Copyright Infringement And Napster Essay, Research Paper

Is trading digital music using Napster Online legal or copyright infringement? First, we must find out what Napster is and who created it. Napster is a combination of ?the features of existing programs: the instant-messaging system of Internet Relay Chat, the file-sharing functions of Microsoft Windows and the advanced searching and filtering capabilities of various search engines?(Greenfield). Basically all it is, is a really cool little program that a person can download off of the internet for free. Install it on the nearest computer, go through the setup, log on to the internet, and type in someone?s favorite artist. When the artist or song name is entered into the search engine part of Napster, it searches the Napster server and files of other users online at that time for your artist or song.

Point-click-download, it is easy as that to get what some people call illegal Mp3?s. Mp3 stands for mpeg layer 3, a small music file that downloads quickly from the Internet. Many people have found out these files can be hard to find, leading the explorer to dead ends if a searcher doesn?t know where to go or doesn?t want to pay for them. But in 1999, a person by the name of Shawn Fanning decided to do something about the availability of these files. ?Fanning figured out that if he combined a music-search function with a file-sharing system and, to facilitate communication, instant messaging, he could bypass the rat?s nest of legal and technical problems that kept great music from breaking out all over the World Wide Web? (Greenfield). So, over a period of months in 1999, he created the famed Napster. At 18 years of age, Shawn would become a teenager?s hero and best friend from whom to get new free music. Then these few lines of code and combined programs got this 18 year-old in a lot of trouble.

If you look at the back of a CD or on the credits page of a magazine or book, you will find a copyright number and date. According to Webster?s New World Dictionary, copyright is defined as the exclusive right to the publication, production, or sale of the rights to a [ musical ] work. It also says that the period of copyright in the United States is twenty-eight years and a chance for one renewal for another twenty-eight years. Notice that it said the sale of the rights to a musical work, and Shawn Fanning certainly doesn?t have enough money to buy the rights to 90% of all copyrighted music out there. So sharing a multitude of Mp3?s on one program in many computers around the world would definitely constitute a copyright violation, or infringement. The ironic thing is, Napster itself does have a copyright policy and it specifically states:

In accordance with the Digital Millennium Copyright Act of 1998 (the text of which may be found on the U.S. Copyright Office web site at http://lcweb.loc.gov/copyright), Napster will respond expeditiously to claims of copyright infringement committed using the Napster server that are reported to Napster?s ?Designated Copyright Agent? identified below. If you are a copyright owner, or authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, please report your notice of infringement by completing the following notice from and delivering it to the Designated Copyright Agent. (Napster Copyright Policy)

Technically, because it is a national law, copyright laws pertain to every person living in the United States. Only the artists that make their own work, if they don?t sell the rights, can do whatever they want with the piece they create. But the real question is: Is Napster violating the law?

Many recording artists and record labels have been in an uproar about this simple program since its popularity in early 2000. One of the most popular artists to be involved with this catastrophe of freedom of speech and expression, has been a hard rock group known as Metallica. Metallica has been one of the largest pawns used against Napster because of their stature in the modern music business and ?anti-Napster? speculation. Even though Metallica has been used to fight Napster, many more bands and artists support Metallica. On the flip side of that, there are also just as many artists that support Napster and what it is doing, such as the ultra-rap/metal band Limp Bizkit. For many fledgling bands and artists it is a good way, no, a great way, to get their music to the public and hopefully have a recording label find you and sign you. On that note, many record label presidents confess to having Napster installed on to their computers. It is a good chance that some new artists will be signed because of an ?illegal? Mp3 sharing program.

The United States law says, according to the book The Constitution & Its Amendments, there is a limitation on copyright rights. It states:

In carrying out the constitutional goal of promoting knowledge, modern copyright and patent law limits the rights of authors and inventors in important ways. When their term of protection comes to an end, creative products enter the public domain. Moreover, under certain conditions, anyone may use protected products without permission from the copyright or patent holder, even during the term of protection.

So, if these ?certain conditions? pertain to Napster, the program and its actions, are not illegal. To illustrate, if a person created a musical piece in 1971, died soon after it was published, and the recording company has stopped producing the recording, it is public domain. It therefore can be offered to anyone that would want the recording. In theory and special circumstance, Napster is legal, but most of the time, it is illegal in the eyes of some. But, there is no law voicing an opinion about a precedent such as Napster.

