Music Sharing and the Napster Lawsuit

November 01, 2000

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Recon: Is this really an issue about piracy or fears over lost revenue for the music companies?

Dwight Silverman: Both. I think it's really too early to say whether you have a situation where Napster downloads are costing the industry a significant amount of money. But there is also the issue of paying artists for their work. Right now, the music industry has artists over a barrel. You think musicians make a lot of money from hit recordings, but it is not always true. The recording industry gets most of the money when you buy a CD, NOT the artist. So yes, you deny the recording industry a good chunk of change if you use Napster and don't buy CDs. But you deny the artists their pittance, too. By the way, there is a very good statement about this from Courtney Love, the lead singer for Hole, over on Salon, www.salon.com. She gave a speech to a music industry convention and laid out just how the industry interacts with artists. It's a very good read and very enlightening, and I highly recommend it.

Jubal Cain: If an artist is in it for the money, then these share places are stealing their income. If the artist is performing for the fans as they say they are then sharing the music is not stealing. But I don't believe any of the artists perform for the fans, for they are in it for themselves and not the music. So I would say that the sharing is stealing.

Dwight Silverman: Again, it all depends.I don't think you can make a blanket statement. Let's look at my situation, for example. I'm a Napster user. I am also an old guy--relatively anyway, at 44 years old. (A moment of silence for my lost youth, please.) I use Napster to get singles, songs from the '60s, '70s and '80s that I like. I will NOT buy the whole CD to get any of these songs. I like the song "Hotel California" by the Eagles, but don't care much for the rest of that CD, for example. Am I denying the Eagles some money because I get that one song? No, because I was not going to buy the CD in the first place. The interesting thing about this is that you are making an EXACT copy of something, but leaving the original in place. It's as though you make a copy of someone's car sitting in their driveway, and leave the car sitting there while you drive away. Have you stolen anything? No, because the car is still sitting there. This changes the whole notion of what's "stealing" and what's not. It takes it down to motive. Would you have spent the money if you could not get the song individually? I do NOT download whole albums off Napster. If I want all the songs, I go buy the CD. And, by the way, I buy more CDs now than before I discovered Napster. Napster has reawakened my interest in music. And I think I am not alone.

Lindalou: Pearl Jam recently released a series of bootleg DATS to CD's through Epic at retail. In your mind, is that a way for artists to legitimize bootleg cassettes and DATS from their concerts into retail gold?

Dwight Silverman: Yep, though it's not new. Bob Dylan, for example, released an album called "The Basement Tapes" 20 years ago. It was a legitimate recording of some jam sessions he'd done with the band. The bootlegs had been circulating for years prior, among Dylan fans.

Tumblin: Do you think they will pursue those that have used the sites a lot and charge them with piracy, to back up the original lawsuit?

Dwight Silverman: I don't think so. See my earlier comments about bad PR for the recording companies. For your information, I am doing this from my home, and a Fed-Ex man just showed up at my door.

CoolDude44: How many bands feel as Metallica does? Or are there some that really believe they are artists, as long as their "art form" is being seen/heard?

Dwight Silverman: What's interesting is that there is a split among musicians on the issue of file sharing. If you read that Courtney Love Piece, she talks about her own mixed feelings on the issue. Some musicians feel that this is a way to break control of the record industry. And, in fact, some have violated their own record industry contracts by releasing MP3s on their own. Other artists are concerned about control. They want their music presented in a certain way, and Napster takes that away from them. Metallica claims that is their reason for doing the lawsuit. The band's critics say otherwise--That it's a money thing. But, should musicians not be allowed to make money? Why criticize them if it's a money thing? I certainly like to make money. Don't you?

Jedi Night: At this point is downloading and using mp3s illegal in any way?

Dwight Silverman: Again, it depends on what the courts say. The record industry says it is. They argue that individuals do not have the right to distribute music without properly compensating those who own the rights to it. The problem is that one little niche in the law that says you can make copies for personal use and to give to friends, if you do not profit. That niche was developed prior to the advent of the MP3 file format, the Internet, and the use of the PC as a music device. So now that we have these technological changes, they must be put in the context of the existing law. That's what the courts are for. What's interesting is that the Congress is sniffing around on this issue and at the moment, they don't appear altogether friendly to the recording industry. That's because they know that there are millions of people using Napster and similar services. Those millions vote. So they are treading lightly on this, which is a Good Thing (tm).

Busy Brat: If the courts did decide on a fee, would a portion of that money go to the artists?

Dwight Silverman: Well, the courts probably will not get that specific. They'll likely say either Napster is infringing on copyrights and order it to stop, or they will say the company is merely a facilitator of file sharing. Napster said, during the BMG announcement yesterday, that it would give some of its subscription fee to the artists & record companies. But it has not yet said how much. That will be negotiated, I'm sure.

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