With the exception of those who have been living in a cave for the last two years or so, most people should, by now, be familiar with Napster and MP3-compressed music files, both of which have much of the mainstream record industry up in arms. The details should be available on the company's web site, for those who care.
In short, MP3 (MPEG layer 3)is a lossy compression format designed for use with recorded music; it has become the de facto standard for downloadable music files, as it provides a fairly good ratio of quality to file size. MP3 files can be created by "ripping" a recording from a commercial CD or CD-R to create an uncompressed WAV file and then encoding the WAV file to an MP3 file, which reduces the file size (and sound quality) substantially and makes downloadable music practical on low- and medium-bandwidth connections.
Napster is a company whose primary product is a piece of software which runs on Win32 and Mac operating systems and which facilitates the swapping of MP3-compressed music files. This works by the following mechanism: after the user installs Napster (the software), it produces a catalog of filenames ending in .mp3 which are local to the user's computer. This catalog is made available to one or more servers run by Napster (the company). As more users sign up, Napster (the company) builds a large "who has what" database of filenames. By convention, a typical filename would look something like the following, incorporating both the name of the performer and the title of the song (with...ugh...space characters in between words):
Britney Spears - Oops I Did It Again.mp3
There is no necessary correlation between the filename and the contents of the file, although, by convention and for practical reasons, one can be reasonably sure that the filename indicates the contents of the file in many cases. Users of the Napster software can then search this database for particular titles and performers and choose to download any songs which they find; the actual data transfer, however, occurs between the computers owned by the user who has the file and by the user who chooses to download it. Napster's servers simply tell the downloading user the IP address of the machine which contains the file for which he searched. Napster (the company) does not ever actually involve itself in the transfer of the file, nor does it store any of the files on its servers; it simply maintains the "who has what" database, much as other search engines like Google and Altavista or older search engines like Archie (ftp) and Veronica (gopher) do (or did).
Thus, this concept is essentially an easier-to-use and -search update of basic file transfer mechanisms, like ftp and http, which have been used for years. The major breakthrough here is that Napster (the company) is providing a central repository for the "who has what" database and searching for particular titles and performers becomes very easy for users, and making one's collection of MP3 files available to the world is now a simple matter of installing the cute Napster software, rather than having to go through the process of installing and configuring ftp or http server software. (As a side note, there are other Napster-compatible software products; Gnapster runs on Unix machines with the GNOME libraries, snap is written in perl and should run on just about anything...there are others as well.)
This marginally clever system, of course, opens up a huge can o' worms with respect to copyright issues in the US. In theory, anyone who knowingly downloads (copies) a copyrighted recording without permission of the copyright holder (usually a record company) is liable for copyright infringement. This seems fairly obvious and intuitive. On the other hand, it would be perfectly legal to download copies recordings which are in the public domain (meaning that neither the recording itself, nor the composition, nor the arrangement are protected by copyright) or for which explicit permission from the copyright holder has been obtained. This, too, seems fairly obvious.
Popular demand for a system such as Napster seems to have originated over the last few years as a result of several factors. These include such things as the growth of the Internet as a means of communication; increased use of high-bandwidth connectivity, which makes transferring large music files worthwhile; and improved data-compression schemes. More importantly, however, is a much simpler idea: people like music and, unlike most other products, recorded music is a product which cannot easily be sampled by the public before the decision to purchase has been made. Essentially, it is nearly impossible for the general public to listen to a particular recording prior to purchasing it, unless the recording happens to include one of a fairly limited set of songs which happen to receive airplay on commercial radio stations or if one happens to be acquainted with someone else who owns the recording.
This inability for the public to understand what, exactly, it is purchasing is one of the major weaknesses of the conventional retail model for distribution of recorded music. This, of course, makes it very difficult for performers to find an audience unless they happen to write "radio-friendly" songs or unless they happen to already have loyal fans who will purchase their recordings on reputation alone. Further, the cost of purchasing LPs, cassettes, and CDs at retail is nontrivial, ranging from a low of about $8 apiece to a high of nearly $20 apiece, depending upon the store and the recording; as a result, customers are forced to make a fairly significant investment if they want to even have an opportunity to listen to most recordings, regardless of whether they happen to like the music in question.
