could be that there's a generation gap here; at the advanced age of 37, I'm too old to know who Cake, Moby, and Bread are. And it's possible that the "Cavatina Theme From The Deer Hunter" is someone's own recording of him/herself playing the guitar. Clearly, however, almost all of the others are tracks "ripped" from commercial records.
Illegal copying is nothing new. The difference is that never before have people had the instant ability to spread bootlegs all over the world.
In fairness, I did manage to find a certain amount of stuff that appears to be legit, non-commercial music -- by searching for "trombone," I found several tracks by the "OU Trombone Choir," among other things. But mostly, that search turned up multitudinous copies of "Love is Better Than a Warm Trombone" by Gomez (a band with whom I'm not familiar -- again, the generation-gap problem) and other commercial records.
Copying records is nothing new. We've always had tape recorders (at least in my lifetime), and they've always been used to make copies of records and CDs. In recent years, VCRs have proven equally useful for copying rented movies. And, of course, software itself has always been considered fair game for copyright infringement -- I'd be less than honest if I didn't admit to using some illegally copied software in the past (although my present machine is 100% legal -- you can come by and check, if you want).
Me, Mr. Goody-Two-Shoes? Nah....
I'm not going to sit here and claim that I've never made an illegal copy of a record, either. I used to tape records from my college library, among other places. In fact, I developed an ethical hierarchy of sorts, under which I considered it permissible (albeit still strictly illegal) to copy certain kinds of stuff. Old, out-of-print records by dead musicians, produced by recording companies that had gone belly-up, were perfectly OK to copy. Old records by dead musicians, produced by companies still in business, were still OK, although less so. In-print records by huge-selling, wealthy musicians, produced by mega-corporations, were also OK to copy, but starting to get ethically questionable. In-print records by lesser-known musicians, produced by small record companies, were not to be copied -- those companies deserved the business, and the artists needed the cash. If I wanted a copy of that kind of record, I'd go out and buy one.
When you make something, you have the right to sell it. The fact that music is easy to copy doesn't make it legal to do so.
Some industries have been hurt more than others by copyright infringement. The sheet-music industry has been eviscerated by the photocopying machine. (Most music is printed on larger paper than 8›-by-11 in an attempt to thwart photocopying, or at least make it a little more difficult.) If you're not a musician, this might not seem like a serious problem -- but to a composer trying to get his work published, it's a disaster, because photocopying has made sheet-music publishing a much less profitable business than it used to be, so there aren't as many companies willing to take a chance on publishing a piece of music unlikely to sell in high volume.
So illegal copying isn't new. The difference is that never before have we had the instant ability to spread bootlegs all over the world. This is what Napster (and Gnutella and other similar copying software) are making possible.
The youngsters who steal commercial music with Napster don't seem to get that this is wrong. Here are some typical comments, posted on the Slashdot ("News for nerds") message board:
"Napster is helping forge a whole new distribution channel." (Well, maybe it is -- but it's still illegal.)
"I personally like to hear a piece of music before I buy it... If that means hearing it... through a downloaded MP3 that my buddy shared with me, [that] makes very little difference, if I like the music enough I will go out and buy it! Sharing MP3s is not thievery just another means by which music is exposed and therefore sold." (Again, fine, except that it's still illegal. If you want to try before you buy, listen to the radio!)
"I wouldn't personally mind at all if all the unauthorized copying would drive all the big entertainment corporations to bankruptcy.... True art would survive." (Maybe so -- but with no record companies to distribute the "true art," we'd never hear it.)
"Just because Napster provides the tools, doesn't mean that they are responsible for the piracy. They've created a tool for sharing music. Unfortunately it's impossible to distinguish (for computer programs) commercial and non-commercial music." (Well, as I illustrated above, the vast majority of the stuff actually being traded is illegal. As for the "not responsible" argument, maybe so -- and guns don't kill people; people kill people.)
"But the key issue here is that Napster and Gnutella are not specifically designed to trade pirated material. There's no check to make sure the material isn't copyrighted because it's impossible to do so. It's not like Napster is a huge repository of copyrighted MP3s. It's just a server. I think this case is just like the cases of ISP's being help responsible for their user's actions... ridiculous." (This is the closest I've seen to a legitimate argument -- that Napster is like an ISP, or like the phone company. ISPs and phone companies aren't responsible for what people do with them, for the most part. And that's as it should be. But they're general-purpose media, for transmitting any kind of information. Napster is designed for one thing: transferring MP3 files. And, just to beat the dead horse again, most MP3 files are illegal copies of commercial music.)
Someone's gotta pay the piper
I'm sorry, kids, but when you grow up and have to start earning your own living, you'll find that things are more complicated than the "information wants to be free" Internet-libertarian ethos would have it. And one of the realities of our economic system is that when you make something, you have the right to sell it. Music is no different from any other product -- except that it's easier to copy. But the fact that it's easy to copy doesn't make copying legal.
The other argument I've heard is that digital copying is "the future" and that it can't be stopped. This is more compelling, from a practical standpoint. But that doesn't make it right -- and it doesn't make Napster an innocent bystander. Sure, some bands are making their music available free, in the belief that this will spur fans to pay for their commercial records. Fine -- maybe that is the wave of the future -- but this is still the present.
If bands want to give their music away, that's great -- but if they don't, they have every right to hold onto it until someone pays them for it.
I play music myself -- currently with a group called the Jack Webb Jazz Band, a loosely organized traditional jazz combo here in Flagstaff. I tape most of our gigs, and if any patron wants to make his own tape, that's fine with me (and, as far as I know, with the bandleader). But the issue is not what happens to our off-the-cuff music -- the issue is what happens to music that's professionally recorded in a studio or at a live concert (at considerable expense) and released on commercial records. Much as one might dislike large record companies -- or even wealthy talent-free pop musicians -- their musical "product" is something they have a right to sell, one copy at a time.
Kill them infernal recordin' machines!
John Philip Sousa refused to make records, for the most part. He believed that recorded music would kill the live music industry -- why go out and listen to a live concert when you could hear the same stuff at home?, he reasoned. That's why almost all of the Sousa band's records were conducted by someone else -- he let his men make records, because they needed the money, but he himself refused to participate (with a few exceptions).
Sousa's fears were not entirely groundless. Even with the recording technology we have today, there's still a fair amount of live music out there. However, there's a lot less than there used to be -- and a lot of the decline is a direct result of the availability of recorded music. This isn't to say that recordings are a bad thing -- without them, after all, we'd never have had the chance to hear Charlie Parker, Wilhelm Furtwängler, Glenn Gould, Lester Young, and countless other performers of the past. But recordings are a two-edged sword -- they preserve music for posterity, but they also lessen the demand for live music.
There's an element of truth to the argument that MP3-swapping will lead to a certain number of additional record sales, just as radio play helps artists sell records. And let's face it: Illegal copying has been around a long time -- ever since the invention of the tape recorder. Napster, Gnutella, and other digital copying tools are just the latest wrinkle, and I'm sure they won't put the music industry out of business. After all, before someone can pirate a song, someone else has to produce it in the first place. But intellectual property is intellectual property. Copyright is copyright. If bands want to give their music away, that's great -- but if they don't, they have every right to hold onto it until someone pays them for it.
Copyright © 2000 John J. Kafalas
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