<nettime> Significance of Napster Greatly Exaggerated

[Craig Brozefsky <craig@red-bean.com>]

Bruce Peren's recently posted an editorial on his Technocrats site
titles "Music Bootlegging with Napster Hurts Free Software" where he
rails against the 330,000 some users of Napster who were caught
trading copyrighted Metallica tunes, accusing them of bringing down a
totalitarian intellectual property regime which will destroy the Free
Software movement.

The conflict is rooted in Bruce's insistence upon some form of legal
protection for intellectual property.  His argument supporting this
position depends upon us granting him his wish that proprietary and
free software peacefully co-exist:

     "I believe that free software and proprietary software should
      peacefully coexist. But if you grant that proprietary
      intellectual property has a right to exist at all, some legal
      protection like copyright becomes necessary."

Free Software, in particular the GPL, takes advantage of the current
copyright regime, but does not depend upon it's existence at all.  If
copyright went away, then the GPL would no longer be needed.  Bruce
proposes a balance dependent upon the interpretation and execution of
copyright law with public interest on one side, and the interests of
the IP owners on the other.

Such a balance sounds nice, but when one considers who, or rather
what, the largest owners and exploiters of intellectual property are,
and the control which they exert over the legal and judicial systems,
we see that any balance would be unstable and virtually guaranteed to
degenerate into something like the present situation with the DMCA and
UCITA.  It is this tendency which Bruce fears, because it narrows the
space within which Free Software can operate.  Bruce's personal
dedication to Free Software makes this threat a serious issue for him.

The problem I have with Bruce's argument is that because he is
unwilling to look at the real cause of the problem, the intellectual
property regime in general, he is instead forced to find a scape
goat. Something is needed to explain why the IP regime is failing to
consider the needs of users, something external the IP regime, because
he insists that the regime itself must be preserved.  So along come
330k kids swapping heavy metal and it's obvious that THESE are the
reason why the copyright regime threatens to destroy Free Software's
ability to "compete" in the software market:

     "But in this case the 330,000 kids are stealing, and the
      popularity of this form of theft won't ever make it right. The
      kids, and their parents, should be pursued. The people who make
      Napster, by taking no stand against having their products used
      for bootlegging, have made themselves accomplices."

If we forget our history and accept Bruce's faulty causal argument we
may well conclude that mp3 traders and software pyrates (say it with
pride muthafucka), do indeed serve as anecdotal evidence in support of
the IP industries position.  But any sustained examination of the
economic losses they incur reveals that these losses are largely
imaginary.  Stuck with a need for a fall guy, Bruce has to legitimize
a faulty argument that his real opponents deploy daily.  This does not
seem to be a sound strategy.

Let us examine history tho.  The DMCA grew out of the WIPO Copyright
Treaty which was ratified in December of 1996. The "Sony Bono
Copyright Extension Act"(S.505) has direct roots back to S.483 in
1995.  MP3.com was not incorporated until March of 1998, and Napster
came even later (it originated out of Shawn Fanning's frustration with
mp3.com and other mp3 search engines).  So it seems that the most
egregious legal attacks on the interests of the public started years
before there was any considerable level of mp3 bootlegging taking
place online.  The assertion that Napster bootlegging hurts Free
Software has no basis in historical fact.

-- 
Craig Brozefsky                      <craig@red-bean.com>
Free Scheme/Lisp Software  http://www.red-bean.com/~craig
"Hiding like thieves in the night from life, illusions of 
oasis making you look twice.   -- Mos Def and Talib Kweli

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