If Judge Marilyn Patel – the U.S. District Court judge who handed down an injunction yesterday against the music-swapping service Napster – knows her ancient history, she might remember the story of King Canute, who tried to stop the tide from coming in during his reign a thousand years ago. He failed, of course, and so will the Recording Industry Association of America, which is doing its best to turn back the digital tide.
Judge Patel said Wednesday that Napster infringes on music copyright by allowing people to download digitally encoded songs in the MP3 format from other individuals over the Internet, and the judge accepted the music industry’s argument that billions of dollars in royalties and other fees are at stake if Napster isn’t shut down immediately. Even though there hasn’t been a trial, the company is effectively prevented from operating.
Lawyers for the music industry said that while other products such as the VCR and the cassette tape recorder (not to mention the recordable CD) allow consumers to reproduce and share music and other copyrighted materials, Napster is different because it is not a device but a for-profit service. A similar argument was used recently to shut down RecordTV.com, which allowed users to “record” TV shows over the Internet.
The judge also accepted the argument that Napster is more dangerous than devices such as a VCR because it is so all-encompassing – that is, it can distribute copies of songs to thousands of users around the globe in minutes. In a way, Napster’s own success (it claims to have over 20 million registered users) has been part of its downfall.
The judge’s ruling may have all kinds of legal merit, just as King Canute’s attempt to stop the tide probably did, but that doesn’t mean it has a hope of changing the behaviour it describes – because in order to do so, Judge Patel would have to uninvent the Internet. File-sharing and data swapping of various kinds, legal or illegal, is what the Internet is about, and that is a tide that all the courts in the world can’t change.
When the VCR first appeared on the scene in the 1970s, the movie industry was terrified of this new technology. After all, it allowed TV watchers to record movies and watch them whenever they wanted to, and even make copies for their friends. The movie business went after the first VCR company – Sony, the inventor of Betamax – in a legal case that Napster’s lawyers have tried to use as part of their defence (with little effect).
Did the VCR kill movies? Not at all. In fact, there are hundreds of terrible movies released every year that would never even approach profitability if it weren’t for the VCR, because the industry found a way of making videotapes attractive enough and easy enough – and cheap enough – so that people would rent them. Do people still copy movies illegally? Yes, but the industry makes enough money on the rest to compensate for it.
Likewise, the music business would be a lot better off if it stopped listening to multimillionaire corporate rockers like Metallica and found a way of working with this technology instead of trying to stop the tide. Has the industry got this message? No. Look at what music giant EMI did recently: It announced that it will offer songs for download from its Web site, but buying a CD worth of songs will cost almost exactly the same as if you went to a store and bought one the regular way.
Does this make any kind of sense? Only if you are paranoid about protecting your existing profit margins, which on CD sales are up in the stratosphere somewhere. In fact, federal trade regulators in the United States recently ruled that the music industry has overcharged CD buyers by half a billion dollars over the past seven years. Is it any wonder that music lovers have tried to find other ways of getting the songs they want?
And if Napster is shut down, they will find other methods. There are services such as Freenet and Gnutella that would be even harder to police than Napster: neither uses company-operated servers, the way Napster does, making it harder – perhaps even impossible – to track those swapping songs. Other services offer total user anonymity. And Internet users can already find almost any digital file, song or software, even movies, offered free through a variety of services such as IRC (Internet relay chat).
In other words, shutting down Napster is like cutting one head off a multiheaded monster. The industry should think about finding a way to use the Internet, instead of trying to get someone to uninvent it.