Lawyers, executives and millions of file-swapping fans weren’t the only ones whose spirits fell last week when the U.S. District Court (temporarily) threatened to shut Napster down.
Journalists who for months had covered Napster’s intriguing rise must have been despondent, too. Many of them longed for the glory days when virtually every media outlet in the country took a bite out of the Shawn Fanning story, dutifully chronicling (all together now) the way the 19-year-old whiz had developed his revolutionary software at Boston’s Northeastern University after his roommate complained about how difficult it was to find MP3 files online. We all read about how Napster had turned the music industry upside down with fear.
But the avalanche of Napster coverage, with its attendant exegesis on copyright law, intellectual property and ISPs, hasn’t always produced such good journalism. Too often the complicated dispute between the online start-up and the music industry has been painted in the most simplistic terms — a reductive tale of forward-thinking entrepreneurs outsmarting head-in-the-sand label executives.
Fortune small-business columnist David Lidsky summed up the conventional wisdom perfectly. “Rooting for the record companies is like rooting for some kind of combined conglomerate of the New York Yankees and Dallas Cowboys,” he wrote, tongue only slightly in cheek. “Let’s face it, they’re evil.”
The music industry is a greedy, glacially slow-moving machine. It has a history of treating artists and consumers poorly. And if there’s an industry outside cigarette and gun manufacturers in greater need of a massive PR makeover, I’d like to see it. But does low public approval mean the press gets a free pass to write and interpret as it pleases?
From the get-go, disturbing signs suggested the press was more interested in advancing Napster’s story as a David-vs.-Goliath tale than in seriously addressing the intricate issues at hand.
Take early and influential Napster proponent Indiana University sophomore Chad Paulson, who had led a national crusade to keep Napster on campuses. The press, which spent last winter dialing Paulson for quotes, suddenly lost his number after he posted an open letter on his popular Students Against University Censorship Web site (the site was promptly hacked), urging Napster to “take a stand on piracy.” The media seemed reluctant to stray too far from the established script (i.e. college students love the fiercely independent Napster).
Then came Metallica. The legendary heavy metal band stepped into a press feeding frenzy when they became the first individual act to sue Napster for copyright infringement. (Rapper Dr. Dre later followed suit.) At almost every turn the band has been greeted by a hostile press. Metallica essentially became a media punching bag.
Inside.com labeled the band “a corporate ho,” while Forbes writers teased the band, theorizing, “Metallica was probably invited to the MTV Movie Awards because of all its anti-Napster publicity.” Then again, maybe the invite had something to do with the fact that Metallica had a video lodged inside MTV’s top 10 and was headlining one of the summer’s biggest stadium tours.
From the outset, baffled journalists wondered why a band that allows fans to make bootleg copies of their live shows would object to online file-swapping. The New York Times called the contradiction “puzzling.” Yet no matter how many times drummer Lars Ulrich explained that Metallica’s generous bootleg policy was the result of a decision the band had made about their own music (whereas Napster offered no say in the widespread distribution of copyrighted material), the press couldn’t get their minds around it. From the Nation: “Metallica seems to have forgotten that it got rich through free music shared by loyal fans. Now the band is harassing and exposing its followers who still believe in the value of sharing and community.”
Months after the bootleg question was raised, Time magazine was still telling readers that last week’s Napster showdown in federal court was, among other things, about “What Metallica thinks about fans making bootleg recordings of its concerts.”
Things got really nasty when Metallica announced in May that they had collected the names of users who, the band claimed, had illegally downloaded material via Napster. Metallica demanded Napster give those users the boot. According to the New York Times, “By gathering the names of users and asking that they be banned from the service, the band arguably resorted to invasion of privacy.” (Emphasis mine.) That’s pretty tenuous phrasing. Did the band invade users’ privacy, or didn’t it? Did Napster ever guarantee its users blanket privacy when it came to their file-swapping activity? The answer is no.
As for what prompted Metallica to collect the names, many readers were left in the dark. In countless articles from outlets such as Sonicnet, ZDNet News, Reuters, Spin, the New York Times and the Industry Standard, the motivation behind Metallica’s actions often went unmentioned. The answer, though, is simple.
According to the Digital Millennium Copyright Act of 1998, Napster opens itself up to liability for copyright infringement if it is warned that a user is infringing a copyright and fails to act. In essence, Napster dared Metallica to document the names of the offenders, knowing that the move might put the band behind the PR eight ball.
