By Dr. Philip Baczewski, Associate Director of Academic Computing

Napster is Dead

'NAPSTER FILED FOR Chapter 11 bankruptcy on Monday, just two weeks after its major creditor, the German media group Bertelsmann, had agreed to acquire the troubled Internet music service. A Bertelsmann official, speaking on the condition of anonymity, said the Gütersloh, Germany, company is keen to acquire Napster's brand, peer-to-peer (P-to-P) technology and customer file assets, believed to be worth between $8 million and $10 million. "Despite Napster's problems, we remain convinced that peer-to-peer technology has a future in the music industry," the official said.' -- John Blau, InfoWorld, June 3, 2002.

Recording Industry Association of America (RIAA) president Hilary Rosen has undoubtedly stuck another decal to the side of her gramophone. Napster, which had been limping along on fumes and monetary gusts under its wings provided by Bertelsmann, has finally gone down in flames. The RIAA's successful lawsuit was the ammunition which severely crippled Napster, but until now, it managed to continue operating -- no more. There to pick through the wreckage is Bertelsmann, better known as Bertelsmann Music Group, AKA RIAA multiple member BMG. The only thing left is the sale on the virtual courthouse steps to see who will bid for any useful items which rolled from the wreckage.

The Intellectual Property Wars

Napster's brief existence is just one skirmish in the current intellectual property wars that are raging around the Internet battlefield. To listen to the RIAA, you would never know that there are actually two sides to the historical principles of copyright law: one is the protection of intellectual property works to provide their creators with the ability to profit from those works if they wish; the other is the right of the public to fair use of copyrighted materials in order to disseminate and advance knowledge and artistic creation. Recent laws, such as the 1996 U.S. copyright legislation and the Digital Millenium Copyright Act (DMCA), have swung the pendulum greatly in favor of copyright holders and their heirs and fair use remains under attack. Those in favor of a free market of intellectual property should be chilled by Napster's demise and proposed legislation that is now moving through the U.S. Congress.

One example is the Consumer Broadband and Digital Television Promotion Act (CBDTPA), recently introduced in Congress by Senator Ernest Hollings of South Carolina (who is apparently a wholly owned subsidiary of the Disney Corporation). The CBDTPA would mandate copy-protection controls in all digital devices (see the Wired article on the subject for more information). This would include CD and DVD players, PCs, and potentially any programs which manipulate digital media (that would be any program, practically).

Among the findings stated in the legislation are:

(3) Because digital content can be copied quickly, easily, and without degradation, digital program mers and content owners face an exponentially increasing piracy threat in a digital age.
(16) Unprotected digital content on the Internet is subject to significant piracy, through illegal file sharing, downloading, and redistribution over the Internet.
(17) Millions of Americans are currently downloading television programs, movies, and music on the Internet and by using ‘‘file-sharing’’ technology. Much of this activity is illegal, but demonstrates consumers’ desire to access digital content.
(18) This piracy poses a substantial economic threat to America’s content industries.

In other words, Internet user, you are guilty until proven innocent by government and industry-mandated copy protection technology. The legislation throws a bone to fair use by recognizing the right to a personal copy of transmitted media, but overall, the bill seems structured to protect "America's content industries."

Piracy?

I find it ironic that the term "piracy" is used to describe transfer of copyrighted material. To me, the term "piracy" invokes images of 17th-century seafaring outlaws who stole gold from the ships of the Spaniards who, of course, had stolen that gold from native North and South Americans. Hence the illegitimate thieves (pirates) were stealing from the legitimate thieves (Spanish explorers) who were legitimized by the Spanish government. The RIAA will tell you that they are just protecting the works of their "artists" but it seems that they are more concerned with protecting the gold gathered by their members' sale of media containing copies of those artist's works.

Now, I'll be the first to say that selling an unauthorized copy of a copyrighted work is wrong. As a composer of music I would hope that I would have the opportunity to benefit monetarily from my works if there were anyone willing to buy them. However, current industry babble on this topic includes the assertion by Jamie Kellner, chairman and CEO of Turner Broadcasting, that using PVR devices to skip commercials amounts to theft of programming. In Mr. Kellner's world, the law is "fast forward through commercials - go to jail!" Although he makes concessions for bathroom breaks, if they are not exactly 30 seconds in length, I think that he has essentially accused the majority of Americans of being porcelain pirates.

The Bottom Line?

The bottom line is the bottom line. When technology changes distribution methods, new methods are needed to assure fair profit. We've already seen this in the development of broadcast music on radio and the result was the development of licensing agreements and licensing organizations like ASCAP and BMI (who actually do provide monetary compensation directly to artists). Such licensing agreements could easily cover digital transmission and other models could be employed as well. I think that people would gladly put up with advertisements to be able to download free music as has been the model for Hotmail, Yahoo, and countless other "free" Internet services. It seems instead we are now legislating industry's right to make maximal profit from intellectual property. As a consumer, I'm about to get tired of contributing to that profit. I already pay for digital transmission of media (digital satellite) and am subjected to commercials (other than the occasional criminal bathroom break), and I am left to wonder what is fair profit and what is fair use. I'll choose no use if I don't have fair use.

Open Source Software?

Perhaps of greater concern, however, is the affect that Mr. Hollings legislation could have on the development of open source software and systems. By mandating proprietary controls within any software which manipulates digital media, the open source movement in the U.S. could be severely crippled or even eliminated (and wouldn't Captain Bill be happy about that one?). Legislators and industry leaders need to remember one thing. No one developed the Internet. It is not a product. It is the result of a free market of information and ideas in which people were able to easily exchange software, data, and digital media. Many ideas were proposed, many systems were made available, and many programs were developed and placed in the public domain either to catch on to popular success or whither in the shadow of public neglect. The pre-commercial Internet which existed before 1995 or so was at times close to an ideal of a free market of ideas and a socially responsible community. Legislating intellectual property monopolies seems to deny that legacy. It would be a shame to waste so many people's hard work that was done in the public interest.