Temporary injunction granted against Napster
28 July 2000
A federal judge in San Francisco granted a temporary injunction Wednesday against the Internet music company Napster. US District Judge Marilyn Hall Patel issued the order at the request of the Recording Industry Association of America (RIAA). Napster has been given until midnight on Friday, July 29 to shut down the computers that allow millions of users to share music on the Internet.
The ruling is the latest stage in a battle between the Internet upstart and recording giants such as Universal Music, Sony, Bertelsmann and Time Warner. Napster also faces separate lawsuits by the rock band Metallica and rap artist Dr. Dre.
Those taking action against Napster claim that the company is guilty of copyright infringement because it makes software available that allows users to exchange copyright-protected music. In response, Napster argues that since the Audio Home Recording Act of 1992 permits users to make recordings for personal use, Napster users are protected. The company further maintains that there is no way to isolate the downloading of copyrighted recordings from others, such as those by independent artists.
The injunction is to remain in place until the conclusion of a trial, although Napster has said it will immediately appeal the order and ask for a stay of execution. Judge Patel said the evidence indicated Napster's estimated 20 million users used software provided by the company to download copyrighted music. “When the infringing is of such a wholesale magnitude, the plaintiffs are entitled to enforce their copyrights,” she said.
The judge requested a $5 million bond against any financial losses Napster should suffer from being shut down pending a trial, which the recording association has agreed to post.
The Napster case has provoked widespread debate among artists, music fans, Internet experts and copyright lawyers as to the legitimacy of the services provided by the Internet firm and a number of similar companies. Legitimate concerns are raised regarding compensation to songwriters and performers and the protection of intellectual property.
However the shutdown of Napster has far more to do with defending the revenues of multibillion-dollar recording and entertainment conglomerates than protecting the interests of artists. There is no reason, in principle, why the democratic possibilities of the Internet, the hunger of music fans for recordings, the financial needs of established artists and composers, and the desire of new creators to find an audience cannot be reconciled in a manner that encourages the development of Internet technology and its utilisation by masses of people. In a fundamental sense, what brings these various factors into collision with one another is the corporate structure of the music and entertainment industries and their subordination to private profit and the capitalist market.
Choking off the Internet as an independent distribution channel will certainly have a detrimental impact on new artists and those seeking an outlet for their music outside the control of the major studios.
Much of the current debate takes the form of “for or against” Napster, but far broader questions are raised by the emergence of the Internet and related technology. An article in the Los Angeles Times entitled “No Matter Napster's Fate, the Software is Out There” noted that whatever the outcome of the trial, it will do nothing to stop the download of hundreds of thousands of recordings contained within Napster's central directory.
“Indeed, the names and locations of those music files have already been duplicated and stored on a network of computers worldwide. Thanks to a community of programmers who are members of a loose-knit project called Open Source Napster Server, or OpenNap, sources say a new service is set to take over the moment Napster is shut down,” says the Times.
This is not the first time that the recording industry has confronted a technology that threatened its established business model. From the emergence of the very first tape recording machines, through to the latest in CD writers and digital video (DVD), the industry has opposed any technology that challenged its control of recordings. With previous technologies however, the potential losses to the recording industry were minuscule by comparison.
The ability of an individual to make a tape recording and even exchange it with friends was not likely to have a massive impact on the revenues of the likes of Universal or Sony. The big corporations were quickly able to come to an agreement with the manufacturers of new devices, in some cases gaining compensation in the form of a tax on consumables such as video cassettes, or getting the agreement of manufacturers to limit the scale of distribution, as with regional formats for video and DVD media.
What is new in the Napster case is the emergence of the Internet as a mass distribution network. It is now possible to exchange recordings with millions of users simultaneously at little or no cost. In the course of the recent hearing, both sides presented surveys to show the impact, or lack thereof, of Napster on the sales of compact disks. A study commissioned by Napster showed that “over 91 percent of Napster users buy as much or more music than before they used Napster, with 28 percent purchasing more”. An opposing survey commissioned by the recording association found that 22 percent of Napster users said that because of Napster, they no longer bought CDs, or they bought fewer CDs. The RIAA claims that Napster's existence has cost the industry more than $300 million in lost sales.
Whatever the truth of these calculations, it is clear that left to its own devices—with a projected 70 million users within six months—Napster will have a significant impact on the sale of CDs. Lawyers for the recording industry said 14,000 songs a minute are currently downloaded via the service.
This has led some commentators to proclaim a new era of free music via the Internet, in much the same way as the open source software development projects have provoked talk of free software becoming the norm. What such speculation ignores, however, is the nature of the society under which this technology emerges.
Objectively, the Internet and related technologies are already coming into conflict with a system based on private profit and the accumulation of wealth by the corporate elite. The emergence of technologies such as Napster cuts across the traditional distribution and marketing channels for popular music. The Internet offers a superior method of distribution, rendering the conventional channels less valuable.
But the recording industry does not sit back and watch this happen. It intervenes, firstly with lawsuits, later with negotiations aimed at bending the new technology to its own ends. This could take the form of subscription-based access to music downloads. While the cost of music to the consumer might be reduced, it would not be abolished.
At the most fundamental level, the Napster ruling is another step in the commercialisation of the Internet and the tightening of big business' grip on the medium.