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Making the legal case for Napster
Ok, my first reaction is, What in hell are they teaching law students at Georgetown? Her legal argument is so terrifically flawed that it's appalling. The critical flaw comes in the part where she says that the Audio Home Recording Act allows a person to make copies of music to friends which she then proceeds to say is tantamount to how people are using Napster. So, suddenly I join Napster, and I have 20 million friends? Somehow, I think that's shredding that exception to nothing. Further, removing Napster as a means of "sharing" music does not nullify the ability to "share" music with your friends -- email still exists as do web pages and FTP sites.
Also, she discusses Napster as compared to Xerox in terms of the Digital Millenium Act of 1998. While it's true that Napster does not make copies of the music it catalogs, the comparison to Xerox is fundamentally flawed. The analogous comparison is a Xerox machine which contains links to copyrighted material on the internet. Sure, the Xerox machine doesn't retain the copies itself, but it certainly enables the copying of those works. Subsequently citing the fact that those works can be used in a minority of protected ways is a lame attempt at justifying the pirating.
The comparison with VHS/Betamax is also flawed. The key difference is the digital aspect of MP3s. Unlike VCRs which degrade with each serial copying, MP3s retain their perfect quality regardless of how many times they are reproduced so the 10,000th copy is the same as the 1st. The 10,000th copy of a VHS tape would be useless. The distribution of a perfect VHS copy of a movie does not enable the wholesale piracy of the movie without some serious equipment. Anyone with access to a computer can also purchase a common device, a CD-R, to produce an exact copy of an entire CD with minimal effort. VHS copying is more expensive, slower, and not as successful as CD-R creation (meaning that the copies are not perfect). So, while the movie companies distribute copies of VHS movies to the public for sale, anyone who buys one has a difficult time producing a copy compared to a music studio producing an MP3 file which could then be trafficked by anyone, even in CD form, without much trouble at all.
All that being said, I agree with the fundamental premise that the music industry needs to embrace the digital exchange of music because that is definitely the way of the future. Some companies have already embraced this medium, such as emusic.com (Nomad II anyone??), but the big producers have not. There are alternatives to MP3 available, such as Sony's encrypted format, but there has been considerable resistance to its adoption because of the inability to replicate the music.
There are ways to accomplish the acceptable "goals" of Napster while preserving the integrity of the copyright. Whether or not you hate the record companies, when you deprive them of money, you also deprive the artists. Saying that you are "fighting the good fight" against the tyranny of the record companies only ensures that they will fight back just as bitterly, and the music and artists will be harmed in the process. Basically, BOTH sides in this fight need to find a middle ground since neither side has an acceptable solution (wholesale copying vs. no digital distribution). No one wins in the no-compromise environment that exists now.
Making the legal case for Napster
Ok, my first reaction is, What in hell are they teaching law students at Georgetown? Her legal argument is so terrifically flawed that it's appalling. The critical flaw comes in the part where she says that the Audio Home Recording Act allows a person to make copies of music to friends which she then proceeds to say is tantamount to how people are using Napster. So, suddenly I join Napster, and I have 20 million friends? Somehow, I think that's shredding that exception to nothing. Further, removing Napster as a means of "sharing" music does not nullify the ability to "share" music with your friends -- email still exists as do web pages and FTP sites.
Also, she discusses Napster as compared to Xerox in terms of the Digital Millenium Act of 1998. While it's true that Napster does not make copies of the music it catalogs, the comparison to Xerox is fundamentally flawed. The analogous comparison is a Xerox machine which contains links to copyrighted material on the internet. Sure, the Xerox machine doesn't retain the copies itself, but it certainly enables the copying of those works. Subsequently citing the fact that those works can be used in a minority of protected ways is a lame attempt at justifying the pirating.
The comparison with VHS/Betamax is also flawed. The key difference is the digital aspect of MP3s. Unlike VCRs which degrade with each serial copying, MP3s retain their perfect quality regardless of how many times they are reproduced so the 10,000th copy is the same as the 1st. The 10,000th copy of a VHS tape would be useless. The distribution of a perfect VHS copy of a movie does not enable the wholesale piracy of the movie without some serious equipment. Anyone with access to a computer can also purchase a common device, a CD-R, to produce an exact copy of an entire CD with minimal effort. VHS copying is more expensive, slower, and not as successful as CD-R creation (meaning that the copies are not perfect). So, while the movie companies distribute copies of VHS movies to the public for sale, anyone who buys one has a difficult time producing a copy compared to a music studio producing an MP3 file which could then be trafficked by anyone, even in CD form, without much trouble at all.
All that being said, I agree with the fundamental premise that the music industry needs to embrace the digital exchange of music because that is definitely the way of the future. Some companies have already embraced this medium, such as emusic.com (Nomad II anyone??), but the big producers have not. There are alternatives to MP3 available, such as Sony's encrypted format, but there has been considerable resistance to its adoption because of the inability to replicate the music.
There are ways to accomplish the acceptable "goals" of Napster while preserving the integrity of the copyright. Whether or not you hate the record companies, when you deprive them of money, you also deprive the artists. Saying that you are "fighting the good fight" against the tyranny of the record companies only ensures that they will fight back just as bitterly, and the music and artists will be harmed in the process. Basically, BOTH sides in this fight need to find a middle ground since neither side has an acceptable solution (wholesale copying vs. no digital distribution). No one wins in the no-compromise environment that exists now.
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