WHY METALLICA SUED NAPSTER

By HOWARD KING
[Naspter Feels the Law]

At this moment, all around the world, hundreds of thousands of people are breaking into record stores and stealing CDs and tapes. Or they might as well be.

The people I'm talking about are using software called Napster, which can be downloaded for free off the Internet. As even the least Web-savvy people probably know by now, Napster allows music fans to swap their favorite songs over the Internet without paying a penny to anyone. Here's how it works: the songs are stored not on CD or tape, but in what is called MP3 compression format, and saved on a computer user's hard drive in the same way as, say, a Microsoft Word file. Napster users can search for music in MP3 format on the computers of other Napster users anywhere on the planet, either by song title or artist name, and then download the music onto their own computers. As one Napster user downloads songs to her computer, other users may duplicate the songs that are currently stored on her computer's hard drive. What it all amounts to is a colossal CD copying party.

But this party has to end now, because it blatantly violates federal copyright laws. The major record labels, with the assistance of the Recording Industry Association of America, sued in December to block Napster from allowing the illegal copying and distribution of copyrighted songs. This is not a case with tough legal issues, and Napster doesn't dispute what the law says. The company merely claims that they should not be liable for their participation in the scheme. They take the see-no-evil approach that the millions of users who have flocked to Napster are the only ones who should face liability for this massive copyright infringement free-for-all. But this disingenuous position ignores the facts. The entire reason for Napster's existence, and the way it is used 99 percent of the time, is to pirate music. The court hearing the case has already sided with the record labels on certain issues, ruling recently that Napster is not a "mere conduit" of information (the way, say, a phone network is) and that Napster has not taken adequate steps to block "repeat offenders" from using the site.

For the first several months of the record labels' lawsuit, the artists themselves were relatively quiet, in part because they obviously risked angering their fans who -- loyal though they may be -- couldn't seem to get enough of a free thing. Metallica saw the need for a major artist to take a stand and address the effect that Napster, left unchecked, would have on the rights and well-being of all those who write and record music. As James Hetfield, Metallica's lead singer, said, "There has to be someone who steps up and represents musicians." So recently, I joined Lars Ulrich, Metallica's drummer, in delivering to Napster the screen names of over 335,000 people who have pirated Metallica's music using Napster. We demanded that Napster prevent those people from copying any more of Metallica's works. Metallica was well aware that fans might not react well. "If this were a popularity contest," Ulrich said, "we might not have done this."

On May 10th, Napster claims it took steps to halt more than 317,000 of the users we identified from using Napster. The company publicly blamed Metallica for depriving its "fans" of Napster, and invited them to seek reactivation of their accounts by claiming they were "mistakenly" named by Metallica. The company says it has the technology to ensure that those users who did illegally copy Metallica's music cannot sign up with Napster under different names, although time will tell if those blocked users can find a way to join up again. I suspect it won't be all that difficult for them to do so, and it certainly won't be hard for a banned user to submit an e-mail requesting reinstatement. In the meantime, of course, new Napster users are likely downloading Metallica's music even as you read this.

In short, Napster's most recent move is not a permanent solution. Rather, it's a misguided attempt to divert attention from Metallica's suit against Napster by portraying the issue as one of artists against fans. A more permanent, litigation-free solution would be for Napster simply to eliminate Metallica songs from its directory. This would make the entire public circus over banning users unnecessary.

Metallica has challenged Napster not only because they are outraged that their recordings are being duplicated and distributed without their consent. Metallica also wants to support the many less prominent artists who are unable to fight Napster or any other corporation trying to undermine their art and well-being. Thousands of artists depend on record royalties to survive, to support their families and to create more new music. Napster takes royalties from these artists. It shouldn't come as a surprise that most musicians can keep going only if people actually buy their music, as opposed to getting it free from Napster -- and for every wildly successful band like Metallica, there are thousands of artists who are barely able to get by. Left unchecked, Napster threatens the livelihood of every writer and musician. And except for the most established artists, Napster will also eliminate the funding from record labels needed to pay the significant costs of making and marketing new records. The irony of this all is that Napster could lead to a future with far less music, rather than more.

There's another problem. Napster usurps artists' ability to control the quality of what is released to the public. Metallica recently recorded six different versions of the song, "I Disappear," for the soundtrack of the movie Mission Impossible 2. These were works in progress, never meant to be publicly released. When all six versions became available to Napster users, Metallica was shocked. The band had worked extremely hard to produce a single, finished work under the title "I Disappear" -- but instead, the public has gotten a half-dozen variations that don't necessarily express the band's vision of the song.

Metallica has always been generous with its music. Unlike most bands, Metallica has always allowed, and still allows, fans to record live concerts and trade those recordings in any format, including MP3. Metallica has also chosen on several occasions to provide free concerts and to stream albums and live concerts over the Internet for free. In addition, Metallica's Web site features free samples of the band's work, at www.metallica.com. But giving away the band's music in these instances has been strictly Metallica's choice, as well it should be.

The bottom line is that using Napster to distribute copyrighted music is stealing, and while Napster may have blocked a few hundred thousand users from doing so, the looting is going to continue. Just because fans think they can hide behind technology to take what isn't theirs doesn't change the moral or legal implications of what they are doing. Will Metallica lose fans over the stand they have taken? Perhaps. But Napster proponents who see no issue with downloading an artist's album for free should ask themselves if they would accept working for a year without getting paid. Metallica's true fans will support the band against Napster.


Howard King is a partner in King, Purtich, Holmes, Paterno & Berliner, a Los Angeles law firm specializing in intellectual property and the representation of musicians.

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