There are millions of songs available on Napster that the record labels would rather you didn't download. And then there are the songs that they really, really don't want you to download. Think of Madonna's new single "Music," an unfinished version of which appeared on Napster months before it was released. Or the parody that wittily (and unflatteringly) combined Eminem's "The Real Slim Shady" lyrics with the music from Britney Spears' "Oops! ... I Did It Again."
This week we can add two more offerings to the list: hitherto unreleased albums from the Wallflowers and the Smashing Pumpkins, both of which are circulating like mad via Napster.
In the case of the Wallflowers' new album, "Breach," which is supposed to hit record stores Oct. 10, its appearance on Napster is supposedly a big boo-boo. Much like Madonna's "Music," the Wallflowers' CD appears to have been ripped and distributed on Napster by some enterprising insider (A journalist? An anonymous label-head looking for early-bird publicity?) who had an advance copy of the album.
But the appearance of the Smashing Pumpkins album is no mistake whatsoever. The Smashing Pumpkins have reportedly been unhappy with their label, Virgin Records, for years. So they decided to give Virgin the big middle finger by releasing "Machina II/The Friends & Enemies of Modern Music" -- their final album, ever -- for free online.
According to press accounts based on (since-erased) posts on the smashingpumpkins.com bulletin board, a disgruntled Billy Corgan distributed a mere 25 vinyl copies of the album to unnamed friends and fans and told them to distribute the songs far and wide. The result has been nothing short of astounding.
The album will now apparently not be sold by Virgin at all, although the hordes of fans trading the MP3 version don't care, since they are already getting it for free. Radio stations are playing the album -- obtained via Napster -- and fans without MP3 players can even buy a burned CD from enterprising entrepreneurs on eBay.
Call it proof positive that the distribution network doesn't need record labels at all -- except, of course, to sell the actual records that will pay those bands back. Odds are good that the Pumpkins won't make a cent off "Machina II," but sweet revenge is its own reward.
(Of course, if Virgin ends up slapping the Smashing Pumpkins with a lawsuit for infringing on Virgin's copyrights -- to the tune, say, of $25,000 per song -- Corgan and his band mates may soon be singing a different song. So far, Virgin has been mum on the issue.)
Did Napster's lawyers thrill at these latest shenanigans, or worry that the RIAA's lawyers will use it as proof that Napster damages record industry profits? According to Napster's final written legal brief, submitted Wednesday, those profits aren't really the issue being debated anyway: The brief argues that "This case is not about any diminution in the value of Plaintiffs' copyrights; none has occurred or is reasonably foreseeable as the result of Napster. This case is about whether Plaintiffs can use their control over music copyrights to achieve control over Napster's decentralized technology and prevent it from transforming the Internet in ways that might undermine their present chokehold on music promotion and distribution."
After all, Madonna and Eminem seem to be wildly successful despite Napster; CD sales, overall, are finally rising; and even if Virgin never profits from that illicit release, a whole lot of fans are now happily talking about the Smashing Pumpkins. You can't buy that kind of buzz, and in the digital age you sure can't control it.