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Judge's Ruling Furthers Marriage of Napster and the Recording Industry
If Digital Music is the Drug and Napster the Needle, Then Who's the Pusher?
By Sounni de Fontenay
(more articles from this author)
2001-03-06
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In a ruling made Monday night and released Tuesday morning, U.S. District Court Judge Marilyn Hall Patel issued her long anticipated, refined injunction against Napster. With much of the sting already released with the initial injunction and recent Appeals Court ruling, Judge Patel has kept the door open, although slightly, for Napster to continue providing its popular service. The injunction enjoins Napster "from engaging in, or facilitating others in, copying, downloading, uploading, transmitting, or distributing copyrighted sound recordings." Copyright holders will be required to serve notice to Napster of the copyrighted music files listed on the Napster server that should be restricted from being shared. Within 3 days, Napster must block the file from being accessed and in conjunction with copyright holders, use any "reasonable measures in identifying variations of the filename(s)" to block.

Furthermore, Judge Patel has enjoined Napster to restrict access to files of works not yet released based on the popularity and copyright violations of past works. "Plaintiffs may provide to Napster in advance of release the artist name, title of the recording, and release date of sound recordings for which, based on a review of that artist's previous work, including but not limited to popularity and frequency of appearance on the Napster system, there is a substantial likelihood of infringement on the Napster system. Napster shall beginning with the first infringing file block access to or through its system to the identified recording. As Napster presently has the capability (even without enhancing its technology) to store information about and subsequently screen for a particular recording, the burden is far less and the equities are more fair to require Napster to block the transmission of these works in advance of their release. To order otherwise would allow Napster users a free ride for the length of time it would take plaintiffs to identify a specific infringing file and Napster to screen the work."

While not completely shutting down the doors of Napster, its unsuccessful attempt over the weekend to implement a filtering system demonstrates the extent to which Napster will be required to work with the Recording Industry to ensure the continuing viability of the service, lest it be judged in contempt of court. For the Recording Industry, it is important to keep Napster alive, as it is the most successful viral marketing campaign online - and to lose such a channel to consumers would be foolhardy at the least, and business suicide (so to speak) at the worst.

As Jason McCabe Calacanis states in an editorial in Silicon Alley Daily, "By disbanding the service, they will be forced to start from scratch to create an online music service that will never reach 10 percent of Napster's 70 million registered users. And even if they do reach 10 percent, it will cost them hundreds of millions of dollars in marketing to reach those folks."

Current estimates have Napster users numbering 70 million - think about it, that's about the population of Turkey! These are not small numbers, and if we assume that the clear majority of these users are downloading copyrighted music - this is probably the largest "piracy bazaar" in world history. Imagine each and every Turk going into their local store and walking out with something (or multiple things) without paying... and going back every day to do the same. This is what the Recording Industry sees. They see all the hard work being stolen without any compensation for the required investment. Returning to Turkey... Would any of the store owners continue stocking their shelves if no one paid for the goods that they were taking. This becomes the dividing line in the debate over copyright.

On the other end of the spectrum.. look at it from the Napster users' point of view. 70 million Napster users not only represent the population of Turkey, but approximately equals the number of cigarette smokers in the US. Most of these smokers started when they were children/teenagers. At this age, cigarettes are a new, exciting, forbidden, and/or rebellious experience. The perfect combination to attract a youngster, or at least that was the view of Joe Camel and the tobacco industry. Although today's children are well aware of the dangers of cigarette smoking, they continue to 'start the habit' and became addicted. Napster users saw something new (peer to peer), exciting (instantaneous sharing) as well as rebellious (against corporate suits ripping off consumers in retail outlets). They tried it and liked it. Soon they became addicted to this easy (and free) accessibility to music. Digital music is a drug and Napster became the needle.

Lets take that a step further... digital music is the drug, Napster the needle, and the recording industry the pusher... That's right, by artificially restricting supply (music on the Internet of popular artists) and/or by pricing digital music too high, the recording industry has helped to create this black market of illegal music file-sharing. Look at the example of Canada and cigarettes. In the late '80s, the government instituted excessively high taxes on cigarettes (making cigarettes cost well over $5 per pack). This created a black market with the smuggling of cigarettes from America (where they were much cheaper in comparison), primarily via American-Indian nations overlapping the border such as the Iroquois and Mohawks. The increase in taxes for cigarettes in Canada did not discourage the use of cigarettes, it just drove smokers to purchase their cigarettes from alternative, "non-government sanctioned" sources. While this was illegal, many smokers felt that the government was unjust in charging such high rates for cigarettes - making going to the black market all the more acceptable.

Ultimately, as with any market, the Recording Industry has only one choice: work with the Napsters of the world to give consumers their digital fix.

Related MusicDish e-Journal Articles:
» Napster Extends a $1 Billion Olive Branch - The Industry Reacts - And Other Emanations from the Napster Decision... (2001-02-22)
» The Napster Decision: Where do we go from here? - Alternatives to Napster - Friends of Napster - Enemies of Napster (2001-02-15)
» Napster Takes a Blow, But Problems Still Loom for the Recording Industry (2001-02-12)
» RIAA V. Napster: Sympathy for Which Devil? - Introduction (2001-02-08)
» Wanted: A Survival Plan for the Music Industry - Napster and the Consequences - 'This is the end, my only friend, the end' (2001-01-29)
» Napster Gains Another Ally in TVT Records (2001-01-29)


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