Containment is Music Industry's Strategy in MP3, Napster Suits

The last week of July was a busy one for music-industry attorneys—and, by some measures, a successful one. As almost everyone in the world is aware, on Wednesday, July 26, the Recording Industry Association of America (RIAA) won a round in its fight against Napster, a San Mateo, California–based software company that enables the sharing of MP3 music files over the Internet. On that day, in a US Federal court in San Francisco, Judge Marilyn Patel decreed that the widespread sharing of music using Napster was a form of wholesale copyright violation, and ordered the service shut down effective midnight on Friday, July 28. Napster, in turn, appealed and won a stay of execution two days after Judge Patel's ruling that will enable it to remain online and in business until at least mid-September.

Representatives of 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 Ninth US Circuit Court of Appeals or to the US 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, others saying that it does the opposite.

The truth is, nobody knows what effect home recording has on the music industry's fortunes. 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 organizations are perhaps best viewed as parallels to 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 musicians or music fans, to completely eradicate digital copying. The most that can be achieved in either arena is a policy of "containment"—keeping the pressure on flagrant large-scale violators, but ignoring millions of small fry because there are just too many of them 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, and 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?

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