Containment is Music Industry's Strategy in MP3, Napster Suits
Representatives for both sides gushed predictably as the contest went first one way, then the other. Like football coaches interviewed at halftime, both expressed faith in ultimate victory. The stay order won by Napster may be overturned by RIAA attorneys in an appeal to the full 9th U.S. Circuit Court of Appeals or to the U.S. Supreme Court. At present, music fans can continue to download and archive their favorite tunes for free and without interference.
Overshadowed by the Napster fireworks was a settlement reached in a related case in New York on the same Friday. EMI Recorded Music, Inc. became the third plaintiff to reach agreement with San Diego-based MP3.com, a website that allows users to upload their favorite CDs to server computers and then listen to them from any Internet-connected computer. Like BMG and Warner Music, EMI settled with MP3.com for $20 million in damages and agreed to make its catalog available to the service for a monthly fee. Sony and Universal Music are the remaining holdouts among the music industry's "Big Five" who went after the Internet startup last year.
MP3.com insists that its users affirm that they actually own the uploaded CDs, but does not insist on proof of purchase. Napster doesn't bother with any such formality. In both cases the music industry claims, with substantial justification, that the services enable piracy. High-profile musicians have weighed in on both sides of the issues, some charging that downloadable music takes money out of their pockets while others say that it does the opposite.
The truth is, nobody knows what effect home recording has on the music industry's fortunes---or what effect it has ever had. The industry's legal attack on Internet music services is part of a long tradition of opposition to home recording that began when open-reel tape recorders gained popularity in the late 1950s and early '60s. The opposition reached a fever pitch in the 1970s as cassette decks proliferated. In many countries, the industry succeeded in getting "tape taxes" enacted into law---tariffs imposed on the sale of blank tape to compensate the industry for supposedly lost sales. In some places, similar tariffs on blank recordable CDs have been enacted in the past two years.
The public posturing and legal maneuvering by the RIAA and related organization are perhaps best viewed like the US government's ill-conceived "war on drugs." Just as the government will never have enough manpower, money, or public support to totally eliminate drugs, the music industry will never have enough lawyers or enough support from either musicians or music fans to completely eradicate digital copying. The most that either huge institution can achieve is a policy of "containment"---keeping the pressure on flagrant large-scale violators, but ignoring millions of small fry because they are just too numerous to deal with.
As Jon Iverson points out in a related piece, the music industry's overreaction to the problem---if it is a problem---is beginning to backfire. Music fans are getting fed up with the heavy-handed legal tactics. Digital copying, right or wrong, will never go away. No matter how robust, copy-prevention schemes will be defeated by hackers. For every Napster, there will be hundreds of Gnutellas or Freenets impervious to attack because they exist only in cyberspace. Today's question, class: How do lawyers drag shareware into court?