What I call the “Napster dilemma” is a problem that involves new technological concepts and redefinitions of old ideas. This is the case for many legal and moral conflicts that are arising with the outcome of new possibilities and options made accessible by informatics and telecommunications. The importance of these problems has caught so much attention that in 1998, President Clinton signed the new Digital Millennium Copyright Act, where a good attempt of addressing these issues was done. By now, just after two years, some of its content already lost actuality.
Since many people is not really acquainted with Napster, what is it and how it is work, I find important to give a quick definition of how it works, even thought it goes a little beyond of the limits of this paper. Napster is a software program through which users can swap songs over the Internet. Computer users visit (using their internet browsers like Explorer, Netscape, etc and an internet connection via modem like pilot or an Ethernet connection, like the ones we have on campus) napster. com where they download the free Napster program.
Once the software is installed on the user’s hard drive (which is an extremely simple procedure), the user can locate songs stored on the computers of other Napster users by title and artist. Once a specific song is located, the user double-clicks the title and the song starts to download to his/her hard drive in MP3 (MPEG audio layer 3) format, a fairly efficient audio file form which compresses original CD data by 12 times without any discernible loss in sound quality, as long as the file is played in a mp3 player. There are no expenses involved.
It is important to notice that the act of locating a song is performed by connecting to a main server that belongs to Napster. This server does not contain the music. It only contains the name and location (in internet terms) of the computers with the music files, where the owner already installed the software, and it is willing to share the data. It links the user who is searching for the song with the user who is willing to share it. Once they found each other, a communications is established between both of them, without any interaction of the server.
This communication between two computers is a fairly new type of technology known as peer-to-peer communication. and is exactly the same principle used in the well known “chat rooms” Depending on the speed of the internet connection that the user is accessing, the operation of downloading a song would take five minutes at the most. Once the user closes his/her connection to the Internet, there is not trace of the transaction and the song is already shared between the two users involved.
If the one who just downloaded the song chooses to keep it in his hard drive, the song becomes available in two hard drives, widening the possibilities for the next Napster user of logging and finding somebody willing to share that specific song. It provides a multiplicative effect that makes the availability of songs to increase geometrically (2,4,8,16,32, etc. ) Napster has acquired an unsuspected popularity. The company claims that currently there are about 38 million of people all over the world who are connecting to the service in regular bases.
Obviously the ones with the biggest trouble are the record labels. In December of 1999 the Recording Industry Association of America (RIAA), which unifies the industry trade group, sued Napster alleging that the file-sharing program facilitates massive copyright violations (1). It is based in articles of the mentioned Digital Millennium Copyright Act (2) as well as some of the Copy Right Law of America (3). Under this lawsuit this last July, the U. S. District Judge Marilyn Hall Patel granted an injunction to have the Napster server shutdown.
With the server (the computer where the music information is located) out of operation, the file sharing process cannot be performed. Napster appealed this injunction and the Ninth U. S. Circuit Court of Appeals intervened when a few hours were left, saving the service from being shutdown. The proceedings are being held at this point. If the RIAA position upheld, the file sharing service will stop. Details of the proceedings can be found in several public sites (references 1 to 4). The problem from the optic of the common citizen:
There is a legal problem now deciding whether Napster is violating copyright laws. This analysis will be heavily legal and probably political. However, for the lay average person, the problem is of basic principles. The question that people raises now days are in lines like: Is it acceptable to share any of some of the so-called copyrighted material in the Internet? If it is not acceptable today, should it be in the future? Is it acceptable to have the government overseeing the way people shares data over the Internet? Are the copyright laws up to today’s technologies?
Stopping technologies like pier-to-pier communications will affect some positive outcomes of its use? The issue is complex and goes beyond the purpose and extent of this paper. For this reason, I would like to focus my discussion on one of the basic arguments used against the right to share music files using the internet: Copying music files in the internet is not correct and is illegal because such files are copyrighted. Copying music files in the Internet is not correct and is illegal because such files are copyrighted: There are laws that protect copyrights.
Basically we could say that the spirit of these laws (see ref # 3) is to prevent any reproduction of material if the use of this reproduction is going to generate, or help to generate a profit. If I make copies of a copyrighted CD and I go to the streets to sell it, or I just start to sell it over the Internet, I would be clearly generating a profit. In the case of Napster, nobody is making a profit. Even Napster at this point, is a start-up company that has not generated income, does not charge their users for accessing the server, and it does not post commercial spots.
It is still owned privately. Napster had get some offers for using their technology to organize the sharing of some other types of files (e. g. insurance policies, medical records, police reports, etc. ) that would give them lucrative gains in some completely different lines of file sharing. It is also possible that in the future Napster would adopt some money maker schema, like selling commercial space, charging access to their site, charging for downloading, etc. but at this point it does not.
It is fairly accurate to say that users of Napster are not making a profit with the music files that they download. The professional use of music demands high quality records and formats that are different from the mp3 format that is used transmitting electronically music files. Most professional music playing devices require the use of wav format files. A 99% of the files shared on Napster are mp3 files created by converting wav files taken from a commercial CD. In order to be used in a standard music player, they have to be converted again to wav.
Each time a file is transformed from one format to the other, quality is lost and the file is not good enough for a professional, in the same way as a photocopy of a photocopy will have lower quality than the original. If anybody want to use this files in anyway beyond a personal computer or a home music player device, it would have to go to painful technical procedures that would be deceiving the “for free” acquisition of the files. This user would rather buy a copy of the music file in a standard commercial CD. The use of files copied from Napster resembles the use that people did of tape records made out of records, some years ago.
In conclusion the entity that is providing the forum for the file exchange, as well as the participants in such a forum are not making profits out of this exchange. So, if the spirit of the law goes in the line of preventing people from making money with some other’s creative work, I would claim that sharing music files is following the standards set by the law and it should be protected. Obviously some people might not agree with this vision of the purpose and application of the law. At this point it is still possible that the court will rule against Napster and will find that the law is against this type of file sharing.
Even assuming such contingence, as I said above, the legality or non-legality of copying files does not make it moral or immoral. Laws just create a frame of rules that people should use as a standard. These standards are not built in stone. Standards change and so legislation should, according with the times. There was a moment when owning slaves was legal even thought today it would be virtually impossible to find a person raised and living in a Western culture who would agree with the moral acceptability of such an ownership.
In this line, if the final conclusion of the legal system is that sharing music files in the internet using services like Napster is illegal as the law stands today, I would argue that is time for society to take a serious look at the legislation and basic definitions for copyrights. New technologies had historically changed preconceptions. The law is an instrument to the service of society and it should not be, under any circumstance, a tool used to take advantage of certain groups of population. I think that there are very few chances of having Napster protected by the system as things stand today.
However, this case will generate major changes in the music industry. They have to change their business model, as many industries had done in the past, under pressure by new technologies. The record companies could do many things like: lowering the price of their CDs, sell music over the Internet using the Napster model, give access to musicians that today have not even the remote possibility of accessing markets, etc. Napster will probably be prevented from operating with the model that it does now, but somehow, so it will the music industry and the winner will be the people for whom laws are supposed to be done.
