Okay, I know I am the umpteenth voice to weigh in on this. But since you're here I guess you don't care. As a creative artist, music lover and copyright holder, I have been following the Napster brouhaha with a bit more interest than the average Joe.

I am a firm believer in the rights of copyright holders to do what they chose with their material and protect those rights. I like my copyrights and the protection they afford my work and me. I have had my photography lifted off my web site and used without my permission. I've seen people incorporate my images into their work without my permission. I've even seen people outright claim my work is theirs. But when you catch up to people who stole your stuff you would be amazed at the weight that little c in a circle carries. I can appreciate what it is like to have someone using my work to make a buck without my permission.

But is that what people who are using Napster are doing? For the most part people are not using Napster to make free copies of albums to burn on CDs to sell on street corners. No more than people are using Netscape in droves to copy the entire text from books, magazines or art to make a buck.

Napster is not violating anyone's copyright or encouraging the infringement of copyrights by distributing software or providing servers, which allows people to share music for personal use via that network.

Although we have all heard the analogy before; this is no different from home taping with a cassette recorder or VCR. The only difference is the (pre-Napster) Audio Home Recording Act which states people may record copyrighted music for their own personal use was not written with the internet in mind.

For decades people have been recording copyrighted programs from the radio, listening to them and sharing them with friends. With the advent of home recordable digital compact discs not more than a few years ago, the recording industry was in a tizzy over the possibility that consumers could make flawless copies of audio recordings with no loss of quality. But that furor died down. Why?


You're Killin' Me

So here we go again. I remember as a teenager the fearful cry; "Home taping will kill music!" I remember the desire to add a surtax on every blank audio cassette sold to somehow mitigate the "tremendous" damage home taping would have on the music industry. That was shot down. Why? Because on numerous fronts it was a ridiculous idea. And with people making custom mixed tapes for their friends (I did a lot of this) and the arrival of MTV the music industry soon saw a long-term boon they had not experienced in years. Suddenly people were exposed to music they may not have previously heard. I would like to think that with my mixed tapes I single handedly made The Cure a household name in New York. Okay...um...maybe not. But it could have been me. I do know my tapes helped them sell a few more recordings when previously uninitiated friends became familiar with their recordings.

Film industry people believed that VCRs would be the end of people going to theaters once they figured out how to tape stuff off of HBO and Showtime. (First they had to get the flashing 12:00 off the thing.) Despite the home VCR and absurdly high movie ticket prices, more people are going to see films than ever before.

Yes, it is true that individuals will use Napster as a means of financial gain by downloading audio files, compiling them and on CDs and selling them. But they have been doing that LONG before the advent of Napster with much higher quality original material copied directly off of CDs. Walk down the street of any major city and you will find unlicensed vendors with their bootleg wares brazenly stretched across a sidewalk or folding table. Many "respectable" storefront businesses sell bootleg or counterfeit CDs and tapes.

I am a director who works on television, music videos and films. I am also a still photographer and published author. There is a difference between someone using my material to make money without my consent; using my work and claiming it as their own (both of which have happened) and sharing my work for personal pleasure. When someone uses my work in a non-profit making situation, as long as I approve the usage, all I need is a credit. I require payment if the work is used to advertise, generate profit or is used as part of another person's work. I am flattered to know people have downloaded or copied my work because they enjoyed it. Most of my musician friends, notable folks, feel similarly. No one likes plagarism or profiteering.

By and large the users of Napster are downloading audio files for their own use. And the vast majority of those people (according to several polls) are ultimately purchasing most of what they download. I know that I have used Napster to sample artists with whom I was unfamiliar. It has saved me lots of money as I decided not to buy many things that turned out to be garbage. On the other hand, I have made MORE music purchases in the last year and a half, mostly stuff I would never have bought, than I had the previous year and a half. That is all due to Napster.

I can guarantee that people will abuse the tools which Napster provides. But Napster is not providing, collecting, storing, distributing or selling copyrighted material without the permission of the copyright holders. Shawn Fanning, and his friends at Napster provide a network and software. Not much more than that. How the tools are used are the responsibility of the user.


So, Who Is To Blame?

So, back to my previous question: why did the furor over home CD recording equipment die down? Because the companies making the hardware are huge money making machines which also provide much of the hardware and media for the recording industry. You don't want to shoot yourself in the foot now, do ya...?
You may have noticed (or maybe not) that we do not penalize Sony, Phillips, Numark, Panasonic, Denon, Nakamichi, et al, who are manufacturers of the same high-end audio equipment which people use and have used to record music and bootleg long before Napster came around. Well, most of those large companies have ties (several pretty direct) to the recording industry. But pop a CD into your "faboo" new Phillips CD burner and you've got a fresh identical copy of the CD your best friend loaned you.

The computer companies are just as much at fault because without your computer you cannot access Napster's servers. Let's see someone go after Dell and Gateway... And hey, what about the internet service providers? They are as liable as Napster is for providing access to the MP3 files of others. They allow you to connect to Napster's servers. And what about all the other copyrighted things they allow us access to?

Microsoft and Netscape should be held liable for allowing people to download copyrighted images with their web browsers. They are just as much to blame for the abuse which allowed people to steal my work and claim it as their own as Napster is for allowing us to access each other's MP3 files. Both companies own or are part of an internet service provider. (Netscape is owned by AOL/Time Warner, who is not likely to sue itself, and Internet Explorer is made by Microsoft who owns MSN.) So they provide as much access to copyrighted materials with software and networks as Napster does. Oh, by the way, no one has seemed to notice that with both Internet Explorer and Netscape you can download MP3 files from web and FTP sites offered legal or otherwise.

The bottom line is that the people are responsible for what they do with the tools they are provided. Since we still don't hold gun manufacturers responsible for the killing spree in our country, we need to stop wasting our time beating up on a company (which is losing money and) providing a healthy outlet for people to enjoy their passion for music.

I could suggest that Napster pay the recording industry an annual licensing fee much like radio stations pay royalties. That would certainly be reasonable--if all the other manufacturers of software and operators of networks would follow suit. But in all honesty, I don't think they owe them anything. Napster does not hold audio files on their servers other than what they have made special arrangements with the artists/copyright holders for promotions. All files being exchanged are on the computers of the Napster users.

Maybe the real solution is that we should give more kids access to computers and Napster. They may become too distracted searching for their favorite music to hassle one another for being different or shooting each other to death in school and on the street. What Napster has done is scare the bejeezus out of big business who is used having complete control and screwing over the artists they sign. Suddenly, they realize that the artists and the listening public can be in control. We can choose what we listen to and how it is distributed. The internet is available to anyone who can get a library card. And maybe some of us want to hear something other than Britney Spears 24-7...





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