Sure enough, Newsweek thought Metallica’s move was “drastic”; MP3 Newswire labeled it “scary” and “vicious.” The Washington Post used loaded language to report Napster users had been “blacklisted.” And when Dre followed Metallica’s legal lead, Spin told readers the rapper had “cold-cocked” users.
Slashdot columnist Jon Katz was apoplectic. “The band’s efforts to identify and intimidate 335,435 fans and Napster users for alleged copyright violations are a shock.” A shock to whom? The need to collect actual names is spelled out clearly in the DMCA, which Katz, who’s been writing about the Internet for close to a decade, must surely be familiar with. Either that, or he convincingly feigned ignorance as he heated up the rhetoric: “Urge everyone you know to [boycott the band] until Metallica calls off its legal Rottweillers, [and] leaves kids downloading music alone.” (Apparently “kids” are now immune to copyright laws.) Katz also insisted Metallica, by complying with Napster’s request to ID alleged copyright infringers, was “challenging the ability of others to move freely and privately about the Net.”
A published author whose latest book, “Geeks,” was optioned for six figures by New Line Cinema, Katz seems unconcerned about musicians’ rights and royalties. The day after the initial injunction against Napster, Katz told Rollingstone.com, “to take this privilege away from this generation is a loss of a right.” (Emphasis mine.)
From that May turning point, the press pile-on became so pervasive Napster had even morphed into a political issue, with the music industry taking blows from both the left and the right.
Industry executives must have realized just how low their fortunes had fallen when the stridently pro-business, law-and-order Wall Street Journal’s editorial page looked at the file-swapping dispute and sided not with the $14 billion music business, but with profit-free Napster. In a memorable screed, the conservative Journal wrote: “[The RIAA] hopes that their precious [CD sales] factoids will lodge in the semi-conscious brain of some congressman, judge or media member just as he’s about to issue a sound bite or cast a vote on Napster’s technology.”
From the left came the Nation, weighing in with a lengthy pro-Napster piece that clung to anti-music-business clichis: “MTV has almost given up on showing music videos.” Hmm, tell that to Eminem, Britney Spears, P.O.D., Nelly, Dr. Dre, Janet Jackson, 3 Doors Down and Jay-Z, whose clips were played between 20 and 30 times last week on MTV.
While the Napster debate still revolves around the central question of whether users have the right to download a sea of copyrighted music for free, Napster defenders in the press go out of their way to parrot the blame-the-victim approach (rather than question the unique notion that music should be free). “Rampant music piracy online indicates that the music industry’s distribution and pricing model is out of whack with what people want,” wrote one InfoWorld columnist. “The problem isn’t the piracy; the problem is unhappy customers.”
Or look at this another way: If a new killer app arrived tomorrow that allowed people to indiscriminately copy every piece of Microsoft software ever put on the market, and millions of users jumped onboard, would that prove that Microsoft had lost touch with its customers — or just that people like free stuff? Meanwhile, those supposedly unhappy music customers sure have a strange way of showing their contempt for the labels: They’re buying even more CDs this year than last.
Writing in the New Yorker, James Surowiecki explained that if record companies “lower prices, fewer people will steal.” In other words, if CDs sold for $9 or $10 instead of $15 or $16, Napster would have only picked up, say, 3 million users, instead of 20 million? Seems like a stretch. Surowiecki also argued that “CD pricing runs counter to a powerful trend; over the past century, entertainment has generally become cheaper and more accessible. (Think videocassettes and paperbacks.) The compact disc is an anomaly.” Unless, of course, you count the price of movie tickets, which, unlike CD prices, have nearly doubled in the past decade.
The Wall Street Journal’s pro-Napster editorial claimed there was an unstoppable historical precedent behind Napster, which came down to “the willingness of people to consume greater quantities of whatever can be produced and distributed more cheaply.” “More cheaply,” of course, being a tamer way of saying “for free.”
ZDNet opted for “flexible” and “convenient” rather than the dreaded f-word: “Napster has proven that consumers are eager to get music online, in a way that is more flexible and convenient than purchasing CDs.”