In the opinion of Joel Stein in his article ?Right – Wrong – The Ethics of Stealing? as seen in TIME Magazine:

?The issues surrounding digital music – to swipe or not to swipe – are not legal or even technological as much as they are ethical. So what if Napster is shut down? Tons of new schemes have already come online that allow people to trade songs pretty easily-and unlike with Napster, there is no one to sue. There?s even a promising underground technology called Aimster that allows the 61 million users of AOL?s Instant Messenger to swap music, only untraceably, with the people on their buddy lists. How much of a crime can it be if you?re doing it with a buddy??

The opinion stated here brings up the topic of ethics. But who is to say that Napster is unethical in the minds of so many Napster users out there?

Only the courts can say if Napster is legal or not. In early 2000, the Recording Industry Association of America (RIAA) sued Napster, the music-sharing site, for violating intellectual property rights. A court bout ensued and a verdict slowly crept up to bite Napster where it didn?t want to be bitten. A federal district judge ordered the music sharing service to cease the operations of Napster, but the appeals court has allowed Napster to stay online conditionally. The RIAA has asked the appeals court justices to impose a lower court to ban the trading of copyright songs on Napster, which would basically shut down Napster and leave its 30 million users out in the cold. (Gray, CNN )

Even the recent presidential candidates have had a comment on the legal matter behind Napster. In an early October political debate:

Bush?wouldn?t comment specifically on the Napster case because it was a pending legal matter but merely made similar statements without mentioning the software by name. According to Bush, we must ?find a way to apply our copyright laws to ensure that artists, writers and creators can earn a profit from their creation.(Gray)

At the same debate, John Hagelin, of the Natural Law Party, said that ?we believe that the entertainment industry should make an all-out effort to find new ways to utilize Napster and similar services on a ?pay-per-view basis??(Gray). Hagelin had also brought out the point that the sales of CD?s have still risen even with the availability of Napster.

During the court battle in September and October, Napster tried to put up a defense saying the recording companies had tried to keep a ?chokehold? on the distribution of music. Basically saying that, even though that there are many of them, the recording labels have a monopoly on how the music is dispersed. Now most of us know having a monopoly is illegal, so in theory, the pot is calling the kettle black. Napster is supposedly illegal, so are the recording label?s distribution policies. If the recording labels are doing something illegal, they can?t really do much to hinder another illegal advancement by Napster, if it is illegal.

So far, the court ruling has been that Napster should shut down its services so the recording artists can regain their royalties as paid musicians. The reason Napster is a target to be shut down at all, reverts back to copyright infringement, which IS illegal.

When someone creates a new technology, every kind of company from Microsoft to Neversoft (a video gaming company) wants the codes and script for it so that they can make more money off of it than the creator. Along with a new technology, such as Napster, you get copycats. Rather than people actually wanting to buy the program, they make one of their own. These ?copy cats? are the ones that have made the issue so bad, they take Napster qualities and twist it and smush it around so you can trade much more than music.

The second most popular file trading community/forum is called ?Scour?. Scour lets a person trade audio, images, and video files, online. Only recently has Scour called it quits, but earlier on, they were not on the receiving end of the flak that Napster was getting. They weren?t shelling it out either (www.scour.com). Scour just sat back and watched, hoping they wouldn?t be called on to shut down themselves. But in early November of the year 2000, they decided to shut down the Scour Exchange in fear of being sued as a result of a movement by Napster (which will be discussed later). Not too long after Napster hit the Internet scene, a small renegade inside AOL (America Online) had published a music trading community called Gnutella. Sadly, it met its demise soon after it opened its ?doors? to the public. AOL shut down Gnutella only hours after being unleashed onto the Internet.

Technology is like energy, once created, it cannot be destroyed. Someone out there will get their hands on the idea so that they can try to bring the concept back into the social scene or even bootleg it on the black market. So now there is this brand spanking new technology on the market called Napster, someone will find a way to keep it up and running, even if it is illegal. And as you may have guessed, there already is something that will achieve the goal of keeping Napster free. A program called ?Napigator?, when utilized, searches the vast Internet for an underground Napster server ( a server is a large hub for many websites to locate from ). When this server is found, it will log you on to it, even though it is not the mother server. It will then let you exchange your information with others on that server. Just as the cannon evolved into the missile, Napster?s technology will never leave electronic technological history; it will simply evolve into something greater and more powerful than before.

