More Napster

Nearly everyone that’s discussed Napster has been interesting and reasonable. Except Mark. He’s so wrong it angers me. His basic contention is, if it can be good, you should leave it alone. And if you do that, it won’t kill you. Never mind that far and away it’s used for piracy. You know it’s used for mass illegal practice, and you should just leave it alone? Just ask Napster nicely to change without legal action? How incredibly naive. And wrong.

I want to respond, point for point, why he is wrong. I’ll just make a list:

• Fair use. Clips clearly violate copyright law, as seen by the whole Iron Chef deal. I’m pretty sure he’s misunderstanding fair use, but some law student will have to tell me for sure. Regardless, the idea that DeCSS / Napster primarily falls under fair use is ludicrous.
• Idea that banning certain things would impede legitimate activity. That’s one of the most absurd things I have ever heard. It is clear that the major use of Napster is for piracy. If you’re going to dismiss that because I can’t cite a formal study, you’re more than a fool. So we shouldn’t ban anything, even if it leads to mass piracy, just because it might impede legal activity? What if someone decided to distribute the Matrix to every household in America. And then decided to do this for every movie. The stipulation being, you can only watch it if you’re going to use it for legitimate academic purposes. The majority obviously won’t. Yet, it would be used for some legitimate purpose. Which would be impeded if this system were stopped. By Mark’s “logic,” this means it shouldn’t be stopped. Absurd.It only makes sense if the primary activity is legitimate, and in this case it clearly isn’t.
• Yes the study does not take into account online sales. However, Billboard has begun tracking online sales, and I follow Billboard. As much hype as there is about online sales, it turns in terms of sheer numbers, it’s absolutely minimal. You’d be surprised.
• He says I don’t cite any examples where people will choose something for free over not. He’s right. Just read the salon article, and actually, nearly every article in the mainstream press about Napster, and the testimonies there of people who don’t bother buying CDs anymore. Sorry for not “citing” this.
• His whole software piracy thing, and how that’s a parallel with music. Good argument, except it validates what I say, and is not at all relevant to what he’s saying. Why? Because with software piracy, it’s recognized as piracy. It’s illegal. Sites distributing it are illegal. It’s known. Whereas, with music, and Napster in particular, it’s given an air of legitimacy. Yeah, the very act may be illegal, but Napster itself, which is used almost exclusively for piracy, is legitimized, and well known by nearly everyone, as opposed to illegal software sites. So in essence, if Napster is left unchecked, music piracy is given a legitimate means that’s far more well known and far less dubious than with software. So it’s clearly not a parallel of the software industry. (Note, I don’t really know about DeCSS so I shouldn’t talk about that too much. Eric is likely the better expert.) The only way it can be parallel is if music piracy, like software piracy, is known to be illegal, and made as difficult as possible, or at least much more difficult than it is now. There is no outlet for software that’s as well known by the public or used as much as Napster. Furthermore, it’s clear that many people don’t have problems with their conscience using Napster, and I would argue it’s because Napster itself hasn’t been made illegal, and the primary use of Napster is piracy.

  Mark’s whole argument about how software piracy shows it won’t send companies under only applies if music piracy is as difficult and clearly illegal as software piracy is. And that’s only possible, if, as I argue, Napster is stopped. I believe I addressed this. I don’t think you can stop piracy, but you need to make it as difficult as possible, is my take. So thanks for the arguments Mark. You’ve shown me correct.

  Yes, people know how to pirate software. But it’s clearly harder, and that difficulty emphasizes that it’s illegal. Not so with Napster. And no illegal software site gets the traffic that Napster does. The insane explosion of Napster use, and its subsequent banning on several college campuses clearly shows that it’s led to music piracy that’s far different from software piracy. Given usage statistics, I think it’s difficult to argue otherwise.

• “Even if something is dubious, good could come out of it.” Idiotic argument. It could be used to justify torturing unbelievers until they acknowledge Christ. Some good could come out of it. But far more bad comes out of it. It’s clearly wrong.
• “Danny, if you’re going to rant about piracy and shutting down Napster, at least write something interesting and personal about it.” Curious. I believe he quoted me in saying “And I think this is ultimately bad for me.” It is bad because I believe it will harm the music industry, and then I won’t get to hear new artists, or marginally successful artists. I believe I alluded to some of this in the section that Mark himself quoted. So this remark confuses me. It’s just strange because it’s belittling, and like his other arguments, wrong. I did do what he asked. He quoted it. Clearly personal. And having raised multiple responses, clearly interesting.
• In regards to my own use of pirated Chinese VCDs, I won’t argue I’m a saint. But I believe Henry discusses this more eloquently than I could. With VCDs, however, I only bought what I could not get in America, legitimately or otherwise. When Titanic and Shawshank, 2 movies I bought on VCD in China, came out in the U.S. on DVD, I promptly bought them. Again, I won’t argue I’m a saint, but you could have picked a better example than VCDs, where I only got what I could not got here, and thus did not take from anyone’s business (I already had the Shawshank VHS). There are far worse examples. He chose the one that was least appropriate.
• Many artists are for Napster, he says. The numbers against are far greater than those for. Again, I refer to Salon. That means something.
• “It’s up to the individual artist to decide whether or not Napster is evil.” This makes no sense. The individual artist can do very little against Napster by itself. Their only recourse is to sue Napster, like Metallica, and Dr. Dre, and I think that’s what they should do. But this is far less effective than a lawsuit from music labels themselves. Without that, individual artists can’t do very much (as seen by the net effect Mettalica’s suit had), so really, the individual artist can’t do anything at all. They can decide it’s evil, but it’s absolutely impotent.
• “More should be spent on enforcement and education to combat piracy.” I agree. And part of this should involve shutting down means of piracy, which includes Napster. Otherwise, as I said, it’s almost as if piracy is legitimized. I don’t understand how this statement says we shouldn’t shut down’t Napster. Doing this would be likely cheaper and more effective than going after overseas pirates.
• “And yes, I do believe that Napster should change in some way. For instance, Napster should make it easier to search by genre, so that an unknown artist can use Napster as a distribution platform to get people acquainted with their work, as Napster likes to champion itself as.” Argh. That’s the whole point. Napster won’t do that, or respond to complaints by copyright holders, as Mark suggests. They just won’t, unless forced to legally. Similarly with MP3.com. That’s why legal recourse is the only option left, and the one I feel the music industry should shouldn’t shut down Napster, but instead Napster should do this. Napster won’t do it. Given that, that’s why the music industry has to move legally against Napster.
• I think there’s a fundamental po