On Monday, a hearing in federal court in San Francisco will begin to decide whether to shut Napster down, upholding an earlier decision in favor of the Recording Industry Association of America (RIAA). RIAA is seeking to stop Napster, then collect many millions of dollars in damages. And while RIAA's fight with the web-music phenomenon is the most important legal challenge to online music sharing, the morality and ethics of Napster are under attack in a second case--last April the band Metallica also sued Napster. The crux of Metallica's case (which is still pending) is that Napster is simple theft, or in their words, Napster users are "common looters loading up shopping carts because 'everybody else is doing it.'"
Their contention is worth examining.
Napster is a piece of simple yet elegant software, developed by 19-year-old Shawn Fanning, that allows people to copy music from one another over the internet in the form of files known as MP3's. The company that owns the software, also called Napster, runs a website that distributes the eponymous program for free. Napster has no--which is to say, absolutely zero--income from any sources. No one pays to swap songs. No one pays for the software. There isn't even any advertising on the company website.
Napster is, essentially, a high-tech way of trading tapes. Back in the Stone Age of the 1980s, anyone who cared about music put in time making cassette tapes. People would make romantic mixes for their girlfriends or make party tapes or copy an album so they could play it in their car or on their boom box. People would also make copies of albums they especially liked and trade them with their friends. Napster is an extension of that behavior.
Of course, there is a difference. Tape trading was allowed by the law. Upon the advent of cassette decks, Congress passed the Audio Home Recording Act, providing that people could copy and trade music so long as it was for "private," "personal," and "noncommercial" use. In other words, so long as you gave tapes to people you knew and didn't make any money from it, tape trading was fine. There isn't much that is "private" or "personal" about Napster: When people trade songs, they don't know each other. But the key to the Audio Home Recording Act was always the "noncommercial" part anyway. When it comes down to it, however, the government and the record labels never attempted to stop you from sharing tapes because there was no way to control tape trading, other than to stop the highly profitable sale of magnetic tape. By setting up as a clearinghouse for sharing free music, Napster has given the authorities a clear target.
Metallica, it should be noted, used to endorse widespread tape trading. In 1982, Metallica was an unknown upstart band in California. With little available capital, they cobbled together a crude seven-song demo tape called "No Life 'Til Leather." The boys in the band gave the tape out to anyone who would take it, encouraging them to copy it and pass it along. "No Life 'Til Leather" became an international sensation through this sort of swapping and launched Metallica into a career that has been beset with stardom and riches. Now no longer a hungry young band, Metallica is bent on destroying a system of sharing whose ancestor was once so helpful to them.
As it turns out, the value of intellectual property is more slippery than you think. Value, after all, has two components: market value and moral value. Market value is the price that a market will bear for a commodity. Moral value is trickier to define, but a rough approximation can be made by judging the good that a certain commodity does for society.
In the free market, these two values often align. Sometimes they don't. Occasionally, the free market gives a commodity a market value much different from its moral value. For example, the few minutes of entertainment provided by Metallica's latest radio song, "I Disappear," from the "Mission: Impossible-2" soundtrack, has distinctly different moral value from the public good provided by a first grade teacher who spends a year teaching a few dozen children how to read. Metallica's market value, though, is significantly higher: The members of Metallica make from this one track many times what our teacher--or for that matter a police officer or a paramedic--makes.
On the face of it, this type of injustice seems outrageous, and taken in specific instances it is. But in America, we all agree to live by a market that, while not perfect, seems to be the best system around. We don't complain when the market fails and undervalues a public good.
And neither did Metallica. But when technology changes, the market value of things often changes as well. When there was a market error in Metallica's favor, they wanted people to ignore the low moral value of their work. Now that there is a possibility that the market will err against them, they want to use the moral value of intellectual property as a shield. Metallica now wants protection from the market that made them rich.
In his 1935 essay "The Work of Art in the Age of Mechanical Reproduction", the philosopher Walter Benjamin laid out the process by which technology drives both art and art's value. He showed that technological advances are nearly self-fulfilling, that "as lithography virtually implied the illustrated newspaper, so did photography foreshadow the sound film." Once you understand the progression, it becomes easy to see how the advent of the phonograph assures the MP3, how the personal tape deck begets Napster. Benjamin's point is that this sort of thing has been happening since men drew stick figures on cave walls.
And every time a new technology appears in art, it alters the value of all artwork. The printing press changed the value of writing. The camera changed the value of painting and sculpture and the other fine arts. Film changed the value of acting. RIAA and Metallica are not involved in some grand, new struggle. And they fail to realize the central fact of Napster: Advances in technology always change the market value of intellectual property; and these changes are as legitimate as they are inevitable.
Napster is morally acceptable because we all--teachers, Metallica, and everyone else--accept the rules of the market. Napster isn't an evil magic black box. It is a new technology; it stands in thousands of years of human tradition. And technology changes the rules of the market. In Metallica's case, it's possible that Napster might move the market value of their work closer to its moral value. And if so, well, there's no crying in baseball.
Of course, no one knows yet what Napster really does do to the value of intellectual property in general or the market value of music in specific. So far, there is only anecdotal evidence. Some retailers claim that Napster has sparked sales; other say it has depressed them. Only one figure is not in dispute: Last quarter, all CD sales were up 8 percent.