By Patricia Fusco, ISP-Planet
The music industry resorts to litigation. Will the
music die?
“Can music save your mortal
soul and can you teach me how to dance real slow?”
-Don McClean, American Pie
There’s no need to rush online and tap Napster for a track of
Don McClean’s famous tribute to Buddy Holly on American Pie. You
will still be able to download your MP3 files, because the
recording industry’s slow dance courtroom attempts to derail
mp3.com, Inc. and Napster, Inc. will fail to shut them
down.
Last Thursday, U.S. District Judge Jed Rakoff ruled that Sand
Diego based mp3.com was guilty of copyright infringement. On
Tuesday Judge Radkoff explained his reasoning in the landmark
decision against mp3.com, which was due in part to mp3.com’s
Beam-It service that directly streams copyrighted music to
users.
The Recording Industry
Association of America argued that such direct distribution
directly violates copyrights because mp3 files were copied directly
from copyrighted CDs.
mp3 Makes a
Deal
mp3.com took the court decision as well as it could and continues
to negotiate with the RIAA in search of an equitable business
solution for the lawsuit.
Then it received great news last Friday when the company struck
a licensing deal with Broadcast Music Inc., a publishing company
that represents scores of recording artists, including Matchbox 20,
Mariah Carey, and Everclear. The deal allows the mp3.com to carry
more than 4 million BMI compositions in its catalog. In addition to
the songwriters, more than 60,000 song publishers are represented
by the BMI.
The deal marks the first time a recording company recognized the
ability of mp3.com to distribute its products.
Napster Strapped But Still Standing
Napster, the popular song-swapping Web portal that eats bandwidth
by the gigabyte, was not as fortunate as mp3.com.
In a decision issued last week, the United States District Court
for the Northern District of California ruled that Napster was not
eligible for protection under Section 512(a) of the Digital
Millennium Copyright Act. In a case filed by A&M Records, Inc.
et al., Napster had sought summary adjudication under this
particular subsection, one of four potential “safe harbors” under
the DMCA.
San Francisco U.S. District Court Judge Marilyn Patel ruled that
“safe harbor” status is limited to Internet Service Providers that
engage in “routing, transmission and providing of connections.” The
court held that Napster did not qualify for this safe harbor under
ISP status. The court-issued narrowly-defined ruling does not
dispose of the other safe harbors under the DMCA.
The court also ruled that there was a question of fact, which
must be decided in future proceedings, as to whether other parts of
the DMCA protect Napster. Although the RIAA had asked the Court to
rule that Napster is not entitled invoke any of the DMCA safe
harbors, the Court did not rule as the RIAA requested. It left the
issue of application of the DMCA open for further litigation.
Furthermore, the court did not decide that Napster was liable to
anyone for anything, or that Napster had done anything wrong, or
that it had committed copyright infringement. Many disputed legal
issues remain to be determined before the recording industry’s
claims against Napster are resolved.
Specifically, the Court did not address whether Napster falls
within the U.S. Supreme Court’s Betamax decision, which held that
when a new technology is capable of substantial non-infringing use,
the public cannot be denied access to the product. There are many
artists and thousands of freely transferable MP3 files that the
RIAA does not control, which Napster could transport even if the
RIAA gets its way in court.
The RIAA’s lawsuit does not allege that Napster directly
infringes any copyrights, as was the case in the mp3.com ruling.
Because mp3.com copied CDs and made them available from its server
farms, RIAA made its case. But Napster turns a blind eye to how the
music gets from a server somewhere on the Net, and merely point’s
customers in the right direction to where they can download MP3
files.
While all ears are turned to the Napster case, which will
eventually define intellectual property rights on the Net, the
heavy metal band Metallica requested that Napster block access to
its recordings. At the request of the Metallica’s recording label,
Napster this week blocked access to more than 300,000 of the band’s
fans.
Metallica Nips
Napster
When Metallica sued Napster in April, Napster stated that it wished
to seek a peaceful resolution to the band’s demands. However, on
May 3, Metallica delivered a sworn accusation of infringement by
users and thirteen boxes of documents containing the usernames of
people who had allegedly made certain Metallica MP3 files available
for sharing with other Napster users.
Metallica effectively restricted the free-exchange of any music
by these users, including so-called “bootleg” recordings authorized
by Metallica for free distribution.
Ironically, Metallica’s notice to Napster recognized that the
Napster system could be lawfully used to circulate some of the
band’s music. The notice asserted that Metallica makes no claim of
copyright infringement with respect to recordings of their songs
made by fans at Metallica live concerts, and that the band merely
objected to the sharing through Napster of the songs and recordings
originally released on Metallica albums.
The DMCA provides a procedure for users to dispute Metallica’s
allegation of infringement. Blocked users who have not infringed
Metallica’s rights may submit a counter notification in order to
reinstate their Napster accounts.
Napster took extraordinary steps to comply with Metallica’s
demands to block hundreds of thousands of its fans from its system.
Metallica online fans were simply screwed by the band. Rapper Dr.
Dre stepped in line to do the same, filing a multimillion-dollar
suit against the company last week.
Pro Napster Artists Exist in Sharp Contrast to Industry
Hardliners
However, not all-recording artists are anti-Napster or
anti-Internet. Band members of Offspring recently spoke out in
support of the MP3, while Limp Bizkit announced that it would
embark upon a completely free tour sponsored by the software
maker.
Bands like Offspring, Limp Bizkit and David Bowie recognize the
Internet’s ability to bring fans together through their music.
These bands have online endeavors that enable them to reach more of
their fans in an up-close and personal manner. It’s good business
practice and it sells records.
Meanwhile, recording industry hardliners and puppet-like
recording artists are standing behind intellectual property laws
because they lack the imagination to distribute their product over
the Internet. Companies like mp3.com and Napster have proven the
possibilities of new technology.
It’s business as usual for the RIAA, and they’re litigating to
combat and control technology they should have embraced. BMI’s deal
with mp3.com is a step in the right direction, and powerhouse EMI
Recorded Music and others will soon follow.
When the music industry realizes that mp3.com and Napster are
good for business, it will cease litigation and commence
cooperation with the powerful portals redefining the music
scene.
Times Are
Changing
Music distribution is changing. Just as Independent Software
Vendors (ISVs) are recognizing the power of Application Service
Providers (ASPs) to distribute their products, so too recording
companies and the RIAA are learning that the Internet can reduce
the cost of music distribution, sell more music, and make more
money for all parties concerned.
The RIAA claims that Napster promotes music piracy on the
Internet and that mp3.com is the
devil in disguise. RIAA reports Napster causes monetary damages
of between $500 and $100,000 per recording.
Record companies and the RIAA should learn the hard lesson
now, before companies like mp3.com figure out how to set up their
own labels and negotiate directly with recording artists.
Perhaps mp3.com’s first Napster promoted release could be a new
version of Dire Straight’s “Money For Nothing” complete with
Sting’s echoing chorus transformed into “I want my MP3.”
I can almost here it now, “That’s the way you do it, money for
nothing? Let me tell you them guys ain’t dumb.”