The Passions of the People

When I wrote last week’s piece about Napster, I never dreamed of the kind of response I would get. I suppose I thought the Napster phenomenon was something some folks talked about from time to time over coffee or around the water cooler. It seemed a topic that might make its way onto “Charlie Rose” perhaps and certainly the industry press.

But I was taken aback by the passionate and, at times, aggressive positions people have taken on the Napster phenomenon. So I wish to present this follow-up so as to clarify my position, round out my argument, and hopefully address a number of issues raised by some readers that I imagine are on the minds of many others who didn’t write in.

Basically, all the arguments against Napster hinged on a moral position. That position was this: A) Napster facilitates theft. B) Use of Napster is thievery. C) Those who use Napster are thieves. Would you like it if someone took the product of your heart, soul, and hard work and distributed it for the entire world to see, hear, or use without you being compensated for it?

As one reader (the most intelligent of all the respondents in opposition) positioned it, do you work for free, or do you like to be paid for your work? Why is Lars Ulrich, Dr. Dre, or any other working musician any different? Turning the “record industry” into some sort of bogeyman “to alibi theft, as the Napstersheviks do daily, doesn’t fool anyone over the age of 18.”

This reader also posited, “The people who feel they are being robbed feel that it is indeed about morality, indeed about moral issues, and indeed [about] the pirating tyranny of the masses. How can you say, Oh, no, they’re wrong. This is not about their rights, but about ‘my’ rights to use this technology to extinguish ‘their’ rights.”

My counter to this position is first from one of a legal standpoint and then from a more philosophical moral stance; though I feel the injection of morality into this discussion makes it even more difficult to have, it is necessary in shaping the legal one.

The legal position is that Napster ISN’T piracy in the strictest legal sense of the word. The Copyright Act of 1976 does not allow for the reproduction and redistribution of copyrighted works for commercial gain. It is less clear on the issue of non-commercial distribution. Sections 107 and 108 of the Act will be what are used as a fulcrum for arguments being made by both sides, as these sections speak to reasonable use of noncommercial reproductions of copyrighted material.

What is interesting is that these sections (Sec. 108 (c), in particular) also address the issue of “if the existing format in which the work is stored has become obsolete.” There are those who would argue that the record or tape cassette format fall under this umbra.

But what we are really looking at here is not some moral crusade being fought against the pirating tyranny of the masses, but rather a tension between an old way of doing business and a new way of doing business. There is not a clear moral overlay at play here except for those who are against Napster for the ease with which it facilitates the wide distribution of copyrighted material. Since no one has proffered a utilitarian argument against Napster and services like it, objections to it always have to fall back on the ephemeral monism of the moral.

The tension really causing the debate is that, as a former music industry executive wrote me, “The music industry revolves around artists, songs, and tendencies which form a temporal status quo that gets swept from time to time to form a new commercial order that encompasses the hottest tendencies in any given moment.” The record industry and that camp (which does, indeed, include many popular recording artists) represent the long-established actual world of the music business.

Napster and the Internet population (which also has its cadre of popular recording artists) represent the potential world. It is the playing out of this Hegelian dialectic that we are currently witnessing. To rally against the future, one that does not indicate being in possession of the kind of violent technology to instigate civil unrest and social instability, as the “technologies” of more traditional robbery would, is dangerous when the battle is being launched by an industry that counts on that future being there to give it the money that the industry itself is really only interested in.

When I drop $20 on a CD, it isn’t going to Lars Ulrich; it’s going to the president of Sony and other industry wonks. Lars sees a small fraction of that. The recording industry would be wise to find a way to bend this technology to its advantage and try harder to understand the cultural zeitgeist that has made this phenomenon possible at all.

To alienate 20 million young people who love music is folly. Banning Elvis from publicly shaking his hips didn’t prevent the sexual revolution. Shutting down the Doors concerts didn’t make people stop wanting their music. Prohibition didn’t stop people from drinking.

The record industry is making more money now than it ever has in its existence. Napster isn’t going to bring that to a halt. Bad thinking and decision making by industry leaders are the only things that can do that. This is why I do believe the future is a compromise. Like the Hegelian dialectic referred to earlier, we have thesis, antithesis, and synthesis; that synthesis will be the “kiss and make up” that I alluded to in my piece last week.

Certainly, a debate about Napster can tilt on a moral fulcrum if what we are talking about is strictly piracy (i.e., is piracy good or bad?). But what I was trying to get at, and subtly alluded to in my piece, was that, from the perspective of amateur philosopher/professional media buyer, here’s what Napster and the industry should do. Certainly I agree that a commercially viable support system must be in place to preserve the arts, artists, and all forms of cultural product, given that we do not have a “patron” system like that of Renaissance Italy and the like. What I suggested in my piece and have rallied for all along is a way to monetize the format.

When tape cassette recorders found their way to the market, the music industry tried to fight the format by instead introducing the nonrecordable format of the 8-track. The cassette won out because the people wanted it (and 8-track tapes lost their sound quality so fast). The music industry had to finally give in to the cassette. Did the industry encounter more “piracy” with the advent of tape cassette recording? You bet. But most of it was legal piracy. The law states that an individual can reproduce a copyrighted item and redistribute it as long as it is not for a commercial purpose. I can tape a song and give it to my friends; as long as I do not sell it, it is legal. With cassettes, sure, fewer albums were sold, but suddenly a whole lot of cassettes were sold, and for the first time the masses had access to portable prerecorded music.

The music industry should approach the MP3 format and its means of distribution in a similar way. I think secretly it is, but as an industry it has been so accustomed to dictating the terms by which these transitions happen, it has to put up a fight to slow things down and buy some time to figure out how best to adopt the MP3 format and the digital means of distribution.

People who use Napster to find music and download tracks are not the same as armed robbers, rapists, or the SS. They are fans and enthusiasts who BUY A LOT OF MUSIC and are embracing this new way of “moving the sound around.” I am confident that both sides of this debate will find common ground on which to build the future of the music business. But it’s going to take a lot more conversations like the ones I’ve had with some readers out there to arrive at this place.

People always fear change, but change is what the music industry is built on. It will only be to its advantage to change rather than being a Gerontion and “stiffen in a rented house” clinging tightly to the status quo.

“After such knowledge, what forgiveness? Think now history has many cunning passages, contrived corridors and issues, deceives with whispering ambitions, guides us by vanities.”
T.S. Eliot

Related reading