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ATPM 7.01
January 2001


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Beyond the Barline

by David Ozab,

In Defense of Napster—A Response to My December Column

When you put your opinions in print, even virtually as we do at ATPM, you’re bound to get responses. My colleague Tom Iovino addressed an inappropriate response in last month’s issue, and I’ve received a few of those myself, which I prefer not to dignify with responses. Once in a while though, I get e-mails from someone who, while disagreeing with my point of view, is able to voice a disagreement with both intelligence and respect. An example follows:

The First E-Mail

You call Napster users thieves, yet in the same article you yell at the RIAA for having a monopoly and taking the artists’ money. How can authors lose money if it never goes into their pocket in the first place?

The problem in the past was that artists weren’t receiving royalties (which is how songwriters, composers, and other artists who write their own material get the bulk of their income). Napster has reached an agreement with BMI and is working on one with ASCAP to remedy that situation.

The RIAA is a monopoly. Obviously it has to pay its contract performers something, but it pays far less than it should. RIAA pays no more than $2 a unit on a $16+ CD that costs less than $0.50 to manufacture (including recording expenses, artwork, etc.).

Read the other two parts (in 6.03 and 6.06) to get a more complete picture of my position.

Personally, I hate Napster for one reason; most of the people on it are on PCs and have no clue how to encode a song or label it correctly.

No surprise there. If your average PC user had a clue, he or she would’ve bought a Mac instead. :o)

The Second E-Mail

I understand that position, but I don’t understand the position of calling Napster users thieves. What are they stealing?

There are two types of copyrights intended to protect creative artists. The familiar © symbol refers to the composition and protects the author, while the p in a circle (the character is not available) protects the specific recording of the work and, ideally, the musicians who played on said recording.

By providing the means to make unauthorized copies without due compensation, Napster has facilitated the theft of both intellectual property (the song) and physical property (the recording, compressed but still high quality). At what point the Napster user crosses the line is hard to determine. Intent is a part of the question, though. Do you download a handful of songs to help decide whether or not to buy CDs, or do you fill a multi-gig hard drive with music you never intend to pay for?

The Third E-Mail

Whenever I look at the CD jacket or similar material, it’s clear that the record company owns the copyright, not the artist.

Look inside the CD. The artist often holds the copyright to the songs (usually under a publishing company that the artist registered through either ASCAP or BMI), and the artist (or songwriter if the artist doesn’t write his/her own material) gets royalties from the songs. These royalties are paid by radio stations and should be paid when the same songs are broadcast or transferred over the Internet.

Yes, the record label owns the physical media (which gives the record label the copyright on the CD as a whole) and the recordings. But if the artist runs his/her own label, the label belongs to the artist as well. All the elements of production are now within the financial reach of the independent artist. The only advantage big labels have is access to an established network of distributors (namely record labels). The Internet changes that, and thus threatens the RIAA’s distribution monopoly.

In fact, wasn’t the digital millennium copyright act just a huge thing for the RIAA to hold all the copyrights for itself? And I know that the record company owns all the physical media involved.

I believe that the Digital Millennium Copyright Act is more complicated than that. Here’s what I wrote about it in 6.03:

“This law, passed in 1998, makes it easier to sue the manufacturers of tools that are subsequently used for piracy, whether the manufacturer had that intent or not.”

I have serious disagreements with this law, and cover these in the same article.

As for taking the physical copy, I have an analog. In a library you can copy pages of books or magazines for free. You can walk out of the library with those copies. This is not theft because the original book or magazine remains within the walls of the library.

Within reason, you are protected by “Fair Use Law,” which allows you to make limited copies for personal research. Of course, you couldn’t reproduce a whole book, bind it, and sell it. That would be a clear violation. But it’s also a violation (though harder to enforce) to photocopy whole books in lieu of buying them yourself.

If you don’t believe me, take something that’s copyrighted (sheet music, a magazine) to Kinko’s and try to have it copied. Any time I need to photocopy my own scores (for a performance or a festival) I have to show proof of ID and fill out a release form stating that I, as the copyright holder, authorize the Kinko’s employees to make copies.

The Fourth E-Mail…

is yet to come. Maybe I answered the reader’s questions, and she is satisfied with my responses. Or perhaps we just agree to disagree. That is certainly a valid option in a free society peopled by freethinking citizens.

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