LETTERS: Free Napster (or why Judge Patel has started the revolution, not ended it) by Jason Calacanis. With a response by Brian Clark.
by Jason Calacanis/Rising Tide Studios and Brian Clark/GMD Studios and indieWIRE
Free Napster (or why Judge Patel has started the revolution, not ended it)
If there was ever any hope for a peaceful segue into the future of the music industry, that hope died yesterday with Judge Patel's impassioned and flawed order to shut down Napster. If the music industry's goal is indeed to stop piracy, there is a very simple solution: provide music digitally over the Net at a reasonable rate.
The truth is the music industry has no interest in providing its music digitally today, and its actions are clearly designed to stall progress and to destroy anyone who might want to innovate, or God forbid reiterate, the music industry. To be clear, the music industry wants to destroy Napster, Scour and MP3.com, not work with them.
Yesterday, many entertainment executives I spoke with were thrilled with the verdict, practically popping champagne corks over it. "This is the beginning of the end!" one executive said to me. Of course, we had radically different views of whose end this decision marks. While Napster will be stopped, as I predicted in an editorial 20 days ago, the entertainment industry has in fact motivated a global army of hackers who will see it as their personal challenge to preserve and advance the peer-to-peer file sharing movement.
Napster, as far as technology is concerned, is a fairly un-robust product. It has a bad user interface and has not advanced in any significant way since its release. By the time Napster shuts down on Friday night, an army of anonymous hackers from around world will have released dozens of more powerful Napster clones that the RIAA will not be able to stop. Of course, they have been doing this slowly already (think Freenet and Gnuttella)--but when the lights go off at Napster this weekend, they will have a new found motivation.
When Judge Patel makes comments like "Napster wrote the software; it's up to them to write software that will remove from users the ability to copy copyrighted material" and "They created a monster," you can tell two things immediately. First, that she has no idea how this software is architected, and second, that she clearly has it in for Napster and she is making a point of spanking the company publicly. Really, how could she not understand that it is the users who choose to steal music and trade it with Napster-and not Napster? What next, will she hold Microsoft accountable for figuring out a way to stop people from e-mailing copyrighted songs?
To be clear, there is nothing illegal about Napster's software; it is how some people choose to use the software that is illegal. What if I, as a freelance artist, want to put my songs up on Napster? Will I be denied that right now that Judge Patel doesn't like the spirit of Napster? Wouldn't Judge Patel be limiting my freedom of speech if her decision prevented me from using Napster to distribute my words?
Napster is simply the inevitable evolution of our existing habits and technology. Tape trading has gone on for decades, but most people don't bother to do it because it is simpler to buy or rent movies. Photocopying books and magazines has been going on for decades, but most people don't bother to do it because it is simpler to just buy the books and magazines. If the music, TV and film industries made their products available at a reasonable price online people would pay for it.
Instead of shutting down Napster, why don't we try selling Eminem's next album over the service for $5 a copy? The answer is simple: because people would pay for it and the music industry cartel would have to release part of their stranglehold on music product to people like Napster and MP3.com. Any logical person understands that we cannot stop peer-to-peer file sharing, and if you believe that this is primarily an economics issue then the solution becomes clear: make the stuff available for a fair price.
The music industry had its chance to sit down with Napster and figure out a way to include a subscription or pay-per-download option in its software. Instead, the industry decided to be tough guys with its "this-is-our-sandbox" attitude. Now the music industry has spurned tens of millions of Napster users around the world. I can't remember the last time corporate America turned away an opportunity to reach 20 million consumers, but I can tell you this: those consumers will not be denied because they have tasted the honey and it is sweet.
A war has been engaged and the music industry is fighting it with the arrogance of British troops wearing red coats, marching in a straight line waiting for the "ready, aim, fire!" command. Meanwhile, all around them, hidden in the forest, hides an inspired group of Americans about to employee guerrilla warfare tactics.
Napster being shut down is not the end of the revolution... it, like the Boston Tea Party, is only the beginning. Give us our tea at a reasonable price and we'll drink it.
If not, we're going to war.
[Jason McCabe Calacanis is the Editor of Digital Coast Daily, Digital Coast Reporter, Silicon Alley Daily and Silicon Alley Reporter. He highly recommends you download Gnutella at:
Just a brief note to you on your short-sighted editorial to "Free
Napster". You know my background: I'm a dyed-in-the-wool independent (ie, not waiting before someone else says "yes" before expressing creative vision.) It's frequently disappointing to me how many intelligent progressive thinkers like yourself take such short-sighted views of what this issue is about. There are some very real and important issues being explored in cases like the Napter injunction regarding copyrights and intellectual property rights of importance to all artists in whatever media, not just the "major labels."
To read your editorial, this is all about the majors wanting to keep media
expensive, and damn anyone who tries to get in the way of that. You won't
get me to argue against that perception of what the major entertainment
companies lust after, but that only tells part of the story of what makes so
many independents (and non-independent artists) just as concerned about the Napsters of the world. Whether or not the right approach for the majors to take is to "make Eminem's next album available for $5" reduces the situation to such simplistic generalizations that you become just as guilty of the exact same sin that worries indies about the majors and Napster.
The key concern is forcing business models upon the creators of intellectual
property. If a musician wants to make a tape in their basement and Napster
it to the world, more power to 'em. If a filmmaker wants to sell their film
to a major studio to gain distribution even though the contract is going to
screw 'em in the long run, more power to 'em. If an artist wants to paint
canvas and put them in a locked strongbox away from the eyes of everyone,
more power to 'em. That's the basis of the copyrights -- those decisions lie
in the hands of the creators of the work, not in some outside force that fosters it upon them.
Enter Napster -- funded by venture capitalists (so obviously they are planning on making a profit in the future, right?) -- and openly encouraging
their own business model by arguing that any artist that fights them is "evil" or "wrong". At least with a major label an artist has to put their
signature on a bad contract before someone else starts trying to make money off their work. In my mind, that's even worse than the majors -- at least you can tell the entertainment business "no" as a creator, which apparently (based upon the negative press surrounding Metallica's actions against Napster) if you try to do with Napster means you're just a money-grubbing pampered artist.
I love peer-to-peer sharing, but that's what Napster is. Did you ever try to
set "maximum available uploads" (which is the number of anonymous people you've never met that can download music from your hard drive simultaneously) to "0"? Napster will complain to you each time you start the software, warning you that your server has been "enabled" encourages you to change that to a non-0 number. Sending things to friends is one thing but to recognize as legal or moral principle the rights of individuals to make copies for a million people they haven't met, of material they don't own, would be a hand grenade into all content and media creation.
By the same argument, does that mean SAR shouldn't complain if other people start publishing their articles for free in their own publications? After all, to fight that would just show that SAR was trying limit the choices and control of readers by maintaining their own power, right?
It's a hard position to be in as an independent, but Napster was standing on
weak ground all along by making decisions for their artists rather than seeking their permission. The fact that some fat cat venture captitalists were sitting in a back room rubbing their hands together in glee over how
much money their business plan was saying they would make, all without
having to pay for any content, would make even the fat cat entertainment
industry blush with embarrassment.
Napster was just as ready to screw content creators as the entertainment
industry. Maybe even more so...or at least with a more sanctimonious
attitude about it.
[Brian Clark is a Managing Member of indieWIRE, LLC and President of GMD