Why the music industry has nothing to celebrate

Napster's shutdown will only cause a thousand alternatives to bloom.

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The music industry’s spokespeople will no doubt crow in triumph at their Wednesday victory over Napster in federal court, where they persuaded a judge to issue a preliminary injunction essentially forcing Napster to shut down. But in felling Napster, the industry is digging an even deeper grave for itself.

The record labels’ only hope was to lose this court battle. Now that they’ve won, they’ve really lost.

To understand this paradox, you’ll need to ponder with me the implications of a front-page article in the Wall Street Journal Wednesday. “When Its Own Assets Are Involved,” the headline declared, “Napster is No Fan of Sharing.” The story tried to tar Napster as a hypocritical company — for on the one hand promoting the free-for-all sharing of music files online but on the other resorting to old-fashioned corporate bullying when it comes to protecting its own copyrights and software code.

The big problem with the Journal piece — and with much of the media coverage of the Napster saga — is that it confuses Napster the company with Napster the phenomenon.

You already know what Napster the phenomenon is: A program that helps Net users find and download music files from one another’s computers. In the short months since its debut last fall, Napster has become both a revolutionary banner for anti-establishment music lovers and a lightning rod for media-corporation paranoia over piracy and copyright infringement.

Napster the company is something different, more prosaic: It’s a venture capital-backed Silicon Valley start-up with a lawyer at its helm. It hopes, somehow, eventually, to make big money from Napster the phenomenon. Those hopes look darker after today’s ruling.

Here’s the problem for the record labels and their trade group, the RIAA: Napster the company is an institution they could cut a deal with if they so desired. It’s a legal entity; it runs a relatively small group of servers that can be shut down; it has incentives to reach a compromise with the recording industry.

Napster the phenomenon is something else entirely. It’s not a corporation — it’s an idea. Napster Inc. could disappear off the face of the Earth tomorrow and it wouldn’t matter. Think of what happened to Netscape; the company lost its fight but the company’s idea — the Web browser — took over the Net. The idea of Napster — of “peer to peer” software that lets individual Internet users trade music files (and other files) with one another — lives in millions of minds. And the Internet itself gives those minds ample opportunity to keep the idea going.

Already, projects like Gnutella and Freenet are beginning to provide Napster-like functions with one key difference: There’s no central server, and thus no one to sue. Napigator lets users find Napster servers that aren’t run by Napster Inc. Over at Opennap, open-source programmers are developing free, Napster-like software for every computing platform under the sun. On the open Net, a thousand new Napsters are blooming.

And what will be the impact of the court-ordered shutdown of Napster? These projects — small, underground efforts that grew unnoticed in the shadow of Napster the company — will be flooded with energy. Users will flock to them, and talented software hackers will work overtime to perfect them.

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From the recording industry’s point of view, it is slaying one enemy only to seed the field with a thousand new opponents — opponents who are, not incidentally, its own best customers.

Millions of people (20 million, by Napster’s count) want the services Napster provides. A new report from Jupiter/Media Metrix, which dubs Napster “the definitive killer application for the online music industry,” finds that — unlike so many Net-based applications that people download once, try out but rarely use (remember Pointcast?) — 80 percent of people who had Napster on their computers actually used it last March (compared with 40 percent for RealPlayer and Windows Media Player).

That’s why in the long run the anti-Napster campaign is as doomed as Prohibition. For all sorts of reasons, some good ones and some rationalizations, people don’t feel that they’re doing anything wrong when they trade music files with Napster. Maybe they’re already spending hundreds of dollars a year on overpriced CDs. Maybe they’re sick of the music industry’s habit of packaging one hit with a bunch of dud tracks. Maybe they just want to check out music before buying it in ways that the current dismal radio-and-MTV universe simply don’t allow.

Whatever the reason, 20 million users can’t all be locked up and thrown in jail. The recording industry is in for a long, fruitless siege if it sets out to shut down each little Napster clone or slap a writ on every individual who uses Gnutella. Ultimately, if it wants to stop people from engaging in Napster-like behavior, the only thing that could work would be to shut down the Internet itself. Good luck.

Instead of going to court, of course, the music industry could be figuring out ways to use Napster to sell more music. After all, here’s a piece of software that cultivates people’s taste for new music and that appeals to the most dedicated fans. What a sales opportunity!

But by treating Napster as the copyright antichrist, the industry is simply insuring that the vector of Internet technological development will move rapidly toward a lawsuit-proof, free-for-all distributed network of file-sharing — the very outcome the owners of intellectual property wish to avoid. How stupid can you get?

Of course, the deepest irony of all is that it is the music industry that chose not to protect its copyrights in the first place. Where do you think all those illegally copied music tracks on Napster come from? From people’s legally paid-for CDs, of course. But the CD audio standards established by the music companies themselves have never included any kind of copyright protection technology.

Why doesn’t the music industry start doing so today? Because you and I would be steaming mad about having to buy all-new stereos and Walkmen to listen to the new-format CDs. Maybe we’d stop buying CDs altogether. Maybe we’d turn to the Net for our music.

For music lovers, the bad news today is that if and when Napster shuts its servers down, we will have to find our music through other channels. The good news is that the brain-dead, colossally wasteful, artistically homogenizing old order of the recording industry is committing collective, time-delayed suicide in court.

Good riddance, I say. These institutions have never served artists or listeners well. Once they’re gone or rendered irrelevant, maybe there’ll be room for a new, better order.

Salon co-founder Scott Rosenberg is director of MediaBugs.org. He is the author of "Say Everything" and Dreaming in Code and blogs at Wordyard.com.

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