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Wherefore Thou Art #9
There Might Be Sumthin', But There Ain't No Free.
Or Is There?

The Internet has revolutionized our lives and our world. Personal communications, business transactions, information distribution, learning, meeting, buying….the Internet has made all means of human endeavor easier, faster, and sometimes better, for anyone with a computer and a phone line.

Despite all the nice and revolutionary things the Internet has brought, a dark and bitter war has emerged you might have heard about. Millions of ordinary citizens have discovered that music is available on the Internet for free. These citizens, exhibiting what economists call rational behavior, are going online and downloading this free music. The “music industry” (now there’s an quasi-oxymoron) doesn’t like this one bit and would strongly prefer that the citizens buy all of their music on compact disks from the industry. And so far, the citizens and the industry can’t just seem to get along.

Until the late nineties, getting free music on the Internet was primarily the sport of geeky male high-school and college students -- finding the music was difficult, downloading the music was tricky and slow, getting the programs to work took patience and, and once the music was successfully loaded on a computer, that’s pretty much where the music stayed. The intrepid music fan would have to sit at the computer and listen.

Then a small company developed a little battery-operated gizmo that could take music off of a computer, and play it back over headphones. This got the music industry nervous. The geek-only “computer music” was now portable. These bootlegs were apparently meant for walkin’. Yikes. Time to call in the lawyers.

The industry sued to kill the gizmo, arguing that the company was making a “burglars’ tool” for copyright infringement. This reaction was part of a long-standing pattern. In the early 1900’s music publishers sued to kill player piano-rolls (which were, after all, burglars tools). The publishers lost. The early days of radio (a burglar’s tool, of course) saw all sorts legal posturing from both music publishers and record companies. They lost. In the 1960’s and ‘70’s, record companies did everything possible to ban audio-cassettes (the burglar’s valise) and failed. In the early 1980’s, Hollywood tried to kill the videocassette recorder. Happily for everyone, they lost this one, too, but it was real, real close.

Well, the industry failed to kill the computer music gizmo, and in trying, succeeded only in polarizing many music fans, particularly college students. Then a nineteen year-old kid, trying to figure out how to trade music files with his friends, developed this program that he called Napster. Napster provided a central online hub at which people could congregate and trade music. Now, free music was easy to find, new powerful computers made it quick to download, and you could off-load the music to a portable gizmo and take it with you. Everybody could do it, and it seemed like everybody did. Especially college students. And the computer program with its zippy brand name and slick web page gave the whole thing a patina of legitimacy.

The industry, true to form, announced that Napster was nothing but a burglar’s tool and sued. This time, after a protracted and front-page-worthy legal fight, the industry won. The courts first assumed, without much analysis, that everybody who used Napster to download copyrighted music was infringing on the industry’s copyrights. Then the courts held that Napster helped people infringe, and, most importantly, that Napster knew everyone was infringing and had the ability to stop them, but didn’t. These questions never got to the Supreme Court for a definitive answer, because Napster was shut down by order of the court, and its investors pulled the plug, and the company went bust.

Meantime, music-trading programs began appearing that avoided Napster’s Achilles heel--the central hub at which the music trading could be observed and monitored, and where infringing activity could be stopped. Dozens of music trading networks appeared that were decentralized, viral, and existed, like some tune-crazed supreme being, everywhere and nowhere at the same time. To the user, these networks worked just like Napster, and within a very short time, the amount of music file-trading taking place on these disparate networks surpassed that on Napster in its heyday.

So the industry sued a bunch of the companies that created these new burglar tool networks, and earlier this year, lost. (these decisions are, at the moment, being rigorously appealed). These computer programs, with names like Grokster, Morpeus and KaZaa, were truly cats-out-of-the-bag. And the flow of free music continued to grow.

Unable to stop the programmers and networks, the industry decided to go after the last link in the file trading chain -- the individuals, the ordinary citizens, who were actually trading the free music files. The industry had been going after individuals in this manner on an irregular basis for years, but this was something else altogether. With the sort of public relations fanfare one would expect to accompany the release of a new Milli Vanilli album, the industry sued 261 people for having suspected infringing music files on their home computers. The industry’s public relations dog and pony machine got a lot of attention -- the New York Times ran the story top left, above the fold. And the industry is promising more lawsuits.

All of which has raised a great deal of questions, fear, and loathing. A twelve year-old girl with a fondness for show tunes, living in a public housing project in New York City, was sued for hundreds of thousands of dollars. The same thing happened to a grandmother who had never downloaded a song in her life. Parents are receiving nervous calls in the middle of the night from their kids at college. “They got me, Dad, for downloading music.” The industry has decided to base its new business model on building a climate of fear.

The issues aren’t, of course, as simple as the industry would like you to believe. (the industry recently announced a collegiate “educational program” entitled “Stealing is Bad” that will undoubtedly be getting laughed off of campuses around the country in the coming months). So before burning your hard drive, chopping your telephone line, and locking yourself in a quiet room to avoid getting sued, there are several things to keep in mind.

Is the industry wrong? Is downloading free music really illegal? On a purely legal basis, the industry is probably right. Downloading copyrighted music for free, and allowing others to copy your music for free is a technical violation of the copyright laws, unless and until the day the Supreme Court decides otherwise. In my opinion, however, the industry allowed all of this to happen by not providing a viable alternative to free downloading. For years, the industry refused to seriously offer music in any form other than compact disks at grossly inflated retail prices. The public, preferring to download music files in the Internet, created the vast subterranean free trading world to fill the void. The industry has hesitantly and meekly entered the Internet realm, but their typical offerings are expensive and there are severe restrictions on the use of the music once it is downloaded. None of this has happened overnight--the writing has been on the wall for well over a decade about digital downloading of music, and the industry response has been to ignore the issue, then pay it lip service, and now that all hell has broken loose, to sue children and grandmothers.

So OK, the industry is right and wrong. Are you going to get sued? How can you avoid getting sued? I’ve seen estimates that there are 55 million people out there trading free music files. If that number is accurate, your chances of having been one of the 261 people that the industry sued is something like .0000045%, which is significantly less likely than your winning the Powerball jackpot. The industry appears to be targeting people who have large numbers of music files available for others to download, so one way of staying off of the industry’s radar screen is to limit the amount of music you are offering to others (the file-sharing programs generally put your downloaded music in a “share file” which is visible to the public, and which you can edit and prune). Don’t stay online for hours and days gleefully letting your share file grow to astronomical proportions. Try some of the lesser-known file-sharing networks that aren’t being scrutinized by the industry.

Or you can burn your hard drive, chop your telephone line, and lock yourself in a quiet room. And make your own music.

© 2003 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.