Pirates and royalties

To hear Napster tell it, the online music service it offers is just one big 1950s sock hop, with 20 million fun-loving kids swapping tunes the way kids have since the days of 45 rpm. It’s the hippy counterculture sticking it to The Man, in the form of the recording industry. It’s the Internet Age – no boundaries, new rules. Napster’s carefully made up public face, that of its 19-year-old founder Shawn Fanning, says it’s about sharing music and helping artists.

The real Napster isn’t about bobbysocks, tie-dye or enterprising young college students writing software that will break down barriers and change the world. It’s about lawyers, investors, potentially huge profits and suing the pants off anyone who takes this sharing thing too seriously by applying it to Napster’s copyrighted material. Mostly, it’s about ripping off musicians.

Just hours before a court-ordered shutdown Friday, Napster won a temporary stay that likely will allow it to continue operating at least through mid-September. Napster subscribers celebrated the reprieve by downloading the work of uncompensated artists in record numbers. It remains unknown how many heeded young Mr. Fanning’s call to rush out and purchase CDs by artists they “discovered” on Napster, but there are no reports of record crowds swamping music stores. Free music is a wonderful thing.

Unless, of course, you’re trying to make a living at it. If nothing else (besides the achievement of convincing 20 million people that copyright infringement is cool), Napster has cunningly shifted the focus from the musicians getting stiffed to the corporate villain, Big Music. It is, in Napster’s view, Big Music that has shortchanged artists, overcharged customers and stifled innovation. It is a neat combination of piracy and propaganda.

The argument that it is all the recording industry’s fault goes like this: The technology to deliver music digitally and instantaneously exists, it is the mode of the future; the recording industry has not moved fast enough to implement it; therefore, stealing is OK.

It’s an argument that ignores a lot of history. Since Edison invented the phonograph and the advent of radio to the home tape recorder, musicians and those who would profit from the use and distribution of their performances have worked out licensing agreements to compensate the holders of copyrights. It has not always been smooth – there was, for example, a recording boycott by musicians in the early 1940s – but the guiding principal has always been that musicians should be paid for their work if that work in any way enriches another. That’s why radio stations pay licensing fees, as do swank nightclubs with live bands, as do corner taverns with jukeboxes. That’s why there’s a small surcharge on tape recorders and a tiny one on blank tapes.

And that’s why neither Napster nor anyone else has the right to enable the distribution of copyrighted material without working out licensing agreements in advance. MP3, the originator of this music-file swapping technology, has worked out licensing arrangements with several major labels and is working on more. MP3 also faces paying court-ordered damages of hundreds of millions for past copyright infringements. Some big names have filed suit against Napster – Dr. Dre, Metalicca – but less well-known are numerous young, struggling bands who’ve had their first CD pirated and posted and watched helplessly as sales evaporated.

Now the argument for leaving Napster alone is that, if shut down, it will only be replaced by other services located in other countries beyond the reach of U.S. law. It is inevitable that music will be delivered via the Internet; forcing musicians to chase their royalties around the globe is simply wrong. Already, the movie industry faces a similar threat. What is now conveniently portrayed as the mild tremors that accompany change will look much different once the first $100-million blockbuster gets ripped off.

An even worse argument, repeated with shocking frequency, is that recording musicians have to forget about making money from CD sales and instead concentrate on selling T-shirts. Swell, perhaps, for Phish or Britney Spears, not so good for Wynton Marsalis or the Philadelphia Orchestra.

The high-tech industry created this technology. It must now create a solution that ensures those who create music, movies, literature and other intellectual property receive the compensation to which they are legally and ethically entitled.