As one musician said on a popular cable music channel, called VH1, ?The Mp3 is just like the cassette, we all thought that it was the end of music, but it wasn?t. We just adapted and went on? (VH1 Music Channel, June 2000). Back to the ethics of Napster, do you believe that having a friend dub a copy of your favorite CD onto a cassette should make you feel bad? Probably not, so why not share your Mp3?s with 30 million other people? As a TIME Magazine reader put it ?Using Napster is like inviting 100,000 friends over for Monday Night Football- not what the network intended, but not illegal? (Kraemer).

In late summer of 2000, the federal court had pronounced that Napster should be shut down immediately. This did not happen. It is now December of 2000 and Napster has not been diminished to just a memory or just a few bites of information on our hard drives. It has become a huge commercial conglomerate?s subsidiary. On October 31, 2000, Napster owner, Shawn Fanning, had made the deal of a lifetime that shocked the recording industry. Shawn had made a deal with a German media mogul by the name of Thomas Middelhoff, proud owner of the Bertelsmann printing/multimedia company. They had agreed that Napster would become part of the Bertelsmann empire of mass media communications.

Bertellsman and Napster have agreed to create a new Napster that will be called the ?business model? so every teen and college student with a modem and the record labels both get what they want. There is one small glitch in this business model, there will be a monthly fee of around five dollars for unlimited access to Napster. At a nominal fee, the consumer gets what they want, and at a huge profit, the record companies get what they want all in one download. ( pg. 61, Gibney JR.)

My own opinion is mixed between both sides of the issue. I believe that Napster isn?t wrong and it should be allowed to stay free and unbounded, but I know this will never happen. The other part of me says that it is copyright infringement and that it is illegal, but I still don?t want it to be shut down. Since I personally have Napster on my PC, I am somewhat biased towards Napster. There have been some recent happenings that will keep Napster ?alive?. As mentioned before, Napster has teamed up with Bertlsmann/BMG music to be part of the multimedia giant in the Internet and in the Electronic age. Even though Napster was sued by many recording labels (including BMG), Napster beat the system, or depending on how you look at it, they were assimilated into the system and (bought or) sold out. There really is no way they could resist the deal that Bertessalman laid on the table for the Mp3 trader. Going back to the reasons why I personally think Napster is okay, the RIAA has the price of CD?s so high, that if an unemployed teenager wants a CD, they have to give up fifteen or sixteen dollars of their hard earned cash just to have some musical enjoyment to expand their minds. So to the average teenager, the RIAA could be compared to the Devil, stealing our hard earned cash that buys us entertainment and joy.

On the other hand, some people are using Napster to bootleg complete albums for their own good, that should be considered a violation of copyright and should be dealt with. For the most part, teens, like myself, don?t make complete CD?s to sell for their own profit. They download the songs to sample them so they don?t have to buy the entire CD for one measly song. For myself, when I download a song off of Napster, I use it so that I can sample the song, if I like the song enough I might go out and buy the entire CD. If I don?t know what album it may be on, I can use that song as my gateway to find that album. Sadly, most people are not like this. They take and take and take, but never give anything back to the artist. They bootleg, and steal, and violate and never give any credit to the authors of the music. But there are bands and musicians that do support Napster and what it is doing and has done for some musicians. Artists such as Limp Bizkit, The Offspring, Chuck D, Everclear, The Dave Matthews Band, Madonna, Courtney Love, Moby, B.B. King, Radiohead, Foo Fighters, Ben Folds Five, and Prince all support what Napster is doing and has done for the music industry. (www.napster.com/speakout/artists.html).

What Napster has done, it has made music even more readily available to the public. It has done what the radio and MTV can?t, it can get good bands with good music, that haven?t been discovered and wouldn?t be discovered, to their audience. If it weren?t for the ?evil? that is Napster, I would have never been able to hear bands such as the Swedish band the Blenders, or the techno DJ, DJ Middle Ground. Both of these artists are very good and have not been on the radio but should be. Napster has also helped the narrow minded pop-music listener broaden their horizons. They could possibly type something wrong into the search category and find something different and new they might like.

In many ways, Napster is good and can help more than hurt the music industry. All it needs is a little tweaking in the copyright area and it should be able to produce a new market for the RIAA investors. As when the VCR was considered evil in the eyes of copyright gurus, eventually everything was settled by placing FBI warnings on every video cassette and DVD imaginable. Hopefully everything can and will be similarly settled with Napster.