Although the Napster case has raised intriguing legal questions about copyright and intellectual property in the Internet age, many in the press had no patience for such minutiae. Writing an Op-Ed piece for the New York Times, Clay Shirky simply dismissed the courtroom proceedings as all that “fuss about copyright and legality.” The Nation saw it simply as “whining about piracy and unauthorized use.” But that whining was potentially serious, too: Nation readers were warned that if Napster lost in court, “we will have to apply for a license to listen or read.” Talk about doomsday.
Other head-scratchers abound.
Arguing that Napster was some kind of karmic payback on “white businessmen” who’d mistreated artists (particularly black artists), GQ claimed it was “a striking irony that Napster got its name because white Shawn Fanning was accused of having black — i.e. nappy — hair by another white.” After reading the suit filed against Napster by gangsta rap godfather Dr. Dre, maybe somebody should ask Dre if he considers Napster ironic — or just another company run by “white businessmen” trying to steal music.
The Boston Globe was so taken by former Byrds lead singer Roger McGuinn’s testimony before the recent Senate Judiciary Committee hearing on digital music distribution that the paper followed it up with a feature piece centering on the fact that “apart from a modest advance, he never made any money off the albums he recorded for the major labels. Nada. Zilch. Nothing but the publicity that generated an audience for his live performances — McGuinn is one artist who doesn’t have much sympathy for the labels.” As McGuinn told the Globe: “Even though I’ve recorded over 25 records, I cannot support my family on record royalties alone.”
Not to take anything away from one of rock’s valued innovators, but a brief glance at McGuinn’s commercial sales history explains why he cannot support his family on royalties alone. He hasn’t sold very many records. According to Billboard Book of Top 40 Albums, the Byrds scored exactly one platinum album, and that was released 33 years ago, back when LPs retailed for $4 or $5.
Rollingstone.com lamented, “Even the most casual music fans have been illegally taping records and CDs for each other for years. Who hasn’t spent at least one afternoon sitting in the middle of a pile of records, meticulously sifting through songs for the ultimately intimate personal soundtrack? It certainly doesn’t feel illegal.”
It doesn’t feel illegal because it’s not illegal. Making a mix tape for a friend is exempt from liability thanks to the Audio Home Recording Act.
In a Q&A with the Los Angeles Times, Napster CEO Hank Barry was asked if he thought “the record industry can sue new technologies out of existence.” A curious question, since nobody associated with the RIAA’s Napster lawsuit has ever suggested they want to do that. No matter how many times RIAA president Hilary Rosen tells reporters, “Peer-to-peer [file sharing] is here to stay. There are lots of interesting uses for it” (as she told CNET News.com), the press continues to write that the record business is trying to sue new technologies out of existence.
Some wondered why the music business couldn’t just be more like book publishers. Publishers, according to Fortune editor-at-large Joe Nocera, who discussed the topic on NPR, “really do understand that their industry is about to change; they’re trying to get with the change before the change takes them over and wipes them out.” In late May, Nocera (who of course believes the music industry “is trying to sue a new technology out of business”) was able to point to exactly two star authors whose works were available as digital downloads.
Thus far, one book has been offered for free by Microsoft — “Timeline” by Michael Crichton — as a way of hyping Bill Gates’ Reader technology. Since Microsoft paid Crichton a mint regardless of how many people actually read his digital book, it’s doubtful Crichton cared how the software king distributed the chapters. The second, a novella by Stephen King was sold online. How either of these examples, in which the authors had complete control over the digital distribution and were duly compensated for their work, connected with the free, large-scale file-swapping of Napster, Nocera never explained. But his point, a recent favorite among the mainstream press, was clear: Book publishers are embracing technology; the music business is fighting it.
The Los Angeles Times made a similar point. According to the paper, “Among the music industry’s numerous blunders, demonizing the online community was a key misstep.” If labels are trying to “demonize the online community,” then why did BMG recently buy online music retailer CDNow? Why did Sony start selling singles at Sonymusic.com? Why did Time Warner invest in online music players Launch and ArtistDirect, let alone agree to merge with Internet giant AOL? Why did EMI begin selling part of its catalog online, and, just last week, sign off on a licensing deal with MP3.com? And why did Universal’s music chiefs Doug Morris and Jimmy Iovine commit millions of dollars to form a new online music label, Farmclub.com?
Clearly there’s been some demonizing going on during the Napster debate, but it hasn’t always been done by the music business.