Further, the record industry at large (and the RIAA members in particular) have dragged their feet in providing a mechanism by which customers may listen to music prior to purchasing it. By and large, they have failed to take advantage of the possibilities for distribution on a worldwide computer network. This seems to be a result of general paranoia among RIAA members over digital recording mechanisms (even those which involve a high level of lossy compression), and which has also contributed to the demise of several promising technologies, including consumer-grade DAT recorders. As a result of the public demand for downloadable music (both for sampling purposes and for the "instant gratification" that cannot be derived from having to travel to a record store with limited hours and selection to purchase a recording) and the general failure of the record industry (RIAA members and others) to provide it to the public, it is almost inevitable that something similar to Napster would be created to serve this heretofore unfulfilled demand.
There are several problems here: First, many of the recordings which are available in the Napster directory do not appear to be in the public domain and are thus likely to be illegal to download (in the US, at least). Second, most--but not all--of the copyrights to the non-PD recordings available on Napster are owned by individuals or companies affiliated with the RIAA (Recording Industry Association of America), who have a vested interest in enforcing their rights. Third, enforcement of copyright in a system like Napster would be very difficult, as a copyright owner would have to prove that someone had actually downloaded (copied) a copyrighted recording and then track down that individual (which would likely require either a search warrant or extreme cooperation with that individual's ISP) and go through the time and expense to sue for copyright infringement and attempt to recover (likely) minimal damages. Since Napster itself simply provides the software and maintains the database, it has no way (or, likely, desire) to track what files get transferred, nor can it verify that the filenames in question relate to the recording contained in the file. As one might imagine, the prospect of this sort of large-scale music piracy tends to scare the major record companies who fear a loss of revenue due to poor record sales.
It should be noted, however, that there are legitimate, legal uses for Napster, particularly with regard to the transfer of PD recordings; this is perfectly legal and ethical. There are also some copyright owners, particularly smaller bands or record labels which desire worldwide exposure, who explicitly permit their songs to be copied in electronic form. This, too, is perfectly legal and ethical. There are also some various "fair use" provisions within the copyright law of the US which permit the copying of copyrighted materials for certain types of use, such as academic research or critical reviews. Finally, there are some ethical uses for Napster which might be on shaky legal ground but which are not necessarily immediately considered to be illegal--an analogy here might be as follows: if I legally own a particularly LP or CD, I am legally entitled to (among other things) make a cassette copy of that recording to listen to in my car. Similarly, if I legally own a particular recording and simply want to listen to it at my computer instead of on my stereo, then, it could be argued, I should have the right to copy an electronic file of the same recording, since I already legally own it.
In any case, as a result of this perceived threat to their industry, the RIAA is suing Napster (the company) for copyright infringement, despite the fact that Napster (the company) is not, itself, making illegal copies of copyrighted recordings owned by RIAA member organizations. Unfortunately, the courts seem to be taking the side of the RIAA. I find this whole situation to be very disturbing.
At this point, I should make something perfectly clear: I believe strongly that music (and other forms of) piracy and copyright violation are wrong and should be punished. I do believe strongly in the concept of copyright (but for limited terms; the recent retroactive extension of copyright protection which was passed by Congress at the behest of Disney in order to prevent Mickey Mouse from becoming PD is also disturbing). If I write a book or record a song, I do believe that I should have the right to profit from it if I so desire or have the right to give it away for free if I so desire. I should also have the right to not make it available to the public at all. Within the constraints of limited terms and allowance for "fair use," I believe that copyright protection is a good thing.
However, I take issue with the RIAA's suing Napster for this reason: they are attacking the _mechanism_ by which some of their recordings are sometimes illegally copied, rather than the _perpetrators_ of these copyright violations. I see this as being a major problem for the following reasons:
First, Napster (the company) does not (to my knowledge) violate copyright law. They simply provide a combination of a tool (the software) and a service (the database) which, among other things, happens to make copyright violation easier. To sue Napster for copyright infringement simply because it produces a product which is sometimes used for that purpose would be analogous to suing Xerox because it makes machines which might sometimes be used to produce illegal copies of books, or to suing the authors of ftp server software because it might sometimes be used to produce illegal copies of software, or to suing Google or Altavista because someone might sometimes use their search databases to find and obtain copyrighted material illegally. Banning potentially useful tools that might be used to commit crimes sounds like a horribly slippery slope.
Second, there are legitimate, legal uses for these tools. It shouldn't matter that most of the Napster users likely use the tool for illegal purposes--the fact remains that it has legitimate uses just as, for example, a hammer or an axe are tools which have legitimate and illegitimate uses. No one seriously believes in banning hammers or axes because they sometimes are tools used for commission of murders. Further, I would argue that the standard for banning tools (guns, for example) can be legitimately lowered when there is a serious risk to life or limb; by contrast, copyright violations are relatively benign and, unlike the case of murder, damages can be effectively recovered after the fact, and there are legitimate means for doing so between the copyright violator and the copyright owner, without having to resort to the banning of third-party mechanisms which assist in the copyright violation but which do not cause it.
Third, there is serious doubt that the use of Napster and other tools for illegally copying compressed digital music files has hurt the record industry at all. Sales have been up for the last few consecutive years, despite the recent influx of mechanisms to facilitate illegal distribution of copyrighted recordings. While I would certainly not use this as a justification for the behavior of the users of these mechanisms, I would use it to seriously question the RIAA's claim that Napster and its brethren are causing it to lose millions of dollars in sales, when no correlation between record sales and file copying has been established.
Fourth, despite its claims to the contrary, the RIAA does not represent "the record industry" as a whole any more than the MPAA represents "the motion picture industry" as a whole (again, despite the MPAA's claims to the contrary). This is more of a personal gripe with the press coverage of this whole controversy, but I really do get offended when articles discuss the RIAA and equate it with "the record industry." This is simply not true.
In short, I do not really care much about Napster (the company). I do agree that their business model (whatever it might be...if one even does exist) probably does depend upon large-scale copyright violation, and that the company would probably have been doomed to failure even without the lawsuits for the simple lack of ability to raise money on this premise. Further, I am not sure that the company is as high-minded as it claims to be; I am not going to argue that the majority of its users are acting within the boundaries of "fair use" or are otherwise not breaking the law.
What does concern me greatly, however, is the idea that the way to solve the (admittedly serious) problem of copyright violation is to ban the tools involved, rather than to actually punish the violators. Generally, I believe that laws should address real problems at hand, rather than tools or actions which are perceived by some lawmakers (or lobbyists) to lead to these problems. For example, some localities have laws which prohibit talking on the telephone while driving an automobile on public streets--this sort of thing is pretty ludicrous; the real problem is obviously related to "reckless driving" and not "talking on the phone." Why, then, would anyone pass a law against talking on the phone while driving when there is no established correlation between people who drive recklessly and people who talk on the phone while driving? Make laws against reckless driving and enforce them! Don't make silly laws that attack legitimate activities which are not proven to cause bad behavior. Having said that, I do believe that even the phone law is more legitimate than banning Napster (the software and the database service provided by the company), as, like the case with gun-control issues, reckless driving can kill people, while copyright violation only causes monetary harm (if that).
Further, history has proven that technological solutions to social problems (which is what the RIAA is proposing here) do not work. Take the example of copy-protection schemes on software--they were big in the '80s, but died out in the early '90s as it became clear that their primary purpose was to inconvenience legitimate users while barely being noticed by the large-scale pirate operations. Similarly, the silly CSS encryption scheme used on some DVD recordings of motion pictures proved trivial to crack and even this wasn't even necessary to make bit-for-bit copies of the disks (which is what the large-scale commercial pirates were doing in the first place). If we start banning tools, new tools will emerge which will be harder to ban and which, again, will prove that the real problem of copyright violation hasn't been solved.
So, what's my solution to this? I'm not sure that I have a very good solution that would make everyone happy, but here's what I've thought of so far: leave Napster alone. If the RIAA and its cohorts are so concerned about piracy, they should first be able to prove that they are somehow being harmed by these copyright violations committed through Napster and the like, and then should prosecute individual violators in attempt to make an example of why copyright violation is bad. Further, they should reduce the prices of their recordings and improve the quality of the packaging and take other actions to make electronic file copying less attractive to would-be pirates, when compared with legitimately purchasing the recording. They should also make available downloadable recordings (not crippled with easily-cracked encryption schemes, I might add) themselves, available either free or at a reasonable price to essentially compete with Napster et al. If there were a reasonable, non-crippled legitimate alternative for obtaining downloadable music files of reasonable quality, I would hope that most people would choose the legitimate option. Napster should hold its ground and refuse to continue with its current practice of blocking certain items in its database by filename (which restriction is pointless, as it can be trivially sidestepped, and which does nothing to ensure that the filename corresponds with the contents of a given file). And the courts should come to their senses about this whole thing and get some understanding of what copyright protection actually means, or should mean, and stop listening to the RIAA lobbyists.
This rant has been far too long, but the point is an important one, which seems to have been missed by the courts to this point, either as a result of stupidity or ignorance or as a result of undue RIAA influence. Don't ban tools that "might" be used for "evil" purposes, and don't punish the creators of said tools. Punish the people who actually commit the crimes. Make laws that address real problems and not actions which might possibly lead to real problems, especially if no clear correlation can be shown and especially if there is an effective way to recover damages after the fact.